GOV., OSUN STATE & ANOR v. ADESIYAN & ORS (2022)

GOV., OSUN STATE & ANOR v. ADESIYAN & ORS

(2022)LCN/16750(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Tuesday, April 26, 2022

CA/AK/257/2013

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

1. GOVERNOR, OSUN STATE 2. OSUN STATE HOUSE OF ASSEMBLY APPELANT(S)

And

1. BARRISTER KEHINDE ADESIYAN 2. HON. TUNJI ADEWOLE 3. JUDICIAL SERVICE COMMISSION OSUN STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A PLAINTIFF’S STATEMENT OF CLAIM CAN DETERMINE THE JURISDICTION OF THE COURT

In the resolution of this issue, first let me say that the main contention is whether a Court faced with the determination of the question of locus standi/jurisdiction is entitled to look further than the originating process in order to establish locus standi of the Plaintiff and whether a reasonable cause of action exists in the matter to enable the Court assume jurisdiction. The term locus standi (or standing) denotes the legal capacity based upon sufficient interest in a subject matter to institute proceedings in a Court of law to pursue a specified cause. In short, it is the legal capacity to institute an action in a Court of law. See Emezi V Osuagwu & Ors (2005) 12 NWLR (Pt 939) 340 “It follows therefore, that where the Plaintiff has no locus standi to bring up an action the case is simply incompetent, it is not necessary to consider its merits” per Supreme Court in Owodunni V. Regd Trustees of CCC & Ors (2000) LPELR 2852 (SC).
Infact the Court will lose jurisdiction if a party has no locus standi Bolasi V. Bangbose (1986) NWLR (Pt. 37) 633.
Being a jurisdictional issue, it is now trite that the Court process to be used in the determination of the issue of jurisdiction is the statement of claim while in an action commenced by originating summons as in this case, the Court process to be used is the affidavit in support of the summons Inakoju V. Adeleke (2007) LPELR 1510 (SC).
The Supreme Court went on to say per Tobi JSC:
“In other words, the Court will not examine a counter-affidavit even if filed” Inakoju V. Adeleke (supra). Here the Appellant raised pure points of law, without filing an affidavit, they challenged the competence of the 1st and 2nd Respondents on grounds of lack of sufficient interest in the subject matter as will qualify them to have the necessary locus standi, non disclosure of reasonable cause of action thereby robbing the Court of its jurisdiction to entertain the suit. But as Plaintiff at the lower Court and respondents to the Preliminary Objection, the Respondent herein filed a counter affidavit together with 3 exhibits AK, AK1 and AK2 (page 70 of the records) seeking to counter act the Preliminary Objection.”
The learned trial Judge dismissed the preliminary objection on 7th day of October, 2013. Remember, we have since outlined the processes the trial Judge needs to consult in determining issues of jurisdiction based on locus standi and other similar questions as directed by the Supreme Court in a plethora of cases. These processes are the statement of claim and/or affidavit in support, where the action is commenced through the originating summons as enunciated in Inakoju V. Adeleke (Supra). From his ruling the trial Judge made it very clear that he knows and fully understands the position of the law in that regard, when he said in his ruling at page 116 of the records as follows:
“While I agree with the legal preposition that in considering locus standi, it is the statement of claim that is paramount and the deciding factor” PER BASHIR, J.C.A.

WHETHER OR NOT EVERY DECISION OF EVERY COURT IN NIGERIA IS SUBORDINATE TO THAT OF THE SUPREME COURT

By virtue of the doctrine of stare decisis, the decision of every Court in Nigeria is subordinate to that of the Supreme Court.
Come to think of it even the decision in the case of Dr. Irene Thomas & Ors V. Olufosoye (1986) 1 NWLR (Pt. 18) 669 did not derogate from the position of the Supreme Court in Inakoju V. Adeleke because the case of Irene V. Thomas the additional materials were envisaged to come in by way of amendment to the statement of claim/originating process to enable any new or emerging facts to be incorporated; the case does not recognize or admit reference to other extraneous materials. PER BASHIR, J.C.A.

WHETHER OR NOT A PLAINTIFF MUST SHOW BY HIS PLEADINGS THAT HE HAS A CAUSE OF ACTION MAINTAINABLE IN A COURT OF LAW

In the entirety of the supporting affidavit there is no allegation of any personal injury suffered or likely to be suffered by the Respondents. There is also no any averment of any wrongful conduct of the Appellant done against the Respondents, whereas under the law for a party to validly file a case in Court he must possess a reasonable cause of action against some person or persons or some institutions, invariably the Plaintiff must show by his pleadings that he has a cause of action maintainable in a Court of law against the Defendant. The Plaintiff has no right to sue at large he must possess both locus standi and reasonable cause of action more importantly he cannot sue just anybody his action must be against somebody who has wronged him not someone who has done no wrong to him. Rebold Industries Ltd V. Magreola & Ors. (2015) LPELR 24612 (SC).
Every suit or appeal filed before a Court of law is based and anchored on its peculiar facts, reliefs sought are not made in vacuum but must relate to and derive from raw facts of the case.
Merely being a lawyer or a litigant or an ordinary member of the judicial service commission which the Respondent claimed they are, will not without more automatically give them the locus standi to sue or the cause of action to maintain the suit. They must be able to establish their legal standing and the injury they have suffered or stand to suffer as a result of the conduct of the Respondent to maintain the action and invest jurisdiction on the Court. No such interest has been established by the Respondents.
It is trite that where there is no reasonable cause of action the Plaintiff has no locus standi to even initiate the action. Uwazuonye V. Imo State Governor (2012) LPELR 20604 SC.

YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): By an amended Notice of Appeal filed on 1st day of June 2017, the Appellants are challenging the ruling of Hon. Justice A. B. Abulkareem of the Osun State High Court sitting at Ile-Ife delivered on the 7th day of October 2013 which dismissed the Notice of Preliminary Objection filed by the 1st and 2nd Appellants challenging the jurisdiction of the trial Court to hear and determine the Originating Summons filed by the 1st and 2nd Respondents.

The facts of this case is that on the 23rd day of November, 2012 the Respondent filed an originating summons before the lower Court seeking for a declaration of the Court voiding the provisions of Section 6 of the Osun State High Court Law of 1991 on the ground that the law is inconsistent with the powers of the National Judicial Council as contained in Section 271 of the 1999 Constitution of the Federal Republic of Nigeria and for an order of perpetual injunction restraining the defendants from giving effects to the said Section 6.

The Appellants upon receipt of service entered a conditional appearance on 3rd December 2012 and then proceed to file a Notice of Preliminary Objection on the grounds that:
i. The Honourable Court lack the jurisdiction to hear and determine the suit.
ii. The Plaintiffs have no locus standi.
iii. The Plaintiff’s suit does not disclose any cause of action or reasonable cause of action.
iv. The purported challenge to the constitutionality of the High Court Law of Osun State is statute barred.
v. The suit is both hypothetical and speculative; and consequently amounts to an academic exercise.

The Appellants supplicates before the trial Court for the following reliefs:
1. An order striking out or dismissing the entire suit for lack of jurisdiction and abuse of Court process.
2. An order striking out the names of the 1st and 3rd Defendants/Applicants from the suit.

On the 7th day of October 2013 the learned trial Judge dismissed the objection and consequently assumed jurisdiction. It is this ruling that is now on appeal.

The Appellants amended Notice of Appeal filed on 1st June 2017 contains nine (9) Grounds of Appeal from which the Appellants’ Counsel formulated five (5) Issues for determination.
i. Having identified the principle of law as established by the Supreme Court that only the Plaintiff’s originating processes should be considered in determining preliminary objection challenging the Court’s jurisdiction, was the trial Court right in considering Plaintiff’s extraneous document i.e. counter affidavit dated 28th January, 2013 to the preliminary objection. The issue is distilled from Ground 1 and 4;
ii. Was the trial Court right in holding that the Plaintiff’s suit disclosed cause of action without any finding that the 1st and 3rd Defendant/Applicants did any wrongful conduct to the 1st and 2nd Plaintiffs/Respondents and that they personally suffered any damages allegedly caused by the Appellants as laid down by the Supreme Court in plethora of cases. This issue is distilled from Grounds 2 and 6 of the Amended Notice of Appeal;
iii. Was the trial Court right in holding the 1st Appellant has determined the order of precedence and seniority of Judges in the Osun State based on Exhibits AK, AK1, and raising its admissibility suo-motu ad the stage when the Court’s jurisdiction was being challenged? This issue is formulated from Grounds 3, 8 and 9 of the Amended Notice of Appeal;
iv. Was the trial Court right to have declined to decide all other issues submitted to it having determined the issue of locus standi of the 1st and 2nd Respondents? This issue is distilled from Ground 5 of the Amended Notice of Appeal;
v. Considering the fact that the Appellants showed that at the time of filing the suit, the 1st and 2nd Respondents’ suit was speculative, hypothetical and unknown to law in their preliminary objection, was the trial Court right in holding that “none of the instances of abuse of Court process apply” to the 1st and 2nd Respondents’ suit? This issue is distilled from Ground 7 of the Amended Notice of Appeal.

Meanwhile, the Respondent on his part filed a Notice of intention to contend that judgment should be affirmed on grounds other than that relied upon by the Court. Counsel gave the grounds upon which they want to rely on as follows:
The learned trial Judge erred in law and thereby occasioned miscarriage of justice when he failed and/or neglected to address the issue of whether the Notice of Preliminary Objection filed by Appellants in this appeal is competent in law.

On the 21st day of November 2017 the 1st and 2nd Respondents filed their Respondent’s brief where the following issues were formulated for determination:
1. Whether having regard to the failure of the Appellants to file a counter-affidavit to the originating summons and subsume the issue of law which bothers on jurisdiction and locus standi of the 1st and 2nd Respondent in the counter-affidavit, is the lower Court right not to have struck out the Notice of Preliminary Objection distilled from the sole ground of the 1st and 2nd Respondents’ intention to affirm the judgment of the lower Court on another ground.

Counsel provided the following two Issues for determination in respect of the main appeal:
2. Whether the learned trial Judge was wrong in placing reliance on Exhibits AK, AK1 and AK2 filed along with the counter-affidavit of the 1st Respondent to establish that the case of the 1st and 2nd Respondents’ disclose a reasonable cause of action and that with the exhibits the 1st and 2nd Appellants had determined the order of precedence and seniority of Judges in the Osun State Judiciary – from grounds 2, 3, 4, 7, 8 and 9.
3. Whether the learned trial Judge was wrong in holding that the Respondents have locus standi to institute this action and therefore decline further treatment of their Issues. Distilled from grounds 1, 5 and 6 of the Grounds of Appeal.

The Appellants’ reply brief and response to the arguments of 1st and 2nd Respondent’s Notice was filed on 28th March 2018 and deemed duly filed on 22nd February 2021.

Before I proceed to consider the Issues formulated by the respective Counsels in order to determine the merit of this appeal, I shall start first with the resolution of the Respondents’ Notice.

The Respondent Counsel submits that the judgment of the lower Court which dismissed the Notice of preliminary objection can also be affirmed on the ground that the Notice of preliminary objection at the lower Court itself was incompetent and ought to be struck out based on the ground that as at the time the Appellants filed the preliminary objection which bothers on locus standi of the 1st and 2nd Respondents, the Appellants had not filed any defence to the Originating Summons.

Submits that it is generally the acceptable procedure in law that when the locus standi of a plaintiff is being challenged which is an Issue of law, the Defendant ought to file a statement of defence if the originating process is a writ of summons but if the originating process is an originating summons, with a counter affidavit embodying the Issue of law on the matter. The Issue of law being raised had to be subsumed within the defence filed, then later have the Issue set down for hearing. The Appellant failed to follow this procedure in this case. The action of the Appellant according to the Respondent amounts to a Demurrer which is abolished under Order 22 Rule 1 of the Osun State Rules of Court procedure.

Counsel went on to argue further that the failure of the Appellant to file their counter-affidavit to the originating summons before raising the Issue of locus standi as a preliminary objection renders the preliminary objection incompetent.

Learned Counsel cited cases of Taofik Disu & Ors. Vs. Alhaja Silifatu Ajilowura (2006) All FWLR (Pt. 333) 1613 at 1628 and Dada Vs. Ogunsanya (1992) 3 NWLR (Pt. 232) 754.

Counsel finally submits that the failure of the Appellants to follow this established procedure is fatal to their preliminary objection. Counsel urged us to so hold and strike out the preliminary objection at the lower Court for being incompetent.

Replying the Appellants, Counsel argued that his preliminary objection before the trial Court does not amount to a demurer and that the call by the Respondents for the striking out of the preliminary objection instead of the dismissal it suffered before the trial Court shows that the Respondent is not satisfied with the decision/ruling. Since dismissal and striking out are two different things, the Respondent’s Notice is incompetent that they ought to have filed a cross-appeal instead.

Submits further that asking this Court to decide on the Issue of demurer which has not been raised at the Court of trial is like inviting the Court of Appeal to exercise original jurisdiction as the Issue was not decided by the trial Court. This he said is contrary to Section 241(1) of the 1999 constitution.

RESOLUTION OF THE RESPONDENT’S NOTICE
The decision of the Court made on the 7th day of October 2013 by way of a ruling on a preliminary objection filed by the Appellant who were the 1st and 3rd Defendant before the Court goes thus:
“In the final analysis, I hold that the preliminary objection raised on behalf of the 1st and 3rd Defendants/Applicants is lacking in merit, it is accordingly dismissed.”

This is the subratum of the ruling of the learned trial Judge and indeed the main reason for this appeal. However, the crux of the Respondent’s Notice must be understood to be saying that the trial Court ought to have struck out the Appellants’ preliminary objection for being a demurer rather than dismissing same.

The learned Counsel is therefore inviting this Court to hold that the act of filing a preliminary objection alone without a counter-affidavit is a demurer and then we should proceed to strike out the preliminary objection on the ground which the trial Court did not do.

By this decision, the trial Court actually dismissed the Appellants’ preliminary objection and then proceeded to assume jurisdiction and determined the matter.

Whereas, the learned Respondents’ Counsel is seeking that the judgment of the lower Court which dismissed the Appellants’ Notice of preliminary objection could also be affirmed on the ground that the Notice of preliminary objection at the lower Court is incompetent and ought to be struck out. Note that the final order of the trial Court is dismissal which is quite different with an order striking out.

The purpose of a Respondent’s notice is essentially to show and convince the appellate Court to affirm the decision appealed against on grounds other than those relied upon by the trial Court – Alade & Ors. Vs. Ogundele & Anor. (2013) LPELR-21382.
The Respondents’ Notice therefore is only available to vary and retain the judgment and not to reverse same. The Supreme Court in the case of Ogunlade Vs. Adeleye (1992) LPELR-2340 (SC) said where a reversal of the decision of the lower Court is sought by a Respondent what he has to do is to file a cross-appeal instead of Respondents’ Notice. See also the cases of Adekeye Vs. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 and Sonmonu Vs. Ashorota (1975) 1 NWLR 16.

Going by the argument of the Respondents’ Counsel, it is clear that the learned Counsel is urging this Court to reverse the order of the trial Court dismissing the Appellants’ preliminary objection by substituting the order of dismissal with an order of striking out. Two different things altogether. An outcome the Respondents’ Notice has no capacity to command. Only a cross-appeal that will have such an effect. See again – Adekeye Vs. Akin Olugbade (Supra).
Where a Respondent is seeking to set aside a decision or finding by a Court of trial in any event then a Respondent’s notice is not appropriate. The proper procedure is to file a substantive cross-appeal – Nwadibia & Ors. Vs. State (2009) LPELR-8756.
The Notice filed by the Respondents in this appeal is inadequate and inappropriate.
The Issue formulated from the Respondents’ Notice to content is hereby resolved against the Respondents.

Coming to the merits of the appeal I shall proceed to determine this appeal on the 5 Issues submitted by the Appellants combining where necessary two or more Issues together for the purpose of resolution.

ISSUE ONE
On this Issue, the learned Appellants’ Counsel submits that the Supreme Court has laid down the principle of law that where a preliminary objection is raised on ground of lack of jurisdiction, such as locus standi, action being statute barred or any other jurisdictional ground, the only document the Court will consider in determining the objection is the originating process initially filed by the Plaintiff/Claimant Inakoju Vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423.

Submits further that in this appeal the Appellants at the trial had challenged the competence of the 1st and 2nd Respondents’ suit on grounds similar to those in Inakoju Vs. Adeleke (Supra) that the Court lacked jurisdiction while the Respondents lacked the necessary locus standi to maintain the suit, the suit had disclosed no cause of action or reasonable cause of action and that the suit is statute barred but in determining the preliminary objection, the trial Court at page 116-117 considered extraneous materials including but not limited to the counter affidavit filed by the 1st and 2nd Respondents in response to the preliminary objection. The Court relying on Attorney General Enugu Vs. Omaba (1988) 1 NWLR (Pt. 532) 83, in disregard to the Supreme Court’s decision in Inakoju Vs. Adeleke (Supra). Elabanjo Vs. Dawodu (2006) 15 NWLR (Pt. 1001) 76. The trial Court considered the Respondent’s counter affidavit and exhibit AK, AK1 and AK2 in arriving at the decision which is wrong having disregarded the decision of the Supreme Court rendering the decision perverse.

On this point, the argument on the Respondents’ brief is that the learned trial Judge was absolutely right in placing reliance on Exhibit AK, AK1 and AK2 filed along with the 1st and 2nd Respondents’ counter-affidavit in establishing that the 1st and 2nd Respondents’ case disclosed reasonable cause of action in that by that Exhibits, the Appellants had already determined the order of precedence and seniority of the Judges of Osun State Judiciary in line with Section 6 of the Osun State High Court law 2003, the Section ought to be expunged from the laws of Osun State.

Respondent agrees that the preliminary objection raised by the Appellants was not supported by any affidavit. Notwithstanding that Counsel submits they are not precluded from filing a counter-affidavit.

Submits further that the case of Inakoju Vs. Adeleke (2007) 4 NWLR (Pt. 1025) Pg. 423 cited by the learned Appellants’ Counsel represents the correct position of the law as to which process the Court is to consider when its jurisdiction is challenged. However, Counsel went to submit that where facts emerged which strengthen the position of the plaintiff at the lower Court, which facts if incorporated to the main case through an application for amendment, the Court is not foreclosed from looking at the emerging facts which clothed it with jurisdiction. See Dr. Irene Thomas & Ors. Vs. Olufosoye (1986) 1 NWLR (Pt. 18) 669.

RESOLUTION
In the resolution of this issue, first let me say that the main contention is whether a Court faced with the determination of the question of locus standi/jurisdiction is entitled to look further than the originating process in order to establish locus standi of the Plaintiff and whether a reasonable cause of action exists in the matter to enable the Court assume jurisdiction. The term locus standi (or standing) denotes the legal capacity based upon sufficient interest in a subject matter to institute proceedings in a Court of law to pursue a specified cause. In short, it is the legal capacity to institute an action in a Court of law. See Emezi V Osuagwu & Ors (2005) 12 NWLR (Pt 939) 340 “It follows therefore, that where the Plaintiff has no locus standi to bring up an action the case is simply incompetent, it is not necessary to consider its merits” per Supreme Court in Owodunni V. Regd Trustees of CCC & Ors (2000) LPELR 2852 (SC).
Infact the Court will lose jurisdiction if a party has no locus standi Bolasi V. Bangbose (1986) NWLR (Pt. 37) 633.
Being a jurisdictional issue, it is now trite that the Court process to be used in the determination of the issue of jurisdiction is the statement of claim while in an action commenced by originating summons as in this case, the Court process to be used is the affidavit in support of the summons Inakoju V. Adeleke (2007) LPELR 1510 (SC).
The Supreme Court went on to say per Tobi JSC:
“In other words, the Court will not examine a counter-affidavit even if filed” Inakoju V. Adeleke (supra). Here the Appellant raised pure points of law, without filing an affidavit, they challenged the competence of the 1st and 2nd Respondents on grounds of lack of sufficient interest in the subject matter as will qualify them to have the necessary locus standi, non disclosure of reasonable cause of action thereby robbing the Court of its jurisdiction to entertain the suit. But as Plaintiff at the lower Court and respondents to the Preliminary Objection, the Respondent herein filed a counter affidavit together with 3 exhibits AK, AK1 and AK2 (page 70 of the records) seeking to counter act the Preliminary Objection.”
The learned trial Judge dismissed the preliminary objection on 7th day of October, 2013. Remember, we have since outlined the processes the trial Judge needs to consult in determining issues of jurisdiction based on locus standi and other similar questions as directed by the Supreme Court in a plethora of cases. These processes are the statement of claim and/or affidavit in support, where the action is commenced through the originating summons as enunciated in Inakoju V. Adeleke (Supra). From his ruling the trial Judge made it very clear that he knows and fully understands the position of the law in that regard, when he said in his ruling at page 116 of the records as follows:
“While I agree with the legal preposition that in considering locus standi, it is the statement of claim that is paramount and the deciding factor”
This finding is indeed true and consistent with the established position of the law. Unfortunately, the learned trial Judge took a wrong turn when he continued in the same breath to add:-
“But having regard to the mode of commencing this action, which is by way of originating summons, I do not think it is limited to the statement of claim alone. Because it has been held that a Judge is entitled to look at not only the statement of claim of the Plaintiff but also any other material brought by him in order to decide whether he has locus standi or not. He cited and relied on the case of A. G. Enugu State V. Omaba (1998) NWLR (Pt 532) 83 which is a Court of appeal decision; a Court lower in ranking to the Supreme Court which decided in Inakoju V. Adeleke per Niki Tobi, JSC thus:
“There is a common argument that in the determination of jurisdiction of the Court process to be used is the pleadings of the Plaintiff, which is the statement of claim. As this case is commenced by originating summons, the Court process to be used is the affidavit in support of the summons. In other words, the Court will not examine a counter affidavit even if filed” Emphasis supplied.
Based on the above state of the law I agree entirely with the learned Appellants’ Counsel that the conclusion reached by the trial Court on this point is absolutely wrong and contrary to the decision of the apex Court on the same point in Inakoju V. Adeleke (Supra), Elabanjo V. Dawodu (2006) 15 NWLR (Pt. 1001) 76.
By virtue of the doctrine of stare decisis, the decision of every Court in Nigeria is subordinate to that of the Supreme Court.
Come to think of it even the decision in the case of Dr. Irene Thomas & Ors V. Olufosoye (1986) 1 NWLR (Pt. 18) 669 did not derogate from the position of the Supreme Court in Inakoju V. Adeleke because the case of Irene V. Thomas the additional materials were envisaged to come in by way of amendment to the statement of claim/originating process to enable any new or emerging facts to be incorporated; the case does not recognize or admit reference to other extraneous materials.
In fact, the counter affidavit filed by the Respondent/Plaintiff in response to the Notice of Preliminary Objection has no role to play in the process of determining the locus standi of the Plaintiff/Respondents, or the jurisdiction of this Court especially where there is no affidavit to counter ab initio, there can be no counter affidavit where there is no affidavit containing facts to counter.
This issue must be and it is resolved in favour of the Appellant.

ISSUE TWO AND THREE
The pertinent question in this issue is whether the trial Court was right in holding that the Plaintiff’s suit disclosed a cause of action. And the effect of Exhibits AK and AK1 Appellant’s Counsel submits that a perusal of all the paragraph of the 1st and 2nd Respondents affidavit in support of the originating summons and even the counter-affidavit reveals that:
(1) There is no factual allegation of any personal injury either suffered or likely to be suffered by the 1st and 2nd Respondents arising from any alleged wrongful conduct of the Appellant.
(2) There are no factual allegation of any wrongful conduct of the Appellant done to the 1st and 2nd Respondents.

Submits further that what the affidavit seems to show at best is that a Judge from Lagos State was about to be transferred to Osun State. There are no allegation that the Respondent especially 1st and 2nd Respondents are Judges in the Osun State Judiciary or how will the transfer of the Judge from Lagos to Osun State affect them, or their employment in any way. For that reason counsel further submits that the decision of the trial Court fell short of the standard established by the Supreme Court in Ojukwu V. Yar du’a (2009) 12 NWLR (Pt. 1154) 50 at 131-132 and Rebold Industries Ltd V. Mrs Olubukola Magueola & 2 Ors (2015) 8 NWLR (Pt. 1461) 210.

Where it was held that Plaintiff must show by his pleadings that he has a cause of action maintainable against the defendant. He cannot just sue anybody, it must be someone who wronged him one way or the other.

From the tenor of the deposition in their affidavit especially paragraphs 24, 25 and 27 it is obvious that the 1st and 2nd Respondents are busybodies and meddlesome interlopers trying to meddle into the affairs of the Osun State Judiciary. Submits that the fact that the 1st and 2nd Respondent’s suit seems to suggest a challenge against inconsistency with the constitution does not by itself confers locus standi on every citizen. See Senator Adesanya V. The President FRN (1981) NSCC 146 at 165.

Counsel also cited Keyamo V. Lagos State House of Assembly (2000) 12 NWLR (Pt 650) 196 in that case Mr. Keyamo a senior lawyer like in the instant case could not show in his originating process that his personal interest was affected or would be affected by the alleged infraction of the constitution. The Court held:
“The mere fact that an act of the executive or legislature is unconstitutional without any allegation of infraction of or its adverse effect on one’s civil right and obligation poses no question to be settled between the parties in Court.”

Finally, Appellant Counsel submits that the 1st and 2nd Respondents neither discloses any cause of action against the Appellant nor possess any locus standi to maintain this suit; he therefore urged this Court to so hold and set aside the decision of the trial Court.

Respondents’ Counsel on his part argued that by the averments in paragraphs 2, 4, 5, 6, 7, 8, 22, 23, 25 and 31 reasonable cause of action has been shown to exist in favour of the Respondents in that their personal and general interest of the citizens is threatened.

Besides the law subject of this appeal is made for the people of Osun State and not for the judiciary alone. If Section 6 of the Osun State High Court Law is inconsistent with the Constitution of the FRN the 1st Respondent as a lawyer and litigant while the 2nd also a litigant and member of the judicial service commission are entitled to challenge and seek the nullification of this law. Submits that with Exhibit AK the 1st Appellant had executed the law; sought to be invalidated to the extent that Judges in Osun will be reluctant in giving judgment against the Government.

Respondents’ Counsel further submits that he agrees intoto with the principle of law in all the cases cited by the Appellants as they relate to the sufficient interest a litigant must show before they can have the standing to sue. The true position counsel argued in this case in view of the delicate issues of the judiciary on adjudication and justice the 1st and 2nd Respondents and all citizens who are potential litigants have their right being threatened. And needs protection, with Section 6 in place to enable the executive determine which Judge they want to promote in rank, Judges would want to carry favour from the executive so as to earn “undeserved promotion” that it is not correct to say that the Respondents are not aggrieved or that no wrong was done to them, in view of the fact that the Appellant has already invoked the provision of Section 6 he referred to Exhibit AK. So the 1st and 2nd Respondents as citizens of Osun State and litigants have sufficient interest to protect, Courts are created to cater for citizens, without citizens Courts cannot stand. Victor Adegoke Adewumi & Anor V. A. G. Ekiti State & Ors (2002) FWLR (Pt. 92) 1835, where it was held a party intending to challenge or take any legal step to protect an interest before a Court must have and demonstrate his locus on the matter.

RESOLUTION OF ISSUES TWO AND THREE
In order to appreciate what interest the Respondents paraded for bringing up this action it is necessary to understand submissions of the Learned Respondents’ Counsel from paragraphs 6.03-6.04 at pages 16-17 of the Respondent’s brief of where the relevant paragraphs of the supporting affidavit to the originating summons were also fully captured:
“6.03 That for a litigant to have a locus standi in a matter, such litigant must demonstrate either that his personal interest will be or has been or is likely to be affected adversely by either legislative or executive action. See the case of A.S.U.U & Anor Vs Bureau of Public Enterprises (2013) 14 NWLR (Pt. 1374) Pg 398. This case was cited by the Appellants too and it stated the correct position of the law on locus standi. Juxtaposing the position of the law with the present appeal, the 1st and 2nd Respondents had stated their interest in this case and how they were likely to be affected by the executive action of the Appellants.
6.04 Let me start by referring to the Affidavit in support of the Originating Summons at pages 5-8 of the Record of Appeal. It is his submission that a community reading of paragraphs 2, 3, 4, 5, 6, 7, 22, 23, 25, 29, 30, 31 and 32 of the Affidavit in Support of Originating Summons deposed to by the 1st Respondent which stated the standing of the 1st and 2nd Respondents in this case. For avoidance of doubt, the said paragraphs are hereunder reproduced:
“2. That the 2nd Defendant is a member of Judicial Service Commission known to law in Osun State.
4. That I am a Legal Practitioner, Solicitor and Advocate of Supreme Court of Nigeria.
5. That I qualified to practice law on the 30th September, 1999 and by the grace of God, I have attained the age of appointable position in the judiciary and any other public offices in Nigeria.
6. That as a Legal Practitioner, I am a member of Nigeria Bar Association and my practice transcends all superior Courts of Record in Nigeria.
7. That I presently have many cases I am handling for my clients against all of the tiers of government in many High Court divisions in Osun State Court of Appeal and the Supreme Court of Nigeria.
8. That I have special and committed interest in the system of the administration of justice in Osun State and in Nigeria.
22. That as a lawyer who has interest in the administration of justice in Osun State, I know that Section 6 of the Osun State High Court Law is illegal and unconstitutional.
23. That I know and I verily believe that the said Section 6 of the High Court Law placed the Judges of the High Court of Osun State at the mercy of the 1st Defendant.
25. That with Section 6 of Osun State High Court Law, the 1st Defendant has tendency of influencing judgments in matters against his government with such Judge in exchange for making him senior to his colleagues.
31. That I am instituting this case to maintain the respect and sanctity of the judiciary in Osun State”.

From this affidavit it is palpably easy to see that the main grudge of the Respondents is as captured at paragraphs 23, 25, and the main purpose of maintaining this action by the Respondent was stated at paragraph 31 of the affidavit as follows:
“That I am instituting this case to maintain the respect and sanctity of the judiciary in Osun State”

In the entirety of the supporting affidavit there is no allegation of any personal injury suffered or likely to be suffered by the Respondents. There is also no any averment of any wrongful conduct of the Appellant done against the Respondents, whereas under the law for a party to validly file a case in Court he must possess a reasonable cause of action against some person or persons or some institutions, invariably the Plaintiff must show by his pleadings that he has a cause of action maintainable in a Court of law against the Defendant. The Plaintiff has no right to sue at large he must possess both locus standi and reasonable cause of action more importantly he cannot sue just anybody his action must be against somebody who has wronged him not someone who has done no wrong to him. Rebold Industries Ltd V. Magreola & Ors. (2015) LPELR 24612 (SC).
Every suit or appeal filed before a Court of law is based and anchored on its peculiar facts, reliefs sought are not made in vacuum but must relate to and derive from raw facts of the case.
Merely being a lawyer or a litigant or an ordinary member of the judicial service commission which the Respondent claimed they are, will not without more automatically give them the locus standi to sue or the cause of action to maintain the suit. They must be able to establish their legal standing and the injury they have suffered or stand to suffer as a result of the conduct of the Respondent to maintain the action and invest jurisdiction on the Court. No such interest has been established by the Respondents.
It is trite that where there is no reasonable cause of action the Plaintiff has no locus standi to even initiate the action. Uwazuonye V. Imo State Governor (2012) LPELR 20604 SC.

I do not think, “who determines the order of seniority of the Judges of the High Court of Osun State will in any way affect the right of the Respondents in one way or the other nor will the application of the law give the Respondents any right recognized by law worthy of enforcement by a lawsuit. Cause of action is the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make a claim against the relief or remedy being sought. Thus the factual situation on which the plaintiff relies for support to his claim must be recognized by law as giving rise to substantive right capable of being claimed or enforced against the Defendant. See Akilu V. Fawehinmi (No 2) (1989) 2 NWLR (Pt 102) 122. In short, the case of the Respondent has not disclosed any cause of action under the law. This action must therefore terminate in limine. Ogbimi V. Ololo & Ors (1993) LPELR 2280 and Keyamo V. Lagos State House of Assembly. To that extent the Court of trial ought to have terminated the matter at that Stage proceeding to admit Exhibits AK and AK1 on which strength the Court made a huge finding that the 1st Appellant had determined the order of precedence of the Judges of the Osun State judiciary was premature and accordingly unsustainable. Because it amounts to delving into the substantive issues at an interlocutory stage which the law does not allow. Issues two and three are hereby resolved in favour of the Appellant.

ON ISSUES FOUR AND FIVE
Appellants’ contention is that whereas Court is duty bound to determine every issue submitted to it one way or the trial Court did not pronounce on certain argument raised by them before Court especially failure of the 2nd Respondent to answer his Preliminary Objection on question of demurer and issue of abuse of Court process. Instead, the trial Court only went on to hold as follows:
“In view of what I said so far in this ruling, I will not consider the remaining issues raised in the Notice of Preliminary Objection as they have become academic or touch on the merit or substance of the main case which ought not to be delved into at this interlocutory stage”.

Counsel invited us to set aside the entire ruling of the Court as being perverse.

Without identifying or mentioning those issues which the Court did not pronounce upon the Appellant further invited this Court to hold that the decision of the trial Court is perverse on that ground. With respect to issue V (five) the Appellants’ Counsel repeated his argument on issue 1 on absence of any wrongful conduct against the Respondents that the Respondents approached the Court when they did not suffer any injury or personal damage thereby rendering their case a pure abuse of Court process. He gave instance where abuse of Court process may arise to include among others. Filing a suit:
(1) Where there is no iota of law supporting the Court process or where it is premised on frivolity; or recklessness.
(2) When a party uses judicial process improperly or inappropriately to the irritation and annoyance of another.

Having shown that the Respondents who are neither Judges nor Officers in the judicial Service of Osun State, and having failed to show they are the NJC and/or any substantial legal interest their action must be dismissed Kode V. Yusuf (2001) 4 NWLR (Pt. 703) 392.

RESOLUTION
It is indeed the true position of the law that a Court has the abiding duty to pronounce on all material issues properly raised before it. See Olowolagba & Ors V. Bakare and Ors (1998) 3 NWLR (Pt 543).
In other words, it is the duty incumbent upon the Court whether of first instance or the Court of appeal to consider issues that have been joined properly by parties and raised before it for determination if the Court failed to do that without any valid reason, then it has certainly failed in its duty to hear, resolve and determine such issues any decision arrived at in that circumstance becomes a nullity and would be set aside Mobil Producing (Nig) Ltd V. Monokpo (2003) 18.
The only exception to this rule is where such issue amounts to mere hypothetical and academic question, then the Court is not obliged to pronounce on such issues. See the case of Opuiyo V. Omoni Warri (2007) 6 SCNJ 131.
In this matter, all the issues properly raised and joined by the parties in the Notice of Preliminary Objection principal of which are locus standi, lack of cause of action and abuse of Court process, are well addressed in the ruling of the Court. In fact, the Appellant himself did not highlight any other question on which issues are properly joined which the trial Court did not pronounce upon.
What the learned Appellants’ Counsel fails to distinguish is the difference between “Issues” and “arguments” what the Court is bound to pronounce upon is “every issue properly raised by the parties” not every argument made by Counsel. Whether relevant or not. Similarly, Courts are also exempted from the obligation of pronouncing on hypothetical and pure academic questions. The trial Court is right when it declined to consider what he considered academic and hypothetical question. I agree with the submissions of the Respondents’ Counsel on this particular issue 4 entirely.

Looking at issue five, it is trite that instances of abuse of Court process based on numerous authorities can arise in several manners including:
(1) Filing of multiple actions against the same Defendant in one or different Courts simultaneously.
(2) Improper use of judicial process to interfere with due administration of justice.
(3) Litigation or relitigation over the same issue. Ogar and Ors V. Igbe & Ors (2019) LPELR 48998 (SC), C. B. N V. Ahmed (2001) 11 NWLR (Pt 724) 369.
Specifically in R-Benkay V. Cadbury (Nig) Ltd (2012) LPELR 7820 SC. The Supreme Court gave another instance of abuse of Court process:
“Taking out a process where there is no law supporting it or where the action is premised on frivolity or recklessness.”

This is most apposite to the case at hand. Because we have since found that the Respondents’ action has no support in law as they have no any particular grudge or injury requiring legal remedy.

The Plaintiffs/Respondents have no standing to sue-locus standi, their case did not disclose any reasonable cause of action as they have not shown any form of injury suffered or likely to be suffered by them by the implementation of the provision of Section 62 of Osun State High Court Law enacted since 2003.

Apparently, their suit is a very good example of inappropriate use of judicial process premised on recklessness aimed at irritating the Appellants. No Court will avail them it’s hallowed venue to indulge in frivolity.

For all that I say above therefore, this appeal has merit and it is hereby allowed. The ruling of the Hon. Justice A. B. Abdulkareem dated 7-10-2013 in Suit No HIF/72/2012 is hereby set aside. In its place, the entire suit is hereby dismissed for lack of locus standi, failure to disclose any reasonable cause of action and other deficiencies highlighted in this judgment.
No order as to cost.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother, Yusuf Alhaji Bashir, JCA; in this appeal.

I do not have anything to add to the comprehensive and dispassionate consideration of the issues in the appeal by my learned brother in the said judgment. I agree wholly with the reasoning of my learned brother and conclusions reached in the judgment.

Flowing from the above is that, I too, find the appeal to be meritorious and allow the same. I abide by all the consequential orders made in the leading judgment including the order in respect of costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Yusuf Alhaji Bashir, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

The question arising in this appeal is whether the lower Court was correct when it held that the first and second Respondents had the locus standi to commence and maintain the present action against the Appellants and the third Respondent and that the action disclosed a reasonable cause of action. It must be stated that the issue of locus standi is distinguishable from that of a reasonable cause of action. Whether a claimant has locus standi is different from whether a claimant has a reasonable cause of action. Both issues are not co-terminus or synonymous and the determination of one does not depend on the investigation or examination of the other – Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Attorney General, Anambra State Vs Eboh (1992) 1 NWLR (Pt 218) 491, Sehindemi Vs Governor of Lagos State (2006) 10 NWLR (Pt 987) 1. I will thus examine the two concepts separately.

Locus standi in general parlance means a recognized position or standing. In law, it means a place of standing in Court or right to appear in Court. Locus standi or standing to sue is defined as the legal right of a party to an action to be heard in litigation before a Court of law or Tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. In other words, locus standi is the right of appearance in a Court of justice or before a legislative body on a given question – Dada Vs Ogunsanya (1992) 3 NWLR (Pt 232) 754, United Bank of Africa Plc Vs BTL Industries Ltd (2004) 18 NWLR (Pt 904) 180, Adetona Vs Zenith International Bank Plc (2011) 18 NWLR (Pt 1279) 627, Charles Vs Governor of Ondo State (2013) 2 NWLR (Pt 1338) 294. The doctrine of locus standi was developed to protect the Court from being used as a playground by professional litigants and busybodies who have no real stake or interest in the subject matter of the litigation they wish to pursue – Amah Vs Nwankwo (2007) 12 NWLR (Pt 1049) 552, Taiwo Vs Adegboro (2011) 11 NWLR (Pt 1259) 562.

The Courts have stated that a party seeking to establish locus standi must show (a) a legal or justifiable right; (b) sufficient or special interest adversely affected; and (c) a justifiable cause of action – Attorney General, Kaduna State Vs Hassan (1985) 2 NWLR (Pt 8) 483, Taiwo Vs Adegboro supra, Adekunle Vs Adelugba (2011) 16 NWLR (Pt 1272) 154, Charles Vs Governor of Ondo State (2013) 2 NWLR (Pt 1338) 294. In other words, for a person to have locus standi, he must show that his rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in a Court of law. There must be a nexus between the party and the disclosed cause of action concerning his rights or obligations – Senator Abraham Adesanya Vs The President of the Federal Republic of Nigeria (1981) 2 NCLR 358, Imade Vs Military Administrator, Edo State (2001) 6 NWLR (Pt 709) 478, Taiwo Vs Adegboro supra, Adetona Vs Zenith International Bank Plc supra.
And a person is said to have interest in a thing when he has rights, advantages, duties, liabilities, losses or the like, connected with the thing, whether present or future, ascertained or potential provided that the connection, and in the case of potential rights and duties, the possibility, is not too remote – Imade Vs Military Administrator, Edo State supra, Adetona Vs Zenith International Bank Plc supra.

The tests for determining whether a person has special or sufficient interest in instituting an action are (i) whether the person could have been joined as a party to the suit if some other party had commenced the action; and (ii) whether the person will suffer some hardship or injury arising from the litigation if some other party instituted the action – K Line Inc Vs K R International (Nig) Ltd (1993) 5 NWLR (Pt 292) 159, Ilori Vs Benson (2000) 9 NWLR (Pt 673) 570, Anozia Vs Attorney General, Lagos State (2010) 15 NWLR (Pt 1216) 207.

It has been settled by a long line of cases that in determining the locus standi of a party, a trial Court must have regard to, and only to, the originating processes by which the action was commenced or the claim was made by that party, that is the writ of summons and the statement of claim or counterclaim, in an action commenced by a writ of summons, or the originating summons or originating motion with the affidavits in support – Global Trans Oceanico SA Vs Free Enterprises Nigeria Ltd (2001) 5 NWLR (Pt 706) 426, United Bank of Africa Plc Vs BTL Industries Ltd supra, Amah Vs Nwankwo supra, Anozia Vs Attorney General, Lagos State supra, JFS Investment Ltd Vs Brawal Line Ltd (2010) 18 NWLR (Pt 1225) 495, Wilson Vs Okeke (2011) 3 NWLR (Pt 1235) 456, Taiwo Vs Adegboro supra, Adekunle Vs Adelugba supra, Adetona Vs Zenith International Bank Plc supra, Charles Vs Governor of Ondo State supra. A trial Court cannot go outside the originating processes in determining the issue of locus standi of a claimant.

The phrase “cause of action” means simply a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. It consists of two elements, namely: (i) the wrongful act of the defendant which gives the claimant his cause of complaint; and (ii) the consequent damage – Sanda Vs Kukawa Local Government (1991) 2 NWLR (Pt 174) 379, Dantata Vs Mohammed (2000) 7 NWLR (Pt 664) 176, Charles Vs Governor of Ondo State supra, Uwazuruonye Vs Governor, Imo State (2013) 8 NWLR (Pt 1355) 28. A cause of action is constituted by either a single fact or a combination of facts averred by a plaintiff in his pleadings which the law will recognize as giving him a right to make a claim against a defendant for a remedy or relief in Court. The factual situation disclosed by the facts in the plaintiff’s pleadings on which he relies to support the claim made must be recognized as giving him the right capable of being claimed against the defendant – Egbe Vs Adefarasin (No 2) (1987) 1 NWLR (Pt 47) 1, Seagull Oil Ltd Vs Moni Pulo Ltd (2011) 15 NWLR (Pt 1271) 525.

A reasonable cause of action is a cause of action which, when only the facts in the statement of claim are considered, has some chance of success. In determining whether a reasonable cause of action is disclosed in a suit, all the facts in the statement of claim are deemed admitted, where pleadings are filed, and the Court confines itself to examining only the facts averred in the statement of claim to see whether those facts standing alone discloses a cause of action that has a chance of success. The Court does not scrutinize or examine documents or affidavit evidence whether from the defendant or the plaintiff for the purpose of ascertaining whether a reasonable cause of action is disclosed in a suit – Fumudoh Vs Aboro (1991) 9 NWLR (Pt 214) 210, Dantata Vs Mohammed supra, Ohaji Vs Unamka (2011) 4 NWLR (Pt 1236) 148, Ikenne Local Government Vs West African Portland Cement Plc (2011) 12 NWLR (Pt 1261) 223, Seagull Oil Ltd Vs Moni Pulo Ltd supra, Charles Vs Governor of Ondo State supra, Uwazuruonye Vs Governor, Imo State supra.

A statement of claim is said to disclose a reasonable cause of action where the facts alleged therein have some chances of success and they raise some issues of law or fact calling for a determination by the Court. For a statement of claim to be said to disclose no reasonable cause of action, it must be such that no defendant can understand what claim he is required to meet and the case stated in it must be unsustainable, or unarguable or incontestably bad. The weakness or the strength of the case on the merits is an irrelevant consideration at this stage and a Court would not bother itself with whether the cause will succeed on the merits – Bello Vs Attorney General, Oyo State (1986) 5 NWLR (Pt 45) 828, Nicon Insurance Corporation Vs Olowofoyeku (2006) 5 NWLR (Pt 973) 244, Ikenne Local Government Vs West African Portland Cement Plc supra, Seagull Oil Ltd Vs Moni Pulo Ltd supra.

In the present case, it is clear from the records that in determining the question of the locus standi of the first and second Respondents and the reasonableness of their cause of action, the lower Court went beyond the contents of the originating summons and affidavit in support used to commence the action. It considered the documents attached as exhibits to the counter affidavit filed by the first Respondent in response to the application of the Appellants that raised the issues of locus standi and reasonable cause of action. In view of the case law authorities outlined above, this was a grave error on the part of the lower Court.

The complaint of the first and second Respondents in the originating summons was against the intent and purport of the provision of Section 6 of the High Court Law, Cap 50, Volume 3, Laws of Osun State 2002, passed into Law by the second Appellant and assented to by the first Respondent. The Section 6 read thus:
“The Chief Judge shall take precedence over other Judges of the Court, and the seniority of the Judges shall be determined in accordance with such directions as may be given by the Governor acting on the recommendations of the Judicial Service Commission.”

The Respondents contended that the provision was unconstitutional and that it was passed into law to provide a basis for the fulfillment of the desire of the first Appellant to import a Judge from the High Court of Lagos State and install him as the Chief Judge of Osun State. The first and second Respondents are lawyers, not members of the Judiciary of Osun State, and neither of them deposed that he was a Judge nominee or interested in becoming a Judge in Osun State. Reading through the depositions in the affidavit in support of the originating summons of the Respondents, it is obvious, and I am in total agreement with the lead judgment, that neither of the first Respondent nor second Respondent disclosed a legal or justifiable right against, or that he has a sufficient or special interest that has been or would be adversely affected by, the actions of the Appellants complained against. Neither of them showed that his civil rights and obligations have been or are in danger of being infringed by the actions of the Appellants complained against and/or that he had sufficient legal interest in seeking redress in a Court of law. Neither of them also showed any consequent damage suffered or which he suffered or will suffer by reason of the actions of the Appellants complained against.

The first and second Respondents were just being mere busybodies and they failed to disclose the requisite locus standi to commence and maintain the action in the lower Court and the action as commenced did not present a reasonable cause of action. The sentiments that drove the decision appealed against are understandable. They show that Judges, after all said and done, are normal human beings with blood flowing in their veins, and not robots from outer space. They have their own biases and prejudices and the natural human instinct of self-protection. Unfortunately, the law does not support the oozing of such prejudices and instincts into judicial adjudication.

I agree that there is merit in this appeal and I too hereby allow same. I set aside the decision contained in the ruling of the High Court of Osun State delivered by Honorable Justice A. B. AbdulKareem in Suit No HIF/72/2012 of the 7th of October, 2013. I uphold the preliminary objection of the Appellants before the lower Court and abide the consequential orders in the lead judgment.