OLUKUNLE OGHENEOVO EDUN, ESQ v. THE GOVERNOR OF DELTA STATE OF NIGERIA & ORS
(2019)LCN/13872(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/B/378/2016
RATIO
LOCUS STANDI: WHAT IT INVOLVES
In general legal parlance, the issue of locus standi entails examining the statement of claim and considering the fate of the substantive suit. It is however settled law, that a Plaintiff who brings an action must seek a relief for himself in order to have the locus standi or the standing to prosecute it. See OLORIDE V. OYEBI (1984) 1 SCNLR 390 @ 400.
To begin with, the issue of legal capacity or standing of a party to initiate or institute an action in a Court of law, is one of a fundamental nature and also of crucial effect in Judicial proceedings as it touches not only the competence of a party to bring an action but also the legal capacity to do so. See OKORO V. OSIM. (SUPRA).
Generally, it is well settled that the locus standi to institute an action is the legal capacity and the condition precedent to initiate or institute proceedings in a Court of law for the determination of whatever legal right or obligations are being asserted. The determination of the question whether the Plaintiff has or has disclosed his standing in law to initiate legal proceedings is quite distinct from the merits of the case. PER PHILOMENA MBUA EKPE, J.C.A.
LOCUS STANDI: WHERE TO DETERMINE WHETHER A PARTY HAS LOCUS STANDI
At this stage, it is not really necessary to consider whether there is a genuine case on the merits where a Plaintiff fails to disclose his standing or capacity to initiate legal proceedings against another, the suit or action is adjudged incompetent and liable to be struck out. See PDP V. LAWAL & ORS 2012) LPELR 7972. See also the case of OWODUNNI V. REGISTERED TRUSTEES C.C.C. (2000) 10 NWLR (Pt. 675) 315. Locus standi is matter of Law. It connotes the capacity the Plaintiff has to commence an action or suit. It is the personal interest, legal or equitable the Plaintiff has in the subject matter of the suit which he alleges has been or is likely to be infringed.
The main test or determinant of locus standi is whether the Plaintiff, from his pleadings, has disclosed sufficient interest in the subject before his suit. Once he discloses in his pleadings, his sufficient interest in the subject matter, his is by law entitled to sue. See ATOYEBI V. GOVERNOR OF OYO STATE (1994) 5 NWLR (Pt.344) 290. PER PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
OLUKUNLE OGHENEOVO EDUN, ESQ. Appellant(s)
AND
1. THE GOVERNOR OF DELTA STATE OF NIGERIA
2. ATTORNEY GENERAL OF DELTA STATE
3. OKIRORO IKI-EBIEROMA, ESQ. Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the Ruling of the High Court Delta State sitting at Effurun delivered by Hon. Justice G.B. Baiki Okolosi on the 30th day of June, 2016.
The Appellant and one other in the lower Court had posed a number of detailed questions in an originating summons seeking the determination of same. The questions which the Appellant and another sought for determination are as follows:
?1. Whether the salient provisions of the Pension Rights of the Governor and the Deputy Governor of Delta State Law, Cap P5, Laws of Delta State, 2008 to the extent that it provides for BOTH the gratuity and pension for a former Governor and former Deputy Governor who have held offices and completed their constitutional terms of four years, does not conflict with the provisions of Section 124 of the Constitution of the Federal Republic of Nigeria, Cap C23, LFN 2004, Section 6(d) of the Revenue Mobilization Allocation and Fiscal Commission Act, Cap R7, LFN, 2004 2 (SIC), and Section 3(P) of the National Salaries, Income and Wages Commission Act, Cap N72, LFN, 2004.
2. Whether the Delta State Government of Nigeria can validly oust or act outside the provisions of the Constitution of the Federal Republic of Nigeria Cap C23, LFN 2004 and create a separate regime of retirement benefits for former Governors and Deputy Governors of Delta State?
3. Whether the provisions of Section 6 of the Pension Rights of the Governor and the Deputy Governor of Delta State Law, Cap P5, Laws of Delta State 2008 and the Second Schedule to the Law (which provides for further benefits outside gratuity and pension) is Constitutional in the face of Section 124 of the Constitution of the Federal Republic of Nigeria, Cap C23, LFN 2004?
4. Whether by virtue of the provisions of Section 124(5) of the Constitution of the Federal Republic of Nigeria, Cap C23, LFN, 2004, former Governor and Deputy Governor of Delta State of Nigeria are entitled to both Pension and Gratuity or only either of Pension and Gratuity?
5. Whether the Delta State House of Assembly is competent to make laws regulating the issuance of Diplomatic Passport, Operations of the Nigerian Police, Department of State Security and Independent National Electoral Commission?
6. Whether there is in existence any entity or body known to law as the ?State Security Service Agency”?
7. Whether a former Governor or Deputy Governor of Delta State of Nigeria performs (sic) (or) can still be said to be performing any executive or official function for Delta State to the extent that after completing his/her tenure in office, the Delta State Government of Nigeria must still bear the burden of providing him/her the following:
(a) A Chief Administrative Officer (for former Governor) and a grade level 12 Officer (for former Deputy Governor) respectively.
(b) Personal Secretaries not below grade level 10 (for former Governor) and grade level 09 (for former Deputy Governor).
(c) Two armed Policemen each for the former Governor and the Deputy Governor respectively.
(d) One State Security Service Officer not below the rank of DSO (for former Governor) and not below the rank of ASO (for former Deputy Governor) to act as their Aide de Camp for life, and to be paid by the State Service Agency.
(e) Three vehicles (for the former Governor) and two vehicles (for the former Deputy
Governor) to be bought and replace every four years? by the Delta State Government, with a paid driver attached to each of the personalities.
(f) Diplomatic Passport for life for both the former Governor and Deputy Governor respectively.
(g) That the former Governor and Deputy Governor and their spouses shall take the third and forth positions respectively after the serving Governor and his Deputy at all state functions.
(h) Free Medical treatment for life in Nigeria and abroad for both the former Governor and Deputy Governor and their immediate families at the expenses of Delta State Government.
(i) 156 days annual vacation within Nigeria for the former Governor while the former Deputy Governor shall enjoy 15 days annual vacation within Nigeria but the serving Governor must prior-approve the expense of only the Deputy Governor.
(j) A well furnished and equipped office in any location of their choice in the State for both former Governor and former Deputy Governor
(k) A well furnished five bedroom duplex and four bedroom duplex for the former Governor and former Deputy Governor respectively in any location of their choice with (in) Delta State.
The Claimants/Appellant then claims the following reliefs:
1. ?A DECLARATION that by virtue of the joint reading of the provisions of Section 124 of the Constitution of the Federal Republic of Nigeria, Cap C23, LFN 2004, Section 6(d) of the Revenue Mobilization, Allocation and Fiscal Commission Act, Cap R7, LFN, 2004 and Section 3(P) of the National Salaries, Incomes and Wages Commission Act, Cap N72, LFN 2004, former Governor and Deputy Governors of Delta State are entitled to be gratuity and pension.
2. A DECLARATION that by virtue of the joint reading of the provisions of Section 124 of the Constitution of the Federal Republic of Nigeria, Cap C23, LFN 2004, Section 6(d) of the Revenue Mobilization, Allocation and Fiscal Commission Act, Cap R7, LFN, 2004 and Section 3(P) of the National Salaries, Incomes and Wages Commission Act, Cap N72, LFN, 2004 former Governors and Deputy Governors of Delta State are not entitled to the benefits contained in the second schedule of the Pension Rights of Governor and Deputy Governor of Delta State Law, Cap P5, Laws of Delta State, 2008.
3. A DECLARATION that the Delta State House of Assembly does not have the locus and competence to make any law regulating the issuance of Diplomatic Passport, the operations of the Nigerian Police, Department of State Security Service and Independent National Electoral Commission.
4. AN ORDER striking down Section 3, 5 and 6 of the Pension Rights of Governor and Deputy Governor of Delta State Law, Cap P5, Laws of Delta, 2008, Tables A and B of the first schedule and the entirety of the second schedule of the law for being incompetent with the extant provisions of the Constitution of the Federal Republic of Nigeria.
5. AN ORDER compelling the Defendants to commence the recovery of all monies, benefits and/or property paid/given to any former Governor or Deputy Governor of Delta State of Nigeria in contravention of Section 124 of the Constitution of the Federal Republic of Nigeria, Cap C23, LFN 2004, Section 6(d) of the Revenue Mobilization, Allocation and Fiscal Commission Act, Cap R7, LFN, 2004 and Section 3(P) of the National Salaries, Incomes and Wages Commission Act, Cap N72, LFN, 2004.
6. AN ORDER of injunction restraining the 1st and 2nd Defendants either by themselves and/or through their officials, subordinates and agents from further carrying into effect the provision of Section 6 of the Pension Rights of Governor and Deputy Governor of Delta State Law, Cap P5, Laws of Delta State, 2008 Tables A and B of the first Schedules, and the entirety of the second schedule to the Law or any similar provision in any other Law.
7. AN ORDER COMPELLING the Defendants to file in this Honourable Court within 14 days of delivering of Judgment in favour of the Claimants, a comprehensive statement of all the completion of tenure benefits/entitlements paid to former Governors or Deputy Governors from May 29, 2003 till the date of delivery of Judgment in this suit.?
In support of the originating summons, the 1st Claimant filed an Affidavit of 4 paragraphs and another Affidavit of 33 paragraphs deposed to by the 2nd Claimant with Exhibits ?T, B, I, annexed and also the written address of Counsel in support.
The Respondent on his part filed a Counter Affidavit of 12 paragraphs deposed to by one Ogbeni Ekpemina, a Principal State Counsel in the Ministry of Justice Asaba, Delta State, and a written address also filed in support of the Affidavit.
The facts of the case in a nutshell are as follows:
The Claimant/Appellant commenced this action by way of originating summons being aggrieved by the Pensions Rights of the Governor and Deputy Governor of Delta State Law Cap P.5, Laws of Delta State 2006. The said originating summons was dated the 13th day of February 2015 and filed same date at Effurun Judicial Division of the High Court of Delta State. All the questions gleaned therefrom revolved round the Validity/Constitutionality or otherwise of the Pension of the Governor and Deputy Governor of Delta State under the Delta State Law Cap P.5 2006.
The Claimant/Appellant urged the Court below for the 7 declaratory reliefs.
The 1st and 2nd Respondents in turn filed a Counter Affidavit of 12 paragraphs and a written address in support.
On the 30th day of June, 2016, Judgment was delivered by the Learned trial Judge of the Lower Court and the Appellant?s case was struck out for lack of locus standi to institute the action as the suit was adjudged unmeritorious.
The Appellant being aggrieved by the said Judgment filed a Notice of Appeal to this Court containing 4 grounds of appeal on the 15th day of July, 2016.
From the grounds of appeal so formulated the Appellant distilled the following issues for determination:
ISSUE ONE
Whether the Learned trial Judge was right when he held that the Appellant lacked locus standi to institute the suit?
ISSUE TWO
Whether the learned trial Judge dispassionately considered the merit of the case as required by law, and was right, particularly when he held that .even if the Claimants scaled the hurdle of locus standi, their case will still fail, not having established a case of an infringement of Section 124(5) of the 1999 Constitution to warrant the Court granting the reliefs sought in the originating summons.?
The Respondents in their brief adopted the issues as formulated by the Appellant albeit couched slightly differently.
I shall however adopt the brief as couched by the Appellant to be used in this discourse.
On issue one, learned counsel for the Appellant referred to paragraphs 4, 5
