Chidi B. Nworika V. Mrs. Ann Ononeze-madu & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This is an appeal against the majority decision of the Court of Appeal sitting in Port-Harcourt delivered on 16th January, 2008 wherein the lower Court dismissed the Appellant’s appeal. The Appellant and another had sued in the High Court of Imo State to attack the intended appointment of the 1st Respondent as a Judge of the High Court of Imo State. The High Court struck-out the suit holding that appellant had no locus standi to bring the action and that there was no cause of action. Dissatisfied with the judgment of the trial Court, Appellant filed an appeal at the Court of Appeal in Port-Harcourt which appeal was dismissed on 16th January, 2008. Still dissatisfied with the decision of the lower Court, Appellant explored right of final appeal to this Court by filing a Notice of Appeal dated 10th July 2008.
SUMMARY OF 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
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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
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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 FOR 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 (derived from Grounds 1 & 3 of the Grounds of Appeal).
(2) Whether the Court of Appeal was right in holding that the action disclosed no cause of action (Derived from Grounds 2 & 3 of the Grounds of Appeal).”
On their part, the 1st Respondent as well as the 2nd and 3rd Respondents adopted the Appellant’s issues for determination at pages 5 and 3 of their respective Briefs.
CONSIDERATION OF ARGUMENTS AND RESOLUTION OF ISSUES:
ISSUE ONE
“Whether the Court of Appeal was right in holding that Appellant had no locus standi to institute this action (derived from Grounds 1 & 3 of the Grounds of Appeal).”
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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. (2000) 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.
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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 in favour of the Appellant.
On her part, the 1st Respondent posited that the Court has, in several landmark decisions, considered the issue of locus standi to entail the legal capacity of instituting or commencing an action in a competent Court of law without inhibition, obstruction or hindrance from any
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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).
The 1st Respondent contended that Section 17 of the Constitution is not justiceable and the Appellant has 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. The 1st Respondent relied on the case of ABRAHAM ADESANYA VS THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981) 5 SC, 112. The 1st Respondent also distinguished the case of FAWEHINMI VS AKILU (supra) cited by the Appellant. In the final analysis, the 1st Respondent urged this Court to resolve issue 1 against the Appellant.
The 2nd and 3rd Respondents’ submissions on issue 1 are essentially the same as those of the 1st Respondent. While making their submissions on the same issue, the 2nd and 3rd Respondents relied on the following additional authorities; A.G FEDERATION VS ABUBAKAR (2007) 10 NWLR (Pt.1041) 1 at 75;
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ADEWUNMI VS OGEBELLE (1983) 4 WCLR (Vol. 4) 662 at 677 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 right. Like the 1st Respondent, the 2nd and 3rd Respondents also distinguished the case of FAWEHINMI VS AKILU (supra) cited by the Appellant and urged this Court to resolve issue 1 against the Appellant.
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
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whatsoever, See INAKOJU VS ADELEKE (2007) ALL FWLR (Pt. 353) 1 at 96; THOMAS VS OLUFOSOYE (1986) 2 SC 325, MOMOH VS JIMO OLOTU (1970) 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.
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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 and held that:
“The term locus standi entails the legal capacity of instituting, initiating or Commencement of an action in a competent Court of Law or Tribunal without any inhibition, obstruction or hindrance from anybody or person Whatsoever including the provision of any existing law.
The fundamental aspect of locus standi is that it focuses on the party seeking to get its complaint heard before the Court.
It is settled law that the Plaintiff will have locus standi in a matter only if he has a special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where the interest is adversely affected…”
The Appellant had relied on the provisions of Article (3) of the African Charter on Human and Peoples’ Rights (Cap A9, Laws of the Federation of Nigeria,
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2004); Sections 13 and 13 (2) & 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 civilized 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 circumspection 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.
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Perhaps, prosecution Counsel in the Ministries of Justice across the country may have lorry loads” protests and petitions to stop their appointment 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
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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.
ISSUE TWO:
“Whether the Court of Appeal was right in holding that the action disclosed no cause of action (Derived from Grounds 2 & 3 of the Grounds of Appeal).”
The Appellant’s contention on issue two is that his suit is “preventive in nature”. He contended that all facts necessary to found a cause of action had occurred such as her 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.
On the above premise, the Appellant urged this Court to resolve issue two in his favour and allow this appeal, set aside the majority decision of the Court of Appeal, and remit the case to the High Court of Imo State for determination on the merits.
By way of postscript, the Appellant complained about what he captioned, “Appointment Pendent Lite, to the extent
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that the appointment of the 1st Respondent was eventually made while the appeal was pending for which the Appellant further expressed his misgivings.
On her part, the 1st Respondent submitted, in respect of issue two, that a cause of action arises only from circumstances containing different facts that gave rise to a claim. Citing the case of SAVAGE VS UWECHIA (1972) 3 SC 214, at 221 Per Fatayi Williams JSC, (as he then was) the 1st Respondent submits that as legally and judicially defined, a cause of action is the “entire set of circumstances giving rise to an enforceable claim”, see also ABUBAKAR VS BEBEJI OIL AND ALLIED PRODUCTS LTD. (2007) ALL FWLR (Pt. 362) 1855 at 1887; ONOCHIE VS ODOGWU (2006) ALL FWLR (Pt. 317) 544 at 579.
The 1st Respondent submitted further that by the authority of OKAFOR VS A.G ANAMBRA STATE (1992) NWLR (Pt. 224) 395, the exercise of statutory function such as the appointment of a Judge, action will not lie unless and until the person entitled to exercise such function has done so. The 1st Respondent further contended that the present suit brought before the 2nd Respondent had exercised his statutory function of appointing 1st
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Respondent a Judge is in violation of law and therefore highly speculative. The 1st Respondent therefore submitted that the Court has no jurisdiction to entertain same.
The 1st Respondent contended further that there is an academic opinion that public policy demands that once a duty is imposed on a person or body by statute or as in this case by the Constitution, public policy demands that the duty cannot be shifted from the shoulders of that person or body into another person’s or bodies otherwise the authority of parliament or Constitution will be undermined. See R.M. DIAS, “VOLUNTAS LEGIS” (1966) CAMBRIDGE JOURNAL, 75.
In her final conclusion, the 1st Respondent urged this Court to dismiss this appeal and to hold that the Appellant has no locus standi to institute the action and that there is no cause of action disclosed by the suit.
Similar to the position on issue one, the 2nd and 3rd Respondents made similar submissions on issue two as the 1st Respondent which is adopted and incorporated. In addition, the 2nd and 3rd Respondents relied on the decision in ADEPOJU VS AFONJA (1994) 8 NWLR, (Pt. 363) 437 at 453-454; A.G. FEDERATION VS A.G. ABIA
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& ORS (2001) 11 NWLR (Pt. 725) 689 and B.P. VS ONASANYA (1976) 5-6 S.C. 89, on the meaning of cause of action. The 2nd and 3rd Respondents contended that the suit of the Appellant is speculative to the extent that it is only when the statutory powers had been exercised that a cause of action may be said to have arisen, see MERCHANT BANK LIMITED VS FEDERAL MINISTRY OF FINANCE (1961) 1 ALL NLR 5 and 8; EGBUSON VS JOSEPH IKECHIUKU (1977) 6 SC 7 at 34, AJAKAIYE VS IDEHAI (1994) 6-8 NWLR (Pt. 364) 504, SENATOR ADESANYA VS PRESIDENT (Supra).
In their final submissions, the 2nd and 3rd Respondents urged this Court to dismiss this appeal and hold that Appellant lacked locus standi to institute the action and that the suit is speculative and discloses no cause of action.
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 unforceable claim. In determining the cause of action or right to
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sue, the Court will rely on the Statement of claim filed by the Claimants to determine their standing. See KUSADA VS 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 (1976) 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
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the proper parties be identified. See EHIDIMHEN 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 (1976) 9-10 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 Respondents) 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.
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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
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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:
“a. The Court is properly constituted as regards members and qualification of the members of the bench, such that no member is disqualified for one reason or the other;
b. The subject matter of the case is within its jurisdiction, and there is no feature in the case, which prevents the Court from exercising jurisdiction; and
c. The case comes before the Court by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
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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 analysis. I affirm the judgment of the lower Court.
I award cost of N1,000,000.00 (One Million Naira) 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 its logical end is commendable on the part of the parties, particularly the 2nd and 3rd Respondents.
SC.307/2008
