Y.P.P v. GOV. OF IMO STATE & ORS (2022)

Y.P.P v. GOV. OF IMO STATE & ORS

(2022)LCN/16622(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/OW/281/2021

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

YOUNG PROGRESSIVE PARTY (Y.P.P) APPELANT(S)

And

1. THE GOVERNOR OF IMO STATE 2. THE HEAD OF SERVICE IMO STATE 3. THE SPEAKER, IMO STATE HOUSE OF ASSEMBLY 4. BARR. REUBEN NWOSU 5. THE AUDITOR GENERAL FOR LOCAL GOVERNMENTS OF IMO STATE 6. THE ATTORNEY GENERAL OF IMO STATE RESPONDENT(S)

RATIO

THE REQUIREMENT OF THE COURT IN DETERMINING STATUTE BAR

In establishing statute bar, consideration must be given to the Writ of Summons (Originating Summons as in this case) and the Statement of Claim. The defence must be pleaded while the trial Court has a duty to confine itself to the pleadings filed by the parties. Consideration must be given to the Writ of Summons, Statement of claiming alleging when the wrong was committed, and by comparing that date with the date on which the Writ of Summons was filed. PER PEMU, J.C.A.

WHETHER OR NOT IT IS THE CLAIM OF A PLAINTIFF THAT DETERMINES THE JURISDICTION OF A COURT

It is fundamental principle of law that it is the claim of the Plaintiff which determines the jurisdiction of the Court. In determining the jurisdiction of the Court, it is the claim before the Court that has to be looked at or examined to ascertain whether or not a Court is seized with jurisdiction to hear and determine the matter before it. OKULATE AND ORS. V. AWOSANYA AND ORS. (2000) LPELR–2529 (SC). There is nothing that has to do with Industrial related matters or Trade Union dispute, discernable from the claim before the lower Court. That assertion becomes misconceived and same is dismissed in limine. PER PEMU, J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Imo State High Court delivered on the 19th July, 2021.

SYNOPSIS OF CASE
Vide Originating Summons dated the 29th of January 2021 and filed on same date, the Appellant (plaintiff in the Court below) sought the determination of the following questions viz:
“Whether having regards to Section 130 (1) a, b, and c of the Imo State Local Government Administration Law No. 15 of 2000 (as amended) and Section 31 of the Civil Service Regulation 1994 and Rule 02809 of the Imo State Public Service Rules 2001, the tenure of the Auditor General of Local Governments of Imo State automatically lapses upon the attainment of the retirement age of 60 years?
Whether having regards to Section 130(1)a, b and c of the Imo State Local Government Administration Law No. 15 of 2000 (as amended) and Section 31 of the Civil Service Regulation 1994 and Rule 02809 of the Imo State Public Service Rules 2001, the 1st Defendant does not have the vires to extend the tenure of the 4th Defendant in the office of the auditor general of Imo State without recourse to the approval of the Imo State House of Assembly having become ineligible to occupy that position by reason of age?
Whether having regards to Section 130 (1) a and b of the Imo State Local Government Administration Law No. 15 of 2000 (as amended) and Section 31 of the Civil Service Regulation 1994 and Rule 02809 of the Imo State Public Service Rules 2001, the 1st Defendant does not have the vires to instate, remove or extend the tenure of the occupant in the office of the Auditor General of Imo State without recourse to the approval of the Imo State House of Assembly?”

And the Plaintiff then sought the following reliefs viz:
“A DECLARATION that by virtue of Section 130 (1) a, b and c of the Imo State Local Government Law No. 15 of 2000 (as amended) and Section 31 of the Civil Service Regulation 1994 and Rule 02809 of the Imo State Public Service Rules 2001, the tenure of the Auditor General of Local Governments of Imo State automatically lapses upon the attainment of the retirement age of 60 years and the tenure cannot be extended.
A DECLARATION that the 1st Defendant acted ultra vires his powers in extending the tenure of the 4th Defendant.
AN ORDER directing the 4th Defendant to vacate office.
AN ORDER directing the 1st Defendant to appoint any qualified person as the new Auditor-General for the Local Governments of Imo State other than the 4th Defendant”.

The Respondents filed their counter-affidavit (except the 3rd Defendant) to which the Appellants (Plaintiff at the lower Court) filed a reply on point of law.

The 4th Defendant/Respondent raised a Preliminary Objection to the suits pages 103–112 of the Record of Appeal.

The Appellants/Plaintiff at the lower Court filed a counter-affidavit to the 4th Defendant’s Preliminary Objection – pages 113–121 of the Record of Appeal.

The Court below, while holding on the issue of the subject matter that the State High Court was the proper Court to institute the action, went ahead however to strike out the suit for lack of locus standi.

The Appellant is dissatisfied with part of the judgment of the lower Court that pertains to LOCUS STANDI.

Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 23rd of July, 2021, – pages 147–151 of the Record of Appeal.

The Appellant filed its Brief of Argument on the 12th of November, 2021. It is settled by Chukwuemeka Nwigwe, Esq. The 1st, 2nd, 5th and 6th Respondents filed a joint brief of argument on the 17th of December, 2021. It is settled by Osita Chukwuemeka, Esq.

The 3rd Respondent filed his Brief of Argument on the 21st of December, 2021. It is settled by L.E. Onyeananam, Chief State Counsel, Ministry of Justice, Owerri, Imo State.

The 4th Respondent filed his Brief of argument out of time on the 14th of January, 2022, but same was deemed filed on the 22nd of February, 2022.

The Appellants filed their Reply Brief of Argument to the 1st, 2nd, 5th and 6th Respondents on the 17th of January, 2022.

The Appellants’ Reply Brief of Argument to the 3rd Respondents’ brief was filed on the 17th of January, 2022.

The Appellants’ Reply Brief of Argument to the 4th Respondents’ brief was filed on the 27th January, 2022.

The Appellant distilled two (2) issues for determination in his brief of argument. They are:

ISSUES FOR DETERMINATION
“(a) Whether the trial Court was right when it held that the Appellant, being Plaintiff at the trial Court lacked locus Standi and thereby jurisdiction, for failing to show the trial Court any special interest in bringing this suit as required by law. This issue arises from Ground I and Ground II of the Notice of Appeal.
(b) Whether the trial Court was right when it held that the application of the case of Centre for Oil Pollution Watch V. N.N.P.C (2019) 5 NWLR (Pt. 1666) 518 in liberalising the requirement of locus standi is restricted to only Environmental matters and/or matters incidental thereto. (This issue arises from grounds II and III of the Notice of Appeal.

The 1st, 2nd, 5th and 6th Respondents distilled three (3) issues for determination from the Grounds of Appeal. They are:
“1. Whether the trial Court was right in holding that the Appellant (Plaintiff at the trial Court) lacks the locus standi to institute the suit.
2. Whether the trial Court was right when it held that the Appellant’s (Plaintiff at the trial Court) lack of locus standi to bring the suit robbed the Court of the jurisdiction to hear and determine the case.
3. Whether the trial Court was right in distinguishing the case of Centre for Oil Pollution Watch V. N.N.P.C. (2019) 5 NWLR (Pt. 1666) 518 from the one the Appellant brought at the trial Court.

The 3rd Respondent distilled two (2) issues for determination from the Ground of Appeal which are:
“(a) Whether the learned trial Judge was right to strike out the Appellant’s suit for lack of locus standi?
(b) Whether the learned trial Judge was right when he found it needless to consider and determine Issues 2, and 4 raised by the Appellant for determination and accordingly struck out the suit for lack of jurisdiction?”

The 4th Respondent distilled two (2) issues for determination from the grounds of Appeal. They are:
“(i) Whether the Appellant had the requisite locus standi and sufficient interest to have instituted and/or initiated the suit of the instant appeal?
(ii) Whether the learned trial Judge rightly held that the Appellant’s suit was liable to be struck out for lack of jurisdiction?”

On the 24th day of February, 2022, the parties adopted their respective Briefs of Arguments.

Having taken a cursory look at the issues for determination of the respective parties, I am able to discern that they can aptly be framed thus viz.
“(1) WHETHER THE APPELLANT HAD THE LOCUS STANDI TO INSTITUTE THE ACTION, THE SUBJECT MATTER OF THIS APPEAL.
(2) WHETHER THE COURT BELOW WAS RIGHT TO HAVE STRUCK OUT THE CASE.”

I shall consider this appeal based on these issues for determination. Taking Issues 1 and 2 together.

ISSUES NOS. 1 AND 3
The Appellant submits that the concept of locus standi refers to the capacity of a Plaintiff or an aggrieved party under law to commence a suit before a competent Court. That it connotes “legal capacity to institute proceedings in a Court of Law”.

That “sufficient interest” in a subject matter, to institute and/or maintain an action.

That for a party to be clothed with locus standi, such party must satisfy the Court that he has sufficient interest, rights or obligation in the subject matter violated by the Defendant which resulted to injury to the party.

He submits that there is no need to show “special interest” in Public spirited suits. He submits that it is sufficient that the Appellant is a registered political party in Nigeria.

CITING, CENTRE FOR OIL POLLUTION WATCH V. N.N.P.C., he submits that he has the necessary locus standi to institute the originating summons, the subject matter of the suit.

Submits that the present suit is a public interest suit. It challenges the legitimacy of the Government of Imo State in extending the terms of the 4th Respondent without following due processes.

Where the Court finds that a suit is brought by an improper party, the Court is bereft of jurisdiction. Indeed in considering the issue of locus standi, the Court is required to peruse the statement of claim or the affidavit in support of the originating summons.

The Respondents had filed a Cross/Appeal (the 1st, 2nd, 5th and 6th Respondents filled on the 11th of October, 2021. The 3rd Respondent/Cross-Appellant filed his Cross-Appeal on 14/10/2021. The 4th Respondent filed no Cross-Appeal.

It is the arguments of the Respondents that the appeal is bereft of merit, as the Appellant has no locus standi as required by law.

The 1st, 2nd, 4th 5th and 6th Respondents had argued that the Appellant had showed no interest at all in the subject matter on the position of the Auditor General for Local Government of Imo State. That locus standi is a condition precedent in initiating any actions.

The Respondents submit that the Appellant must be able to show in his pleadings that his civil rights and obligations have been, or are in danger of being infringed.

RESOLUTION
In paragraph 3 of the affidavit in support of the originating summons, the Appellant is stated to be a “Political Party” – page 5 of the Record of Appeal. “Political Party” is defined in Section 229 of the Constitution of the Federal Republic of Nigeria 1999 as;
“Includes any association, whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice President, Governor, Deputy Governor, or membership of a Legislative House or of a Local Government Council”

The 4th Respondent is the Auditor General of the Local Government of the State. It is undoubtedly a political appointment. The Governor of Imo State is the Chief Executive and Chief Security officer of the State.

Section 130 of the Imo State Local Government Administration Law No. 15 of 2000 provides thus:
“There shall be an Auditor General for the Local Government of the State, who shall be appointed by the Governor of the State, subject to the approval of the House of Assembly of the State.”

There is nothing in the Imo State Local Government Administration Law No. 15 of 2000 which provides for the retirement age of the Auditor General of the Local Government of the State. Neither is there any provisions therein which prevents the extension of time within which he can retire by the Governor of the State.

Nowhere did the Appellant reproduce the provisions of the law that prevents the 1st Respondent from extending the retirement age of the 4th Respondent. Agreed that a political party can sue and be sued, but that requirement is not “AT LARGE” It must obtain within the ambit of what the Constitution of the Federal Republic of Nigeria allows the Political party to do.

The Appellant, being a political party cannot in that status, question the discretionary power of the 1st Respondent. This is because the Appellant is not a public spirited individual.

The Appellant had cited and relied on the case of CENTRE FOR OIL POLLUTION WATCH V. N.N.P.C. (2019) 5 NWLR (Pt. 1666) 518. The Apex Court referring to the Appellant’s pleadings in that case, showed that the Appellant (Plaintiff at the lower Court) members are over 2000 persons which cut across the entire country. That some of their members are indigenes and resident of the community and that they make use of the oil polluted streams as their only source of drinking water. The apex Court aptly held in that case that, that amounts to disclose of special interest and the Appellant had the requisite locus standi to institute the action.

In paragraph 6:05 of the 1st, 2nd 5th and 6th Respondents’ Brief of Argument filed on the 17th of December, 2021, they argued that the Appellant made heavy weather of this case, and that by the decision of the case the Appellant did not require to show any locus standi to bring this suit, but could just bring it in the interest of the public.

The Respondents further argued that, in the instant case, the Appellant showed no interest which it has in the position of Auditor General for Local Government of Imo State, and how the extension of his tenure in office would adversely affect it and/or whom it purports to represent.

The issue in my view is whether the Appellant in this appeal is the proper person to seek an adjudication of the issue. It is not whether the issue is justiciable or likely to succeed. MADUKOLU V. NKEMDILIM 1962. 25 CNLR 341; A. G. OF FEDERATION V. A.G. ABIA AND ORS. 2001.11 NWLR (Pt. 725) 772–773.

What interest does the Appellant have in this whole matter? He is YOUNG PROGRESSIVE PARTY (Y.P.P), the Governor of Imo State is of the ALL PROGRESSIVE CONGRESS (A.P.C) The Appellant, the Y.P.P sued. That party is not a State party and I am of the view that it cannot exercise the right to sue in this matter. He is akin to a meddlesome interloper.

The Appellant is a political party and does not have interest in the position of Auditor General of Local Government of Imo State. Political parties in Nigeria do not have any interest in who becomes the Auditor General of Local Government of Imo State and on the propriety of the extension of the office.

To allow the Appellant to exercise this right would open a floodgate for anything and anybody to challenge the working of government in a political setting. The office of the Auditor General of Local Government is a political office. I can see no sufficient or special interest in the performance of the duty sought to be enforced or where the interest of the Appellant is adversely affected.

I dare say that the facts of each case would determine whether there is locus standi or not. In other words, whether a person has locus standi or not would depend on the peculiar circumstances of the case.
As earlier observed, whether an interest is worthy of protection is a matter of judicial discretion which often varies according to the remedy sought NYAME V. FEDERAL REPUBLIC OF NIGERIA (2010) FWLR (Pt. 527) 618 At 663 paras. E-J

Paragraphs 13j, k, l, m, n, o, p, q, r, s, t, u of the counter-affidavit of the Defendants at pages 1–5 of the Additional Record of Appeal were not controverted.
13(k) has this to say:
“that political parties in Nigeria do not have any interest on who becomes the auditor general of Imo State and on the property of the extension of the office of who is in the office”

These facts were not controverted by the Appellant.

Again, in paragraph 13(i) it says:
“That the Plaintiff (Appellant in this appeal) is not a human being, not a civil servant, not a public servant, not a public defender.”

Again, these facts have not been controverted by .the Appellant. The facts therefore are deemed admitted by the Appellant.

The N.N.P.C. case relied on by the Appellant is misconceived. This is because the circumstance of that case and this present one are miles apart. In the N.N.P.C case, the NGO (the Appellant at the Supreme Court) deals in the interest of communities who suffer as a result of spillage and workings of N.N.P.C. The Plaintiffs in that case therefore had the necessary locus standi, “the standing” to Prosecute that matter. To compare that case to the present case is misconceived.

The Court below was therefore right to have struck out the suit. This issue is resolved in favour of the Respondents and against the Appellant.

THE CROSS-APPEAL
The Notice of Cross-Appeal was filed by the 1st, 2nd, 5th and 6th Respondents on the 11th of November, 2021 with one Ground of Appeal. The issue from its determination as reflected in his Brief of Argument (Cross-Appellant Brief of Argument (is whether the trial Court denied the 1st, 2nd, 5th and 6th Respondents/Cross-Appellant of fair hearing .when it failed to determine the issue of statute bar raised by the 1st, 2nd, 5th and 6th Respondents as Cross-Appellants in their Preliminary Objection.
The 3rd Respondent filed no Notice of Cross-Appeal.

The 4th Cross/Appellant filed a Notice of Cross-Appeal on the 12th of October, 2021 with 2 Grounds of Appeal. His brief was filed on the 14th of February, 2022 but deemed filed on the 22/2/2022, with a lone issue for determination which is whether from the facts of this case, the trial Court was right when he dismissed the 4th Respondent/Cross Appellants’ Preliminary Objection as lacking in merit?

I shall take the Issue of statute bar first:, The Respondent/Cross-Appellant argued that the suit of the Appellant is statute-barred on the ground that it was commenced after the time prescribed by Section 2 (a) of the Public Officers Protection Law Vol. IV Laws of Eastern Nigeria 1963, applicable in Imo State. The 1st, 2nd, 4th and 5th Respondents submit that any action, prosecution, or proceeding commenced against any person, for any act done in pursuant or execution, or intended execution of any law or any public duty or authority in respect of any alleged neglect or default in execution shall be brought within three months of the act, neglect or default complained of, or in the case of continued damage or injury, within three months next after the ceasing thereof as provided by the Public Officers Protection Law Vol. IV Laws of Eastern Nigeria 1963 (applicable in Imo State).

From records, the Appellants have been unable to establish when the 1st Respondent extended the tenure of the 4th Respondent. Therefore we do not know when the cause of action arose.

In establishing statute bar, consideration must be given to the Writ of Summons (Originating Summons as in this case) and the Statement of Claim. The defence must be pleaded while the trial Court has a duty to confine itself to the pleadings filed by the parties. Consideration must be given to the Writ of Summons, Statement of claiming alleging when the wrong was committed, and by comparing that date with the date on which the Writ of Summons was filed. The Cross/Respondent in paragraphs 3.3 and 3.4 stated that the suit is not statute bar and that the contention of the Cross Appellant is erroneous.

The Cross-Appellant has argued that the action is statute bar, but they had failed to state when the cause of action arose. Neither the Cross Respondent. There is nothing to show in the Cross/Appellants affidavit evidence when the cause of action arose. The issue of statute bar cannot therefore be computed.

More so, this Court as in the Court below, having come to the conclusion that the Appellant has no locus standi to bring the action in the first place, this Court has no obligation to even consider the Cross-Appeal, as to consider same would amount to embarking on an academic exercise.

In the Cross-Appeal of the 4th Respondent, his contention is that the Court below had no jurisdiction to entertain the suit, but the National Industrial Court. Again to consider this would amount to an exercise in futility.

It is fundamental principle of law that it is the claim of the Plaintiff which determines the jurisdiction of the Court. In determining the jurisdiction of the Court, it is the claim before the Court that has to be looked at or examined to ascertain whether or not a Court is seized with jurisdiction to hear and determine the matter before it. OKULATE AND ORS. V. AWOSANYA AND ORS. (2000) LPELR–2529 (SC). There is nothing that has to do with Industrial related matters or Trade Union dispute, discernable from the claim before the lower Court. That assertion becomes misconceived and same is dismissed in limine.

The result is that the main appeal is dismissed and the Cross-Appeal of the 1st, 2nd, 4th 5th, and 6th Respondents are dismissed too as lacking in merit.

The decision of the Imo State High Court delivered on the 19th of July, 2021 in Suit No: HOW/91/2021 is hereby affirmed.

N200,000 costs is hereby awarded in favour of the Respondents.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the facts in issue and issues in dispute have been well articulated and determined.

I am in agreement with my learned brother’s reasoning and conclusions and also dismiss the main appeal and the cross appeal of the 1st, 2nd, 4th, 5th & 6th Respondents.
The decision of the lower Court is accordingly affirmed.

IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading the draft judgment of my learned brother RITA N. PEMU, JCA (Presiding Justice). I am in full agreement with his Lordship that the appeal is without any merit. I dismiss same also.