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LAW

‘Interest Common To Public Not Litigable’

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In The Supreme Court of Nigeria

Holden at Abuja on Friday, the 25th January 2019

Before Their Lordships

Walter Samuel Nkanu Onnoghen

Kumai Bayang Akaahs

John Inyang Okoro

Chima Centus Nweze

Sidi Dauda Bage

Justices, Supreme Court SC.307/2008

                    Between

Chidi B. Nworika…………………….Appellant

And

      1. Mrs. Ann Ononeze-Madu

      2. The Governor of Imo State

      3. Attorney-General of Imo State……….Respondents

          Judgment Delivered By Sidi Dauda Bage, JSC

                        

FACTS

The Appellant and another Legal Practitioner, Ndionyemma Nwankwo Esq. based in Owerri, Imo State on 23rd January, 2004 took out a Writ of Summons against the 1st Respondent (who was then a serving Magistrate in Imo State Judiciary) and two others claiming four (4) reliefs. On 27th January 2004, the Appellant as Plaintiff, without filing his Statement of Claim filed a Motion on Notice for interlocutory injunction restraining the 1st Respondent from presenting herself for appointment or from being sworn-in as a Judge.

The 1st Respondent filed a Counter-Affidavit to the Motion on 19/2/2004 while the 2nd and 3rd Respondents filed theirs on 12/2/2004. The Appellant and his Co-Plaintiff filed their Statement of Claim on 7/2/2004. The 1st Respondent did not file any Statement of Defence while the 2nd and 3rd Respondents filed their Statement of Defence on 2/3/2004 and raised a Preliminary Objection to the hearing of the suit on the ground, inter alia, that the Plaintiffs lacked the necessary locus standi to institute the action.

Arguments were taken on the Preliminary Objection and the trial Judge delivered his ruling upholding the objection and struck-out the suit. Being dissatisfied with the said ruling, Appellant appealed against the ruling vide his Notice of Appeal of three (3) grounds filed on 23/3/2004. The co-Appellant backed out. The appeal at the lower Court was heard on 17/4/2008 and Ruling was delivered on the 16/6/2008 by which the lower Court, by a majority decision (2-1), dismissed the appeal and upheld the ruling of the trial Court. Being dissatisfied with the said judgment, the Appellant filed further appeal to this Court vide a Notice of Appeal of four (4) grounds dated 17/7/2008.

ISSUES FQR DETERMINATION:

The Appellant formulated two (2) issues for determination at pages 4 of the Appellant Brief of Argument, thus:

(1) Whether the Court of Appeal was right in holding that Appellant had no locus standi to institute this action.

(2) Whether the Court of Appeal was right in holding that the action disclosed no cause of action

ARGUEMENTS

ISSUE ONE

The main contention of the Appellant on issue 1 is that by virtue of paragraphs 3-15 of the Statement of Claim, facts of the fraud perpetrated by the 1st Respondent to obtain by false pretence a promotion to the position of Chief Magistrate in Imo State and paragraph 16 wherein the fact of open threat of 1st Respondent to deal “ruthlessly” with the Appellant once appointed were pleaded. To draw home his contention on when a person is said to have an interest in a thing, Appellant relied on the case of A.G. ANAMBRA STATE VS EBOH (1992) 1 NWLR (Pt.218) 491 at 505; OWODUNNI VS REGISTERED TRUSTEES OF C.C.C. (2006) 6 SCNJ 399 at 439.

The Appellant also relied on the provisions of Article 13(2) & (3) of the African Charter on Human and Peoples’ Rights (Cap A9, Laws of the Federation of Nigeria, 2004); Sections 13 and 17(2)(a) and (c) of the 1999 Constitution of Nigeria and contend that he has a legal right in the subject matter of the suit to stop the 1st Respondent from being appointed Judge of the High Court of Imo State.

The Appellant submitted further that the act complained of affected his civil right and/or obligations, and that the court ought not to deny the exercise of judicial power to a person who seeks it merely because his claim may be wanting in merit, and placed reliance on the case of ALSTHOM VS SARAKI (2000) 4 SCNJ 249, at Page 256; ELUFIOYE VS HALILU (1993) 7 SCNJ, Pt.2, 347 at 367, rule 21 of the Rules of Professional Conduct in the Legal Profession, 1967 as amended in 1979, FAWEHINMI VS AKILU (1987) 4 NWLR (Pt.67) 797 at 855; BELLO VS FAYOSE (1999) 7 SCNJ 286 at 295. Relying on the above and other authorities and arguments made in respect of issue 1, the Appellant concluded that the lower court was wrong in the majority decision to hold that the appellant had no locus standi to institute the action and urge this court to resolve issue one institute the action and urge this court to resolve issue one in favour of the appellant.

RESOLUTION OF ISSUE ONE

I have carefully considered the submission of parties on issue one. The main contention of the Appellant on issue 1 is that he had sufficiently established locus standi by virtue of facts pleaded in paragraphs 3-15 of the Statement of Claim, relating to fraud perpetrated by the 1st Respondent to obtain by false pretense a promotion to the position of Chief Magistrate in Imo State and paragraph 16 wherein the fact of open threat of 1st Respondent to deal “ruthlessly” with the Appellant once appointed was pleaded.

However, beyond analogical inferences or conjectures, the issue of locus standi is the actual legal capacity of instituting or commencing an action in a competent Court of law without inhibition, obstruction or hindrance from any person or body whatsoever, See INAKOJU VS ADELEKE (2007) ALL FWLR (Pt.353) 1 at 96; THOMAS VS OLUFOSOYE (1986) 2 SC 325, MOMOH VS JIMO OLOTU (1979) ALL NLR 117, at 123, A.G. ANAMBRA VS EBOH (supra).

Locus Standi is a condition precedent to instituting an action before a Court of law. It is a legal voice with which the Plaintiff amplifies his legal rights over and above those of ordinary men. The issue of locus standi constitutes a condition precedent to the institution of any action before a court of Law. For an action to be maintainable, the person instituting it must have legal capacity, otherwise the court is robbed of necessary jurisdiction to entertain it. Whenever the issue of locus standi is raised, the Court before whom the action is pending is under a duty to determine it first before going into the merit of the action itself. SEE ALSO THE CASE OF A.G FEDERATION VS ABUBAKAR (2007) 10 NWLR (Pt.1041) 1 at 75; ADEWUNMI VS OGEBELLE (1983) 4 WCLR (Vol.4) 662 at 677 where the Court further extended the frontiers of locus standi to the effect that a general interest common to all members of the public is not a litigable interest to allow standing and that a citizen, without more, has no locus.

Judicial parameters of locus standi had been set in the case of ABACHA & ANOR VS AG FEDERATION & ORS. (2013) LPELR 21479 where the Court pronounced on the Nature of locus standi citing the case of NYAME VS FEDERAL REPUBLIC OF NIGERIA (2010) 42 NSCQR 54.

The Appellant had relied on the provisions of Article 13(2) & (3) of the African Charter on Human and Peoples’ Rights (Cap A9, Laws of the Federation of Nigeria, 2004); Sections 13 and 17(2)(a) and (c) of the 1999 Constitution of Nigeria and contended that he has a legal right in the subject matter of the suit to stop the 1st Respondent from being appointed Judge of the High Court of Imo State.

The above is at best an imagination and certainly cannot be the position of the law in a democratic setting or any society that desires to advance and entrench the rule of law and civilised norms. The issue here is not that corrupt, fraudulent and ignoble elements should be allowed to sneak into the judiciary. Definitely the response is a capital No. The circumstances of this suit call for circumspections to avoid unwittingly encouraging a very dangerous trend. It is not the intention of the law of locus standi to allow every citizens rise up in protest against the proposed appointment or elevation of judicial officers for no justifiable reasons. Perhaps, all persons convicted or aggrieved parties whose cases have been thrown-out would be ‘’cloth with garments of locus standi’’ to challenge persons who had previously acted over their matters in judicial capacities from advancing to the next levels. Perhaps, prosecution counsel in the Ministries of Justice across the country may have ‘’lorry loads’’ protests and petitions to stop their appointments to the bench beyond subsequent promotion to higher cadres over previous criminal convictions they had secured for the state.

The law and principle of locus standi is intended to provide effective sieves or filters against such absurdities. This is a situation in which the act complained of has not in any way or manner affected civil right and/or obligations of the Appellant over and above that of ordinary Nigerians or Imo citizens or other legal practitioners in Owerri, Orlu and other judicial divisions in Imo state. Thus, the Court ought to, and had justifiably denied the exercise of judicial power to a person who seeks it merely for unmeritorious or less than decent or honourable purposes.

The Appellant has not shown, to an acceptable level of minimal satisfaction, that Section 17 of the Constitution which is ordinarily not justiciable should be made justiciable in his own case. He has also not shown how his right under section 36(1), 38, and 42 of the Constitution have been or will be impacted negatively if the 1st Respondent is appointed a Judge of the High Court of Imo State. In view of the foregoing, I resolve issue one against the Appellant.

In considering and deciding parties submission on issue two, I wish to state the law that cause of action is the factual basis or scenario that formed the basis of invoking the jurisdiction of court in a suit. A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. In determining the cause of action or right to sue, the court will rely on the Statement of claim filed by the Claimants to determine their standing. See SOKOTO NATIVE AUTHORITY (1968) 1 ALL NLR 377 where the definition in READ VS BROWN (1888) 22 QBD. 128 (C. A.). The court must therefore confine itself only to the averments in the statement of claim in the assessment of whether or not the plaintiff has a locus to sue. See SHELL B. P. PETROLEUM DEVELOPMENT CO., OF NIGERIA LTD. & ANORS. VS ONASANYA (176) 6 S. C. 89, at 94.

Cause of action necessarily touches on issue of jurisdiction. It is therefore fundamental to adjudicatory competence for a Court to first examine the basis of dispute, that is what led to instituting the suit, which is otherwise called ‘’Cause of Action”. Any defect in the competence of a court to entertain a matter is fatal, for the proceedings are a nullity, however well conducted. Consequently a determination by any court or tribunal without jurisdiction confers no right or obligation. See NWOSU VS I.S.E.S.A (1990) 2 NWLR (Pt.135) 688.

The settled position of law is that for the court to be competent to exercise jurisdiction over a matter, it is a necessary condition that the proper parties be identified. See EHINDIMHEN vs MUSA (2000) 8 NWLR (Pt.669) 540 at 569.

In determining whether or not a court has jurisdiction, without delving into the merit or otherwise of the case, all that the court needs do is to look at the Writ of Summons and statement of Claim of the Claimant to establish the basis of the suit on which the Court may anchor its jurisdiction. See ADEYEMI VS OPEYORI (1960) 9-20 SC 31.

A careful look at the Writ of Summons and Statement of Claim filed by the Appellant in this suit reveals no discernable cause of action. The Appellant’s contention that his suit is “preventive in nature” (argued at page 16 of the Appellant’s Brief) shows the suit is self-serving, vindictive and unreasonable. The Appellant has found cause of action on speculative inferences such as her (alleged 1st Respondent’s) corrupt tendencies, her being proposed for appointment as a judge, her vow to use or apply that office to the detriment of Appellant, and her being recommended by the N.J.C. which is the final hurdle that left no one in doubt that her appointment was imminent. This is potentially risk for the administration of justice system in the country, and should not be encouraged.

Borrowing from the Wisdom of the lower Court in its ruling of 2nd November 2004 in respect of this appeal, per Monica Bolna’an Dongna-Mensem JCA, at page 132/273 of the Supplementary Record of Appeal:

“The judiciary must insulate and protect itself and the society from the impatience of litigants who seek judicial orders at all cost. The rule of law must be upheld at all times and only when proper procedures are observed and upheld can the rule of law subsist.”

I find it relatively easier to resolve this issue against the Appellant on his admission of filing this suit speculatively, as contained at page 16 the Appellant Brief of Argument. What more do I say than to further amplify the ‘decent burial’ the lower Court had given the speculative misadventure of the Appellant. For emphasis, I see no cause of action in the Appellant’s suit beyond a seemingly desperate attempt to stall or out-rightly stop the appointment of the 1st Respondent as a Judge of Imo state High Court. The wrongful act of the Defendant (the 1st Respondent) and consequential damage or harm suffered by him (the Appellant), remain lacking and ‘invincible’. To the extent that the Appellant’s cause of action at the time of filing the suit was anticipatory or speculative, no court of law would countenance the suit.

Furthermore, this suit lacks all essential ingredients for the purpose of conferring jurisdictional competence in the court to hear and determine the suit as laid down in MADUKOLU VS NKEMDILIM (1962) 2 SCLR, 341. This position of the law has long been settled in this case as to the principles which must be satisfied before the court can competently entertain a suit:

The above elements are lacking in this suit. This is apparent from my evaluation of facts and arguments of parties above. What more could one possibly add, nothing. In view of the foregoing, I also resolve issue two against the Appellant. In the final analysis, I hold that this appeal fails and is hereby dismissed for reasons as contained in the above analyses. I affirm the judgment of the lower Court.

I award cost of N1,000,000 in favour of the 1st Respondent. I award no costs to the 2nd and 3rd Respondents because they have suffered no personal financial loses beyond sustaining and pursuing this appeal to its logical conclusion using tax payers money or public funds. The resolve to pursue this appeal to logical end is commendable on the part of the parties, particularly the 2nd and 3rd Respondents.

Sidi Dauda Bage, JSC

Chidi B. Nworka, Esq. (in person), for the Appellant.

E. Ofodlle (SAN) with Chukuma Machukwu Ume (SAN), G. Okereke, Deborah lniye Warrie Esq, and Nliam Okechukwu Benjamin, Esq. for the Respondents.

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