Yunana Shibkau & Ors. V. Attorney General Of Zamfara State & Anor. (2010)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
This appeal is against the ruling of Kulu Aliyu J., (as she then was) of the Zamfara State High Court, Gusau, delivered on 1st February, 2001. In the said ruling, the learned trial judge struck out the suits instituted by the Appellants on the grounds inter alia, that the Appellants do not have locus standi to institute the suits.
On 21st March, 2000, the 1st, 2nd and 3rd Appellants as Plaintiffs, separately filed the instant suits by way of originating summons. They are Suits Nos. ZMS/GS/22/2000, ZMS/GS/23/2000 and ZMS/GS/24/2000. Each
of the Appellants’ originating summons was supported by a 22 paragraph, 20 paragraph and 26 paragraph affidavit – all respectively dated and sworn on 21st March, 2000. Each of the Appellants similarly and on the same date filed a separate motion on notice numbered ZMS/GS/M.44/2000, ZMS/GS/M.45/2000 and ZMS/GS/M.46/2000 respectively wherein they sought that certain questions be referred to the Court of Appeal. (Pages 1 – 73 of the record of appeal).
In the said originating summonses, the Appellants respectively prayed for the following declaratory reliefs :-
“A. A DECLARATION that the enactment, implementation and application of the Shari’ah Courts (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code Law 2000 of Zamfara State in all their ramifications would pose a grave danger to the continuance of a federal government in Nigeria within the meaning and in gross violation of section 5(3) (c) of the Constitution of the Federal Republic of Nigeria 1999.
B. A DECLARATION that in light of section 10 of the Constitution of the Federal Republic of Nigeria 1999 and the secular status of the Nigerian nation and state, no legislative house in Nigeria (whether Federal or State), and no State in Nigeria, and indeed no authority or person within the Federal Republic of Nigeria (whether Federal or State) has any competence, jurisdiction, power, authority, right, privilege, liberty, freedom, sovereignty, dominion, justification or excuse to adopt or purport to adopt any religion as official or state religion, or by its legislative, administrative or other policies favour or prefer (or purport to favour or prefer) any religion to the prejudice of others.
C. DECLARATION that the enactment, implementation and application of the Shari’ah Court (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code law 2000 of Zamfara State in all their ramifications amount in law to the adoption of a state religion contrary to section 10 of the Constitution of the Federal Republic of Nigeria 1999.
D. A DECLARATION that the enactment, implementation and application of the Shari’ah Court (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code Law 2000 of Zamfara State in all their ramifications constitute a wholesale contravention and abjuration of section 10 of the Constitution of the Federal Republic of Nigeria 1999 prohibiting state religion.
E. A DECLARATION that the enactment, implementation and application of the Shari’ah Courts (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code Law 2000 of Zamfara State in all their ramifications as the principal and overriding social policy of Zamfara State constitute a wholesale transgression and negation of section 42(1) of the Constitution of the Federal Republic of Nigeria 1999 prohibiting discrimination on, inter alia, religious grounds.
F. A DECLARATION that the enactment, implementation and application of the penal provisions of the Shari’ah Court (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code Law 2000 of Zamfara State (including but not limited to sections (or parts of sections) 45, 93(1)(f), 93(1)(g), 95, 101, 127, 129, 131, 133, 135, 137, 138, 140, 143, 145, 149, to 151, 153(b) and (d), 154, 157 to 160, 162, 163, 170, 171, 175, 176, 178, 185 to 193, 195 to 198, 219, 220 226, 227, 234, 235, 305 to 323, 326 to 328, 334 to 342, 345 to 350, 352 to 361, 363 to 367, 369 to 372, 375 to 377, 380 to 382, 384 to 385, 387, 391 to 392, 394 to 395, 404, 406 to 409) in all their ramifications are in many material particulars inconsistent with section 34(1) (a) of the Constitution of the Federal Republic of Nigeria 1999 protecting the right to personal dignity and prohibiting torture, inhuman and degrading treatment and punishment, and therefore to that extent null and void by reason of section 1(1) and (3) of the Constitution of the Federal Republic of Nigeria 1999.
G.A DECLARATION that the enactment, implementation and application of the penal provisions of the Shariah Penal Code Law 2000 of Zamfara State (including but not limited to sections (or parts of sections) 45, 93(1) (f), 93(1) (g), 95, 101, 127, 129, 131, 133, 135, 137, 138, 140, 143, 145, 149 to 151, 154(b) and (d), 154, 157 to 160, 162, 163, 170, 171, 175,176, 178, 185 to 193, 195 to 198, 219, 220, 226, 227, 234, 235, 305 to 323, 326 to 328, 334 to 342, 345 to 350, 352 to 361, 363 to 367, 369 to 372, 375 to 377, 380 to 382, 394 to 385, 387, 391 to 392, 394 to 395, 404, 406 to 409) in all their ramifications are tantamount to a wholesale infringement and negation of section 34(1 (a) of the Constitution of the Federal Republic of Nigeria 1999 securing the right to personal dignity and prohibiting torture, inhuman and degrading treatment and punishment.
H. A DECLARATION that the enactment, implementation and application of the penal provisions of the Shariah Penal Code Law 2000 of the Zamfara State (including but not limited to sections (or parts of sections) 45, 93(1) (f), 93(1) (g), 95, 101, 127, 129, 131, 133, 135, 137, 138, 140, 143, 145, 149 to 151, 153(b) and (d), 154, 157 to 160, 162, 163, 170, 171 175, 176, 178, 185 to 193, 195 to 198, 219, 220, 226, 227, 234, 235, 305 to 323, 326 to 328, 334 to 342, 345 to 350, 352 to 361, 363 to 367, 369 to 372, 375 to 377, 380 to 382, 384 to 385, 387, 391 to 392, 394 to 395, 404, 406 to 409) in all their ramifications are a wholesale infraction and repudiation of article 5 of the African Charter on Human and Peoples’ Rights guaranteeing the right to personal dignity and prohibiting torture, cruel, inhuman and degrading treatment and punishment.
I. A DECLARATION that the enactment, implementation and application of certain of the moral provisions of the Shariah Penal Code Law 2000 of Zamfara State (including but not limited to section 126 to 138, 149 to 151) in ail their ramifications are in many material particulars inconsistent with the constitutional guarantee of freedom of conscience as canonised under section 38(1) of the Constitution of the Federal Republic of Nigeria 1999, and therefore to that extent null and void by reason of section 1(1) and (3) of the Constitution of the Federal Republic of
Nigeria 1999.
J. A DECLARATION that the enactment, implementation and application of certain of the moral provisions of the Sharifah Penal Code Law 2000 of Zamfara State (including but not limited to sections 126 to 138, 149 to 151) in all their ramifications amount to a wholesale violation and renunciation of the constitutional guarantee of freedom of conscience as sanctified by section 38(1) of the Constitution of the Federal Republic of Nigeria.
K. A DECLARATION that the enactment, implementation and application of certain of the moral provisions of the Shariah Penal Code Law 2000 of Zamfara State (including but not limited to sections 126 to 138, 149 to 151) in all their ramifications constitute a wholesale breach and disavowal of article 8 of the African Charter on Human and Peoples’ Rights shielding, inter alia, freedom of conscience.
L. A DECLARATION that the enactment, implementation and application of sections 124 and 125 of the Shariah Penal Code Law 2000 of Zamfara State prohibiting unlawful society as therein defined in excessively generalized terms in all their ramifications are in many material particulars inconsistent with sections 38(1), 40 and 42(1) of the Constitution of the Federal Republic of Nigeria 1999 respectively guaranteeing freedom of thought, freedom of association, and freedom from discrimination, and therefore to that extent null and void by virtue of section 1(1) and (3) of the Constitution of the federal Republic of Nigeria 1999.
M. A DECLARATION that the enactment, implementation and application of sections 124 and 125 of the Shariah Penal Code Law 2000 of Zamfara State prohibiting unlawful society as therein defined in excessively generalized terms In all their ramifications are tantamount to a wholesale defilement and abjuration of sections 38(1), 40 and 42(1) of the Constitution of the Federal Republic of Nigeria 1999 respectively guaranteeing freedom of thought, freedom of association, and freedom from discrimination.
N. A DECLARATION that the liberty of Zamfara State or indeed any State in Nigeria to adopt any system of Shariah or customary law is subject to the highest law of the land, to wit, the Constitution of the Federal Republic of
Nigeria 1999.”
The 1st Respondent herein is the Chief Law Officer of Zamfara State while the 2nd Respondent is the Chief Law Officer of the Federation. The 1st Respondent and in respect of each of the originating summons, filed a conditional memorandum of appearance, motion to strike out the suits on the grounds of incompetence and abuse of court process, notice of defence and counter claim and counter affidavit to the motions on notice – all dated and filed on 27th March, 2000. (Pages 74 – 99 of the record of appeal.)
Again, on 17th April, 2000 each of the Appellants filed a fresh originating summons numbered ZMS/GS/33/2000, ZMS/GS/34/2000 and ZMS/GS/35/2000, seeking therein for the determination of certain listed questions. On the same date, three separate motions numbered ZMS/GS/M/68/2000, ZMS/GS/M/69/2000 and ZMS/GS/M/70/2000 were filed seeking therein for reference of the questions set out in the case stated to the Court of Appeal. (Pages 109 – 174 of the record of appeal.) Thereafter, on 23rd May, 2000 the Appellants filed separate motions on notice praying therein for leave of the trial court to discontinue the first set of originating summons initially filed on 21st March, 2000. (Pages 101 -108 of the record of appeal.)
By motions on notice numbered ZMS/GS/M.83/2000, ZMS/GS/M.84/2000 and ZMS/GS/M.85/2000, the 1st Respondent filed the said processes in respect of the newly filed suits by the Appellants and sought for orders of court striking out the said newly filed processes as an abuse of court process since they were filed during the pendency of the suits previously field; that the Appellants being Christians have no locus stand/ to challenge Sharia Laws which has not been made applicable to them. The 1st Respondent further challenged the jurisdiction of the lower court. (Pages 175 – 207 of the record of appeal.) Furthermore, on 23rd June, 2000 the 1st Respondent herein filed a motion on notice with an affidavit in support and in essence, praying the lower court to strike out all the suits/originating summonses and motions filed by the Appellants herein, for being incompetent, an abuse of court process and lack of locus stand/. (Pages 208 – 213 of the record of appeal.).
The aforesaid motion was duly heard and argued before the lower court and it’s considered ruling thereon, delivered on 1st February, 2001, gave rise to the instant appeal. The lower court held that the Appellants being Christians have no legal capacity to challenge the provisions of the law which apply to others and do not apply to them. The originating processes and motions filed thereon for reference to the Court of Appeal by the Appellants were accordingly struck out for being incompetent, an abuse of court process and for lack of focus stand/ on the part of the Appellants. (Pages 214 -224 of the record of appeal.)
The Appellants were dissatisfied with the said ruling. On 26th March, 2001 they filed their joint notice of appeal containing two grounds of appeal against the said ruling. (Pages 225 – 227 of the record of appeal.) The parties herein duly filed and exchanged briefs of argument. Learned counsel for the Appellants formulated one issue for determination in this appeal. It goes thus:-
“Was the learned Judge of the Zamfara State High Court right to hold that the Appellants had no standing to challenge the adoption and implementation of Shari’ah Court (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code Law 2000 of Zamfara State and against this background struck out the suit?”
The learned counsel for the 1st Respondent made the point that the Appellants raised only one issue for determination and went further to reproduce the said sole issue and that the said issue must have been based on the first ground of appeal. He then maintained that the second ground of appeal stood abandoned and the holding of the lower court in respect thereof remained untouched. The law is settled that where the respondent in an appeal does not expressly adopt the issue or issues as formulated by the appellant and also fails to formulate his own issue or issues, an appellate court is entitled to hold that the respondent has by implication adopted the issue or issues formulated by the appellant, unless there is contrary intention in the respondent’s brief and the court will be well positioned if it is so inclined to rely on the issue or issues formulated by the appellant. See AJIBADE V. PEDRO (1992) 5 NWLR (Pt.241) 257/267; WEIDE & CO. (NIG.) LTD. V. WEIDE & CO. HAMBURG (1992) 6 NWLR (Pt. 248) 627; DAWAKI GENERAL ENTERPRISES LTD. V. AMAFIO ENTERPRISES LTD. (1999) 3 NWLR (Pt. 594) 224/231.
On the part of the 2nd Respondent, two issues were framed for determination of this appeal. They are:-
(a) Whether going by the originating summons, the plaintiffs have the standing to institute the suits in the trial High Court, Zamfara State.
(b) Whether the plaintiffs have disclosed any cause of action.
A careful perusal of the issues formulated for determination in this appeal by the parties herein, will disclose that the only issue for consideration at this point in time, is whether or not the Appellants have locus stand/ to institute these actions. Thus, the issue framed in the Appellants’ brief is hereby adopted by me, for the determination of this appeal.
On 12th October, 2009 when this appeal came up for hearing, Sylva Ogwemoh Esq., learned counsel for the Appellants adopted their brief filed on 4th February, 2003. He also adopted their reply brief dated and filed on 27th February, 2007. He referred the Court to pages 109 – 138 of the record of appeal and also made the point that the complaints of the Appellants centred on infractions of the Constitution. He urged the Court to allow the appeal. Yahaya Mahmood Esq., the learned counsel for the 1st Respondent also adopted their brief of argument filed on 14th February, 2007 and urged the Court to dismiss the appeal. The 2nd Respondent was absent in court on the date of hearing of this appeal, even though they were duly served with requisite court process. Having been satisfied with the proof of service placed before us, the Court proceeded with the hearing and deemed the 2nd Respondent’s brief of argument filed on 11th June, 2007 pursuant to order of the Court, as having been duly adopted.
In his arguments on the sole issue, the learned counsel for the Appellants submitted that in order to determine legal capacity or standing to sue, the only relevant document the court can look at is the statement of claim, since it discloses the right of a person to commence legal proceedings and confers the court with jurisdiction to adjudicate on the matter. Reference was made to DOUGLAS V. SHELL PETROLEUM DEVELOPMENT CO. LTD. (1999) 2 NWLR (Pt. 591) 466 @ 474 PARA. A; WAZIRI V. DANBOYI (1999) 4 NWLR (Pt. 598) Page 239 @ 242; GOMBE V. P.W. (NIG.) LTD. (1995) 6 NWLR (Pt. 402) page 402 @ 409; THOMAS V. OLUFOSOYE (1986) 1 NWLR (Pt. 18) page 669 @ 671 with further submission that the Appellants in the instant case, disclosed their standing to sue in the originating processes, wherein they described themselves as “Christians, Nigerians and indigenes of Zamfara State.”
It was further contended by the learned counsel for the Appellants that their claims being in the realms of public law, all that is required from them is that they should have “sufficient interest” in the matter and this they have done, by virtue of their being Nigerians and indigenes or residents of Zamfara State. Citing the case of ADESANYA V. OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR. (1981) 2 NCLR 358 it was then submitted that in public interest litigation, locus standi or standing to sue is conferred when a person discloses in the process filed, that he is a Nigerian or a person resident in Nigeria who is subject to the laws in force. Specific reference was also made to the dictum of Fatayi, Williams ON (of blessed memory) in the ADESANYA’s case with the contention by the learned counsel for the Appellants, that any person who is a Nigerian citizen or resident in Nigeria can proceed to court to challenge constitutional violations or infractions, particularly, laws that are inconsistent with provisions of the Constitution. On 5th October, 2009, during the hearing in this appeal, further reference was made to FAWEHINMI V. PRESIDENT FEDERAL REPUBLIC OF NIGERIA (2007) 14 NWLR (Pt. 1054) 275 on the point being made.
Learned counsel for the Appellants in paragraphs 7 and 8 at pages 4 to 12 of their brief, made copious review and expose of the law on locus standi in Nigeria and in foreign courts and on the application of the law on standing to the instant case, as contained in the ruling of the lower court when it held thus:-
“It is the considered view of this court that the plaintiffs/Respondents have no Locus standi to institute the suits challenging the application of the law on other persons because the laws are very clear that the two laws only apply to Muslims or to persons who voluntarily submits to the jurisdiction of the Sharia Court. The Plaintiffs have clearly stated in their verifying affidavit that they are Christians. The Plaintiffs being Christians have not established the legal capacity they have to institute the suit challenging the application and implementation of the laws because the two laws i.e. Sharia Courts (Administration of Justice and Certain Consequential Changes) Law 1999 and the Sharia Penal Code Law do not apply to the plaintiffs. This Court therefore holds that the plaintiffs have no locus standi to institute suits Nos.
ZMS/GS/22/2000, ZMS/GS/23/2000,
ZMS/SG/24/2000, ZMS/GS/33/2000,
ZMS/GS/34/2000 and ZMS/GS/35/2000.”
It was then submitted that the lower Court was wrong to have held that the Appellants had no locus standi to institute the suits challenging the unconstitutionality of the adoption of the Shari’ah laws. It was maintained that the Appellants have personal interest in the subject matter of the case in that as indigenes and residents of Zamfara State, they are most affected by the implementation of the Shari’ah Courts (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code Law 2000 of Zamfara State. It was pointed out that these laws are discriminatory and offend the provision of Section 10 of the 1999 Constitution to the effect that no State can adopt any religion as a State religion. That these facts were stated in the verifying affidavits of the Appellants at pages 57, 58, 59, 47, 48, 39, 67, 68, 69, of the record of appeal. The question was then asked, that if the Appellants who are Nigerians and indigenes and residents of Zamfara State do not have the locus standi to challenge laws that discriminate against them who then will?
Learned counsel for the Appellants also maintained that the Appellants’ right or standing to sue is conferred by the Constitution, because the complaint of the Appellants bordered on the unconstitutionality of the Shari’ah Courts (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code Law 2000 of Zamfara State. That the dictum of the learned former Chief Justice of Nigeria in the ABRAHAM ADESANYA’S case and the authorities of Courts of other jurisdictions further concretize the Appellants’ legal right.
Again, it was submitted that the lower court was wrong to hold that the Appellants do not have the standing to challenge the unconstitutionality of the adoption of the Shari’ah Courts (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code Law 2000 of Zamfara State by the Zamfara State Government, when focus stand/has been conferred on the Appellants by virtue of Section 46, of the 1999 Constitution. That they are, Nigerian citizens, resident in Zamfara State and as such should have the standing to challenge the unconstitutionality of the Shari’ah Court (Administration of Justice and Certain Consequential Changes) Law 1999 and the Shari’ah Penal Code Law 2000 of Zamfara state. Furthermore, that this Court should adopt the position of the Supreme Court in ADESANYA’s case, with particular reference to the observation of Fatayi Williams CJN (of blessed memory) to the effect that rumour mongering being a pastime of the market places, hence any Nigerian citizen or resident in Nigeria should be given access to the Courts to ventilate his grievance so as not to provide a ready recipe for organized disenchantment with the judicial process. It was then posited that the two laws infringe on their fundamental human rights. Again, that the concept of locus standi ox standing to sue in public interest litigation is distinct from other forms of actions and that the instant case is one of public interest litigation and not private interest litigation. The argument was advanced, that in order to determine standing to sue in public interest litigation, all that a plaintiff is required to show is that he is a citizen or resident in Nigeria and is a person subject to the law in force, which is the Constitution. That Section 46 of the 1999 Constitution confers legal capacity on any Nigerian to proceed to Court to safeguard his communal rights set out in chapter 4 of the 1999 Constitution. Additionally, that the affidavits in support/statement of facts contained facts on the description of the Appellants regarding sufficiency of interest and sufferance of injury which entitled them to the reliefs sought.
Finally, we were urged to hold that the Appellants are Nigerian citizens, resident in Zamfara State and should be accorded the standing to challenge the unconstitutionality of the said two laws. We were urged to allow the appeal and invoke Section 15 of the Court of Appeal Act to determine the questions raised/referred and grant the reliefs sought in the originating summonses.
In his response on this issue, the learned counsel for the 1st Respondent pointed out that the Appellants clearly stated in their verifying affidavits/statement of facts that they are Christians, indigenes or residents of/in Zamfara State with about 60,000 Christians out of which about 10,000 are indigenes. Furthermore, that the declaratory reliefs sought by the Appellants include; pronouncement by the lower court that the laws in question, constitute a danger to the continued corporate existence of the Federal Republic of Nigeria, contrary to Section 5 (3) (c) of the 1999 Constitution. That the laws violate the secular status of Nigeria contrary to Section 10 of the 1999 Constitution while application of Shari’ah Laws amount to transgression and negation of Section 42(1) of the 1999 Constitution. Again, that certain sections of the Shari’ah Law violates and contradicts Section 34 (1) (a); Section 38 (1) of the 1999 Constitution which guaranteed freedom of conscience and thereby to that extent are null and void by virtue of Section 1 (1) and (3) of the said 1999 Constitution.
It was the contention of the 1st Respondent’s counsel that having filed a reply to the statement of facts in support of Appellants’ claims and declarations, even if the lower court had ruled that it had jurisdiction, the suits would have been transferred to the general cause list in view of the “apparent disputes” as to the facts related thereto. The 1st Respondent’s counsel maintained that Section 5 of the Shari’ah Courts (Administration of Justice and Certain Consequential Law) provides that the law is applicable only to Muslims and those who voluntarily submits to its jurisdiction and that Section 6(6) (b) of the 1999 Constitution requires that the Appellants must show that their rights have been infringed upon and this they have failed to do in any manner whatsoever. Additionally, that Section 6 of the 1999 Constitution did not place any distinction between capacity to sue where one’s personal right is affected and public right litigation. And that the right conferred by Section 46 of the 1999 Constitution does not confer on any “busy body” the right to act on behalf of the public.
Learned counsel for the 1st Respondent contended that the facts of ADESANYA’s case are not the same with the instant case. Again, that the distinction regarding suits involving private law cases and public law cases in other jurisdictions such as England, India, Ghana and Gambia can only be relevant if the laws under which the subject matters were considered are the same. It was finally, the submission of the learned counsel for the 1st Respondent, that the appeal lacks merit and should be dismissed.
In the 2nd Respondent’s brief of argument deemed adopted by this Court, the learned counsel for the 2nd Respondent submitted that the Appellants have not disclosed any interest which is sufficient enough or peculiar to them, to enable or confer on them, the requisite standing to bring the instant suit. Placing reliance on BURAIMOH V. AKANDE (2006) 15 WRN at 45 where it was held that Section 6 (6) (b) of the 1999 Constitution is the foundation on which the principles of locus stand is anchored and applicable to the cited case, it was the submission of the learned counsel for the 2nd Respondent that in order to have standing to sue, the Appellants must place themselves within the ambit of Section 6 of the 1999 Constitution. Further reference was made to ADESANYA V. PRESIDENT FEDERAL REPUBLIC OF NIGERIA (1981) 1 ALL NWLR 1.
It was pointed out by the learned counsel for the 2nd Respondent that the Appellants as Christians and indigenes or residents of Zamfara State sought inter alia, for declarations that the two laws in question are contrary to Section 5 (3) (c) of the 1999 Constitution, violates the secular status of Nigeria contrary to Section 10 of the Constitution, amount to transgression and negation of Section 42 (1) of the same, violates and contradicts Section 34 (1) (a) with further violation of Section 38 (1) of the said Constitution and thereby contradicts the entrenched guaranteed freedom of conscience and to that extent null and void. It was then submitted that the mere fact of the Appellants being Nigerians of whatever station or status in life, does not bring them within the ambit and contemplation of Section 6 (6) (b) of the 1999 Constitution, so as to enable or confer on them, the necessary standing to bring the instant actions. It was added that in order to acquire locus standi to institute the instant proceedings, the Appellants must show that their civil rights and obligations are violated or threatened and they must also show sufficient interest over and above the generality of other persons as stated in KEYAMO V. HOUSE OF ASSEMBLY, LAGOS STATE & ORS. (2000) 11 WRN 27.
In conclusion on this issue, learned counsel for the 2nd Respondent submitted that the complaints of the Appellants fall within the purview of public and not private rights and they have not shown that their respective individual rights and interests are affected or threatened coupled with having suffered injuries over and above the generality of Nigerians by the purported infractions of the Constitution by the Respondents herein. They therefore lack the requisite locus in this matter. We were urged to hold that the appeal lacks merit and to dismiss it accordingly. Appellants’ reply brief addressed points of law raised in 1st Respondent’s brief of argument. The points of law are stated to be:-
(a) That the second ground of appeal filed by the appellants should be deemed abandoned in the absence of any issue being raised and arguments canvassed thereon.
(b) That Section 5 of the Shariah Court (Administration of Justice and Certain Consequential Changes) Law, 1999 of Zamfara State provides that the law applies only to Muslims and those who voluntarily submit to its jurisdiction and that the Appellants have not shown that their rights have been infringed upon.
On the first point of law, the learned counsel for the Appellants submitted that the resolution of the question of standing to sue either way effectively resolves all or any other outstanding issues in this appeal, since the said issue also calls to question the jurisdiction of the Court to hear a matter. The cases of MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; OLORIODE V. OYEBI (1984) 5 SC 1; ATTORNEY-GENERAL EKITI STATE V. DARAMOLA (2003) 5 SC 70; EMEZI V. OSUAGWU (2005) 2 SC (Pt. 11) 128 were cited in support.
In reply on the second point and citing cases of ADESANYA (supra) OWODUNNI (supra), it was his submission that a consideration of locus standi does not extend to the merits of a case but on the standing of a plaintiff to sue. According to the learned counsel, the learned trial judge of the lower court was clearly in error when her decision on lack of locus of the Appellants was based on the construction of Section 5 of the Shari’ah Courts (Administration of Justice and Certain Consequential Changes) Law of Zamfara State, and thereby went outside the facts contained in Appellants’ originating summonses in the lower court.
It was then strongly submitted by the learned counsel for the Appellants that the fact of residence of the Appellants in Zamfara State is enough to give them standing to sue. Furthermore, that a construction of Section 5 (supra) shows that it applies to Muslims and those who voluntarily submit to its jurisdiction. Thus, the Appellants have a well founded fear in coming to court for a clear interpretation of the relevant Shari’ah laws of Zamfara State vis-a-vis the 1999 Constitution. This is moreso, because the fact of their residence in Zamfara State will be Construed to mean voluntary submission to the jurisdiction of Shari’ah law, even though they are non-Muslims. Furthermore, that by virtue of Section 42 of the 1999 Constitution, the Appellants have a vested interest in the Implementation of the Shari’ah Law in Zamfara State, as residents in the State. That the apprehension of the Appellants regarding practical
Application of the Shari’ah Law in Zamfara State is well founded and therefore their standing to sue on such matters cannot be in doubt as the said laws will affect them in one way or the other. We were again urged to allow the appeal, set aside the ruling of the lower court and grant the reliefs contained in the Appellants’ originating summonses.
I have carefully perused both the record of appeal and written Submissions of learned counsel for the parties in this appeal and the same has been reviewed in details above. I am of the viewpoint that it will be pertinent to commence the consideration and determination of this appeal from the vantage position of locus stand/ and by reiterating once again, what it denotes and connotes. This is moreso, because this appeal will be considered and determined under the aegis of the narrow but weighty compass of locus standi. Legion of authorities of the Supreme Court and this Court have firmly established the point. It is now trite that locus standi is the legal capacity with which a plaintiff must be imbued in order to institute legal proceedings in a court of law. It is a term which is inter changeably used with others such as “standing”, “standing to sue” or “title (o sue.” It entails the right of a party to appear and be heard on the Question placed before any court or tribunal. It is the bulwark of framework which entitles a litigant to drag another party before the altar of Adjudication. Basically, it is an aspect of justiceability of cause of action. Howbeit, its fundamental aspect focuses on the party seeking to have his complaint ventilated before the court and not on the merit of the issues which the said plaintiff wishes to ventilate or have pronouncement made thereon. Hence, once a party’s standing to institute an action has been challenged, the question thereafter and obviously too, is whether the person whose standing has been or is in issue is a proper person to request an adjudication of a particular issue and not as to whether the issue itself is meritorious or justiceable. See OLORIODE & ORS. V. OYEBI & ORS. (1984) 1 SCNLR 390, 1984 5 SC 1; OWODUNI (supra).
In ADESANYA (supra) the Supreme Court on the issue of locus standi held thus:-
“(1) A person who seeks a remedy in a court of law in Nigeria against an unconstitutional act must show that he is directly affected by that act before he can be heard.
(2) A general interest which is common to all members of the public is not litigable interest to accord standing in a court of law
(3) There must be an assertion of right by such a person which is peculiar or personal to him and that right must have been infringed or that there is a threat of such infringement.”
Section 6 (6) (b) of the 1999 Constitution does not confer locus standi on any litigant to have free, automatic or unbridled access to the court in order to ventilate any issue under the sun, mundane or otherwise. The sub-section merely allows the court to examine any question regarding such a litigant’s civil rights and obligations. Hence a litigant must first and foremost establish by factual circumstances encapsulated in his cause of action, that his constitutionally entrenched civil rights and obligations have been infringed upon, seriously jeopardized and or are about to be torpedoed, before Section 6 (6) (b) which vests judicial powers in the court fill kick in and provide a forum for litigation cum adjudication and thereby enable/empower the court to look into the grievances or complaints. See FAWEHINMI V. INSPECTOR-GENERAL OF POLICE (2002) 7 NWLR (Pt. 767) 606/689. In this regard, it can be seen that before a person can institute and maintain an action under Section 6 (6) (b) of the 1999 Constitution, he must show or establish that his “civil rights and obligations” have been or lively to be infringed upon by the defendant or respondent as the case may be.
Basically, a civil public right can be contra-distinguished from a private or domestic right. Thus, a civil public right is entrenched and constitutionally guaranteed. Similarly, a civil obligation infers an obligation which binds in law and is enforceable in a court of law. Additionally, a civil public right is communal, because it is a right which all persons in the polity should partake in common without let or hindrance. See OKECHUKWU V. ETUKOKWU (1998) 8 NWLR (Pt. 562) 513/526. Again, in order to claim declaratory reliefs, a plaintiff must have the necessary standing to sue. He must have specific or particularized legal rights or interest of his own which must be in issue and in need of protection, pursuit, prosecution or defence. Without this, there is nothing relating to his civil rights and obligations, which the court can pronounce upon and make declarations thereon.
In J.S. OLAWOYIN V. ATTORNEY-GENERAL N.R. (1961) 1 ALL NLR (Pt.2) 269/270 the Federal Supreme Court held thus:-
Only a person who is in imminent danger of coming into conflict with a Law or whose normal business or other activities have been directly interfered with by or under the Law, has sufficient interest to sustain a claim that that Law is unconstitutional.
In OLAWOYIN (supra) the appellant sought to declare void, some aspects of the provisions of the Children and Young Persons Law, 1958 enacted by the former Northern Region of Nigeria, on the ground that the provisions contravened or offended the fundamental rights provisions of the Nigerian (Constitution) Order in Council, 1954. The former Federal Supreme Court applied the “interest” and “injury” tests and rejected the submission of the learned counsel for the appellant that any person is entitled to sue regarding the said issue. Also, in a later case of GAMBIOBA & ORS. V. EZESI 11 (1961) 1 ALL NLR. 584, the Federal Supreme Court restated the decision in OLAWOYIN’s case albeit as an obiter dictum, that:-
“It is always necessary where the plaintiff claims a declaration that a law is invalid, that eth court should be satisfied that the plaintiff’s legal rights have been or are in imminent danger of being invaded in consequence of the law… That since the validity of a law is a matter of concern to the public at large, the court has a duty to inform its own judgment as to the plaintiff’s locus standi and should not admit it merely because the defendant admits it or does not dispute it.”.
Thus, a plaintiff can only approach a court of law and seek redress, if he has interest which the law regards as sufficient. The question of sufficiency of interest is however determinable in the light of the facts and given circumstances of each case. See GUDA V. KITTA (1999) 12 NWLR (Pt.629) 21; IN RE OBIANWU (1999) 12 NWLR (Pt.629) 78. Criminal law or penal provisions are clearly in the realm or domain of public law. Generally, under public law, an ordinary individual or a citizen without more, will not have locus standi as a plaintiff just like that. This is moreso, because such litigations involve public rights and duties which belongs and is owed to all members of the public with the plaintiff inclusive. It further pertains to the power of the government and in this case of a State government as conferred by Section 4 (7) of the 1999 Constitution to make laws for peace, order and good government of the State or any part thereof, It is only where the individual or plaintiff has suffered special damage or injury which is far and above the one suffered generally by other members of the public that he can sue personally. Thus, general right which is common to all and sundry cannot be litigated upon by an individual who lacks standing to do so. In the instant case, there is no personal, peculiar or specific right, interest or obligation of the Appellants at stake or seriously involved and threatened. Hence, there is no declaration in respect thereof which is capable of being made by the lower court See GAMBIOBA V. EZESI II (1961) 2 SCNLR 237. The Appellants as Christians and indigenes or residents of Zamfara State must show in clear terms what rights, obligations or interests of theirs, which the enacted laws Which pertain to Muslims alone, have been or about to be violated. To my mind, being indigenes, ordinary stay or residency in Zamfara State cannot by whatever yardstick be construed as voluntary submission to Shan ah laws by non – Muslims as argued by the learned counsel for the Appellants.
It is thus the law that where a plaintiff institutes an action claiming a ireiief or reliefs which on the face of the cause of action is readily enforceable by another person, then such a plaintiff cannot succeed because he lacks the requisite locus standi to stand on. This is moreso, because it is the person in whom is vested the aggregate of the enforceable rights in a cause who is better placed, positioned and armed with proper standing to stand up and out to be counted, by sueing thereon See BEWAJI V. OBASANJO (2008) 9 NWLR (Pt. 1093) 540/573-574; ATTORNEY-GENERAL ANAMBRA STATE V. ATTORNEY-GENERAL FEDERATION (2007) 12 NWLR (Pt. 1047) 4.
If the courts are not to be saddled and befuddled with babel of voices, cacophony of litigations and motley of actions, then it stands to reason that the gates of litigation should not be left too wide open and be regarded as an all comers affairs. In ADESANYA V. THE PRESIDENT OF THE FEDERAL REBUC OF NIGERIA & ANOR. (1981) 5 SC 112/134 the then Seamed Chief Justice of Nigeria – Late Fatayi Williams CJN (of blessed memory) enunciated thus:-
“Apart from the law relating to locus standi which have their roots in the common law, in a country like ours, locus standi Is also derived from the Constitution and the Fundamental rights provisions in Chapter iv of the Constitution. Indeed, a close scrutiny of our Constitution shows that the flood gates of litigation have not been left wide open.” (Underlining added).
It is a bounden duty of a plaintiff to show that he has locus standi in a suit, especially one which has been commenced by way of originating summons. Such a plaintiff has to disclose his special interest or the actual threat or injury that he will suffer from the infringement complained of. The instant case was commenced by way of an originating summons. The Appellants have the duty to establish their respective locus standi to institute the suit by disclosing their special or peculiar interest or the threat or injury that they would suffer from the infringement complained of. The Appellants, however, and in my view, failed to discharge this basic duty. They failed to disclose their locus standi to challenge the validity of the provisions of the two laws in question and in contention in the instant matter, that is the Shari’ah Court (Administration of Justice and Certain Consequential Changes) Law, 2000 and the Shari’ah Penal Code Law, 2000. The sole issue raised in this appeal is thus resolved against the Appellants and in favour of the Respondents herein.
In conclusion, I am of the firm viewpoint that having regards to the material facts disclosed in the statement of facts/verifying affidavits filed in support of the originating summons and which said facts clearly constituted the cause of action in the instant case, I should dismiss the appeal on the ground that the Appellants have no focus stand/ to institute the same. I find no merit in this appeal and it is accordingly dismissed by me.
There shall be no order as to costs.
Other Citations: (2010)LCN/3521(CA)
