HON. JOHN YAKUBU & ANOR v. GOVERNOR OF EDO STATE & ANOR
(2014)LCN/7151(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of April, 2014
CA/B/21/2011
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. HON. JOHN YAKUBU
2. PEOPLES DEMOCRATIC PARTY – Appellant(s)
AND
1. GOVERNOR OF EDO STATE
2. ATTORNEY GENERAL OF EDO STATE – Respondent(s)
RATIO
THE DEFINITION OF THE TERM “LOCUS STANDI”
The term “locus standi” has been described as the legal capacity based upon sufficient interest in a subject matter to institute legal proceedings in a court of law to pursue a certain cause.
In Daramola & Ors. v. Attorney General, Ondo State this court per Onnoghen JCA (as he then was) held as follows:-
“There are two tests in determining the locus standi of a person: namely;
(i) Whether the action is justiceable, and
(ii) Whether there is a dispute between the parties – see A-G, Kaduna State v. Hassan (1985) 2 NWLR Pt.8 Pg.483. In applying the tests, it is the averment in the statement of claim that is of paramount importance since both the courts and the parties are bound by the pleadings. The statement of claim must disclose that the plaintiff or plaintiffs has (have) sufficient legal interest in seeking redress in court. This is to keep away from the judicial process busy bodies or interlopers while persons who suffered wrong or have their civil rights and obligations threatened are allowed or encouraged to seek judicial remedy in the court of law – see Badejo v. Federal Ministry of Education (1990) 4 NWLR Pt. 143 Pg. 254.” PER OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Amaize of the Edo State High Court delivered on 08/12/2010 wherein the learned trial judge ruled that the 2nd appellant had no locus standi to institute the suit and that the parties before the Court were improperly constituted. Below are the facts that led to this appeal:
The 1st appellant was elected as the Chairman of Esan North-East Local Government Area on 15/12/2007 on the platform of the 2nd Appellant political party. The 1st respondent on 25/10/2010 dissolved the eighteen democratically elected Local Governments in Edo State including the 1st appellant’s constituency and appointed caretaker committees to take over the local governments.
The appellants by an originating summons dated 26/10/2010 instituted an action at the Edo State High Court, Benin City for the determination of the following questions:
1. Whether in the light of the subsisting judgment of the High Court of Edo state delivered in Suit No: B/115/OS/07 on 30th May, 2007 and the clear and unambiguous provisions of sections 7(1) and 287(3) of the Constitution of the Federal Republic of Nigeria, 1999 the 1st Defendant can dissolve the democratically elected Local Government Councils in Edo State before the expiration of their tenure.
2. Whether in the light of the aforesaid judgment of the High Court of Edo State delivered in Suit No: B/115/OS/07 on 30th May 2007, the clear and unambiguous provisions of sections 7(1) and 287(3) of the Constitution of the Federal Republic of Nigeria, 1999 the 1st defendant or indeed the Edo State Government can set up caretaker or Local Government Transitional Committees for the eighteen Local governments Edo State.
The respondents in turn filed a motion dated 19/11/2010 challenging the competence of the appellants’ action on the grounds that the 2nd appellant lacked locus standi to institute the action and that proper parties were not before the Courts. The appellants filed a counter affidavit to the respondents’ motion on 26/11/2010. The learned trial judge after hearing arguments of both parties ruled that the 2nd appellant, PDP had no locus to challenge dissolution of local government councils and that instead, all the other local government chairmen whose councils were dissolved should be added as parties to the suit.
Dissatisfied with the decision of the trial court, the appellant filed a notice of appeal on 22/12/2011. The appellant’s brief of argument was filed on 15/06/2011 but deemed filed on 11/06/2012 while the respondent’s brief was dated 07/03/2013 and filed on 18/06/2013.
K. O. Obamogie for the appellants raised the following issues for determination:
1. Whether or not the 2nd Plaintiff had the locus standi to institute Suit No.B/799/OS/2010 in the lower court challenging the respondent’s dissolution of democratically elected local government councils in Edo State and constitution of caretaker committees for them.
2. Whether the lower court was right in holding that proper parties were not before the court.
M. O. Omozeghian of counsel for the respondent adopted the issues as raised by the appellant’s counsel. The issues are lucid and as such I will adopt them in the determination of this appeal.
ISSUE ONE
“1. Whether or not the 2Plaintiff had the locus standi to institute Suit No.B/799/OS/2010 in the lower court challenging the respondent’s dissolution of democratically elected local government councils in Edo State and constitution of caretaker committees for them.
2. Whether the lower court was right in holding that proper parties were not before the court.
M. O. Omozeghian of counsel for the respondent adopted the issues as raised by the appellant’s counsel. The issues are lucid and as such I will adopt them in the determination of this appeal.
ISSUE ONE
“1. Whether or not the 2nd plaintiff had the locus standi to institute suit No: B/799/OS/2010 challenging the respondent’s dissolution of the democratically elected local government councils in Edo State and constitution of caretaker committees for them.
Learned appellant’s counsel defined locus standi and cited Adenuga v. Odumeru (2003) 8 NWLR Pt.821 Pg.163 at 184, Abraham Adesanya v. Federal Republic of Nigeria (1981) ANLR (Reprint Edition) 1 at 21-25. Counsel submitted that the originating processes of a claimant is used to decipher whether such claimant has locus standi or not and cited Daramola & ors v. AG Ondo & Ors (2000) 7 NWLR Pt. 665 Pg. 440 at 476. Counsel argued that the interest of the party in determining locus standi should not be given narrow construction and cited Daniyan v. Iyagin (2002) 7 NWLR Pt.766 Pg. 346 at 376.
Counsel in submitting that the appellant had locus standi argued that Section 7(1) of the constitution guarantees democratically elected local governments and that the respondent’s creation of caretaker committees is in contravention of Section 7(1) of the Constitution. Counsel cited AG Plateau v. Goyol (2007) 16 NWLR Pt. 1059 Pg. 57, AG Benue v. Umar (2008) 1 NWLR Pt.1068 Pg. 311, Akinmade v. Ajayi (2008) 12 NWLR (Pt.1101) Pg. 498. Counsel argued that the establishment of caretaker committees was a direct assault to the 2nd appellant’s right to sponsor candidates for election and thus the 2nd appellant had sufficient interest in the local government administration in Edo State.
Appellant’s counsel further submitted that the trial court’s finding that the 2nd appellant’s interest in democratic governance of local governments in Edo State stops the moment the candidates take their oaths of office has no support in our law. Counsel cited Amaechi v. INEC (2008) 5 NWLR Pt. 1080 Pg. 277 at 318-319. Counsel submitted that the 2nd appellant being a registered political party was a necessary party in the suit. He further contended that the 2nd appellant’s interest in democratic governance of local governments in Edo State cannot be over emphasized.
M. O. Omozeghian of counsel for the respondent on this issue defined locus standi and cited Inakoiu v. Adeleke (2008) Vol 30. WRN Pg 1; Thomas v. Olufosoye (1986) 1 NWLR Pt.18 Pg.669; Dada v. Ogunsanya (1992) 3 NWLR Pt. 232 Pg. 754. Counsel argued that the 1st appellant must show sufficient interest to have locus standi. Counsel submitted that the 1st appellant had failed to show sufficient interest to entitle him to locus standi. Counsel cited Yesufu v. Governor of Edo State (2001) 5 MJSC 128. Learned counsel further contended that the 2nd appellant being the platform under which the 1st appellant contested the election also has merely remote interest to entitle it to locus standi. Counsel then submitted that there is nothing on the record to show that the 2nd appellant will suffer injury nor have sufficient interest in the suit as to clothe it with locus standi.
The learned trial judge had this to say, at Pg. 57 of the record –
“I accordingly find as simply preposterous any proposition that 2nd plaintiff is a necessary party in this suit. In the circumstances, while I commend learned counsel for the ingenuity displayed, I hold however that 2nd plaintiff, the People’s Democratic Party, is not a desirable let alone a necessary party in this suit. If anything, I further hold, in consideration of the suit as formulated, 2nd plaintiff is nothing but a mere intermeddler or at best a masquerade of a necessary party. I therefore reject as non sequitor all the case law authorities cited to back up the various contentions meant to convince this court that 2nd plaintiff is a necessary party.
It is not.”
The term “locus standi” has been described as the legal capacity based upon sufficient interest in a subject matter to institute legal proceedings in a court of law to pursue a certain cause.
In Daramola & Ors. v. Attorney General, Ondo State this court per Onnoghen JCA (as he then was) held as follows:-
“There are two tests in determining the locus standi of a person: namely;
(i) Whether the action is justiceable, and
(ii) Whether there is a dispute between the parties – see A-G, Kaduna State v. Hassan (1985) 2 NWLR Pt.8 Pg.483. In applying the tests, it is the averment in the statement of claim that is of paramount importance since both the courts and the parties are bound by the pleadings. The statement of claim must disclose that the plaintiff or plaintiffs has (have) sufficient legal interest in seeking redress in court. This is to keep away from the judicial process busy bodies or interlopers while persons who suffered wrong or have their civil rights and obligations threatened are allowed or encouraged to seek judicial remedy in the court of law – see Badejo v. Federal Ministry of Education (1990) 4 NWLR Pt. 143 Pg. 254.”
Let me just say that the issue of locus standi does not depend on the success or the merits of the case, but on whether the plaintiff has sufficient interest or legal right in the subject matter of the dispute. See Ojukwu v. Ojukwu & Anor. (2008) Pt. 1078 Pg. 435.
The raison d’etre of the doctrine is that the court must only entertain those who have complaints against the defendant. In Attorney General, Lagos State v. Eko Hotels & Anor. (2006) 18 NWLR Pt.1011 Pg. 378, the Supreme Court held that to have locus standi to sue, the plaintiff must have sufficient interest in the suit before the court. A consideration is whether the party could have been joined as a party to the suit. Another consideration is whether the party will suffer some injury arising from the litigation. The statement of claim must be couched in such terms that the clear injury suffered or about to be suffered by the plaintiff is shown. Paragraph 5 of the affidavit in support of the originating summons merely states that the 2nd Appellant (then Plaintiff) is a registered political party that successfully sponsored candidate’s for the local government election conducted on 15/12/2010, and that the 1st Appellant was elected under its platform.
I have to agree with the learned trial judge that it would not be right to throw the doors of the courts open to all the political parties who sponsored candidates for the election of chairmen and councilors of local government councils. Even though the person directly affected is the person who lost the seat as a result of the action of the Respondents, there is no doubt that because the political party sponsored the candidate and has vested interests in the fortunes of the candidate, it has an interest in the outcome of the litigation.
However let us look at the peculiar circumstances of this case. Could the 2nd Appellant be joined as a necessary party to the suit either as Plaintiff or Defendant at the trial court. The answer is in the negative. What is the hardship peculiar to PDP as a result of the action of the Respondents. What are the legal rights and obligations of the PDP as a party that have been compromised by the actions of the Respondents. I have considered the statement of claim and there is nowhere stated the peculiar civil rights and obligations of the PDP affected by the cause of action. There is no doubt that the interest of the 2nd Appellant must be real and tangible in law. It must in the words of Onnoghen JSC be cut and dried and without the least equivocation. To my mind, there is no justiciable dispute between PDP – the 2nd Appellant and the Respondents to imbue it with locus standi to sue. See Odenenye v. Efunga (1990) 7 NWLR Pt. 164 Pg. 618, (1990) 11-12 SC Pg. 122; Ironbar v. FMF (2009) 15 NWLR Pt. 1165 Pg. 506; Orji v. D.T.M. (2009) 18 NWLR Pt. 1173 Pg. 467. I am not unmindful of the fact that recent decisions of the apex court have linked the fortunes of the candidate to the political party but I am of the firm but humble view that immediately a candidate assumes office, his rights and duties except in certain special circumstances can be severed from the political party. He ceases to be a politician of one party but a political office holder. See Abubakar v. A.G., Federation (2007) 3 NWLR Pt.1022 Pg. 601 at 637.
In this case, apart from the general interest of the party in defending political structures and institution and campaigning for the candidate it has no special legal interest in the outcome of the litigation, the 1st Appellant having become a political office holder having sworn to the oath of the Federal Republic. Opening the gates of litigation to all comers would merely muddy the waters. The 2nd Appellant is a mere sympathetic bystander and not a necessary party. I am of the firm view that there being no justiciable dispute between the 2nd Appellant and the Respondents, this issue must be resolved against the Appellants. I resolve this issue against the Appellants.
ISSUE TWO
2. Whether the lower court was right in holding that proper parties were not before the court.
Learned appellant’s counsel argued that the necessity of a party in a suit depends on whether such party will be bound by the result of the suit. Counsel cited Green v. Green (1987) 2 NSCC 115 at 1123; Ajayi v. Jolayemi (2001) 10 NWLR Pt.722 pg. 516 at 538. Counsel submitted that the order of the trial court on joinder of other affected local government chairmen was erroneous in law since the said chairmen did not approach the court to be joined. Counsel argued that the court is not a charitable institution that would dole out unrequested reliefs. Counsel cited Aarinola v. Olumogho (2001) 16 NWLR Pt. 738 pg. 38 at 56-57; Idoko v. Ogbeikwu (2003) 7 NWLR Pt. 819 P9. 275 at 292.
Learned counsel further argued that when a court raises a point suo motu, the parties must be given an opportunity to be heard on such point. Counsel insisted that failure of the trial Judge to hear the parties on the issues raised suo motu is a breach of the appellant’s right to fair hearing. Counsel cited I.M.B Securities Plc v. Tinubu (2001) All NLR 267; Dalek (Nig) Ltd v. Oil Mineral Producing Areas Development Commission (Ompadec) (2007) 7 NWLR Pt.1033 Pg. 402.
Counsel contended that the order of the court for joinder of other affected local government chairmen was unnecessary as they have already been represented by the 1st and 2nd respondents. Counsel argued further that the order runs contrary to the law of agency and that the Attorney-General should have been the sole respondent in the suit. Counsel cited Union Bank Ltd v. Edet (1993) 4 NWLR pt. 287 Pg. 288 at 302; Leventis Tech Ltd v. Petrojessica Ent. Ltd (1992) 2 NWLR pt. 224 Pg. 459 at 469. Counsel further submitted that there is no question in issue which cannot be resolved without the joinder of the political functionaries ordered by the trial court to be joined as parties.
The learned respondent’s counsel on this second issue submitted that the trial court was right when it held that the proper parties were not before the court.
Learned counsel insisted that the chairmen and councilors removed are necessary parties while the members of the caretaker committees are also necessary parties. Counsel cited Nwanna v. A-G. Federation (2010) Vol. 15 WRN pg.178 Pg. 189 and Usman v. Lawal (2010) 18 WRN 150.
There is no doubt that a necessary party in a case is one who is not only interested in the subject matter of the proceedings but in the absence of whom the question or issue in dispute cannot be properly and finally settled unless he is a party.
Thus a necessary party is that person who must be joined in an action because inter alia, complete relief cannot be given to those already parties without their joinder. They are those persons who have such an interest in controversy that a final judgment or decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final adjudication may be wholly inconsistent with equity and good conscience.
In this case, the learned trial judge made an order on Pg. 70 of the record as follows:
“All the chairmen of the other 17 Local Government Councils in the State and all the Councilors of the 18 Local Government Councils who were affected by the same act complained of by first plaintiff, following which he has approached the court claiming reliefs that cut across the said Local Government Councils, are to be joined as co-plaintiffs in the suit.”
I cannot fathom the need for that order. The person aggrieved viz – the 1st Appellant had come to court to seek redress. There was no need to force those who were willing to sleep on their rights to come to court nilly nilly. The court cannot be seen as seeking for litigants with torch light. Even though the other chairmen and councilors had been removed it does not mean that they feel aggrieved. That order was unnecessary and uncalled for. The cause of action between the 1st Appellant and the Respondents can be determined in the absence of the persons ordered to be joined. At best they get to benefit from any order made in favour of the 1st Appellant. The proper order would have been to make them co-defendants since they did not complain against the action of the Respondents.
In respect of the second leg of this issue the learned trial judge also made the following order at Pg. 71 of the record:
“All the political functionaries put in place in the various Local Government Councils in the State following the dissolution complained of by 1st Plaintiff are to be joined as co-defendants in the suit.”
Relief D sought by the Appellants in the originating summons is an order setting aside the Respondents’ appointment of caretaker or Transitional Councils for the eighteen local governments in Edo State. Therefore at the time the action was instituted, there was in place caretaker committees or councils where interests would be affected one way or another by the outcome of the litigation. The members ex facie have an interest in the outcome of the litigation. Therefore, the order for their joinder being necessary parties whose right might be affected by the outcome of the litigation was in order. See Izuogu v. Udenwa & Ors. (2003) LPELR 9252; Tanimowo v. Odewoye (2008) All FWLR Pt.1513 pg.1513 at 1542-1543 and Apabiekun & Ors. v. Buko & Ors. (2014) LPELR 22548 delivered on 27th February, 2014
The argument by counsel that none of the litigants sought for the joinder of other parties, is of no moment. The learned trial judge was entitled to make proper consequential orders as the circumstances of each case demands.
The first issue being resolved against the appellants, the name of the 2nd Appellant is hereby struck out. The order of joinder of more plaintiffs viz the removed elected chairmen and councilors is hereby set aside. The order mandating the joinder of the political functionaries viz – caretaker committee members etc. put in place by the Respondents is hereby affirmed. The appeal is substantially without merit except for the order of the trial court set aside by this court. Cost of N50,000.00 to the Respondent against the Appellants collectively.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has dealt with the pertinent issues that call for determination in the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I have nothing useful to add thereto.
Accordingly, I too, find the appeal to be substantially without merit and dismiss the same. I also abide by the orders made in the lead Judgment including the order in relation to costs.
TOM SHAIBU YAKUBU, J.C.A.: The draft of the judgment just delivered by HELEN M. OGUNWUMIJU, JCA., was made available to me. I agree entirely with the reasoning and conclusion reached to the effect that the appeal is meritorious and the same is allowed.
The ruling of the learned trial judge, Amaize, J., of 8th December, 2010 and the orders made therein are set aside.
Each side to bear own costs.
Appearances
Mrs. B. O. OkoduwaFor Appellant
AND
M. O. Omozeghian DPP, Edo State with him Lauretta Asaka (SSC) Edo StateFor Respondent
