Chief Gani Fawehinmi V. President Of The Federal Republic Of Nigeria & Ors (2007)
LawGlobal-Hub Lead Judgment Report
ABOKI, J.C.A.
This is an appeal against the ruling of B.F.M. Nyako, J. of the Federal High Court, Abuja delivered on Thursday, 7th October, 2004 in which the learned trial Judge struck out the appellant’s suit on the basis that the appellant has no locus standi to maintain the action.
The facts of the case are that the appellant as plaintiff in the lower court instituted an action against the respondents seeking for determination of the following questions:-
“(a) Whether any public officer in Nigeria particularly a Minister of the Federal Republic of Nigeria is entitled to be paid yearly salary outside the salary prescribed by Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002.
(b) Whether any Public Officer in Nigeria particularly a Minister of the Federal Republic of Nigeria is entitled to be paid in Foreign currency outside the currency prescribed by Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No. 6 of 2002.
(c) Whether the authorization by the President of the Federal Republic of Nigeria, 1st respondent, of payment of a Minister’s salary outside that prescribed by the Act of the National Assembly and in foreign currency is not an abuse of power under the Constitution of the Federal Republic of Nigeria, 1999.”
The suit was commenced at the lower Court by an originating summons in which the appellant sought the following reliefs:
“1. A DECLARATION that the 3rd and 4th defendants (Ministers of the Federal Republic of Nigeria) who are Public Officers are not entitled to earn salaries above those prescribed by the – Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc.) Act No.6 of 2002 made on 13th December, 2002 but which is deemed to have come into force on the 29th of May, 1999 .
2. A DECLARATION that no public officer under the “Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002 made on 13th December, 2002 but which is deemed to have come into force on the 29th of May, 1999, is entitled to receive his or her salary in any other currency other than the Naira.
3. A DECLARATION that the yearly salary of $247,000 (about N36 million) being paid to the 3rd defendant Dr. (Mrs.) Ngozi Okonjo Iweala, the Federal Minister of Finance, is a flagrant violation of Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002 which prescribes a yearly salary of N794,085.00 for every Minister of the Federal Republic of Nigeria.
4. A DECLARATION that the yearly salary of $120,000 (about N17 million) being paid to the 4th defendant Ambassador Olufemi Adeniji, Federal Minister for External Affairs is a flagrant violation of Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002 which prescribes a yearly salary of N794,085.00 for every Minister of the Federal Republic of Nigeria.
5. AN ORDER compelling the 3rd and 4th defendants to refund to the Federal Government of Nigeria any amount in excess of the prescribed salary in Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002.
6. A DECLARATION that the authorization by the 1st defendant (The President of the Federal Republic of Nigeria) of the salaries being paid to the 3rd and 4th defendants in violation of the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No. 6 of 2002 amounts to an abuse of power which is contrary to:
(a) Section 15(5) of the Constitution of the Federal Republic of Nigeria; and
(b) Section 153 of the Constitution of the Federal Republic of Nigeria which empowers the 2nd defendant to determine the remuneration appropriate for political office holders, including the President, Vice-President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislators and the holders of the offices mentioned in sections 84 and 124 of the Constitution and in pursuance of which an Act titled: Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002 was promulgated.
7. AN INJUNCTION restraining the Federal Government of Nigeria, its agents, servants, privies or howsoever called particularly the 1st defendant from paying Ministers or any other Public Officers covered by the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002 outside the salaries prescribed in the said Act.”
The 1st respondent is the President, the Chief Executive and the Commander-in-chief of the Armed Forces of the Federal Republic of Nigeria as provided for in section 130 of the Constitution of the Federal Republic of Nigeria, 1999.
The 2nd respondent is an Executive Body of the Federation provided for in section 153 of the Constitution of the Federal Republic of Nigeria, 1999 to, amongst other constitutional duties set out in sections 84, 124 and Third Schedule, Part 1, N, item 32 of the Constitution, determine the appropriate remuneration for political office holders.
The 3rd and 4th respondents are Ministers of the Federal Republic of Nigeria as established under section 147 of the Constitution of the Federal Republic of Nigeria, 1999; whilst the 5th respondent is the Chief Law Officer of the Federation.
The appellant’s originating summons was supported by a 13-paragraph affidavit dated 25th February, 2004 and a 6-paragraph further affidavit dated 26th April, 2004. Attached to the further affidavit was an exhibit called exhibit Gani 1.
The 1st, 3rd, 4th and 5th respondents in reply filed a notice of preliminary objection dated 10th March, 2004 in which they sought to dismiss and/or strike out the action in its entirety on the following grounds:
“i. The plaintiff/appellant has no locus standi to institute the action;
ii. The action is frivolous, vexatious, speculative, hypothetical, academic and abuse of judicial process;
iii. The Honourable Court lacks the requisite jurisdiction and competence to entertain the suits.”
The 2nd respondent on 12th March, 2004 filed another objection in which it sought the following:
“i. The instant plaintiff lacks the competence/locus standi to institute this action against the 2nd defendant.
ii. The suit discloses no cause of action or reliable cause of action against the 2nd defendant.
iii. An order of court striking out the name of the 2nd defendant from the suit.”
Both the appellant and the respondents addressed the trial court over the respondents’ preliminary objection and on Thursday, 7th October, 2004, the trial court delivered its ruling striking out the appellant’s suit on the grounds inter alia that the appellant has no locus standi to maintain the action and that the matter was not justiciable.
On the 28th day of October, 2004, the appellant filed a notice of appeal against the said ruling on 5 grounds.
In their brief of argument dated the 26th day of July, 2005, the respondents adopted the issues as formulated by the appellant.
At the hearing of this appeal, learned counsel for the appellant Clement Onwuenwanor informed the court that they filed their brief of argument on 26/7/2005 and that he is adopting same as the argument of the appellant in this appeal. He referred the court to page 50 of the record of appeal.
He contended that the case of Adesanya does not apply to this matter. Learned counsel urged the court to allow this appeal and to note that the appellant has locus standi to maintain this action.
Alfred Uwaka learned counsel for 1st, 3rd, 4th and 5th respondents told the Court that their brief of argument was filed on 15/2/06 and that they are adopting same and he urged the court to dismiss the appeal and uphold the decision of the lower court as well as award a substantial cost against the appellant. The 2nd respondent was absent and unrepresented even though it was served with a hearing notice on 14/5/2007.
In support of the originating summons at the trial court, the plaintiff/appellant filed a thirteen paragraph affidavit. Paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 10, 11 and 12 are pertinent and they are hereby reproduced thus:-
“1. That I am a counsel in the Chambers of Chief Gani Fawehinmi, SAN, plaintiff’s counsel by virtue of which I am familiar with the facts deposed to in this affidavit.
2. That I have the consent and authority of the plaintiff herein to depose to this affidavit in support of this originating summons.
3. That the 1st defendant is the President of the Federal Republic of Nigeria.
4. That the 2nd defendant is a Federal Executive body established by section 153 of the Constitution of the Federal Republic of Nigeria, 1999 to amongst other constitutional functions determine the remuneration appropriate for political office holders, including the President, Vice-President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislators and the holders of the offices mentioned in sections 84 and 124 of the Constitution.
5. That the 3rd and 4th defendants are Ministers of the Federal Republic of Nigeria.
6. That the plaintiff is the Chairman of the National Conscience Party (NCP), former presidential candidate, a tax payer who is bound by the provisions of the Constitution of the Federal Republic of Nigeria, 1999 .
7. That the salaries and allowances of Ministers and some other Public Officers have been prescribed in an Act of National Assembly titled “Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc.)
Act No.6 2002 promulgated on 13th December, 2002 and deemed to have come into force on the 29th of May, 1999.
8. That the yearly salary of a Minister of the Federal Republic of Nigeria is N794,085.00 (Seven hundred and ninety-four thousand, and eighty-five Naira).
9. That the 3rd defendant Dr. (Mrs.) Ngozi Okonjo Iweala is earning a yearly salary of $247,000 (about N36 million) which is far above what the law has prescribed.
10. That the 4th defendant is earning a yearly salary of $120,000 (about N 17 million) which is far above what the law has prescribed.
11. That the salaries being earned by the 3rd and 4th defendants were authorized by the President, General Olusegun Obasanjo the 1st defendant who swore to an oath of office prescribed in the seventh schedule of the Constitution to uphold the Constitution of the Federal Republic of Nigeria on the 29th of May, 1999 and on the 29th of May, 2003.
12. That it is in the interest of justice to grant this application as the defendants would not be prejudiced if the plaintiff’s claims are granted.”
The 2nd defendant/respondent filed a counter-affidavit of three paragraphs. Paragraphs 2 and 3 are relevant to this matter and they are hereby adumbrated as follows:-
“2. That I have the consent of the 2nd defendant and my employers to depose to this affidavit.
That I am informed by Abdulhamid Mohammed, Esq. (the Managing Partner) of Messrs HAMMART & Co. on the 11th day of March, 2004 at about 4.30 p.m. in Chambers of the following facts which I hold as true and correct viz:-
a. That he has gone through the affidavit of Adindu Ugwuzor and state that paragraphs 6, 8, 9, 10, 12 and 13 of the affidavit in support of the originating summons deposed on the 25th February, 2004 are false.
b. That the 2nd defendant has no statutory duty or functions of paying salaries or allowances to political, public and judicial office holders in the Federal Republic of Nigeria.
c. That the 2nd defendant has determined the remunerations appropriate for the political holders as contained in the Constitution of the Federal Republic of Nigeria, 1999 which an Act titled: Certain Political, Public and Judicial Office Holders (Salaries &Allowances etc.) was promulgated by the National Assembly.
d. That I depose to this affidavit in good faith believing the contents to be true and correct by virtue of the Oath Act, 1990.”
The plaintiff/appellant also filed a further affidavit of six paragraphs in Support of the originating summons. Paragraphs 1, 2, 3, 4, and 5 of the said affidavit are in pari materia to the suit and they are hereby reproduced thus:
“1. That I am a counsel in Gani Fawehinmi Chambers, plaintiff’s counsel by virtue of which I am familiar with the facts deposed to in this further affidavit.
2. That I have the consent and authority of the plaintiff herein to depose to this further affidavit in support of the originating summons.
3. That on the 25th of February, 2004, I swore to an affidavit in support of the originating summons.
4. That this is a further affidavit in support of the originating summons dated 25th February, 2004.
5. That I was informed by the plaintiff, Chief Gani Fawehinmi, SAN in our Chambers on Thursday, 22nd April, 2004 at about 6p.m. and I verily believe him that on the 10th day of September, 2001 when he was sworn in as a Senior Advocate of Nigeria, (SAN) he swore to an Oath before the Chief Justice of Nigeria and other Justices of the Supreme Court there present on the occasion of the conferment of the rank of Senior Advocate of Nigeria on him. A copy of the Oath is attached herewith and marked exhibit Gani 1.”
A copy of the Oath sworn to by the plaintiff/appellant before the Chief Justice of Nigeria and other Justices of the Supreme court when he was sworn in as a Senior Advocate of Nigeria, (SAN) and referred to in paragraph 5 of the further affidavit in support of the originating summons, attached and marked exhibit Gani 1, is hereby reproduced thus:
“FEDERAL REPUBLIC OF NIGERIA THE LEGAL PRACTITIONERS’ ACT (CAP. 207, LFN) (AS AMENDED)
I, Ganiyu Oyesola Fawehinmi upon whom the rank of Senior Advocate of Nigeria has been duly conferred declare that I will at all times well and truly serve the interest of the Federal Republic of Nigeria in the capacity of Senior Advocate of Nigeria and to that end will support and uphold the Constitution of the Federal Republic of Nigeria, 1999, as by law established; that I will to the best of my ability well and truly assist the courts of law duly established in the Federal Republic of Nigeria in the performance of their judicial functions; and that I will at all times uphold the dignity of the rank of Senior Advocate of Nigeria.
(SGD)
GANI FAWEHINMI
At Abuja this 10th day of September, 2001.
DECLARED BEFORE ME
(SGD)
M. L. UWAIS
Chief Justice of Nigeria.”
The 2nd defendant/respondent as earlier stated in this judgment was absent and unrepresented at the hearing of the appeal and did not file any brief of argument.
The appellant formulated the following issues for determination in this appeal:
“1. Whether the plaintiff has locus standi to institute this action.
2. Whether the learned trial Judge gave full consideration to all the relevant sections of the 1999 Constitution and other relevant authorities before holding that abuse of power under section 15(5) of the 1999 Constitution is not justiciable.
3. Whether the action of the appellant was not a challenge to the paying authorities for non-compliance with the provisions of the Act.
4. Whether the appellant as a citizen of Federal Republic of Nigeria is precluded from challenging any failure to observe or comply with the provisions of the “Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002.
5. Whether the appellant’s action has not challenged the fact that the 3rd and 4th defendants/respondents are paid in a currency other than the Naira.”
The learned counsel for the 1st, 3rd, 4th and 5th respondents in the Respondents’ Brief of Argument dated 15th day of February, 2006 and filed on the same date said the respondents adopted issues (I) to (V) as formulated by the appellant in the brief of its argument dated 26th July, 2005. Learned counsel for the respondent maintained that just as the appellant had argued the issues differently, the 1st, 3rd, 4th and 5th respondents propose also to argue the issues differently.
A meticulous examination of the issues formulated for determination in this appeal will reveal that the only issue for determination in my opinion is “whether the plaintiff/appellant has locus standi to institute this action.”
In his argument on the said issue, learned counsel for the appellant, Sikiru Akinrele, Esq. submitted that the learned trial Judge was wrong in his holding and did not appreciate the status of the appellant and the nature of his complaint which border on infraction of the Constitution of the Federal Republic of Nigeria, 1999 and Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002.
He contended that it is trite that when objection is raised as to the competence of an action on ground of want of locus standi, the party raising the objection is deemed to have admitted the facts stated by the plaintiff in his statement of claim or in the affidavit in support of the originating summons. He argued that consequently, the respondents by raising the issue of locus standi of the appellant, were deemed to have admitted the facts stated by the appellant in his affidavit in Support of the originating summons.
Learned counsel maintained that the appellant has shown in paragraph 6 of the affidavit in support of the originating summons at pages 5 and 6 of the record of appeal that he is the Chairman of the National Conscience Party (NCP), former Presidential Candidate, a tax payer and a Senior Advocate of Nigeria who is bound by the Provisions of the Constitution of the Federal Republic of Nigeria, 1999.
He referred the Court to paragraph 5 of the further affidavit in support of the originating summons at page 20 of the record of appeal, as well as the oath he subscribed to as a Senior Advocate of Nigeria at page 22 of the record of appeal.
Learned counsel for the appellant contended that the basis of the appellant’s action is clear from paragraphs 7-11 of the affidavit in support of the originating summons at pages 5-6 of the record of appeal.
He argued that it is necessary to consider the status of the President and Ministers in the Constitution of the Federal Republic of Nigeria, 1999 and other relevant laws against certain uncontroverted facts in this appeal.
On what he termed as the salient uncontroverted facts, learned counsel submitted that the President and his Ministers are public officers under the Constitution of the Federal Republic of Nigeria, 1999 and that the appointment of Ministers is governed by section 147 of the Constitution.
He submitted that section 14(3) of the Constitution concerns the reflection of the Federal character in the appointment of Ministers.
He maintained that it is therefore clear that all Ministers of the Federal Government represent Nigeria and not any external foreign country or institution in the Cabinet. He argued that no Minister represents United Nations Development Programme (UNDP), United States Agency for International Development (USAID), the World Bank or any external body in the Nigerian Cabinet. He contended that the only recognized representation is for and on the basis of the geographical expression called Federal Character.
Learned counsel submitted that the Constitution considers the Ministers as public officers. He further submitted that the 5th Schedule Part I item 19 on Code of Conduct of Public Officers (i.e. the interpretation section of the Constitution) defines a public officer as a person holding any of the public offices specified in Part II of the 5th Schedule. He maintained that Part II of the 5th Schedule titled “Public Officers for the purposes of the Code of Conduct”, listed Public Officers inter-alia to include the President of the Federation and Commissioners of the Government of the States.
Learned counsel argued that Ministers of the Federation are public officers established by the Constitution and appointed to reflect Federal Character of Nigeria and they must be Nigerians. He maintained that by section 153 of the Constitution, the Revenue Mobilization Allocation & Fiscal Commission was established and that some of its functions in the 3rd Schedule, Part I Item 32(c), (d) are to determine the remuneration of Ministers.
He argued that based on the determination of the salaries of these officers by the Revenue Mobilization Allocation and Fiscal Commission, the National Assembly promulgated in December, 2002, an Act titled “Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002” and published it in the Federal Government Official Gazette No. 122 Volume 89 dated December 27, 2002.
He submitted that under that Law, Ministers are to be paid in Naira just as other officers covered by that Law.
He maintained that the salary of a Minister is fixed in that Law at N794,085.00 (Seven hundred and ninety-four thousand and eighty five Naira) per annum. Each Minister is also entitled to certain allowances, which are either provided in cash or in kind. These are:-
“(1) Accommodation allowance: 100% of Annual Basic Salary
(2) Transport allowance: 20% of Annual Basic Salary
(3) Utility allowance: 20% of Annual Basic Salary
(4) Domestic Staff allowance: 75% of Annual Basic Salary
(5) Entertainment allowance: 10% of Annual Basic Salary.
(6) Medical allowance: In kind
(7) Security allowance: In kind
(8) Furniture allowance: 300% of Annual Basic Salary
(9) Personal Assistant allowance: 25% of Basic Salary
(10) Special Assistant allowance: In kind
(11) M/V Maintenance and Fuel allowance: 30% of Annual Basic Salary
(12) Severance gratuity; 300% of Annual Basic Salary
(13) Leave allowances and benefits are either provided in cash or in kind.”
Learned counsel for the appellant maintained that the complaint of the appellant before the trial court is that outside the Constitution and the Laws of Nigeria, the 3rd and 4th respondents, (Ministers of Finance and External Affairs) at the instance of and by the authorization of the 1st respondent, General Olusegun Obasanjo, are being paid salaries that were not determined by the Revenue Mobilization Allocation and Fiscal Commission. He contended that their salaries are well over and above the salaries under the Act i.e. Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc.) Act, No.6 of 2002.
Learned counsel argued that they have deposed in paragraphs 9 and 10 of the affidavit in support of the originating summons pages 5-6 of the record of appeal that the 3rd respondent earns a basic salary of 247,000.00 Dollars per annum which in Nigeria currency and at today’s exchange rate is about 36 million Naira while the 4th respondent earns a basic salary of 20,000 Dollars which amounts to about 17 million Naira per annum.
Learned counsel for the appellant argued that since these payments contravene the specific law made for such purpose pursuant to the Constitution of the Federal Republic of Nigeria, 1999, it amounts to illegality and therefore unconstitutional.
Learned counsel contended that if the appellant, who has a civil obligation and a right to uphold the Constitution of the Federal Republic of Nigeria cannot move the court to pronounce on the breach of the Constitution of the Federal Republic of Nigeria, who else can?
He posed the question whether it is being suggested that it is the Government that will sue itself or rather the Attorney-General that will sue the Government and consequently sue himself where there is a breach by the Executive? Or when there are breaches of the Constitution and Law made pursuant to specific provisions of the Constitution by government, who has the locus to complain to the Court about such breaches of the Constitution and that Law made pursuant to the specific provision of the Constitution.
He maintained that a proper answer to the 1st three questions raised in paragraphs 3.1.2.1, 3.1.2.2 and 3.1.2.3 above as to who has breached the Constitution, who has breached the Law made pursuant to the Constitution and the nature of the breach. He submitted that the court should consider the unconstitutionality, illegality, absurdities and implications of the uncontroversial facts arising from this action.
On the implications and absurdities of the 3rd and 4th respondents, learned counsel submitted that the trial Court was wrong in holding that the plaintiff/appellant has not shown how the nonobservance of the provisions of Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc) Act No.6 of 2002 affects him or will cause him injury.
It is undisputable he argued that the absurdities of the flagrant misuse of power by the President of Nigeria which thereby constitutes an outright violation of the Constitution and certain Laws made pursuant to the Constitution clearly cause obvious damage to the society and the entire citizenry including the appellant and to which the appellant because of his special class can protest through the court process.
Learned counsel stated that the implication and absurdities of these anomalies, illegal and unconstitutional salaries can best be appreciated with the following analysis:
“(a) The 247,000 Dollars per annum salary of the Minister of Finance, the 3rd respondent as authorized by the President, the 1st respondent, can pay the salary of another Minister for more than 35 years.
The 170,000 Dollars per annum salary of the Minister of Foreign Affairs, the 4th respondent as authorized by the President, for 1st respondent, can pay the salary of another Minister for more than 17 years.
The Dollar salary of the Minister of Finance the 3rd respondent per annum as authorized by the President, the 1st respondent can pay the salary of the Chief Justice of Nigeria which is 1.3 Million Naira per annum for at least 27 years.
The Dollar salary of Minister of Foreign Affairs the 4th respondent which is 17 Million Naira per annum as authorized by the President, the 1st respondent, can pay the salary of 16 Justices of the Supreme Court including that of the Chief Justice of Nigeria (all totaling 14 Million Naira) because each Justice of the Supreme Court earns 990,884 Naira per annum. The Minister of Foreign Affairs will still have some million Naira left to spend.”
Learned counsel further argued that another area of unconstitutionality, is the basis for calculating the allowances of the Ministers under Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc.) Act No.6 of 2002.
He contended that this can properly be appreciated by the following analysis and the poser raised therein:-
“(i) Accommodation Allowance:
The Act prescribes 100% of Minister’s salary as accommodation allowance. Is it 100% of the 247,000 Dollars (36 Million Naira) that is Accommodation allowance for the Minister of Finance, the 3rd respondent, and 100% of 120 Dollars (17 million Naira) that is accommodation allowance for the Minister of Foreign Affairs, the 4th respondent?
Transport Allowance:
The Act prescribes 350% of Minister’s salary as Transport allowance. Is it 350% of the 120,000 Dollars (17 million Naira) that is Transport allowance for the Minister of Foreign Affairs, the 4th respondent?
(iii) Utility Allowance:
The Act prescribes 20% of Minister’s salary as Utility allowance. Is it 20% of the 247,000 Dollars (36 million Naira) that is Utility allowance for the Minister of Finance, the 3rd respondent, and 20% of the 120,000 Dollars (17 million Naira) that is Utility allowance for the Minister of Foreign Affairs, the 4th respondent?
(iv) Domestic Staff Allowance:
The Act prescribes 75% of Minister’s salary as Domestic Staff allowance. Is it 75% of 247, 000 Dollars (36 million Naira) that is Domestic Staff allowance for the Minister of Finance, the 3rd respondent, and 75% of 120,000Dollars (17 million Naira) that is domestic staff allowance for the Minister of Foreign Affairs, the 4th respondent?
Entertainment Allowance:
The Act prescribes 10% of Minister’s salary as Entertainment allowance. Is it 10% of the 247,000 Dollars (36 million Naira) that is Entertainment allowance for the Minister of Finance, the 3rd respondent, and 10% of 120,000 Dollars (17 million Naira) that is Entertainment allowance for the Minister of Foreign Affairs, the 4th respondent?
Furniture Allowance:
The Act prescribes 300% of Minister’s salary as Furniture allowance. Is it 300% of the 247,000 Dollars (36 million Naira) that is Furniture allowance for the Minister of Finance, the 3rd respondent, and 300% of 120,000 Dollars (17 million Naira) that is Furniture allowance for the Minister of Foreign Affairs, the 4th respondent?
(vii) Personal Assistant Allowance:
The Act prescribes 25% of Minister’s salary as Personal Assistant allowance. Is it 25% of the 247,000 Dollars (36 million Naira) that is Personal Assistant allowance for the Minister of Finance, the 3rd respondent, and 25% of 120,000 Dollars (17 million Naira) that is Personal Assistant allowance for the Minister of Foreign Affairs, the 4th respondent?
(viii) Motor Vehicle Maintenance & Fuel Allowance:
The Act prescribes 30% of Minister’s salary as Motor Vehicle Maintenance & Fuel allowance. Is it 30% of the 247,000 Dollars (36 million Naira) that is Motor Vehicle Maintenance & Fuel allowance for the Minister of Finance, the 3rd respondent, and 30% of 120,000 Dollars (17 million Naira) that is Motor Vehicle Maintenance & Fuel Allowance for the Minister of Foreign Affairs, the 4th respondent?
(ix) The Act prescribes 300% of Minister’s salary as Severance Gratuity. Is it 300% of the 247,000 Dollars (36 million Naira) that is Severance Gratuity for the Minister of Finance, the 3rd respondent, and 300% of 120,000 Dollars (17 million Naira) that is Severance Gratuity for the Minister of Foreign Affairs, the 4th respondent?”
Learned counsel for the appellant argued that from the above analysis, the 3rd and 4th respondents on the authorization of the President, the 1st respondent, are earning salaries well above what is prescribed by the enabling Law prescribing the salaries of Public Officers, including Ministers in Nigeria.
Learned counsel for the appellant submitted that since no Public Officer in Nigeria, particularly a Minister of the Federal Republic of Nigeria is entitled to a yearly salary outside the salary prescribed by Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc.) Act No.6 of 2002, the present salaries of the 3rd and 4th respondents run foul of the said Act No.6 of 2002 and thereby become absurd, illegal and unconstitutional.
He argued that under the Decimal Currency Decree No. 21 of 1971, the unit of our currency changed from Pound to Naira with effect from 1st January, 1973. He submitted that under section 15 of the Central Bank of Nigeria, 1990 Act, the unit of our currency is the Naira. Learned counsel maintained that by virtue of the “Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc.) Act No.6 of 2002”, Ministers are to be paid in Naira just as other public officers covered by that Law.
Learned counsel for the appellant argued that contrary to the Constitution and other enabling Laws of Nigeria, the 3rd and 4th respondents at the instance of the 1st respondent are being paid in Dollars in the manner not determined by the Revenue Mobilization.
Allocation and Fiscal Commission, the 2nd respondent, who has the duty to prescribe salaries of Public Officers under our Laws pursuant to item 32(d) Part 1 of the 3rd Schedule to the Constitution.
Learned counsel submitted that it is trite that Ministers as Public Officers must not maintain a bank account outside Nigeria. This is contained in item 3 Part 1 of the 5th Schedule to the Constitution.
He argued that it is therefore unconstitutional and illegal for the salary of a Minister to be paid in foreign currency and or into an account outside Nigeria.
Learned counsel for the appellant maintained that what the President has done in disregarding the Constitution and the “Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002” clearly amounts to abuse of power and gross misconduct under section 43 of the Constitution of the Federal Republic of Nigeria, 1999.
He further maintained that the action of the 1st respondent amounts to a gross abuse and violation of the provisions of the Constitution which he, the 1st respondent swore to preserve, protect and defend on the 29th May, 1999 and 29th May, 2003 pursuant to the Oath of Office of the President contained in the Seventh Schedule of the Constitution.
He argued that by paying two Ministers, 3rd and 4th respondents, who are Nigerians representing two States in the Federation, in foreign currency (U.S. Dollars), the President is violating the Code of Conduct established under Item 3 Part 1 of the 5th Schedule to the Constitution because these payments are obviously made into the private accounts of these Ministers which they maintained abroad contrary to the Code of Conduct which the President swore to abide by in the Oath of Allegiance or Oath of Office of the President contained in the 7th Schedule of the Constitution to the Federal Republic of Nigeria, 1999.
Learned Counsel maintained that the Constitution states that a breach of the Oath of Allegiance or Oath of Office is an act of Misconduct. He referred the court to Item 19 Part 1 of the 5th Schedule to the Constitution. He contended that in the face of such breaches of constitutional and statutory provisions, who then has locus standi to complain?
Learned counsel submitted that what determines locus standi had been succinctly stated in the cases of: Gani Fawehinmi v. Col.Halilu Akilu & Anor. (1987) 4 NWLR (Pt.67) page 797 at 830;
Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493) page 261 at 278;
Bolaji v. Bambose (1986) 4 NWLR (Pt. 37) page 632 at 646;
Ebongo v. Uwemedimo (1995) 8 NWLR (Pt. 411) page 22 at 51;
Douglas v. Shell Petroleum Development Co. Ltd. (1999) 2 NWLR (Pt. 591) page 466 at 474;
Multi-purpose Ventures Ltd. v. A.-G., Rivers (1997) 9 NWLR (Pt. 522) page 642 at 666.
Learned counsel for the appellant posed the question whether from the facts of this matter and within the purview of the above decisions, could it be said that the appellant, Chairman of a registered Political Party, a former presidential candidate, a Senior Advocate of Nigeria and a tax payer has locus standi to sue in this matter? He submitted that the clear answer to this poser, is an emphatic yes.
Learned counsel submitted that the trial Judge was wrong in relying on the restrictive approach in the case of Adesanya v. President of Nigeria (1981) 2 NCLR 358 in considering the locus standi of the appellant. He argued that the restrictive approach of the Supreme Court since Abraham Adesanya’s case has changed with respect to locus standi of parties in constitutional matters. Learned counsel also stated that the cases of Owodunni v. RTCCC (2000) 10 NWLR (Pt.675) page 315 and Busari v. Oseni (1992) 4 NWLR (Pt. 237) page 557 referred to by the trial Judge have no bearing on breaches of constitutional and statutory provisions as in the instant case. He argued that the facts are not the same.
Learned counsel argued that the Supreme Court in Adesanya v. President of Nigeria (supra) stated that for a person to have to sue in a situation of the breach of the Constitution of Nigeria, such person must have an interest that is above that of the ordinary citizen.
Learned counsel for the appellant submitted that the plaintiff is not an ordinary person in the street. He was at the material time to this suit a Chairman of a political party, a presidential candidate, a tax payer, a Senior Advocate of Nigeria, and has also sworn to an Oath under the Legal Practitioners Act (LPA), 1975 to support and uphold the Constitution of the Federal Republic of Nigeria.
He contended that the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990 is an existing Law pursuant to section 315 of the Constitution of the Federal Republic of Nigeria, 1999.
Learned counsel argued that a person who has the civil right and obligation to sue in the instance under adjudication is clear under section 6(6)(b) of the Constitution.
He contended that the operative phrase in this constitutional provision is civil rights and obligations and a cursory look at their meanings will shed more light on the locus standi of the appellant.
He referred the court on the meaning of civil rights and obligations to the case of Okechukwu v. Etukokwu (1998) 8 NWLR (Pt. 562) page 513 at 526.
Learned counsel argued that in this case, it is clear from the provisions of section 6(6)(b) of the Constitution that actions are only competent between persons and Governments or between two State Governments or between State Government(s) and the Federal Government; but definitely not between the Federal Government and the Federal Government.
He contended that if this position is so, then it will be absurd to suggest that Attorney-General as was the position under the common law, who is a functionary of the Executive is the one who shall have the locus standi to sue where the Executive is in breach of the Constitution. The Attorney-General of the Federation cannot perform such duty and of course, he will not. Importantly too, he argued there is no provision in our Constitution for the State to sue itself.
Learned counsel for the appellant submitted that in view of the appellant’s questions and reliefs sought before the trial court as can be found at pages 1-3 of the record of appeal, the appellant contrary to what the trial court held, has locus standi to maintain this action in his capacity as the former presidential candidate, a tax payer and a Senior Advocate of Nigeria and his obligations therewith to ensure observance of and compliance with the Constitution of the Federal Republic of Nigeria and to prevent the promotion of breaches of same by any arm of government.
He argued that it cannot be otherwise if the court examines the trend that permeates the decisions in the following very important Supreme Court cases:-
(1) Senator Abraham Adesanya v. President of Nigeria (1981) 2 NCLR 358
(2) Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) page 797
(3) Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) page 606
Learned counsel for the appellant submitted that based on the above authorities and the special circumstances of this case with regards to the status of the appellant and the constitutional and statutory breaches he complained about, the trial court was wrong in striking out the suit on the ground that the appellant has no locus standi.
Learned counsel further submitted that contrary to the decision of the trial court adopting the restrictive approach on locus standi in Abraham Adesanya’s case, this court should adopt the broad view on locus standi in the case of Akilu v. Fawehinmi (supra).
He argued that this is so pertinent because locus standi has the dangerous tendency of frustrating the whole spectrum of the rule of law and its due process thereby unwittingly creating executive dictatorship.
Learned counsel submitted that the decision of the trial court in this matter is erroneous and should not be followed by this court.
The court is referred to the case of In Re-Adadevoh and in the matter of Estate of Samuel Herbert Macaulay (1951) 13 WACA 304.
In his response on this issue, learned counsel for the respondents referred the court to the ruling of the trial court on page 50 of the record of appeal and submitted that the learned trial Judge was right in its decision because the position of the Law as established in several authorities before the trial court is that no matter the status of the plaintiff or the nature of his complaint, once he lacked locus standi, the proper thing for the court to do is to strike out the action.
Learned counsel argued that the preliminary objection raised by the respondents to the competency of this suit on the ground of locus standi did not in any way signify admission of facts stated by the plaintiff in his averment in his statement of claim or in the affidavit in support of the originating summons because the rule is that any party raising any objection must do so timeously. He maintained that the appellant therefore lacks basis to say that the respondents admitted the appellant’s averment.
Learned counsel argued that the position and status of the plaintiff as deposed to in his affidavit is not in question and the respondents are not challenging this, what is really before the court for determination is whether the position and status of the plaintiff are cogent enough to confer on him locus standi. He urged the court to uphold the decision of the trial court that the plaintiff lacks locus standi to institute the action.
Learned counsel for the respondents referred the court to pages 21-25 of the appellant’s brief where some issues which he learned “The salient uncontroverted facts” were raised. Learned counsel submitted that these issues raised by the appellant did not treat the issue as contained in the decision of the trial court as provided for in pages 43-52 of the record of appeal and therefore should be discarded by this court.
Learned counsel for the respondents maintained that the main issue, which was rightly determined by the trial Court, is the issue of locus standi. On what determines locus standi, he referred the Court to the following cases:
Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt. 675) 315;
Oloriode v. Oyebi (1984) 1 SCNLR 390;
Ojukwu v. Governor of Lagos State & Anor. (1985) 1 NWLR (Pt. 10) page 806;
Olawoyin v. Attorney-General of Nigeria (1961) 2 SCNLR 5;
Adesanya v. President of the Federal Republic of Nigeria (1981) 2 SCNLR 358.
Learned counsel for the respondents submitted that it is crystal clear from the facts of this matter and from the authorities he has cited above that the ruling of the trial Court in this matter that the appellant had no locus standi is an established fact. He argued that the trial Judge having adverted her mind liberally to the issues raised by the appellant and the status of the appellant, correctly ruled he had no locus standi.
Learned counsel submitted that the ruling of the trial Court is the correct and pragmatic position of the Law with regards to locus standi and that this Court should uphold the holding of the trial Court.
He submitted that the cases relied on by the trial Court in holding that the appellant had no locus standi have nexus to the breaches of the Constitution and that this court should hold same. He argued that fundamentally, the purport of the decisions in all the authorities cited is based on the premise that for a person to have a locus standi to sue, he must have sufficient interest to sustain the claim. Learned counsel submitted that the plaintiff though a Chairman of a political Party, a Presidential Candidate, a tax payer and a Senior Advocate does not in this case have sufficient interest to sustain his claim.
This does not place him above other Chairmen of the Political Parties, Presidential Candidates, Tax payers and a Senior Advocate to clothe him with locus standi in a matter which he does not have sufficient interest to sustain his claim. Learned counsel referred to the case of Oloriode v. Oyebi (supra) and submitted that there is no benefit to be conferred on the appellant in the reliefs claimed in this suit and this court should therefore confirm the ruling of the trial court by holding that the appellant has no locus standi.
Learned counsel argued that the appellant in this case has not shown how his personal interest has been or is about to be adversely affected, neither has he sustained nor is in immediate danger of sustaining an injury to himself and which interest or injury is over and above that of the general public.
Learned counsel for the respondents submitted that if the court looks at the status of the appellant and confers locus standi on him, this will amount to laying a bad precedent because so many other senior citizens of this great country who are even of higher ranking in the society than the appellant would not hesitate in rushing to court to challenge the actions of the Government which would have otherwise not been justiciable. He argued that this will ultimately have a great adverse and negative effect on the constitutional provision and the Constitution should be held sacred.
Learned counsel submitted that this court should affirm the decision of the trial court by holding that the appellant lacks locus standi.
I have diligently perused both the oral and written submission of counsel in this appeal as well as the decided authorities and statutes cited before the court. I am of the opinion that it will be appropriate to begin consideration of this appeal by ascertaining what the term locus standi denotes.
It is clear from a plethora of decisions of the Apex Court that the term locus standi denotes legal capacity to institute proceedings in a court of law; and can therefore be referred to as “standing” or “title to sue”.
There must be a cause of action before a person can have an enforceable right. The person in whom this enforceable light is vested as his personal right is the person that has locus standi to sue. A person who makes a claim which in actual fact belongs to someone else has no locus standi before the court. See Oloriode v. Oyebi (supra).
Locus standi principle operates to deprive a party of the right to institute an action on the ground that such intended plaintiff lacks connection or sufficient connection with the subject matter of the action. It is therefore of paramount importance, for a prospective litigant to ascertain upon whom the enforceable right in the cause of action is vested, to enable him decide whether he himself can properly sue.
In ascertaining whether the plaintiff in an action has locus standi, it is necessary to examine the statement of claim filed in court, to see if it discloses a cause of action vested on him. Thus, only the plaintiff’s statement of claim should be looked into to see if the plaintiff has locus standi to institute the action.
In Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493) page 261 at 278 Ogundare, JSC held that:
”To determine whether the plaintiff has locus standi, it is to the statement of claim one looks.”
See also the case of Bolaji v. Bamgbose (1986) 4 NWLR (Pt. 37) page 632 at 646 .
On whether a defendant can raise the issue of locus standi the position of the law is stated by this court in the case of Ebongo v. Uwemedimo (1995) 8 NWLR (Pt. 411) page 22 at 51, Per Tobi, JCA (as he then was) as follows:-
“A defendant can raise the issue of locus standi in two main ways: (a) By a motion and (b) in his defence.
In either way, he relies only on the statement of claim and not his defence. And so, a defendant can raise the issue of Locus standi, even before he files his statement of defence, and that is by (a) above.
Where a defendant raises the issue of Locus standi in a motion, the court must look at the statement of claim and not the affidavit in support. The rationale is straightforward. If the court looks at the affidavit evidence, this is in effect seeking supportive evidence from the defendant, which should not be the situation.
By such a procedure the defendant has succeeded in introducing through the back door part of his statement of defence (if not the whole), what he cannot introduce through the front door camouflaged or disguised as affidavit in support.
In the instant case, the learned trial Judge dealt with the threshold issue of locus standi at the stage of writ of summons and motion with supporting affidavit. With respect, he was fairly in some hurry. He might have waited for the filing of the statement of claim. He was therefore in error, and I so hold.
There is yet another error, this time by dismissing the suit. The state of the law is that where a plaintiff lacks locus standi, the court can strike out the suit and not dismiss it.”
See also: Global Trans Oceanica S.A. v. Free Ent. (Nig.) Ltd. (2001) 2 SC 145: (2001) 5 NWLR (Pt. 706) 426; Douglas v. Shell Petroleum Development Co. Ltd. (1999) 2NWLR (Pt.591) page 466 at 414; Multi-purpose Ventures Ltd. v. A.-G., Rivers State (1997) 9 NWLR (Pt.522) page 642 at 666; Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) page 704; Olagbegi v. Ogunoye II (1996) 5 NWLR (Pt. 448) page 332; Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) page 377.
However, where the action is commenced by an originating summons, it is the affidavit in support that will be looked into to find out if the plaintiff has locus standi to file the action.
The action filed in court must relate to the determination of any question as to the civil rights and obligations of the litigant.
Locus standi does not depend on the success or merit of a case and all that is required of a plaintiff is to plead and prove facts establishing his right, interest and obligation in respect of the subject matter of the suit.
The term locus standi can not be divorced from the provisions of section 6(6)(b) of the Constitution since it provides that the Constitutional right of a citizen to institute an action in court can only be exercisable by a person who has complaints touching on his civil rights and obligation. Where a plaintiff fails to raise in his statement of claim or in the affidavit in support of his originating summons any question as to his civil rights and obligations that have been violated or injured, the statement of claim or the originating summons as the case may be will be struck out.
The issue as to the person who has the civil right and obligation has been made clear by section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 which states:-
“6(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(a) …
(b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
The meaning of civil rights and obligations has been explained in the case of Okechukwu v. Etukokwu (1998) 8 NWLR (Pt. 562) page 513 at 526 where Tobi, JCA (as he then was) defined the phrase thus:
‘The word “civil” is derived from Latin word “civilis” which means a citizen. The word “civil” relates to the state or its citizenry. Civil right is a constitutional liberty guaranteed in the Constitution. A civil right within the meaning of section 33(1) of the Constitution is distinct from a private or domestic right. Above all, a civil right is a civil liberty. A civil obligation, on the other hand, simply means an obligation which binds in law, and may be enforced in a Court of justice.”
His Lordship stated further at page 536:-
“For a right to be qualified as a civil right, it must have a domineering and dominant base or appeal and a universal spread. And here, the word universal, does not convey its universal meaning of the universe but restricted to the Nigerian polity. In other words, the civil right should have a general Nigerian base, devoid of all peculiar domestication with all locality or localisation.
A civil right is a right which all persons in the polity should generally share in common without discrimination.”
In the ruling which is the subject matter of this appeal, the learned trial Judge said on page 50:
“A challenge of the Constitution which is the general law governing all Nigerians is quite different from a challenge of a specific law governing a special class of people. It may well be true that the specific law takes its life from the general law, in this case, the Constitution. It is in such a situation to my understanding that the Adesanya ‘s case and the Owodunni’s case apply, same as the Busari’s case. In such a situation, the plaintiff needs to show his interest and how it is affected or infringed upon as it relates to the situation at hand, the plaintiff would need to show how he has been or is likely to be affected by the non adherence to the provisions of the Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc.) Act No. of 2002.”
The case of Senator Adesanya v. The President of Federal Republic of Nigeria (supra) has been acknowledged as a milestone decision on locus standi.
It is clear from the ruling that the learned trial Judge had placed reliance on the case of Adesanya v. President (supra) and other subsequent decisions in striking out the plaintiff’s case on the ground of lack of locus standi.
In that case, the appellant was challenging the constitutionality of an appointment made by the President of the Federal Republic of Nigeria. The action was dismissed by the Supreme Court on ground that Senator Abraham Adesanya, having participated in the deliberations of the Senate in connection with the subject matter over which his views in the Senate were not accepted by majority of his co-Senators before instituting an action, had no locus standi to challenge the unconstitutionality of the appellant (the same subject matter) in court of law having exercised his right at the floor of the Senate.
Fatai Williams, CJN (of blessed memory) stated at page 378 thus:-
“He participated in the debate leading to the confirmation of the appointment of the second defendant/respondent and lost. For him, that should have been the end of the matter. The position would probably have been otherwise if he was not a Senator. Sowemimo, JSC (of blessed memory) also said at page 380:”
There is no provision the judicial powers provided in section 6 of the Constitution for any Legislator to appeal to any court against the majority decisions. That is the internal matter which I believed is governed by rules approved by the Legislators themselves. In this particular appeal, the appellant as a Senator took part in the decision and I can see no provision in the Constitution giving right to a member who happens to be in the minority to sue against such decision.”
Under public law, an ordinary individual will generally not have locus standi as a plaintiff. This is because such litigations concern public rights and duties which belong to, or are owed to all members of the public, including the plaintiff. It is only where he has suffered special damage over and above the one suffered by the public generally that he can sue personally. See: Gamioba & Others v. Esezi & Others (1961) 2 SCNLR 237, (1961) All NLR 584 at 585, (1961) 2 SCNLR 237; Owodunni v. Registered Trustees of Celestial Church of Christ (supra) page 73.
In an action to assert or protect a public right or to enforce the performance of a public duty, it is only the Attorney-General of the Federation, that has the requisite locus standi to sue.
A private person can only bring such an action if he is granted a fiat by the Attorney-General to do so in his name. This is referred to as a “relator action”.
In our present reality, the Attorney-General of the Federation is also the Minister of Justice and a member of the Executive Cabinet. He may not be disposed to instituting an action against the Government in which he is part of, it may tantamount to the Federal Government suing itself. Definitely he will not perform such a duty. Importantly too, there is no provision in the 1999 Constitution for the State to sue itself.
Since this Country attained Independence from the British Colonial Administration almost forty seven years ago, I know of no reported case of any superior court in Nigeria where the Attorney-General of the Federation has instituted an action against the Federal Government, or an Attorney-General of a State suing his State Government on account of a violation of the provisions of the Constitution or a legislation contrary to the provisions of the Constitution. I may however be wrong in this historical assessment.
The question now is who will approach the court to challenge the Government where it violates or fails to enforce any provisions of the Constitution or the Laws where an Attorney-General will not. In this country, where we have a written Constitution which establishes a constitutional structure involving a tripartite allocation of power to the Judiciary, Executive and Legislature as the co-ordinate organs of Government, Judicial function must primarily, aim at preserving legal order by confining the legislative and executive within their powers in the interest of the public and since the dominant objective of the rule of law is to ensure the observance of the law, it can best be achieved by permitting any person to put the judicial machinery in motion in Nigeria whereby any citizen could bring an action in respect of a public derelict. Thus, the requirement of locus standi becomes unnecessary in constitutional issues as it will merely impede judicial functions.
This opinion is supported by Fatai Williams, CJN in Adesanya’s case at page 373 where he stated:-
“I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written Federal Constitution, where rumour mongering is the pastime of the market places and construction sites. To deny any member of such society who is aware or believes, or is led to believe, that there has been an infraction of any of the provisions of our Constitution, or that any Law passed by any of our Legislative Houses, whether Federal or State, is unconstitutional, access to a court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organized disenchantment with the judicial process ….
In the Nigerian con, it is better to allow a party to go to court and to be heard than to refuse him access to our courts. Non-access, to my mind, will stimulate the free-for-all in the media as to which Law is constitutional and which Law is not. In any case, our courts have inherent powers to deal with vexatious litigants or frivolous claims. To re-echo to words of learned hand, if we are to keep our Democracy, there must be one Commandment – Thou shall not ration Justice.”
Bearing in mind that the Constitution is supreme and its provision and any Law made by the National Assembly pursuant to them should not be breached, Fatai Williams, CJN held at page 376 that:
“To my mind, it should be possible for any person who is convinced that there is an infraction of the provisions of sections 1 and 4 of the Constitution which I have enumerated above to be able to go to court and ask for the appropriate declaration and consequently relief, if relief is required. In my view, any person, whether he is a citizen of Nigeria or not, who is resident in Nigeria or who is subject to the Laws in force in Nigeria, has an obligation to see to it that he is governed by a Law which is consistent with the provisions of the Nigerian Constitution. Indeed, it is his civil right to see that this is so.”
It has been deposed on behalf of the appellant in paragraph 6 of the affidavit in support of the originating summons and in paragraph 5 of the further affidavit in support of the originating summons thus:-
‘That the plaintiff is the Chairman of the National Conscience Party (NCP), former presidential candidate, a tax payer who is bound by the provisions of the Constitution of the Federal Republic of Nigeria, 1999.”
In paragraph 5 of the further affidavit in support of the originating summons it has also been deposed on behalf of the appellant thus:-
“That I was informed by the plaintiff, Chief Gani Fawehinmi, SAN in our Chambers on Thursday 22nd April, 2004 at about 6p.m. and I verily believe him that on the 10th day of September, 2001 when he was sworn in as a Senior Advocate of Nigeria, (SAN) he swore to an Oath before the Chief Justice of Nigeria and other Justices of the Supreme Court there present on the occasion of the conferment of the rank of Senior Advocate of Nigeria on him. A copy of the Oath is attached herewith and marked exhibit Gani 1.”
Exhibit Gani 1 has earlier been reproduced in this judgment.
The plaintiff/appellant is a political elite in Nigeria and represents the conscience of the people and by the averments in paragraph 6 of the affidavit in support of the originating summons and paragraph 5 of the further affidavit, he qualifies as a person who has sufficient interest to bring an action in court in respect of an infraction of the provisions of “Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc) Act No.6 of 2002, promulgated on 13th December, 2002 and deemed to have come into force on 29th May, 1999.
I have earlier said in this judgment that the learned trial Judge relied on the case of Adesanya to strike out the plaintiff/appellant’s claim on the basis of lack of locus standi.
Fortunately, the Apex Court has now departed from the former narrow approach in the Adesanya’s case and the subsequent decisions.
In Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) page 797, the Supreme Court in its considered judgment, per Eso, JSC, considered the locus standi of the appellant and held at page 847 that:
“In this instant appeal before this court, I think, with respect that the lead judgment of my learned brother Obaseki, JSC is an advancement on the position hitherto held by this Court on “locus standi”. I think again with respect, that it is a departure from the former narrow attitude of this court in the Abraham Adesanya case and subsequent decisions, for strictly speaking, my Lord Nnaemeka-Agu, JCA (as he then was) who no doubt was bound by those decisions at that time was tight in his interpretation of the stand of this court, and so, strictly on those authorities of this court, along, his judgment with respect, could not be faulted when he said:-
“In this country, the result of all the cases is that the common law concept that a person who has a locus and can sue is only one who has a legal right, or whose legal right has been adversely affected or who has suffered, or is in imminent danger of suffering an injury- damage, or detriment personal to himself. This is the result of all decided cases, including Adesanya’s case (supra); Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 and Gamioba II v. Esezi (1961) All NLR 584.’
My humble view and this Court should accept it as such, is that the present decision of my learned brother, Obaseki, JSC in this appeal has gone beyond the Abraham Adesanya ‘s case. I am in complete agreement with the new trend and with respect, my agreement with the judgment is my belief that it has gone beyond the Abraham Adesanya’s case.”
Adapting to the new reality on the approach to the issue of locus standi, this Court in Williams v. Dawodu (1988) 4 NWLR (Pt. 87) page 189 at 218, Akpata, JCA (of blessed memory) stated that: “There is now the recent case of Chief Gani Fawehinmi v. Col. Halilu Akilu & Anor. In Re Oduneye (1987) 2 NWLR (Pt. 67) page 797 which shows that the Courts have become increasingly willing to extend the ambit of locus standi for public good. The Courts have broken new grounds. The significance of this judicial revolution is that whereas in the past the court showed little or no reluctance in any given case in construing the import of “sufficient interest” against the individual and tended to be more Executive than the Executive, now the term “sufficient interest” is construed more favourably in order to give an applicant a hearing.”
This court had an occasion to consider the expanded horizon of locus standi in order to encourage the public interest in litigations in the case of Shell Petroleum Development Co. Ltd. & 5 Ors. v. E.N. Nwaka & Anor. (2001) 10 NWLR (Pt.720) page 64 at pages 82-83. Pats-Acholonu, JCA (as he then was and of blessed memory) held as follows:-
“It needs the courage, wisdom and proper understanding of our social-economic environment for an activist Judge to widen the scope of the law on Locus Standi.
Some Judge and advocates have shown some trepidation in handling this matter. I believe we have to take the bull by the horn and do justice to a matter before the court without bending overly backwards because a matter is on borderline in respect of whether the initiator of an action has the standing order to do so. I think that where the cause is laudable and will bring peace, justice and orderliness that will reflect the spirit of the Constitution then we should not shirk our responsibility in this area to help in advancing the cause of Social, Economic and Cultural matters as they affect this society. The development of the law of locus standi has been retarded extensively due to fear of floodgate of persons meddling into matters not even remotely connected with them. In my opinion, let them meddle and let the Court remove the wheat from the chaff. I believe that it is the right of any citizen to see that law is enforced where there is an infraction of that right or a threat of its being violated in matters affecting the public law and in some cases of private law such as where widows, orphans are deprived, and a section of the society will be adversely affected by doing nothing.”
In the present matter, the grievance of the plaintiff/appellant that led him to institute this action can be found in paragraphs 5, 7, 8,9,10, and 11 of the affidavit in support of the originating summons.
The Revenue Mobilization Allocation and Fiscal Commission is established pursuant to section 153 of the Constitution of the Federal Republic of Nigeria, 1999 which states:
“153(1) There shall be established for the Federation the following bodies namely-
(a) …
(b) …
(c) …
(d) …
(e) …
(f) …
(g) …
(h) …
(i) …
(j) …
(k) …
(l) …
(m) …
(n) Revenue Mobilization, Allocation and Fiscal Commission.”
The powers of the Revenue Mobilization Allocation and Fiscal Commission have been spelt out in the Third Schedule, Part 1 N Item 32 thus:
“32. The Commission shall have power to-
(a) …
(b) …
(c) …
(d) determine the remuneration appropriate for political office holders, including the President, Vice-President, Government, Deputy-Governors, Ministers, Commissioners, Special Advisers, Legislators and the holders of the offices mentioned in sections 84 and 124 of this constitution, and
(e) …
A community reading of section 153(1)(n) and part 1 N item 32(d) of the Third Schedule to the constitution will reveal that only the Revenue Mobilization, Allocation and Fiscal Commission has the power to determine the remuneration appropriate for political office holders including ministers. It therefore follows that the determination of remuneration for Ministers of the Federal Government of Nigeria by any person or authority other than the Revenue Mobilization, Allocation and Fiscal Commission is unconstitutional, illegal, null and void.
By an Act which came into force on 29th may, 1999 the national Assembly of the Federal Republic of Nigeria promulgated the Certain Political Public and Judicial Office Holders (Salaries and Allowances etc.) Act, 2002 and it provided:
“Section 2(1) – A person who is –
(a) elected or appointed to an office in the Executive Arm of the Federal Government or the Federal Capital Territory, Abuja as specified in the First Column of Parts 1 and IV of the Schedule to this Act shall be entitled to salary, allowances and fringe benefits set out in the Second Column of Part l(a) and (b) Part IV(a) and (b); and
(b) …
(2) Holders of the offices mentioned under 1(a) and (b) of this Act shall receive their allowances and fringe benefits and severance benefits as provided for under the Schedule to this Act.”
Pat1 1A of the Schedule to the Act, titled Annual Basic Salary for Certain Political and Public Officers in the Executive (Federal) reads:
“Secretary to the Government of the Federation/Minister N794,085.00,
Minister of State N783,032.00”
It is therefore illegal for a Minister or a Minister of State in the Federal Executive to receive a salary above what has been stipulated under the Certain Political, Public and Judicial Office Holders (Salary and Allowances etc.) Act No.6 of 2002. It is also unlawful for any person or authority to pay a Minister or Minister of State a salary below what has been stipulated under the said Act.
It is pertinent to state that the facts deposed to in paragraphs 9, 10 and 11 of the affidavit in support of the originating summons at page 6 of the record of appeal which are allegations of gross violation of the said Act were not controverted by the respondents before the trial court.
The position of the Law is that where affidavit evidence has not been challenged or controverted by way of counter-affidavit facts deposed to in such affidavit are deemed admitted. See: Mohammed Hassan Rimi v. INEC & Anor (2004) 15 NWLR (Pt. 895) page 121 at 131; Alhaji Mohammed Sanusi Daggash v. Hajiya Fati Ibrahim Bulama & Ors. (2004) 14 NWLR (Pt.892) page 144 at 223.
In the case of The Honda Place Ltd. v. Globe Motors Holding Ltd. 23 NSCQR page 74 at 84-89, (2005) 14NWLR (Pt.945) 273 at 293, per Katsina-Alu, JSC:
“The Law is that where the facts in an affidavit remain unchallenged and uncontroverted, the court is bound to accept those facts as established as those facts were deemed to have been admitted. See Nwabuoku v. Ottih (1961) 2 SCNLR 233.
No counter-affidavit was filed by the respondent with the result that the facts deposed to in support of the application were neither challenged nor disputed by the respondent.
What this means is this. Those facts remain unchallenged and uncontroverted. The inevitable consequence is that those facts deposed to in the affidavit led by the applicant must be deemed to have been admitted by the respondent and must also be taken as true by the court unless they are obviously false to the knowledge of the court. See Alagbe v. Abimbola (1978) 2 SC 39 at 40.”
The averments contained in the affidavits in support of the originating summons are therefore deemed admitted by the respondents.
It is a notorious fact that at times this country employs expatriates with expert knowledge but the 3rd and 4th defendants are not expatriates but a daughter and a son of the soil who can even on patriotic grounds offer their services free of charge in the interest of their fatherland. They should have declined the offer of such a high salary in foreign currency which they know or ought to know is a violation of the provisions of the Constitution and the Laws of this country. Ignorance of the law is no excuse.
In paragraph 5 of the affidavit in support of the originating summons, the plaintiff/appellant claims that he is a tax payer who is bound by the provisions of the Constitution of the Federal Republic of Nigeria, 1999. This was also not controverted by defendants/respondents in their counter-affidavit.
It will definitely be a source of concern to any tax payer who watches the funds he contributed or is contributing towards the running of the affairs of the state being wasted when such funds could have been channelled into providing jobs, creating wealth and providing security to the citizens. If such an individual has no sufficient interest of coming to court to enforce the law and to ensure that his tax money is utilized prudently, who else would have sufficient interest in such matter other than him.
In the ruling, which is the subject matter of this appeal, the statement of the learned trial Judge on page 52 of the record of appeal is pertinent and it is hereby reproduced thus:
“The plaintiff might have raised very important issue that might need determining but he would have had locus if he was challenging infraction of provision of the Constitution and not specific or particular Law. He might have had locus standi if he had shown how the non-compliance with the Certain Political, Public and Judicial Office Holders (Salary and Allowances etc.) Act No.6 of 2002 affected his civil right or cause him Injury.
In the absence of any of the above, the plaintiff would have no locus to bring this action and I so found.
The case is accordingly struck out.”
I am of the opinion that in the Nigerian con and particularly under the Constitution of the Federal Republic of Nigeria, 1999, it would be wrong to slam the door of the courts against complaints on executive excesses and unconstitutionality under the guise of lack of locus standi. Where this is done, the objective of the 1999 Constitution beautifully phrased as freedom, equity and justice may not be attained.
The Constitution or any other Law can only be tested in Courts; it is access to the courts for such test that will give satisfaction to the people for whom the Constitution or the Law is made.
This view is supported by the English case of Inland Revenue Commissioners v. National Federation of Self-employed and Small Businesses Ltd. (1981) 2 WLR 722 at 740 where the House of Lords, Per Lord Diplock held as follows:
“It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the Federation or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped.”
See also A.-G., Bendel v. A.-G., Federation (1982) 3 NCLR 1 at 97 The provisions of the Certain Political, Public and Judicial Office Holders (Salaries and Allowances) Act No.6 of 2002 made pursuant to section 1-3(1)(n) and Part 1 N item 32(d) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 possesses constitutional flavour and must be accorded, Constitutional dignity. See Zakari v. Inspector-General of Police (2000) 8 NWLR (Pt. 670) page 666 at 679 .
I am of the opinion that in view of the fact that the Certain B Political, Public and Judicial Office Holders (Salaries and Allowances etc.) Act, 2002 has constitutional flavour, the trial court should have given a liberal interpretation to the issue of locus standi, so that not only the appellant, but every Nigerian should have access to approach the Court for an interpretation of the Act.
It will be appropriate at this point to proffer that for this country to remain governed under the rule of law and in view of the controversies the problem of locus standi has generated especially in constitutional matters, it is suggested that any future constitutional amendment should provide for access to court by any Nigerian in order to preserve, protect and defend the Constitution.
In the final analysis, I hereby hold that the decision of the learned trial Judge in striking out the plaintiff’s claim for lack of locus standi was made in error and it is hereby set aside.
I am of the opinion that this is a proper case where this Court will invoke its powers under section 16 of the Court of Appeal Act and grant the reliefs sought by the plaintiff/appellant in his Originating summons. Thus, it is hereby declared as follows:
“1. That the 3rd and 4th defendants (Ministers of the Federal Republic of Nigeria) who are Public Officers are not entitled to earn salaries above those prescribed by the Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc.) Act No.6 of 2002 made on 13th December, 2002 but which is deemed to have come into force on the 29th of May, 1999.
That no public officer under the “Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002 made on 13th December, 2002 but which is deemed to have come into force on the 29th of May 1999, is entitled to receive his or her salary in any other currency other than the Naira.
That the yearly salary of $247,000 (about N36 million) being paid to the 3rd defendant Dr. (Mrs.) Ngozi Okonjo Iweala, the Federal Minister of Finance is a flagrant violation of Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002 which prescribes a yearly salary of N794,085.00 for every Minister of the Federal Republic of Nigeria.
4. That the yearly salary of $120,000 (about N17 Million) being paid to the 4th defendant Ambassador Olufemi Adeniji, Federal Minister for External Affairs is a flagrant violation of Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002 which prescribes a yearly salary of N794,085.00 for every Minister of the Federal Republic of Nigeria.
5. That the 3rd and 4th defendants are compelled to refund to the Federal Government of Nigeria any amount in excess of the prescribed salary in Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No.6 of 2002.
6. That the authorization by the 1st defendant (The President of the Federal Republic of Nigeria) of the salaries being paid to the 3rd and 4th defendants in violation of the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No. 6 of 2002 amounts to an abuse of power which is contrary to:
a. Section 15(5) of the constitution of the Federal Republic of Nigeria; and
b. Section 153 of the Constitution of the Federal Republic of Nigeria which empowers the 2nd defendant to determine the remuneration appropriate for political office holders, including the President, Vice-President, Governors, Deputy Governors, Ministers, Commissioners Special Advisers, Legislators and the holders of the offices mentioned in Sections 84 and 124 of the Constitution and in pursuance of which an Act titled: Certain Political, Public and Judicial office Holders (Salaries and Allowances, etc.) Act No.6 of 2002 was promulgated.”
This appeal succeeds, there will be no order as to costs.
Other Citations: (2007)LCN/2495(CA)
