Austin Ayowe, Esq V. The President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo & Ors. (2005)
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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.
This is an appeal from the ruling on the preliminary objection raised by the now respondent to the action of the now appellant. The appellants were plaintiffs in the Federal High Court of Nigeria.
The plaintiffs in that Court had commenced proceedings therein by originating summons dated 15/11/2004. In the said summons, the plaintiffs named Austin Awoye Esq. (ii) Dafe Karl Chuks. For themselves and on behalf of members of the Niger Delta Democratic Union (NDDU) seek through the court the reliefs hereafter itemized from the following (1) The President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo (2) The Attorney-General of the Federation (3) The Petroleum Production Pricing Regulatory Authority (PPPRA).
From whom the plaintiffs claim the following reliefs-
“1. A declaration that by virtue of (a),(b),(d) above, the office and functions of the Minister of Petroleum Resources shall/must be exercised by a Minister duly appointed for petroleum resources by the President of the Federal Republic of Nigeria.
- An order directing the 1st defendant to appoint a Minister of Petroleum Resources in accordance with the mandatory provisions of the Petroleum Act Cap. 350 Laws of the Federation of Nigeria, 1990, as amended especially Section 15 thereof and Sections 5(1)(a)(b) and 315(1)a of the Constitution of the Federal Republic of Nigeria, 1999.
- An order restraining the 1st and 3rd Defendants from further exercising any functions or powers of a Minister of Petroleum Resources as set out in the said Petroleum Act Cap. 350 Laws of the Federation, 1990 as amended.
- A declaration that the direct activities of the President of the Federal Republic of Nigeria and (PPPRA) in respect of the Ministry of Petroleum and/or oil industry since 29th May, 1999 in the absence of a Minister of Petroleum Resources is unconstitutional, illegal, null and void.
- A declaration that the 3rd defendant does not have the legal powers to fix the prices of petroleum products, including fuel, kerosene and diesel under the Petroleum Act Cap. 350 Laws of the Federation of Nigeria, 1990 as amended.”
The preamble to the plaintiffs in the originating summons in it’s a, b, c & d above are the questions posed by the plaintiffs which purport to derive from the plaintiffs interpretation of the provisions of the Petroleum Act Cap. 350 Laws of the Federation of Nigeria, 1990 as amended and Section 5(1)(b) and 315 of the Constitution of Federal Republic of Nigeria viz:
a, Whether by virtue of Section 15 of the Petroleum Act Cap. 350 Laws or the Federation, 1990 as amended there is a mandatory provision for the office of a Minister of Petroleum Resources.
b. Whether the Petroleum Act Cap.350 Laws of the Federation 1990 as amended is an existing law within the meaning of Section 315(1) (a) of the 1999 Constitution.
c. Whether by virtue of Section 5(1)(a) of the Constitution of the Federal Republic of Nigeria (1999) the President is enjoined to execute, implement and comply with all laws made by the National Assembly and or deemed to have been made by the National Assembly of the Federal Republic of Nigeria.
d. Whether by virtue of Sections 6(1) and 15 of the Petroleum Act Cap. 350 Laws of Federation 1990 as amended, any person and or body could increase the prices of petroleum products, except a Minister of petroleum resources duly appointed and sworn in.”
After filing the originating summons on 7/8/2003. The writ was supported by an affidavit. The appellant sought the leave of the court by a motion, and the court below, granted leave to the plaintiff to prosecute the claim in a representative capacity on 2/10/2003.
The originating summons has annexed to it several annexures, including a 105 page Constitution of the Niger Delta Democratic Union said to be registered with the directorate of Youths and Sports at the Governors Office – Delta State. Its certificate of registration at page 20 of the record of proceedings in the court below. Twelve newspaper cuttings from different newspapers on pages 20-24, 28-30,106-112.
When the originating summons with its annexures were served on the named respondents they filed a preliminary objection dated 11/8/03, after entering an appearance in the suit. The grounds of the preliminary objections are as follows.
- The plaintiff has no locus standi to institute the action.
- The court lacks jurisdiction to hear the matter.
- The action is frivolous, vexatious, and an abuse of judicial process.
The respondents urge the court to dismiss the action. The learned trial Court heard arguments for and against the motion and adjourned ruling thereon to 15/9/04. On that day, the trial court found “(a) That the sole or principal question at issue is or likely to be one of the construction of a written law or of any instrument made under any written law or of any deed, will contract or other document or some question of law (b) There is likely to be any substantial dispute of facts.” The court then ruled as allows: “Beyond averments in the further affidavit there is nothing put forward in the claim to show the interests of the plaintiffs. The line of interest exhibited by these averments is to the effect that the plaintiffs are from Delta State which is said by the plaintiffs to be the largest oil producing State in Nigeria and that they are compelled by the questionable government policies and petroleum price hike to purchase the petroleum products at exorbitant prices from their meager resources. The interest deposed to in the further affidavit of the plaintiffs with all respect are not shown in any sense to have interest or injury that can be quantified to be over and above that of the general public constituting the Federal Republic of Nigeria the issue of operation of the Petroleum Act of 250 LFN 1990 and appointment of a Minister for Petroleum Resources are not issues that are personal to the plaintiffs but issues that are located in the realm of public right for the plaintiffs to invoke judicial power to determine the constitutionality of the executive action complained of in the instant case, they must show that their personal interest which are over and above the interest of other citizens of the Federal Republic of Nigeria are adversely affected. From the process filed in this case, there is nowhere the plaintiffs in this case indicate such line of interest or where it is established that they have suffered some specific injury which are particularly affecting their personal interests which are over the interest of other citizens of the Federal Republic of Nigeria are adversely affected. From the process filed in this case there is nowhere the plaintiffs indicate such line of interest or where it is established that they have suffered some specific injury which are particularly affecting their personal interest which are over and above those of the general interest of the citizens of the Federal Republic of Nigeria and it is not of the fact that other members of the Nigerian public have given them any leave to sue on their behalf too canvass for any public right which is general and not peculiar to their own personal interest since that has not been disclosed and the interests level they have shown here is not sufficient to accord them a standing in this case there is no way this court will assume jurisdiction to entertain this matter. The plaintiff in that writ have failed the test of locus standi. They have not shown any interest that is sufficient to accord them capacity to sue in this case. The objection is therefore sustained and the suit is hereby struck out.”
The plaintiffs were dissatisfied with the ruling of the trial court on the preliminary objection of the defendants. They have filed this appeal on three grounds, with copious particulars. Without their particulars these are the grounds of appeal.
GROUND ONE
“The learned trial Judge erred in law, when he held that from the processes filed in this case there is nowhere the plaintiffs in this case indicated such line of interests or where it is established that they are particularly affecting their personal interest other than those of the general interests of citizens of the Federal Republic of Nigeria.”
GROUND TWO
“The trial court erred in law when he held that for the plaintiffs to invoke the judicial power to determine the constitutionality of the executive action complained of in the instant case, they must duly show that their personal interest which are over and above the interests of other citizens of the Federal Republic of Nigeria are adversely affected.”
GROUND THREE
“The learned trial Judge completely misunderstood the plaintiffs case which complained essentially of the non-appointment of a Minister of Petroleum Resources as required by law, and the constitutional activities of the 1st and 3rd respondents.”
The appeal was filed on 16/11/2004.
The plaintiffs also filed appellants brief of forty seven pages, in which the appellants formulated the following issues.
- “Whether from the originating summons and affidavits filed by the appellants in the lower court, they established sufficient interest which conferred “locus standi” on them to bring this action.
- Whether in order for the appellants to have locus standi to challenge the constitutionality of the executive action, they must show a special interest which is over and above the interests of other citizens of Nigeria.
- Whether the learned trial Judge completely misunderstood the appellants cases.”
The respondents jointly filed a nine page brief and formulated only one issue which reads thus “Having regard to the relevant laws and the facts before the court, whether the learned trial Judge was correct in his decision that the appellants lacked the locus standi to maintain their action.” Each party presented arguments in its brief:
Before I answer, and consider the issues raised in both briefs, I wish to respond to the prayer contained in paragraph 6-9 of the appellants brief, when it wrote “on the other hand, if this Honourable Court in the likely event holds that the appellants have locus standi, this Honourable Court should thereafter proceed to pronounce on the appellants case as filed at the lower court and enter judgment as per the relief claim by the appellants herein pursuant to its powers under Section 16 of the Court of Appeal Act 1976 and Order 3, Rule 23 of the Court of Appeal Rules 2002.”
The prayer made by the appellant appears to me with respect to the counsel either to be actuated by ignorance of the application of the provisions of the 1976 Act Section 16, or by mischief. The jurisdiction of an appellate court is limited to determination of the manner, mode of trying a case or correction of the errors contained in the decision of the trial court BANKOLE V. PELU (1991) 8 NWLR (PT 211) 523 AT 547. It may necessitate rehearing of the case but it does not extend to giving judgment on an issue not contested in the court below. Unless the law so provide, the Court of Appeal does not determine a live matter in the first instance. The provisions of Section 16 of the Court of Appeal Act and or Section 3, (23) of the Rules are to enable the Court of Appeal to correct the error made in the court below, when the latter has heard the case before him and determine same on its merit. It is only on issues of consequential decision raised by the appellant that the Court of Appeal may correct in an obvious error and may rule on what the court below should have done.
In the instant appeal, the court below did not hear the appellant’s case, and did not decide it on merit. This court therefore declined the invitation to pronounce judgment on the appeal at this stage.
I have read the issues formulated by both the Appellant and the Respondent as contained in both their briefs of argument. It seems to me that the root of issue for determination in the contention of both parties and the ruling of the court below is whether or not-
- The appellant has shown sufficient interest which affect him personally or whether his interest could suffer injury if the prayer sought by him is not granted by the court.
- Whether the appellant has shown sufficient interest or loss to his interest over and above that of the citizens of this country in the first instance, and over and above those of the citizens of Nigeria if the reliefs he seeks from the court is not granted. The relief he seeks from the court are two fold.
- To compel the President of the Federal Republic of Nigeria to appoint a Minister of Petroleum.
- To restrain the 3rd respondent from exercising the functions constitutionally assigned to the Minister of Federation that is fixing the price of petroleum products.
It is to obtain this results that the appellant asked whether the Petroleum Act is an enforceable Act in Nigeria. In the above summary, I have of course simplified the issues to the barest. The legal terminology of the question posed by the respondent is whether or not the appellant has locus standi to institute the action to seek the reliefs in a court of law. Locus standi has been described as the standing, the legal capacity to institute the action for the reliefs sought in a court of law. The issue to be determined therefore, includes the determination as to whether or not the appellant has the legal capacity to demand the reliefs sought in a court of law. The appellant also asked whether the trial court understood the reliefs sought by them. The claim of the appellant that the Petroleum Act Cap. 19 of 1990 imposed a duty on the President of the Federal Republic of Nigeria to appoint a Minister of Petroleum is assumed from the provision in the Act of the functions of a Petroleum Minister. There is no specific provisions in the same act, and no specific statement is made in the Petroleum Act which compels the President of Nigeria to appoint a Minister of Petroleum.
The rule of interpretation of statutes is to exclude what is not stated in the statute. It is expressed in latin phrase as EXPRESSIO UNIOUS ET EXCLUSIO ALTERIUS. What is not stated in a statute is deemed excluded. The court is to apply from the statute clear and unambiguous words In the statute EMESEN V NWACHUKWU 1999 NWLR (Pt 605) 154; (ii) DOMA V ADAMU (1999) 4 NWLR Pt 598 311; (iii) DAILY TIMES PLC V AMAIZU (1999) 12 NW 12 Pt 630 242. The court may only interpret a statute according to what is expressed in the statute. UDU V KRAUS THOMPSON ORGANISATION LTD 2001 15 NWLR (Pt 736) 305. In the Petroleum Act Cap 350, there is nowhere therein where compulsion is made on the President of Nigeria to appoint a Minister of Petroleum. The bold assertion made by the appellant that the Petroleum Act Cap. 350 together with its amendments compel the President of Nigeria to appoint a Minister of Petroleum is false. It is a conclusion reached by the appellants from what the law does not provide. It is an assumption only made from provisions of the expressed law. There is no such provision, in the law cited, which compels the President of Nigeria to appoint a Minister of Petroleum.
In answer to the question asked by the appellant as to whether the learned trial Judge understood the plaintiffs/ appellants claim in the court below. I hold and rule that the trial court understood clearly the plaintiffs claim considering the learned and considered ruling delivered by the learned trial Judge, the learned trial court has shown that the plaintiffs claim before him fail to show the special interest of the plaintiffs, or the injury not shared by other citizens of Nigeria which may be or which has been occasioned to the plaintiff. It is my respectful view that it is the plaintiffs who had misconstrued and misunderstood the provisions of the law. The learned trial court has ruled that the plaintiffs need to established their locus standi in order to institute and maintain their claim against the respondents in a court of law. Such a view is correct. In their brief, the respondents submitted that the only viable issue for determination by this court, is one of locus standi and the appellants claim that they have locus standi to seek relief from the court to compel the President of Nigeria to appoint a Minister of Petroleum and also to restrain the 3rd respondent from fixing the prices of petroleum products. From my earlier pronouncement in this judgment, I am of the view that the plaintiffs demand to compel the function is founded on an erroneous and false understanding of the Petroleum Law 1999 Cap. 350 and its amendment in 1999. There is nothing in the law which makes it mandatory for the President to appoint a Minister for petroleum, though the functions and powers of the minister for petroleum as stated in the amended petroleum law exist in any case, assuming that such a provision exist which is denied, the plaintiff must have a locus standi to institute and maintain an action against the decision of the executive. A locus standi exist where the statement of claim discloses interest which have been or are in danger of being violated, invaded, or for acts of the defendants which adversely affect the interest of the plaintiffs. See: ADESANYA V. THE FEDERAL REPUBLIC OF NIGERIA 1981 5 SC 12. Put in another way, locus standi is the legal capacity to institute and maintain proceeding in a court of law. See OWODUNNI V. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (1994) 3 NWLR (PT. 333) p.481; in OKAFOR V. ASOH (1999) 3 NWLR (Pt. 593).
The court prescribed in ordinary cases, two indexes for identifying the evidence of locus standi, These are
(i) Whether the issue is justiciable;
(ii) Whether there is a dispute between the parties.
Where the two tests have not been met by the appellant, the proper order to make is to strike out the suit. See CHIEF BONIFACE AMDI OGECHI & 3 ORS V. THE GOVERNOR OF IMO STATE & 3 ORS (1995) 9 NWLR (Pt. 417) 53 at 82.
In the instant appeal, where the plaintiff/appellant seeks redress from the government or its agency, it is apt to employ the tests for determination of locus standi formulated by the Hon. Justice Niki Tobi, JCA, as he then was. He is now JSC, in Re IJELU (1992) 9 NWLR (Pt. 266) p.414 at p.422- 423. per H-A. In that case, his Lordship proposed that any plaintiff seeking to sue (a government agency) must have a locus standi, which arises from a cognizable and conferred right created by the law. Where there is no such law, the plaintiff cannot be said to possess a right to sue, and therefore has no standing to sue. “When the above principle is applied to the instant case, it will be seen that there is no cognizable law which vests the appellant with any right to sue the respondents. The index for locus standi formulated by the late Justice Mohammed, JSC is that a claimant to the right to locus standi to institute an action against the decision of the executive must have a real, not intangible or vague or speculative right. The interests claimed by the plaintiff must not be an interest he shares with other people. In MOROUNFADE V. ADEOTU reported in (1997) 6 NWLR, at p.508 (Pt. 326) at 335 the Court of Appeal formulated the index which in my view encapsulates the requirement of a locus standi, when it asked, (1) Whether the plaintiff would have been joined as a party to the suit if the suit had been instituted by another person, or Whether the plaintiff would have been included in the suit if filed by another. The imputation being if the plaintiff had rights in the subject matter of the claim on which he seeks redress, he would have been joined in the action if commenced by another. The plaintiff/appellant has failed in my opinion to meet any of the indices for proving the existences of even a liberal requirement to prove locus standi in this case. The interests of the plaintiff on any injury he claims to occur to him are shared by every and all other members of the society, and as observed by the learned trial Judge the appellants have not shown any right of mandate of the community to the appellants to represent the interest of the community. The test formulated for determination of such a right. The locus standi initialed by Justice Oputa in THOMAS V. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669, 690, and Justice Niki Tobi JCA referred above as he then was, is the question where is the legal right under which the plaintiff makes his claim? Or who or what invested the plaintiff with the legal right to defend the constitution or is the plaintiff just a busy body? Without such a right. I answer the question in the negative, there is no such right. The plaintiffs/appellants appear to me to be busy bodies who have no legal right to defend the Constitution of Nigeria. It is for this reason that I affirm the decision of the court below on the preliminary objection raised by the respondent to the originating summons and strike out the plaintiffs claims after, I have dismissed the appeal. The appeal is dismissed. I make no order as to costs.
Other Citations: (2005)LCN/1849(CA)
