Dr. Chief J.A.N. ELUKPO -VS- DR. OLATUNDE OLADEJIALABI & 7 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

Dated this 10th day of December, 2018

SUIT N0: NICN/ABJ/12/2018

BETWEEN:

Dr. Chief J.A.N. ELUKPO ………………………………………………………………………..……………Claimant

And

1. DR. OLATUNDE OLADEJIALABI

(MEDICAL DIRECTOR, FMC. LOKOJA)

2. FEDERAL MEDICAL CENTRE, LOKOJA

3. BOARD OF MANAGEMENT FMC. LOKOJA

4. FEDERAL MINISTRY OF HEALTH, ABUJA

5. FEDERAL CHARACTER COMMISSION. ABUJA

6. FEDERAL CIVIL SERVICE COMMISSION.ABUJA

7. THE FEDERAL ATTORNEY GENERAL AND MINISTER OF JUSTICE.

ABUJA.

8. THE HEAD OF CIVIL SERVICE OF THE FEDERATION……………………..Defendants

Representations:

Dr. Chief J.A.N. Elukpo for the Claimant

C.P. Ocheja with E.A. Mejabi for 1st – 3rd Defendants.

A.A. Shamaki for the 4th Defendant

Chindo Usman for the 6th Defendant and

Hamidu Bashir with Adebola Odugbesan for the 7th and 8th Defendants.

Judgment.

This suit was originally commenced by an originating summons filed on the 8th of May, 2018 against the first seven Defendants. Upon the addition of one more defendant, an amended copy was filed on the 1st of June 2018. The originating summons seeks for the determination of two questions to wit:

1. Whether having regards to the provisions of chapter 2 of public service Rules, 2009 and part II of the Guidelines for Appointment, Promotion and Discipline, issued by the 6th Defendant, Revised 2008. Section 153(1) (d) and paragraph 11 (1) (a) of the 3rd Schedule of (sic) Constitution of the Federal Republic of Nigeria, 1999 (as amended); the prescribed procedures were followed by the 1st Defendant in the purported private employment of about 88 (eighty eight) people, that resumed work on 01/03/2018, in the 2nd Defendant without advertisement and interview?

2. WHETHER the action of the 1st Defendant is not evidence of incompetence, a flagrant violation of due process, beyond the powers vested on him, an abuse of power and corruption which has ravaged the 2nd Defendant over the years unabated to date, for which the other defendants/appropriate bodies have failed or relegated in their responsibilities, to check, despite repeated petitions/whistle blowing to that effect.

Upon the determination of these questions, the Claimant seeks the following reliefs:

(a) An order of mandatory injunction compelling the removal of the 88 people employed by the 1st Defendant without advertisement and interview for which the other Respondents were silent over same.

(b) AN ORDER removing the 1st Defendant as M.D. of FMC Lokoja for incompetence. He was the 13th in the hierarchy of Doctors before the 12 others were jumped to appoint him. Now he has to make fraudulent and illegal appointments to satisfy such people and to silent them over his inadequacies and incompetence.(sic)

(d) AND FOR SUCH ORDERS or further other orders as the Honourable Court may deem fit to make in the circumstances of this case.

The Originating summons was accompanied by a 6 paragraphed affidavit deposed to by one Josiah Lerama and a written address.

In reaction to the originating summons, the 1st to 3rd Defendants on the 18th of July 2018 filed a memorandum of conditional appearance, 16 paragraphed counter affidavit deposed to by Olatunde Oladeji Alabi and a written address. The 4th Defendant also responded by filing on the 18th of July, 2018 a 10 paragraphed counter affidavit deposed to by A.A. Shamaki and a written address. The 6th Defendant on his part entered conditional appearance and filed on the 3rd of May, 2018 a counter affidavit of 9 paragraphs deposed to by Bilkisu B. Omade and a written address. The opposition of the originating summons by the 7th and 8th Defendant was by the filing of a conditional appearance along with a 5 paragraphed affidavit deposed to by one Ogonor Elemchi and a written address.

The Claimant also filed a 5 paragraphed further affidavit on the 17th of July, 2018 which was deposed to by the same Josiah Lerama and then a reply to the address of the Defendants.

While the above sums up the processes filed in respect of the originating summons, the 4th and 6th Defendants in this case filed separate Preliminary Objections and it is axiomatic that this court considers the preliminary objections before addressing the questions raised in the originating summons.

The objection of the 4th Defendant which was filed on the 18th of July, 2018 was brought pursuant to ORDER 17 RULES 1 (9), ORDER 18 RULES 2 (1). 15 RULES 1 (1) and ORDER 13 RULES 14 (2) of the National Industrial Court Rules 2017 and the following reliefs were sought:

1. An Order of this Honourable Court striking out the suit with suit No NICN/LKJ/1 2/2018 for want of jurisdiction.

2. And for such Order or other Orders as this Honourable Court may deem fit to make in the circumstance.

The grounds upon which the reliefs were sought are:

1. The 4th Defendant/Applicant sued is not a juristic person.

2. This suit does not disclose any reasonable cause of action against the Defendants.

3. The Claimant has no locus standi to maintain this action.

The notice of preliminary objection was supported by 10 paragraphed affidavit deposed to by A.A. Shamaki and a written address.

Arising from the written address, counsel to the 4th Defendant A.A. Shamaki formulated a lone issue for determination to wit:

Whether this Honourable Court has the jurisdiction to entertain this suit.

In arguing the lone issue, counsel contended that the 4th Defendant, Federal Ministry of Health, Abuja in this suit is not a legal person as it does not exist as a creation of any law therefore it can neither sue nor be sued. Counsel cited the case of AMUCHIENWA VS UNITY BANK PLC (2012) ALL FWLR PT 657 PG 673 AT PP 705-706 PARAS II — A and urged the court to so hold.

Counsel further posited that from the pleadings of the Claimant, the cause of action for which the Defendants are being sued before this court cannot entitle him the relief sought. Counsel cited the case of IKEJA HOTELS PLC VS LAGOS STATE BOARD OF INTERNAL REVENUE (2005) ALL FWLR PT 279 AT PG 1265— 1266 on what is a reasonable cause of action and urged the court to hold that there is no reasonable cause of action. Counsel also cited the case of NWORGU VS. NIGERIA LNG LIMITED (2005) ALL FWLR PT 280 AT PG 1597 to posit that the contents of a statement of claim simply state where, how and why a wrong was done to a party and if a statement of claim fails to state that the wrong was done to the Claimant, its beauty and function diminishes and results in nothing.

Counsel also cited the case of JEMIDE VS. NWANNE (2008) ALL FWLR PT 430, 626 PG 752 AR 756 to posit that where a case discloses no cause of action, the option open to the defendant is to apply to the court to dismiss the suit.

Furthermore, counsel argued that it is trite that for a person to institute a case in court, he must have the legal capacity to do so and there must be sufficient connection between the cause of action and relief sought. Counsel cited the case of ADEKUNLE VS. ADELUGBA (2013) ALL FWLR PT 675 PG 345- 347 PARAS C-D on the meaning of locus standi. Counsel added that a Plaintiff will have locus standi in a matter only if he has special interest or alternatively, if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where the interest is adversely affected.

Counsel cited the cases of A. G. ADAMAWA & ORS VS A. G. FEDERATION (2006Y) ALL FWLR PT 299; PG 1479 PARA E, OPOBIYI VS MUNIRU (2013) ALL FWLR PT 661 PG 1546 AND ADEGBESAN VS. R. T. CMG.M (2013) ALL FWLR PT 662 PG 1809 AT 1812 and maintained that in the instant case and from the pleadings of the Claimant, he has not met the factors stipulated by the court in the cases cited and therefore cannot be said to have locus standi to maintain this action.

Counsel also posited that the lack of locus standi means the suit lacks competence and such is a fundamental vice that goes to the jurisdiction of the Court. He cited the case of NWORGU VS. NIGERIA LNG LIMITED (2005) ALL FWLR PT 280; PG 1594 — 1595.

Counsel concluded by urging the court to strike out this suit on the basis that the Court lacks jurisdiction.

On the part of the 6th Defendant, the notice of preliminary objection filed on the 3rd of May, 2018 was brought pursuant to ORDER 17 RULES 1(9), ORDER 18 RULES 2(1), 15 RULES 1 (1) and ORDER 13 RULES 14 (2) of the National Industrial Court Rules 2017 and seeks the following orders:

1. That this Honourable Court lack the jurisdiction to hear and determine this suit on the ground that the 6th respondent has no locus standi to appear in the suit.

2. An order striking out the name of the 6th respondent on the ground of Misjoinder.

3. An order striking\Dismissing the entire suit on ground that the claimant has no locus standi to institute the suit.

4. An order striking out \ Dismissing this suit on the ground that the claimant has failed to disclose any cause of action against the respondents.

The notice of preliminary objection was supported by a written address wherein counsel to the 6th Defendant, Chindo Umar, formulated four issues for determination to wit:

(1) Whether by virtue of the constitutional mandate and function of the 6th respondent he has the locus standi to be a party in this suit.

(2) Whether the 6th respondent has sufficient interest in the subject matter of this suit so as to warrant joining him as a party in this suit.

(3) Whether from the entire claim and affidavit in support the claimant has disclose sufficient interest so as to crown the claimant with the (legal capacity) locus standi to institute this action.

(4) Whether the claimant has disclosed any cause of action against the respondents to give the court the jurisdiction to hear and determine this suit.

In arguing issue one and two together, counsel submitted that section 153 and 169 of the 1999 Constitution created and established the Federal Civil Service Commission, however the composition, powers and mandate of the commission is contained in the third schedule part 1 (d) of the 1999 Constitution. Counsel also cited Section 170 of the 1999 Constitution to posit that the Federal Civil Service Commission may, with the approval of the President and subject to such conditions as it may deem fit, delegate any of the powers conferred upon it by this Constitution to any of its members or to any officer in the civil service of the Federation.

In addition, counsel cited section 160 of 1999 Constitution to assert that it was pursuant to the section of the Constitution that the Commission with the approval of the President promulgated the Public Service Rules 2008 wherein the Commission delegated its powers and mandate of appointment and disciplinary actions in agencies and parastatals of government to the Board of the respective Agencies which includes the 2nd Defendant. He cited Section 160201 and Section 160301 of the Public service rules to that effect.

Upon citing the sections, Counsel asserted that it is clear that the mandate and function of the Commission in so far as parastatals and Agencies of the Federal government is concerned, has been delegated to the Board of such Agencies and parastatals and this include the Federal Medical Center lokoja and accordingly, the Federal Civil Service Commission lacks the legal capacity to be sued in this case and has no locus standi to appear in this suit.

Counsel cited the case of MUSACONI LTD VS ASPINAL (2014) ALL FWLR, PART 710 AT 1295 PAGE 1276 to assert that the court will have no jurisdiction where either the party suing or the party sued has no locus standi and added that in the present case the question is whether the 6th Respondent has sufficient interest based on its constitutional mandate to be sued for an issue that is solely within the function of the 2nd and 3rd Respondent. He cited the case of De-Jese (Nig) Ltd Vs Wema Sec & Fin plc 2014 All FWLR Pt. 710 pg. 1408 at 1417. He also cited the case of Olawoye Vs Jimoh 2014 All FWLR pT 718 pg 914 on who a necessary party is and urged the court to strike out the 6th Defendant from this suit.

In arguing issue 3 and 4 together, counsel cited the case of OPIA Vs INEC 2014 All FWLR Pt 739 pg 1045 at 1063, to contend that a cause of action is determined by reference to the plaintiff’s statement of claim. He also cited the case of Daily Times of Nigeria plc. Vs. D.S.V Ltd. (2014) All FWLR Pt 713 pg 1978 at 2002 on the meaning of cause of action. Counsel also cited the same case to expose the legal concept of locus standi and then submitted that from the above legal position of the law, the claimant is either a busy body or the action is mere academic exercise which this court has not got the luxury to entertain. In addition, counsel cited the case of OKEDEYI VS GOVERNOR LAGOS STATE (2014) ALL FWLR PART 734 PAGE 150 AT 187 to posit that it is trite law that for a person to bring an action in respect of any subject matter, such a person must show that he has a legal right or special interest in that subject matter.

Counsel submitted in conclusion that in the present case, the claimant has totally failed to disclose his interest or injury he sustained or he will sustain as regard to the subject matter of this suit. He urged the court to grant the prayers in the preliminary objection.

By way of reaction, the Claimant merely filed a reply to the preliminary objection of the 4th Defendant without more. Arising from the reply, counsel to the Claimant J.A.N Elukpo contended that the 4th Defendant can be sued. He cited the case of Federal Medical Centre Ido Ekiti & Ors v Shuaib Adewole Alabi (2012) 2 NWLR (pt. 1285) 411 at p. 453 paras ENH.

Counsel also contended that the Claimant has shown in the suit the cause of action against the 4th Defendant and others. He cited the case of Alhaji Madim Abubakar v. Bebejo Oil & Ailed Product Ltd & Ors (2007) 2 SCNJ 170 upon which counsel posited that the 4th Defendant is the supervisory body of the 2nd Defendant and if there is a reasonable action against the 2nd Defendant, then there is a direct cause of action or by extension, against the 4th Defendant.

On whether Claimant has locus standi, counsel contended that the Claimant is a Social Engineer, whose oath of office as a Lawyer promotes and fosters Justice in the interest of society. He added that Lawyers must be vanguards of justice and challenge corruption and that the Freedom of Information Act 2011, Whistle Blowing Law and Executive Order 6 of 2018 permits the Claimant to challenge actions of this nature. He concluded on the issue that based on the foregoing, the Claimant has locus Standi in the suit.

Counsel in conclusion urged the Court to dismiss the Preliminary objection of the 4th Defendant and do substantive justice in this matter.

I have reviewed the forgoing and I must state that it is pertinent for this court to foremost resolve the preliminary objections which are in relation to the jurisdiction of this court on this suit before proceeding to the issues in the substantive suit. The 8th Edition of Black’s Law Dictionary at page 1218 defined preliminary objection to mean “an objection that if upheld would render further proceedings before the Tribunal impossible or unnecessary”. In the same vein, the court in EXECUTIVE GOVERNOR OF OSUN STATE v. FOLORUNSHO (2014) LPELR-23088(CA) stated the usual objective of a preliminary objection when it held that:

“There is no doubt that the objective of preliminary objection is to terminate a case at the preliminary stage. That is to say that it is only issues that are free from any known legal handicap that should go to trial. See Yaro v. Arewa Construction & Ors. (2007) 6 SCNJ 418.” Per DENTON-WEST, J.C.A. (P. 22, paras. D-E).

In addition, the court in Manson v. H.E.S. (Nig.) Ltd (2007) ALL FWLR (Pt. 358) 1067 at 1094 Paras.E – G (CA) stated the purpose of a preliminary objection when it held that:

“A preliminary objection seeks to determine a bad process in limine upon grounds of law and thereby saves all the parties involved in engaging in a futile exercise.”

In view of the foregoing, I have considered the notice of preliminary objections, the grounds upon which the objections were brought, the reliefs sought, the issues raised by and arguments of counsel to the 4th and 6th Defendants in their written addresses and the reply of the Counsel to the Claimant to the address of counsel to the 4th Defendant. Consequently, I find that the issues for the determination of the preliminary objections are to wit:

Whether or not the 4th and 6th Defendants are misjoined for the purpose of this suit.

Whether or not the Claimant has the locus standi to institute this suit.

In resolving issue one, I must foremost bring to the attention of counsel to the 4th and 6th Defendants that the misjoinder of a party cannot ground the proceedings by robbing the court of jurisdiction especially where there are other parties who can sustain the continuance of the proceeding. This position of the law has been settled in plethora of cases. With regards to having more than one defendant, the court in USUAH V. G.O.C. NIGERIA LTD. & ORS. (2012) LPELR-7913(CA) held that:

“in actions where there are more than one plaintiff and more than a single defendant, the lack of competence of any one of them to sue or be sued, would not simpliciter affect and defeat the competence of the action on ground of want of proper parties. Such situations are called misjoinder of parties which involves joining competent and incompetent or necessary and unnecessary parties in an action… See also OKOYE V. N.C. & F. CO. LTD. (supra) SAPO V. SUNMONU (2010) 3 – 5 SC (II) 130; OSONDU & CO. LTD. V. BONCH (NIG.) LTD. (2002) 3 SC, 42 at 61.” Per GARBA, J.C.A (Pp. 14-15, paras. G-F).

With regards to the effect of misjoinder on a suit, the court in the case of AJAOKUTA STEEL COMPANY BOARD OF TRUSTEES OF STAFF PENSION SCHEME V. ROLE & ORS (2012) LPELR-7884(CA) held that:

“The current position of the law is that non-joinder or misjoinder of party or parties will not defeat any proceedings by divesting a court of its jurisdiction to adjudicate over them because such party or parties can be included or excluded by the adjudicating court in keeping with its relevant rules. In the case of Anyanwoko V. Okoye (2010) 5 NWLR (Pt. 1188) 497 at 515 – 516, Tabai JSC stated…The non-joinder or misjoinder of a necessary party is only a procedural irregularity which can be corrected in the course of the proceedings by recourse to the relevant Rules of Court and does not in any way affect the jurisdiction of the court or competence of the suit. See, also, Okoye V. Nigerian Construction & Furniture Co. Ltd (1991) 7 SCNJ (Pt. II) 365; Bello V. INEC (2010) 8 NWLR (Pt. 1196) 342; Sapo V. Summonu (2010) 11 NWLR (Pt. 1205) 374; Iyere V. B.F.F.M Ltd (2008) 18 NWLR (Pt. 1119) 30.”PER OGBUINYA, J.C.A. (P.25, Paras. B-G).

It was also authoritatively held in the case of CROSS RIVER STATE NEWSPAPER CORP. V. ONI (1995) 1 NWLR (371) 270 that:

“It is a settled principle of law that non-joinder or misjoinder of parties will not be fatal to an action and no proceedings shall be rendered null and void for lack of competence or jurisdiction simply because a plaintiff joins a party who ought not to have been joined.

In the instant case, I must state that there are 8 defendants and where the 4th and 6th are indeed misjoined, the six other defendants can sustain the continuance of the proceedings. Therefore the jurisdiction of this court shall not be affected by the legal capacity, presence or absence of the 4th and 6th Defendants.

Having said that, I shall therefore proceed to determine whether or not the 4th and 6th Defendants have been misjoined in this suit before I proceed to resolve other issues.

In so doing, I reckon the fact that the 4th and 6th Defendants want themselves out of this suit as they consider themselves legally unfit for this suit. Counsel to the 4th Defendant had contended that the 4th Defendant, the Federal Ministry of health is not a legal person as it does not exist as a creation of any law.

Counsel to the 6th Defendant on his part contended in highlight that since the 6th Defendant i.e. Federal Civil Service Commission that was created under the Constitution had delegated power to the 2nd Defendant through the Public Service Rules to appoint and discipline and having so delegated same to the Board of the 2nd Defendant, it lacked legal capacity and locus standi to be sued in this case.

Counsel to the Claimant proffered no argument in opposition of the contention of counsel to 6th Defendant since he did not file any process in opposition to the preliminary objection of the 6th Defendant but in respect of the 4th Defendant, counsel to the Claimant simply maintained that the 4th Defendant can be sued.

In resolving the contention, starting with the 4th Defendant, I should point out that the 4th Defendant is a Federal Ministry of the Federal Republic of Nigeria functioning upon its establishment by the President pursuant to section 147 of the Constitution of Federal Republic of Nigeria 1999 (as amended) which provides that:

“There shall be such offices of Ministers of the Government of the Federation as may be established by the President”.

The Federal Ministry of Health, 4th Defendant, is one of such ministries that have been created pursuant to the highest law and grund norm of this country.

In addition to section 147 of the Constitution, the National Health Act, 2014, an Act of the National Assembly of Nigeria as the Highest Law Making Body, has also reckoned with the creation of the Federal Ministry of Health as section 1 (1) establishes the National Health System which incorporates the Federal Ministry of Health under subsection (2). In addition, section 2 (1) stipulates the functions of the Federal Ministry of Health.

In view of the foregoing, I find that it is erroneous for counsel to the 4th Defendant to to assert that the 4th Defendant is not a creation of the law and has no legal staus.

I must state that I reckon that the functions of the 4th Defendant stated in the National Health Act does not include institution of a suit or defending same, that notwithstanding does not rob the entity of a legal status to sue or be sued in respect of matters in the health sector.

I must also add that the list of personality to be clothed or already clothed with legal personality is not exhaustive and in view of the fact that the 4th Defendant carries out administrative functions which affects third parties, it is right to cloth same with legal status to sue and be sued even without a specific statute giving it such power or function.

This much have been given judicial impetus in several cases including the case of THE HON. MINISTER OF DEFENCE & ORS v. MRS. ETTA BASSEY EPHRAIM (2014) LPELR 24245 (CA) where the court held that:

“As earlier on stated in the course of this judgment, it is even the law that the Court can accord the status of a legal personality to an entity or office where the body or office made no provision to that effect, In Nkporinwi vs. Ejire (supra) the Court held that: “It is well settled principle of Law that the major jural entities or units to which the Law usually ascribes legal personality are: I. Human beings (Natural Persons). II. Companies incorporated under the various companies Acts. III. Corporation sole with perpetual succession. IV. Trade Unions V. Partnerships and VI. Friendly societies Undoubtedly, the list of the said categories of legal personae is not exhaustive. As well, Courts may, in the course of exercise of their interpretative discretionary powers, add to that list if the justice of any given case so dictates”.

It is instructive to note that the 4th Defendant has successfully instituted cases and defended some such as that in the case of FEDERAL MINISTRY OF HEALTH v. THE TRADE UNION MEMBERS OF THE JOINT HEALTH SECTORS UNIONS & ORS (2014) LPELR-23546(CA).

On who can be accorded legal personality in law, the court in Kwage & Ors v Sharia Court Gwandu & Ors (2017) LPELR 42508 (CA) held that:

“The concept of juristic personality or legal person is now central to every legal system. A juristic person is the bearer of rights and duties simpliciter and has nothing to do with whether he is a natural person or not. But who is given legal personality in law? A juristic person may be a company or a firm or some governmental agency or body for example. In other words, juristic persons are entities other than human beings and on which the law bestows subjectively… As juristic persons, they are so called because it is the law that accords them that status and as artificial persons created by the law, they can sue and be sued in their own names”

It is also noteworthy that once a body is conferred with statutory duties, it becomes imperative to confer such bodies with capacity to sue and be sued. The Supreme court per Brett JSC held interalia in the case of Andrew Thomas v Local Government Services Board thus:

We reject the submission that a statutory body with functions like those of the Local Government Services Board is not liable to be sued for declaration and we do so more readily since the statutory provisions relating to the Appellant’s office are such that injustice might result if the Board could not be made a Defendant to any kind of proceeding”.

In resolving similar issue in the case of TONY ANOZIA v. THE ATTORNEY GENERAL, LAGOS STATE (2010) LPELR-3778(CA), Saulawa JCA had this to say:

“It is generally accepted that, bodies created under the constitution and duly conferred with certain statutory powers and duties are juristic persons, even though not expressly so designated”.

In essence, what this translates to is that very often than not, legal personality is usually implied in the activities of bodies or persons in order to obviate potential injustice.

It is therefore reasonable to imply that the Federal Ministry of Health, in the discharge of its functions will exercise the rights of legal person and will, if the nature of the duty discharged involved, be liable to be sued in court i.e. possesses juristic personality.

With this background, I am unable to agree that the 4th Defendant is not clothed with the requisite juristic personality in the circumstances of this case and I so hold.

With respect to the 6th Defendant, counsel to the 6th Defendant conceded to the fact that the 6th Defendant is a creation of the Constitution therefore it would be unnecessary to dissipate time in that regard. The most poignant of the contention is that the 6th Defendant does not have sufficient interest to be sued having delegated its constitutional mandate to the 2nd and 3rd Defendants.

I find the argument of counsel to the 6th Defendant in this regard to be a misconception. As rightly captured by learned counsel, the 6th Defendant, by Part D, section 11 (1) (a) and (b), third schedule to the Constitution, have the power:

to appoint persons to offices in the Federal Civil Service; and

to dismiss and exercise disciplinary control over persons holding such offices.

Although the power may have been delegated by virtue of the provisions of section 160201 and 160301 of the Public Service rules, the delegation does not in any way divest the 6th Defendant of its constitutional power to appoint or dismiss. see Chime v. Chime (2001) 3 NWLR (Pt.701) 527. The provision of Public Service Rules does not extinguish the legal capacity of the 6th Defendant nor erase its creation by the Constitution particularly in view of the fact that the Constitution is Supreme and its provisions are binding on all authorities and persons. See section 1 (1) and (3) of the CFRN 1999 (as amended). Also, where the 6th Defendant’s delegatee exercises the delegated power, there is nothing precluding the delegator from answering to the exercise of such power along with the delagatee. In fact, it is even more appropriate in law to sue the principal when an agent (delegatee of power) has acted for a disclosed principal (delegator of power). The court stated in the case of UBA PLC v. OGOCHUKWU (2014) LPELR-24267(CA) that:

“It is trite that the proper party to sue and be sued when an agent is acting within the scope of his authority for a disclosed principal, is the principal and not the agent. See CARLEN NIG LTD V UNIVERSITY OF JOS (1994) 1 NWLR (PT 323) 631.” Per OBASEKI-ADEJUMO, J.C.A (P. 43, paras. B-C).

Having said that, I must add that the words of a statute must be given their ordinary meaning so long as they do not bear any ambiguity and require no expansion. The court in Tegwonor v. State (2008) ALL FWLR (Pt.424) 1484 at Pp. 1504 – 1505, paras G – B held that:

“Words used in the statutes must be given their ordinary and plain meanings. You do not import into a clause what is obviously not there. For the purposes of construction, the context of words which are to be construed includes not only the particular phrase or section in which they occur but also the other parts of the statute. Then a statute should be construed as a whole so far as possible so as to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other parts of the statute. The literal meaning of a particular section may in this way be extended or restricted by reference to other sections and to the general purview of the statute. See Awolowo v. Shagari (1979) 6 – 9 SC 51, (2001) FWLR (Pt. 73) 53; Fasakin v. Fasakin (1994) 4 NWLR (Pt. 340) 597; Halsbury’s Laws of England , volume 36 page 395 at paragraph 594; Alamieyeseigha v. Igoniwari (2007) All FWLR (Pt. 388) 1057, (2007) 7 NWLR (Pt. 1034) 524; Ekpo v. Calabar Local Government (1993) 3 NWLR (Pt. 281) 324.” Per Ibiyeye JCA.

Consequent upon the above authorities, the statutes cited by learned counsel says nothing about divesting the 6th Defendant of its legal capacity to be sued due to the delegation of power therefore this court is in total disagreement with counsel to the 6th Defendant that the delegation of power to 2nd and 3rd Defendant robs the 6th Defendant of locus standi and legal capacity for the purpose of this suit.

Having clothed the 4th Defendant with juristic personality for the purpose of this suit and having found that the 6th Defendant does not in any way lose its constitutional legal status, I must state that I find the joinder of the 4th and 6th Defendants in this suit to be proper.

In addition, a quick glance at the originating summons reveal that the suit before this court has to do with the employment of 88 (eighty-eight) people into the 2nd Defendant Hospital which the Claimant is dissatisfied with. In view of this, I find that the 4th Defendant is in charge of the health sector of the country including the supervision and control of Federal hospitals including the 2nd Defendant while the 6th Defendant is in charge of employment into the federal civil service which is the core of this suit as the said 88 people were employed into the federal civil service.

In view of the forgoing, I must state that the 4th and 6th Defendants may not be particularly necessary for the determination of this suit, but they are properly joined as proper parties. The court in LAWAL v. FED. MINISTRY OF ENVIRONMENT & URBAN DEVELOPMENT & ORS (2011) LPELR-9259(CA) said thus in respect of proper parties:

“Proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons.” Per OKORO, J.C.A. (P.10, Paras.F-G)

Consequently, issue one is resolved in favour of the Claimant to the effect that the 4th and 6th Defendants are not misjoined for the purpose of this suit and the prayers to have their names struck out is accordingly refused.

I then turn to issue two, “which is whether or not the Claimant has the locus standi to institute this suit”. With respect to this issue, counsel to the 4th Defendant contended that for a person to institute a case in court, he must have the legal capacity to do so and there must be sufficient connection between the cause of action and the relief sought.

Counsel contended that the Claimant has no locus standi to sue and that is a fundamental vice affecting the jurisdiction of this court. Counsel to the 6th Defendant on his part made similar argument although with different authorities. He added that “from the legal position of the law, the Claimant is either a busy body or the action is a mere academic exercise which this court has not gotten the luxury to entertain”.

Counsel to the Claimant on his part responded that the Claimant is a social engineer whose oath of office as a lawyer is to promote and foster justice in the interest of the society. He added that the Freedom of Information Act 2011, Whistle Blowing Law and Executive Order 6 of 2018 permits the Claimant to challenge actions of this nature and consequently, he has locus standi.

In resolving the contentions, I must state from the onset that unlike issue one, the determination of this issue of locus standi touches on the jurisdiction of this court. There is only one claimant in this suit and the locus standi of the said Claimant is being challenged. Therefore, where it is found that the Claimant lacks the locus standi to institute this suit, same would rob this court of jurisdiction.

It is imperative to restate that this suit was commenced by an originating summons supported by facts deposed in an affidavit while the courts have restated the processes to be put into consideration to determine the locus standi of a party. In the case of Disu v. Ajilowura (2006) 7 S.C. (Pt.II) 1 the Supreme Court held that:

“This court has consistently held that in the determination of locus standi, the plaintiff’s Statement of Claim should be the only process that should receive the attention of the court. It is the cynosure of the exercise. I will take only two cases. In Adesokun v. Prince Adegorolu (1977) 3 NWLR (pt.493) 261, this court held that in order to determine whether a plaintiff has locus standi or not, it is the Statement of Claim that one looks at. It is a well-established principle of law that a defendant who challenges in limine the locus standi of the plaintiff is deemed to accept as correct all the averments contained in the plaintiff’s Statement of Claim. In Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 6 S.C. (pt.II) 60; (2000) 10 NWLR (pt.675) 315, this court held that the question whether or not a plaintiff has locus standi in a suit is determinable from a totally of all the averments in his Statement of Claim. Thus, in dealing with the locus standi of a plaintiff, it is his Statement of Claim alone that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed his interest and how such interest has arisen in the subject-matter of the action.” Per Tobi, J.S.C. (Pp.37-38, Paras.B-A).

In more related terms, the court in EHIRIM v. GOVERNOR OF IMO STATE & ORS (2014) LPELR-24359(CA) held that:

“In order to find out if the Appellant has locus Standi or standing to institute the action herein, recourse must be had to the reliefs on the Originating Summons and the facts deposed to by him in the supporting Affidavit to the Originating Summons”.

In view of the forgoing and in line with the holding of the court in the case of DAUGHTERS OF DIVINE LOVE CONGREGATION & ORS v. UGWU & ORS (2013) LPELR-22896(CA) that “…it is now trite that in the determination of the locus standi of a party, the Court looks at the cause of action and the facts of the case and not necessarily whether the Claim is justiciable” Per AGUBE, J.C.A. (P. 54, paras. F-G), the facts as deposed in the affidavit in support of the originating summons and reliefs sought in the originating summons shall be considered in determining whether or not the Claimant possesses locus standi.

It is pertinent to foremost consider what locus standi is before ascertaining whether or not the Claimant possesses same in view of the facts and cause of action in this suit.

In the case of MR. CYRIACUS NJOKU v. DR. GOODLUCK JONATHAN & ORS (2015) LPELR-24496(CA), the court held that:

“The phrase “locus standi” or “standing” refers to the right of a party to appear and be heard on the question before the court. It denotes legal capacity to institute legal proceedings in a court of law. In other words, the right to or competence to institute proceedings in a court for redress or assertion of a right enforceable at law. It is the bulwark or the framework which entitles a litigant to bring another party before the altar of adjudication. See ADESANYA VS. PRESIDENT OF NIGERIA (1981) 12 NSCC 146; ATTORNEY GENERAL KADUNA STATE VS. HASSAN (1985) 2 NWLR (Pt. 8) 483 at 496 and BAKARE VS. AJOSE ADEOGUN (2014) 6 NWLR (1403) 320, 350. The concept focuses not on the merit of the case but on the merit of the person seeking to approach the court. The essence of the concept is to protect the court from being used as a playground by professional litigants, busy bodies, meddlesome interlopers and cranks who have no real stake or interest in the subject matter of the litigation they seek to pursue. It is so fundamental that where a plaintiff lacks locus standi, the court cannot properly assume jurisdiction. I agree with counsel for the appellant that ADESANYA V. THE PRESIDENT (SUPRA). Is the locus classicus on locus standi in Nigeria. The Supreme Court, per Bello, JSC held categorically at page 165 that – “To entitle a person to invoke judicial power to determine the constitutionality of such an action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he sustained or is in immediate danger of sustaining an injury to himself”. However, we respectfully part company with him on his argument that the rigidity or demands of locus standi set out in Adesanya’s case has been relaxed in constitutional matters. In the realm of public law, (this includes constitutional law) the law on locus standi is still that an individual or citizen or a tax payer without more will generally not have standing as a plaintiff. This is because such litigations concern public rights and duties which belong to and are owed all members of the public including the appellant. It is the duty of the Attorney – General to sue on such rights and duties. A private individual can only sue when he is given a fiat in that regard by the Attorney-General. It is only where the individual has suffered special damage or injury over and above the one suffered by the other members of the public generally, that he can sue personally. Interest common to all members of the public is not a litigable interest and cannot accord standing. See ADESANYA (SUPRA); BEWAJI VS. OBASANJO (2008) 9 NWLR (1093) 540, 576 and IWARA VS. ITEM (2009) 17 NWLR (1170) 337.

In view of the above holding, the duty of this court is to find from the facts of this case and cause of action whether the Claimant, who has not presented any fiat of the Attorney-General of the Federation, has suffered any special damage or injury above that of the general public or that the Claimant has a personal interest which has been or will immediately be adversely affected.

For the purpose of clarity, I find it apposite to reproduce the facts as deposed in the affidavit in support of the originating summons. The said affidavit stated thus:

I, Josiah Lerama, Male, Christian, Nigerian Citizen, litigation secretary of Elukpo, Elukpo & Co, Julius Elukpo Estate, Lokoja, hereby make oath and state as follows:

1. That I am the litigation secretary in the chambers of Elukpo, Elukpo & Co, the firm of the Claimant in this suit.

2. That by virtue of my aforesaid position, I am conversant with the facts of this case.

3. That I have the authority of the Claimant to depose to this affidavit.

4. That I was informed in the Chambers of Elukpo, Elukpo & Co, Julius Elukpo Estate, Lokoja, on 26/03/20 18, by Dr. Chief J. A. N. Elukpo, Claimant in person, at about 3. 00pm and I verily believe him to be true as follows:

(a) That the 1st defendant is the Managing Director of the 2nd defendant.

(b) That the 2nd defendant is a parastatal under the 4th defendant.

(d) The 4th defendant is the supervisory Ministry of the 2nd defendant.

(e) The 5th defendant is a body established for equitable sharing of employments among others.

(f) The 6th defendant is a body responsible to appoint persons to offices in the Federal Civil Service among others.

(g) The 7th defendant is the Chief Law Officer of the Federal Government of Nigeria.

(h) That the 8th Defendant is the Head of Civil Service of the Federation in whose office the 1st Defendant once went to forge a letter of appointment for his Procurement Officer in the 2nd Defendant.

(i) That the correct procedure for employment in Public Service is through advertisement and interview.

(j) That the Applicant had in the past requested for the staff list of Federal Medical Centre (FMC) Lokoja through Freedom of Information without success.

(k) That there are suspected fictitious staffs in the services of FMC, Lokoja.

(1) That the Board is now constituted for FMC, Lokoja.

(m) That letters of employments were issued out to eighty eight individuals without advertisement and interview.

(n) That the employed people resumed work on 01/03/2018

5. That it is in the interest of Justice to grant this application.

6. That I depose to this affidavit in good faith and in accordance with the Oaths Act, 2004.

For want of caution, I shall also restate the questions submitted for determination in the originating summons by the claimant thus:

Having captured the above, it is pertinent to state that the court in Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493) noted that: it suffice it to say that the sum total of the wrong complained of which impelled a plaintiff to go to court to seek redress is the cause of action.” Per ONU, J.S.C. (Pp. 37-38, paras. G-A).

Arising from the facts above, the questions for determination and the reliefs sought before this court, there is no gainsaying that what impelled the Claimant to institute this suit is the employment of 88 people into the service of the 2nd Defendant which the Claimant considers was not in accordance with due procedure as there was no advertisement and interview. That in my considered view is the cause of action. The next question is whether the Claimant has a standing in relation to the cause of action in view of the holding of the court on what locus standi is.

In reviewing the entire paragraphs of the affidavit in support of the originating summons, I find that there was not one paragraph indicating that the Claimant suffered any wrong or damage that was personal to the Claimant arising from the employment of the 88 people. The reliefs sought are also not for the direct benefit of the Claimant as he urges the court to set aside the employment of the 88 people employed. The affidavit does not disclose any special interest whatsoever which the courts have considered necessary for the Claimant to earn a locus standi as held in the case of CHIEF O.A. COKER-INEYOUGHA v. THE BAYELSA STATE HOUSE OF ASSEMBLY & ORS (2005) LPELR-7475 (CA) where OYELEYE OMAGE, J.C.A. stated that:

“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) where His Lordship ruled inter alia 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”.

This position of the law is sacrosanct and the contention that the Claimant is a lawyer, of which there are many others like him in the country, does not automatically earn him locus standi.

Claimant also contended that the Freedom of Information Act 2011, Whistle Blowing Law and Executive Order 6 of 2018 permits the Claimant to challenge actions of this nature without citing a section of any of these laws to establish the special circumstance which earns him lacus standi. Such general assumption is not enough to set aside the long standing position of the law on how a claimant earns locus standi.

Based on the forgoing, I find that the Claimant lacks the locus standi to institute this suit.

What then is the effect of the Claimant’s failure to possess locus standi? The court in Daniels Industries Incorporated & Anor v Rebold Int’l Ltd (2015) LPELR 40986 (CA) held that:

“locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the court before an action brought. Thus, where a plaintiff has no locus standi to bring a suit, the suit becomes incompetent and the court lacks the jurisdiction to entertain same and the only order to make in the circumstance is that of dismissal. An analogous decision was reached by the Supreme Court in Adetono & Anor. V Zenith Bank Int’l Bank Plc (2011) LPELR 8237 (SC).

In the same vein, the court in DUNU MERCHANTS LTD v. OBANYE & ORS (2014) LPELR-24059(CA) held that:

“the plaintiff must have an axe to grind with the action of the defendant and the said action which allegedly infracted on the right and interest of the claimant, must be justifiable, for which, he – the claimant/plaintiff can be relieved of by the court. Thus, if the court finds that the claimant has the legal capacity to sue the defendant upon the latter’s action which allegedly infracted or negatively impacted on the former’s right or interest on the subject matter of the claim, the court would possess the vires, the jurisdictional competence to hear and determine the claim. On the other hand, where the claimant has nothing to show prima facie, that the action of the defendant has adversely affected his own right or interest in the subject matter of the claim, he would have no locus standi – the legal capacity to sue such a defendant. see Senator Abraham Adesanya v. The President (1981) 2 NCLR 338 at 385, 386, 391 & 398; Attorney General of Kaduna State V. Hassan (1985) 2 NWLR (pt. 8) 483; Irene Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) 669; Dr. Tosin Ajayi V. Princess (Mrs) Olajumoke Adebiyi & 3 ors (2012) 11 NWLR (pt. 1310) 137 at 176. Where that is the case, then the court will be deprived of the jurisdictional competence to assume, hear and determine the plaintiff’s claim. In other words, a want or lack of locus standi by a claimant in an action in court, invariably and adversely affect the jurisdiction of the court to entertain and determine the action at the instance of the claimant/plaintiff.” Per YAKUBU, J.C.A. (Pp. 42-44, paras. F-A)

Consequent upon the above holdings, there is no gainsaying that this court lacks the requisite jurisdiction to pry into the substantive suit. Such attempt would be an exercise in futility and a monumental waste of precious judicial time. The court reckoned this in the case of BELIEVERS FISHERIES DREDGING & ANOR v. U.T.B.TRUSTEES LTD (2010) LPELR-3864(CA) when it held that:

“… where the court lacks jurisdiction, any proceeding embarked on by the court would amount to an exercise in futility having no binding effect on the parties and clearly a waste of judicial time. The issue of jurisdiction is so fundamental and so it can be raised at any stage of the proceeding or on appeal and even for the first time in the Supreme Court. See Usman Dan Fodio University V Kraus Thompson Organisation Ltd. (2001) 15 N.W.L.R. Pt. 736 p. 305.”Per RHODES-VIVOUR, J.C.A.(Pp. 14-15, paras. G-B)

In conclusion, issue two is resolved in favour of the 4th and 6th Defendants to the effect that, the Claimant lacks the requisite locus standi to maintain this action. It is an established principle of law that where an applicant has no locus standi or standing to sue, it becomes unnecessary to consider whether or not the main claim will succeed on the merit.

In the final analysis, for all the reasons adumbrated above, the preliminary objections of the 4th and 6th Defendants are upheld in part and the case of the Claimant is hereby dismissed in its entirety.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.