OSHIEZE VINCENT AKUJOBI EHIRIM v. GOVERNOR OF IMO STATE & ORS (2014)

OSHIEZE VINCENT AKUJOBI EHIRIM v. GOVERNOR OF IMO STATE & ORS

(2014)LCN/7556(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of November, 2014

CA/PH/502/2008

RATIO

COURT: LOCUS STANDI AND JURISDICTION; THE NATURE IMPLICATION AND DENOTATION OF LOCUS STANDI AND WHAT THE PLAINTIFF MUST REVEAL IN ORDER TO ACHIEVE THE STATUS OD LOCUS STANDI

The nature implication and denotation of Locus Standi has been defined and explained in numerous cases:
1. BASINCO MOTORS LTD. VS. WOERMANN-LINE & ANOR. (2009) 13 NWLR (PART 1157) 149 at 179H to 80 A – C where Adekeye JSC said:
“LOCUS Standi in my view is a fore runner or precursor to jurisdiction. Accordingly, where it is proved that a Plaintiff lacks Locus Standi to bring an action, the Court will decline jurisdiction as it has none. A Court of Law has no jurisdiction to manufacture Locus Standi on a party and arrogate to itself jurisdiction. That is never done.”.
The terms Locus Standi denotes the legal capacity to institute an action in a Court of Law. It is a status which the Plaintiff must have before being heard in Court. It is a condition precedent to determination on the merits.
In order to achieve the status of Locus Standi, the Claim of the Plaintiff must reveal:

(a) A Legal or justifiable right;
(b) Show sufficient or special interest adversely affected;
(c) A justifiable cause of action.
Momoh vs. Olotu (1970) 1 All NLR Pg. 117; Bolaji Vs. Bamgbose (1986) 4 NWLR (Pt. 73) Pg. 532; Adesanya Vs. President FRN (1981) 5 SC 112; Adefulu Vs. Oyesile (1989) 5 NWLR (Pt. 122) Pg. 377; Thomas Vs. Olufosoye (1986) 1 NWLR (Pt. 18) Pg. 669; Odeneye Vs. Efunuga (1990) 7 NWLR (Pt. 164) Pg. 618; Owodunni Vs. Registered Trustees of C. C. C. (2000) 10 NWLR (Pt. 675) Pg. 315″
2. BENEDICT OJUKWU VS. L. CHINYERE OJUKWU & ORS. (2008) 18 NWLR (PART 1119) 439 at 457 E – H per Aderemi JSC who said:
“Also settled, is that a person is said to have Locus Standi, if he has shown sufficient interest in the action and that his Civil Rights and Obligations, have been or are in danger of being infringed and that the onus of proof is on the party who has initiated the proceedings. See the case of Prince Oduneye Vs. Prince Efunuga (1990) 12 SCNJ 1 at 7 and 8; (1990) 7 NWLR (Pt. 164) 618. Since Locus Standi is legal capacity to institute proceedings in a Court of Law, it then means that Locus Standi will only be accorded to a Plaintiff who shows that his Civil Rights and Obligations have been or are in danger of being violated or adversely affected. There is therefore, Locus Standi, wherever there is a justifiable dispute.

ACTION: INSTITUTING ACTION; WHETHER A LITIGANT WILL BE ALLOWED TO RELITIGATE THE ISSUE ALREADY DECIDED BY THE COURT

No Litigant will be allowed to raise issues instalmentally in a Court of Law against his adversary. See FIDELITAS SHIPPING CO. LTD. V/O EXPORTCHLEB (1965) 2 ALL E. R. 4 at 8 – 9 A – B where Lord Denning M. R. said:

“The Law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in remjudicatiam: See:
A King V. Hoare (10). But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances: see per Lord Macnaghten in Badar Bee V. Habib Merican Noordin (11). And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him.”

“It is an abuse of Court process on the part of the Appellant to try to relitigate the issue already decided by this Court by its Port Harcourt Division and against which decision both parties have appealed and cross appealed and are awaiting a decision by the Supreme Court, the Apex Court in the Land. It is an uncharitable effort to preempt what the decision of the Supreme Court would be on the appeal of the parties when both of them are still parties to the present Suit on appeal now.
The Appellant’s Suit at the Court below had become inescapably doomed to fail and same can be dismissed as being abuse of the Court process. The Court lacks the Jurisdiction to entertain an action that is an abuse of Judicial process.
See: (1) A. G. LAGOS STATE VS. A. G. FEDERATION (2014) 4 SCM 1 at 21.
“Courts, including the Apex Court, lack the jurisdiction of entertaining incompetent claims and/or those that constitute abuse of their processes. They proceed in vain if they do. Being bereft of the necessary vires or with their processes having been abused, the decisions which eventually arise lack the authority and so remain unenforceable no matter how well conducted the proceedings that brought them about were. A judgment given without jurisdiction creates no legal obligation and does not confer any rights to any of the parties. Being a challenge to the jurisdiction of this Court to entertain Plaintiff’s action, therefore, 1st Defendant’s preliminary objection has to be determined first. Having been raised, all proceedings must abate until the issue is resolved. See Adeyemi V. Opeyori (1976) 9 – 10 SC 31, AG Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, Jeric Nig. Ltd. V. UBA Plc. (2000) 12 SC (Pt. 11) 133, Nnonye V. Anyiche (2005) 2 NWLR (Pt. 910) 623; (2005) 1 SCM, A 133 and Daplanlong V. Dariye (2007) 8 NWLR (Pt. 1036) 332; (2007) S SCM, 21.”
2. OWELLE ROCHAS ANAYO OKOROCHA VS. PDP & ORS. (2014) 1 SCM 163 at 212C – 1 TO 213 A per OGUNBIYI, JSC who said:
“With reference made to the decision in the case of Dingyadi Vs. INEC No. 2 (2010) 18 NWLR (Pt. 1224) SC at 154; (2010) 9 SCM, 1 the terminology, abuse of Court process, was held by this Court at page 195 in the following connotation per Chukwuma-Eneh, JSC:-
The term abuse of process connotes simply the misuse of Court’s process and it includes acts which otherwise interfere with the course of justice. Clearly, the acts include where without reasonable ground a party institutes frivolous and also by instituting of multiplicity of actions or is on a frolic act of forum shopping i.e. seeking for favourable Court to entertain a matter. It also includes depriving the Court of jurisdiction.
Also at pages 207 – 208 in the same decision, their Lordships per Adekeye, JSC proceeded and said:-
“….the Court has discretionary jurisdiction to undo what has been done by a party in abuse of the court process…”

As appellate court in the circumstance has the jurisdiction to restore the parties to the position they would have been before the offending application” Fabiyi JSC at page 201 of the said report and on the treatment of action which considering the point relating to abuse of process, there is no case which constitute an abuse of court process did not also in any way mince his words when he said:
“I need to express it in unmistakable terms that it constitutes an abuse that is sacrosanct or immutable. It must go under the hammer so as to halt the drift created by the abuse. Such is clearly warranted herein as an incidental order. See Nanji Vs Chukwu (1988) 3 NWLR (Pt. 81) 184 at 208.” per. PETER OLABISI IGE, J.C.A.

Before Their Lordships

IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria

PETER OLABISI IGEJustice of The Court of Appeal of Nigeria

FREDERICK O. OHOJustice of The Court of Appeal of Nigeria

Between

OSHIEZE VINCENT AKUJOBI EHIRIMAppellant(s)

AND

1. GOVERNOR OF IMO STATE
2. ATTORNEY GENERAL OF IMO STATE
3. IMO STATE HOUSE OF ASSEMBLY
4. OWERRI MUNICIPAL LOCAL GOVERNMENTRespondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Imo State contained in the Ruling of the Honourable Justice C. I. Durueke delivered on the 23rd day of June 2008.

The Appellant approached the said Court on 8th day of May, 2008 vide Originating Summons seeking for determination of a sole question that having regard to what he described as the clear provisions of the Constitution of the Federal Republic of Nigeria, 1999 with particular reference to section 7(1) of the said Constitution:-

“Whether or not it is permissible for the 1st – 3rd Defendants to permit, direct or authorize the running of the affairs of the 4th Defendant by a non democratically elected Transition or Caretaker Committee?
WHEREFORE THE Plaintiff claims as follows:-

(a) A declaration that by the Provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 the 1st – 3rd Defendants are incompetent to permit, direct or authorize the running of the affairs of the 4th Defendant by an appointed Transition or Caretaker Committee.

(b) A declaration that until the emergence of another democratically elected Chairman of the 4th Defendant the Plaintiff remains the person democratically elected to that position.

(c) An Injunction perpetually restraining the Defendants by themselves, servants or agents from recognizing or dealing with any other person other than the Plaintiff as Chairman of the 4th Defendant until the emergency of another democratically elected Chairman.

(d) An injunction perpetually restraining the Defendants by themselves, servants or agents from, in any form or manner, tampering with the Plaintiffs occupation and/or exercise of the functions of his office as Chairman of the 4th Defendant until the emergence of another democratically elected Chairman.”

The Originating Summons was accompanied with 11 paragraphs Affidavit an Exhibit which is the Judgment of Court of Appeal in an earlier case by the Appellant against the Respondents over his tenure as the elected Chairman of Owerri Municipal Local Government Claiming that his tenure subsisted till 24th June, 2008. The Judgment of the High Court in that earlier case was against him culminating in his appeal to Port Harcourt division of this Court which found in Appellant’s favour on 8th day of April, 2008. In the said earlier case the questions the Appellants posed for the determination of the High Court of Imo State and the reliefs sought on those questions were answered in his favour are the following:-

“1. Whether or not the term of office of the Plaintiff as Chairman of Owerri Municipal Local Government Council is not to run for 3 years commencing on the 24th day of June, 2005 when he took his oath of office?

2. Whether or not the 1st Defendant is competent to conduct election for the purpose of electing the Chairman of Owerri Municipal Local Government Council by the 24th day of February 2007 or any other date before the expiration of the Plaintiff’s tenure in office?

Upon the determination of these questions he sought the following reliefs:

a. A declaration that by the provisions of Section 23(1) of the Imo State Local Government Administration Law No. 15 of 2000 the Plaintiff is entitled to hold office as Chairman of Owerri Municipal Local Government Council for 3 years commencing on the 24th day of June 2005.

b. A declaration that the 1st defendant is incompetent to conduct any election for the purpose of electing the Chairman of Owerri Municipal Local Government Council on the 24th day of February 2007 or any other date before the expiration of the Plaintiff’s tenure as Chairman of that Council.

c. A declaration that the Plaintiff’s tenure of office as Chairman of Owerri Municipal Council is to expire on or about the 24th day of June 2008.

d. An injunction perpetually restraining the 1st defendant by itself, agents or servants from conducting any election to elect the Chairman of Owerri Municipal Local Government Council on the 24th day of February 2007 or on any other date before the expiration of the Plaintiff’s tenure as Chairman.

e. An injunction perpetually restraining the defendants by themselves, their servants or agents from electing, recognizing or dealing with any other person as Chairman of Owerri Municipal Local Government Council other than the Plaintiff before the expiration of the tenure of office of the Plaintiff as Chairman of that Council.

f. An injunction perpetually restraining the defendants, their servants or agents from in any form or manner tampering with the Plaintiff’s occupation and/or exercise of the functions of his office as Chairman of Owerri Municipal Local Government Council within his tenure of office expiring on 24h June 2008.”

In the aforesaid Judgment of this Court delivered on 8th day of April, 2008 K. M. O. KEKERE – EKUN J.C.A now JSC held:

“With due respect to learned counsel this submission is misconceived. The effect of the nullification of the appellant’s election of 27th March 2004 is that the return of the appellant at that election was null and void and of no legal consequence. His tenure of office could therefore not be calculated from the date he took an oath of office in respect of an invalid election. This was precisely the view of the Supreme Court in Peter Obi Vs. I.N.E.C. (Supra) at 644 D. I am guided by the said decision and inevitably come to the conclusion that the appellant’s term of office of three years commenced on 24th June 2005 and will terminate on 24th June 2008.

In paragraph 4.04 of the appellant’s brief he has urged us to calculate the three year tenure to exclude the period from 13th April 2007 when he was illegally removed from office to the date when he is restored to office. The provisions of Section 23 of the Local Government Administration Law are quite clear in this regard. By virtue of subsection thereof (1) the term of officer of the Local Government shall be three years from the date the chairman, vice chairman or members of council take the oath of office. There is no provision allowing for the extension of the chairman’s tenure. This Court is therefore not entitled to read into the law provisions it does not contain. See: Ladoja Vs. I. N.E.C. (Supra) at 214 lines 19 -32 and 242 ines 9-20.
In conclusion therefore the appeal succeeds. The judgment of the Imo State High Court delivered on 14th June 2007 is hereby set aside. The first question on the plaintiff’s originating summons dated 10/4/07 is answered in the affirmative while the second question is answered in the negative. Consequently reliefs(a) – (f) of the amended originating summons are granted as prayed. I make no order for costs.”

The Respondents in that appeal who incidentally are now Respondents in the current appeal under consideration had appealed to the Supreme Court against the decision of this Court. The Appellant also cross appealed to the Supreme Court seeking the following relief viz:

“An order setting aside the holding of the Court of Appeal complained of and in its place directing that the 3year tenure of the Appellant shall exclude the period from 13th April, 2007 when he was illegally removed from office to the date when he is restored to office.”

Now upon service of the processes in the current action leading to this appeal the 1st and 2nd Respondents filed Notice of Preliminary objection dated and filed the 23rd day of May, 2008 wherein they prayed the Court below for an Order:

“Dismissing this Suit for lack of Jurisdiction and competence for the following reasons:
(a) Plaintiff lacks the Locus Standi.
(b) The action is speculative.
(c) The action was improperly constituted.
(d) The Suit does not disclose any reasonable cause of action.
(e) The Plaintiff has failed to disclose his cause of action.
(f) That no pre action Notice was served on the 4th Defendant as required by Law.
(g) The Suit is an abuse of process”

The 3rd Defendant now 3rd Respondent also filed a Motion on Notice dated 20th day of May 2008 but filed on 26/5/2008 seeking for the Order of the Lower Court in the following terms:

“An Order striking out the Suit on the following grounds:

(a) This Honourable Court lacks jurisdiction to entertain the Suit.
(b) The Suit is incompetent for being speculative, premature and an abuse of Court process.”

The Learned Trial Judge heard the two applications challenging his Jurisdiction together and in a considered Ruling delivered on the 23rd day of June, 2008 the Learned Trial Judge said and ruled as follows:

“The Plaintiff accepted part of the Court of Appeal decision restoring him to his office but rejected the part which terminated his tenure on the 24th day of June, 2008. The plaintiff rejected that date ending his tenure of office and cross-appealed to the Supreme Court. See Notice of Appeal to the Supreme Court Exhibit ‘B’. Part of the decision of the Court of Appeal being complained of by the plaintiff is as follows:-

“In paragraph 4.04 of the Appellant’s brief of argument he has urged us to calculate the three years tenure to exclude the period from 13th April, 2007 when he was illegally removed from office to date when he is restored to office. The provisions of Section 23 of the Local Government Administrative Law are quite clear in this regard. By virtue of the subsection thereof:

1. The term of office of the Local Government shall be three years from the date the Chairman, Vice Chairman or members of Council take the oath of office. There is no provision allowing for the extension of the Chairman’s tenure. This Court is therefore, not entitled to read into the law the provisions it does not contain.”

If by the showing of the Plaintiff this aspect of complaint is before the Supreme Court for determination what the Plaintiff is now looking for in this Court is for the Court to elongate his tenure. He must be looking for a short-cut to out-smart the defendants who also appealed against the entire judgment of the Court of Appeal Ex. ‘A’. It seems to me that the action of the Plaintiff in this regard amounts to a relitigation on the same issue to harass or irritate the adversary or employed it to impede the administration of justice. To my mind, it tantamount to abuse of the process of Court. I am satisfied that the Plaintiff is using the Court process malafide against the defendants and he must be stopped forthwith.

If this Court should declare that until the emergence of another democratically elected chairman of the 4th defendant or to elongate the tenure of the Plaintiff to cover the period he was removed from office (13th April 2007 to 8th April, 2008) the Plaintiff remains the person democratically elected to that position, that would amount to judicial indiscipline of this Court by refusing to be bound by the decision of the Court of Appeal. In Plaintiff’s reliefs(1) (c) what cause of action can make a Court of Law grant such over-ambitious relief. I find none.

The Plaintiffs Claim in relief 1(a) is already before the Supreme Court. At page 12 of Exhibit ‘A’, the Court of Appeal agreed that the Imo State Local Government Administrative Law No. 15 of 2000 and the Imo State Electoral Law No. 5 of 2001 having been made pursuant to Section 7 of the 1999 Constitution cannot be said to be in conflict with or to derogate from Section 6 of the said Constitution. I completely agree with that stand of the Court of Appeal.
If I may add a voice, I would say that Section 7(1) of the 1999 Constitution allowed the government of every State to ensure the existence of the Local Government under a law which provides for the establishment, structure, composition, finance and functions of such councils. In effect, the Imo State Local Government Administrative Law No. 15 of 2000 was made pursuant to Section 7(1) of the 1999 Constitution and I so hold.

The Claim of the Plaintiff before this Court touches or has so much bearing on the issues raised in the appeal at the Supreme Court.
I hold that both the Suit and the reliefs are premature and should wait until the Supreme Court hears the appeal and cross-appeal of both parties pending before it. To do otherwise, would amount to forum shopping to actualize undue interest which amounts to abuse of Court process. For this reason, I hereby strike out this Suit as premature and an abuse of Court process with cost which I assess and fix at N50,000.00.
Accordingly, it is so ordered.
(SGD.)
C. I. DURUEKE
JUDGE
23/6/2008″

Aggrieved by the said decision of the Learned Trial Judge, the Appellant lodged the appeal herein against the Ruling of the Lower Court vide the Notice and grounds of Appeal dated the 1st day of July, 2008 and filed on the same date. The said Notice of Appeal consists of three grounds of appeal which are as follows:-

“GROUNDS OF APPEAL:

ERROR IN LAW

1. The Learned Trial Judge erred in law when he held that none of the reliefs sought entitled the Plaintiff to the Locus Standi to approach the Court.

PARTICULARS

i) The Plaintiff sued in his capacity as the incumbent democratically elected Chairman of Owerri Municipal Council.

ii) The Reliefs sought by the Plaintiff conferred benefit on him.

ERROR IN LAW

2. The Learned Trial Judge erred in law when he held that both the Suit and the reliefs are premature and should wait until the Supreme Court hears the appeal which had nothing to do with the instant Suit.

PARTICULARS

i) The Appeal pending at the Supreme Court amounted from the decision of the Court of Appeal which had nothing to do with the instant Suit.

ii) The Suit was seeking the interpretation of Section 7(1) of the 1999 Constitution.

iii) The issue of interpretation of Section 7(1) of the Constitution was neither the subject of the decision of the Court of Appeal nor the Appeal pending at the Supreme Court.

ERROR IN LAW

3. The Learned Trial Judge erred in Law when he struck out this Suit as being premature and an abuse of Court process and this has occasioned a gross miscarriage of Justice.”

The Appellant filed his Appellant’s brief of Argument dated 13th day of October 2008 on the same date. The 1st and 2nd Respondents filed no Brief of Argument. The 3rd Respondent filed her 3rd Respondent’s Brief of Argument dated 30th day of October, 2013 on 31st day of October, 2013 but was deemed properly filed on 3rd day of April, 2014.
The Appeal was heard on 21st day of October, 2014 when D. O. Madu Esq. for the Appellant adopted his Brief of Argument in urging this Court to allow the appeal.
S. D. Opara Esq. for the 3rd Respondent equally adopted the 3rd Respondent’s Brief of Argument and urged this Court to dismiss the Appellant’s appeal.

The Appellant distilled two issues for determination of the appeal namely:-

“(a) Whether the Trial Court was right to hold that the Appellant did not have Locus Standi to institute the action. (distilled from ground 1).
(b) Whether the Trial Court was right to hold that the Suit was premature and abuse of Court process (distilled from grounds 2 and 3).”

On her part the 3rd Respondent also nominated two issues as arising for determination viz:

“(i) Whether or not from the Originating Summons and affidavit in support thereof filed by the Appellant (Plaintiff), he had the Locus Standi to institute the action as he did.

(ii) Whether or not the Originating Summons filed by the Appellant (Plaintiff) in the Lower Court was an abuse of the Court process.

The two issues raised by the Appellant for determination and the two issues formulated by the 3rd Respondent coincided. Therefore it will suffice if the appeal is determined on the two issues distilled for determination of this appeal by the Appellant.

ISSUE A
WHETHER THE TRIAL COURT WAS RIGHT TO HOLD THAT THE APPELLANT DID NOT HAVE LOCUS STANDI TO INSTITUTE THE ACTION. (distilled from ground 1).

D. O. Madu Esq. Learned Counsel to the Appellant submitted that the Learned Trial Judge was wrong when he held that the Appellant did not have Locus Standi to institute this action. That the Appellant sued in his capacity as the democratically elected Chairman of the Owerri Municipal Local Government, 4th Respondent, and was making a case for it as its incumbent Chairman. It is the submission of Learned Counsel that the Appellant has shown sufficient interest in the subject matter of the dispute as to entitle him to sue. He relied on paragraphs 1, 9 & 10 of the Affidavit in support of the Originating Summons. That the facts therein disclosed the interest of the Appellant and that the interest was being threatened with violation or actual violation by the act of the Respondents. Thus he urged this Court to adjudge that the Appellant has manifested sufficient interest to entitle him to litigate over the subject matter.
That the major test or determinant of Locus Standi is whether the Plaintiff has sufficient interest in the subject matter of the Suit and once he has the Law would not stop him from doing so. He relied on the cases of AMADI VS. ESSIEN (1994) 7 NWLR (Pt 354) 91 at 115 and OWODUNNI VS. REGISTERED TRUSTEES OF CCC (2000) 10 NWLR (Pt. 675) 315 at 346 – 347.
The Learned Counsel to the Appellant submitted further that in matters relating to the interpretation of the Constitution as in this case, the current trend now is for the Courts to relax on the requirements of Locus Standi. He relied on the case of BEWAJI VS. OBASANJO (2008) 9 NWLR (Pt. 1093) 540 at 581 E per ADEKEYE JCA later JSC. That at all time Locus Standi ought to be given broad and liberal scope by the Courts to bring out the true essence of Justice in accordance to Law. He relied on BEWAJI V. OBASANJO Supra page 568 C – E. He urged that issue one be resolved in favour of the Appellant.

In his response to the above submissions on issue 1, the Learned Counsel to the 3rd Respondent S. D. Opara Esq. stated that it is not in doubt that Section 6(6)(b) of the 1999 Constitution gives every citizen of Nigeria a right of access to the Court for the determination of his civil right, that the Plaintiff must be the proper person seeking for an adjudication of the question in issue. That the Crucial question to ask is whether there is a breach of the Civil rights and obligations of the Plaintiff and that he has a justifiable dispute with the Defendants. He relied on the cases of:

1. SENATOR ABRAHAM ADESANYA VS. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981) 5 SC 112 at 162, 187 – 188 and

2. THOMAS VS. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669.

The Learned Counsel to the 3rd Respondent stated that it is the Statement of Claim that must be looked at to see if it discloses a cause of action and the standing of the Plaintiff to present the case. That the Plaintiff must show how his Civil Rights have been infringed. He relied on the case of ATTORNEY GENERAL OF KADUNA STATE VS. HASSAN (1985) 2 NWLR (PT. 8) 483 at 522. The Learned Counsel referred to the Originating Summons and the Affidavit in Support. That a cursory look at the Affidavit in support of the Originating Summons do not show any breach of Appellant’s Rights by the Respondents. That the Appellant had admitted that he was a democratically elected Chairman reinstated in obedience to the Court of Appeal Judgment Exhibit “A” attached to the Appellant’s Affidavit in Support.
That it was clear from the Appellant’s Affidavit in Support that he was agitating on behalf of the 26 Local Government Areas of Imo State where there are Transition Committee Chairmen and members. This the 3rd Respondent Learned Counsel contended the Appellant cannot do. He relied on the cases of:
1. ADESANYA VS. FED. REP. OF NIGERIA (2001) FWLR (Pt. 46) 859 at 894.
2. AZU VS. U. B. N. PLC. (2004) 14 NWLR (PT. 893) 402 at 420 – 421.

That in paragraph 10 the Affidavit in Support of the Originating Summons Appellant stated that no date has been fixed for election into the said Local Government Councils. That Appellant is a ‘busy body’ and he has no live issue for adjudication as the Court does not engage in academic or speculative exercises. He relied on the cases of:

1. EDONKUMOH VS. MUTU (1999) 9 NWLR (PT. 620) 633 at 648.
2. IVIENAGBOR VS. BAZUAYE (1999) 9 NWLR (Pt. 620) 552 at 561.
That the Learned Trial Judge evaluated the case of the Appellant as contained in his Originating Summons and the Affidavit on the issue of Locus Standi.

The Learned Counsel to the 3rd Respondent urged the Court to resolve issue 1 in favour of the 3rd Respondent.
Now Section 6(6) (b) of the 1999 Constitution as amended or altered provides:
“6(6) the Judicial Powers vested in accordance with the foregoing provisions of this Section –
(a) ——
(b) Shall extend to all matters between persons or between, government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the Civil Rights and obligation of that person.”

Thus a person whose rights and obligations are not threatened, violated or put in danger or peril cannot acquire the Standing or capacity to institute an action in a Court of Law to vindicate rights or obligations belonging to another person. In Order words the person suing must have sufficient interest in the subject matter of an action and the ultimate results of the action must be beneficial to him otherwise the Court will be devoid of Jurisdiction to adjudicate on the matter. The right to sue must be conferred by the Constitution or Statute or some Customary Law.

It is therefore evident that issue of Locus Standi of any Plaintiff or Claimant is a matter intertwined with the competence and Jurisdiction of the Court to entertain a matter.
The importance of Locus Standi cannot therefore be over-emphasised.
In order to find out if the Appellant has locus Standi or standing to institute the action herein recourse must be heard to the reliefs on the Originating Summons and the facts deposed to by him in the supporting Affidavit to the Originating Summons.
See KAYODE BAKARE & ORS. VS. CHIEF EZEKIEL AJOSE – ADEOGUN & ORS. (2014) 2 SCM 62 at 83 E – I to 84 A – E per ARIWOOLA, JSC who:
“What then is “Locus Standi?” This is a latin phrase meaning “place of standing”. The right to bring an action or to be heard in a given forum. See: Black’s Law Dictionary, Ninth Edition page 1026.
In other words, Locus Standi is the legal capacity of Plaintiff/Claimant to institute an action in a Court of Law in exercise of the claimant’s constitutional right. That is the reason the issue can be raised in limine after the Statement of Claim has been filed and served. Therefore, ordinarily, if the Statement of Claim discloses no personal sufficient interest in the subject matter of the case, the Plaintiff will have no Locus Standi to institute the action and the Court will have no jurisdiction to entertain same. See: Profess T. M. Yesufu Vs. Governor of Edo State & Ors. (2001) LPELR 3526; (2001) 8 SCM 189.
The question of what gives a Plaintiff the standing to sue for Locus Standi has been the subject of a number of judicial decisions: See: Momoh Vs.Olotu (1970) 1 All NLR 1171 Senator Adesanya Vs. The President (1981) 2 NCLR 3581 (1981) 5 SC 112; Adefulu Vs. Oyesile (1989) 5 NWLR (Pt. 122) 377; Owodunni Vs. Registered Trustees of C. C. C. (2000) 10 NWLR (Pt. 675) 315. This Court has maintained on Locus Standi that a Plaintiff, to enable him invoke the judicial power of the Court must show sufficient interest or threat of injury he would suffer which is being sought to be protected.
How then does the Plaintiff show that it has the necessary or required standing to institute an action? It is now trite that in the determination of Locus Standi the Plaintiff’s Statement of Claim should be the only process that should be considered or should receive the attention of the Court. The Court has maintained this stand. In Adesokun Vs. Prince Adegorolu, (1991) 3 NWLR (Pt. 179) 261 this Court held that in order to determine whether or not a Plaintiff has Locus Standi it is the Statement of Claim that must be considered. Hence, the well established principle of law that a defendant who challenges the Locus Standi of the Plaintiff in limine is deemed to accept as correct all the averments contained in the Statement of Claim.
In Owodunni Vs. Registered Trustees of Celestial Church of Christ (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 in the consideration of the totality of all the averments in the Statement of Claim. In other words, to ascertain the Locus Standi of a Plaintiff in a Suit, it is the Statement of Claim alone that has to be carefully scrutinized. This is to see whether or not it has disclosed his interest and how he acquired such interest or how such interest has arisen in the subject matter of the action. See: Taofik Disu & 13 Ors. Vs. Alhaja Silifat Ajilowura (2006) 12 (Pt. 2) SCM 1.”

The entire paragraph contained in the Appellant Affidavit in Support of the Originating summons are as follows:

“AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

I, Oshieze Vincent Akujobi Ehirim, Male, Nigerian, Christian, Politician and Chairman of Owerri Municipal Local Government do hereby make Oath and say as follows:- That:-

1. I am the democratically elected Chairman of Owerri Municipal Local Government following the election to that office on 18th day of June, 2005.

2. I took my oath of office on the 24th day of June, 2005 for a tenure of 3 years.

3. On the 13th day of April, 2007 the 1st Defendant removed me from office purporting that my tenure of office had expired.

4. On the 8th day of April, 2008 my challenge against the guillotine of my tenure was successful in Appeal No. CA/PH/274/2007 when the Court of Appeal set aside the Judgment of the High Court of Imo State and declared my tenure extant. A copy of the Judgment is exhibited and marked “A”.

5. Upon my said removal the 1st Respondent appointed one Chief Jerry Irechukwu as Chairman of a Transition Committee to exercise the powers and functions of my office as Chairman of the 4th Defendant.

6. The said Committee headed by Chief Irechukwu was dissolved and another committee headed by Sir, Ferdinand Maurice was appointed again by the 1st Defendant.

7. It was the Transition Committee headed by Sir, Maurice that handed over the functions of my officer to me in obedience of the Court of Appeal Judgment.

8. The Respondents in the said matter at the Court of Appeal appealed against the Judgment and I also appealed against that part of the Judgment that refused to exclude the period I was removed from office in determining my 3 years tenure. A copy of my Notice of Appeal is exhibited and marked ‘B”.

9. All the Local Government in Imo State excluding the 4th Defendant are currently being administered by un-elected Transition Committees and it is the intention of the 1st – 3rd Defendants to introduce same again to the 4th Defendant.

10. No dates have been fixed for any election into the Local Government Councils in Imo State.

11. I make this oath in good faith believing the contents to be true and correct to the best of my knowledge and information in accordance with the Oaths Act 1990.”

It is glaring from the Affidavit deposed to by the Appellant that his own right and obligations under the 1999 Constitution or any other Law were not and are not affected, threatened or violated at the time he instituted the action. He rather appears to be a sympathizer weeping more than those who are bereaved. This Court had on 8th day of April 2008 restored him into his elective position and he had already appealed against the portion of the Judgment of this Court not favourable to him to the Supreme Court. The Appellant cannot be in heaven and at the same time peeping to see what does not concern him in hell.

Issue of Locus Standi has nothing to do with the merit of the case. Once the Claimant is bereft of Locus Standi he would be shown the way out of the Court without any adjudication on his matter.
See: BASINCO MOTORS LTD. VS. WOERMANN-LINE & ANOR. (2009) 13 NWLR (PART 1157) 149 at 199 C – E per FABIYI, JSC, who said:
“In Josiah Kayode Owodunni Vs. Registered Trustees of C. C. C. & 2 Ors. (2000) 10 NWLR (Pt. 675) 315 at page 357, this Court pronounced that Locus Standi is unequivocally a threshold issue. It is not dependent on the merits of a case but on showing of the Plaintiff’s case in his Statement of Claim. The question whether a Plaintiff has Locus Standi to sue is determinable from the totality of averments in his Statement of Claim. If there is no requisite Locus Standi to sue by a Plaintiff it is not necessary to consider whether there is a genuine case on the merit.”

I am of the settled view that the Appellant’s reliefs as claimed on the Originating Summons and the contents of the Affidavit in Support do not disclose any Locus Standi in the Appellant nor sufficient interest in the subject matter to enable the Appellant sue the Respondents.
Therefore I resolve issue A against the Appellant in favour of the 3rd Respondent.

ISSUE B
WHETHER THE TRIAL COURT WAS RIGHT TO HOLD THAT THE SUIT IS PREMATURE AND ABUSE OF COURT PROCESS.

The Learned Counsel to the Appellant argued that the Trial Judge was wrong when he held that the Suit was premature and an abuse of Court process.
That the Appeal pending at the Supreme Court emanated from the decision of the Court of Appeal Exhibit “A” which Learned Counsel said did not have anything to do with the instant Suit. Appellant said the Suit herein is seeking the interpretation of Section 17(1) of the 1999 Constitution and the question whether or not it was permissible for 1st – 3rd Defendants to permit, direct or authorize the running of the affairs of the 4th Defendant by a non democratically elected Transition or Caretaker Committee. That the Lower Court was wrong in asking the Appellant’s to wait until the Supreme Court hears the Appeal and cross – appeal of both parties pending before the Supreme Court notwithstanding that the reliefs being sought are entirely different according to the Appellant. Appellant submitted that that there is no disputing the fact that he did not file two or more action on the same matter between same parties. To Appellant all he did was to exercise his Constitutional Right and was not intended to harass, irritate, annoy or interfere with the course of Justice, but to protect his rights and interests in the subject matter. Appellant urged the Court to resolve second issue in his favour and sought for the invocation of Section 15 of the Court of Appeal Act 2004 to enables this Court decide the merit of the Suit. That the High Court wrongly struck out his Suit and same occasioned a miscarriage of Justice.
In his reply to the submissions on issue two the Learned Counsel to the 3rd Respondent that abuse of Court process is a mala fide use of Court process. He relied on the case of C. O. M. INC VS. COBHAM (2006) 15 NWLR (PART 1002) 283 at 304. That a look at Exhibit A shows that all the reliefs were granted to Appellant in the action he instituted in 2007. That the Appellant only filed an appeal in respect of his terminated tenure on 24th day of June, 2008 without taking into account the period he said he was unlawfully excluded from office. That what the Appellant sought to achieve by the current Suit is to enable him remain in office indefinitely inspite of his appeal to the Supreme Court. That the Appellant is Litigating over same issue already Litigated and decided upon. He relied on the cases of UKACHUKWU VS. UBA (2005) 18 NWLR (PART 956) 1 at 63 D – H, 65 A – F and A. G. ANAMBRA STATE VS. UBA (2005) 15 NWLR (PART 1947) 44 at 68. A – H.
That it does matter how a relief is couched or framed that what Appellant is seeking through the back door is an adjudication on his tenure which has been determined by this Court in Exhibit A.
That the cases of PLATEAU STATE VS. A – G Federation (2006) 3 NWLR (Pt. 947) 346 and KOLAWOLE VS. A. G. OYO STATE (2008) 3 NWLR (PT. 900) 50 cited by the Appellant are inapplicable to the issues in this appeal.

That the Learned Trial Judge properly espoused the Appellant’s Suit in its entirely and the essence of Section 7(1) of the 1999 Constitution. He finally submitted that the Appellant’s case was an abuse of Court process and urged the Court to resolve issue two in favour of the 3rd Respondent. The Learned Counsel also urged the Court to dismiss the appeal and uphold the Ruling of the Court below.
I have hereinbefore reproduced the reliefs being sought in the present Suit by the Appellant and the reliefs granted to him by the Court of Appeal on 8th day of April, 2008.
It is here relevant to examine the term abuse of process so as to juxtapose the facts in the current Suit with the reliefs granted to Appellant by the Court of Appeal on 8th April, 2008 and his appeal to the Supreme Court which I have also reproduced in the course of this Judgment.
Abuse of Court process or Judicial process involves circumstances and situations of infinite varieties and conditions which includes the misuse of Court process by a party designed to unjustly and unduly deflects the course of Justice for unmerited favour or advantage over opponents in a Court of Law and Justice, in the Course of Litigation. The circumstances have been eloquently captioned and enumerated in the leading case of MRS. F. M. SARAKI & ANOR. VS. N. A. B. KOTOYE (1992) 9 NWLR (PART 264) 156 at 188 D – E per KARIBI – WHYTE, JSC.
They can be summarised as follows:
a) Instituting a multiplicity of actions on same subject matter against the same opponent on the same issues or multiplicity of actions on the same subject matter between the same parties even where there exists a right to begin the action.
b) Instituting different actions between the same parties simultaneously in different Courts, even though on different grounds.
c) Where two similar processes are used in respect of the exercise of the same right for example, a cross appeal and a Respondents Notice.
d) Where an application for adjournment is sought by a party to an action to bring an application to Court for leave to raise issues or facts already decided by Court below.
e) Where there is no iota of Law supporting a Court process or where it is premised on frivolity or recklessness.
See also:
1. OKORODUDU VS. OKOROMADU (1977) 3SC 21
2. OYEGBULU VS. ESSO WEST AFRICA INC (1996) 1 ALL NLR 170.
3. HARRIMAN VS. HARRIMAN (1989) 5 NWLR (PT. 119)6
4. ANYADUBA VS. NRT. CO. LTD. (1990) 1 NWLR (PT. 127).
5. JADESINMI VS. OKOLI-EBOH (1986) 1 NWLR (PT. 16) 278.
Abuse of Court process could also mean a proceeding wanting in bona fide and those involving abuse of proper or improper use of legal process even if the matter is not strictly res judicata.
See: CBN VS. AHMED (2001) 11 NWLR (PT. 724) 369 at 408 A – B and AMAETUK VS. STATE (1988) 2 NWLR (Pt. 75) 516.

In his Affidavit in Support of the Originating Summons in the Current Suit the Appellant in paragraph 8, 9 and 10 thereof deposed as follows:

“8. The Respondents in the said matter at the Court of Appeal appealed against the Judgment and I also appealed against that part of the Judgment that refused to exclude the period I was removed from office in determining my 3 year tenure. A copy of my Notice of Appeal is exhibited and marked “B”.

9. All the Local Government in Imo State excluding the 4th Defendant are currently being administered by un-elected Transition Committee and it is the intention of the 1st – 3rd Defendants to introduce same again to the 4th Defendant.

10. No dates have been fixed for any election into the Local Government Councils in Imo State.”

There is no doubt the Suit is a viled voyage by the Appellant for selfish purpose that has no support in Law.
It is also apposite to say that from his own showing the Appellant leaves no one in doubt that he embarked on this action to irritate and cause confusion in the administration of justice so as to set one Court against another which is a clear case of gross abuse of the Court process.
Every Court that discovers abuse of its Court process is entitled to damnify and or punish a party who indulges in abuse of Court process. The Court in such circumstance has power not only to terminate the proceeding constituting abuse of Court process it also has power to dismiss such action. See ALHAJI M. A. DINNGYADI & ANOR. VS. INEC & ORS. (2011) 4 SCM 87 at 113D – 1 per Adekeye JSC who held as follows:
“This Court in Dingyadi Vs. INEC (No. 2) (Supra) stated categorically that abuse of Court is not merely an irregularity that can be pardoned but constitutes a fundamental defect, the effect of which will lead to dismissal of the process which is abusive. In the case of Arubo Vs. Aiyeleru (1993) 3 NWLR (Pt. 280) Pg. 125, the Supreme Court took the stand that:
Once a Court is satisfied that the proceeding before it amounts to an abuse of process, it has the right, in fact the duty to invoke its coercive powers to punish the party which is in abuse of its process. Quite often, that power is exercised by a dismissal of the action which constitutes the abuse” Adesanya Vs. Adewale (2000) 9 NWLR (Pt. 127) Pg. 671. Issues of abuse of Court process have been identified as an issue of jurisdiction. Hence the Court reserves the prerogative and inherent jurisdiction to protect itself from abuse of its processes. The Court has an inherent jurisdiction to undo what has been done by a party in abuse of Court process, particularly in an attempt at forum shopping, so as to avoid a situation whereby the Court will be presented with a fait accompli.”

The Learned Trial Judge was right when he held the Suit of Appellant to be an exercise at forum shopping and abuse of Court process. His Local Government was not being ruled or run by Caretaker or Transition Committee. It is a wanton abuse of Court process. After all he had opportunity to ask the question relating to Section 7(1) of the Constitution of the Federal Republic of Nigeria 1999, when he instituted the earlier action leading to the extant decision of this Court on 8/4/2008. No Litigant will be allowed to raise issues instalmentally in a Court of Law against his adversary. See FIDELITAS SHIPPING CO. LTD. V/O EXPORTCHLEB (1965) 2 ALL E. R. 4 at 8 – 9 A – B where Lord Denning M. R. said:

It cannot be different with the case at hand, when in parties and subject matter are also the same in the two cases i.e. to say the one earlier dismissed by this court and the one sought to appeal by order of the ruling now subject matter of appeal. The drastic measure is needful to ensure the authority and dignity of the court which is imbued with the power and duty to prevent action which constitutes abuse of its process.”
(3) CHIEF GREAT O. OGBORU & ANOR VS DR EMMANUEL UDU- AGHAN & ORS (2013) 13 NWLR (PART 1370) 33 at 59 B-F per OGUNBIYI JSC.
In the result this appeal is unmeritorious. It is hereby dismissed. The Ruling of the High Court of Imo State delivered by DURUEKE, J, on the 23rd day of June, 2008 is hereby confirmed. Costs assessed at N50,000.00 (Fifty Thousand Naira) is awarded against the Appellant in favour of the 3rd Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the very illuminating judgment of my learned brother, Peter O. Ige JCA, and I agree with his reasoning and conclusion that the Appeal is unmeritorious. I have nothing more to add as my Lord has sufficiently dealt with the issues that had arisen before dismissing the Appellant’s Appeal. I too shall dismiss same and affirm the Ruling of the Honourable Justice C. I. Durueke delivered on the 23rd day of June, 2008.

FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned Brother PETER O. IGE, JCA just delivered and agree with his reasoning and conclusions therein and also dismiss this Appeal as lacking in merit. I endorse the award of cost of N50,000 against the Appellant in favour of 3rd Respondent.

Appearances

D. O. MADU ESQ WITH A.K. MADU ESQ. AND MRS N.S. AMAHFor Appellant

AND

S. D. OPARA ESQ WITH MRS A.C. ALINNOR FOR 3RD RESPONDENT.For Respondent