Governor of Ekiti State & Ors. V. Hon. Kola Fakiyesi & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

This appeal has opened once more the Pandora’s box of the concept of locus standi in Nigerian jurisprudence which concept has polarised the Supreme Court and its subordinates as well as legal practitioners and pundits particularly in the areas of public interest litigation and the limitations on individuals/class of citizens who are intent on protecting the Constitution from violation vis-a-vis the hermeneutics of Section 6(6)(b) thereof which vests the courts with the adjudicatory powers on 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 facts relevant to this case are that the Plaintiffs/Respondents are both members of the Action Congress one of the registered and recognised political parties in this country. The 2nd Plaintiff/Respondent is said to be the Chairman of the said party in a Ekiti State which party has 13 elected members in the 3rd Defendant/Appellant (State House of Assembly) who by virtue of their offices were/are vested with the constitutional rights and obligations to participate in the screening and determination of the fitness of the 5th – 16th Defendants/Appellants for the positions they individually and collectively hold now in Ekiti State. On the 4th day of June, 2007, the screening of the 5th – 16th Defendants/Appellants and twelve (12) unnamed Special Advisers was undertaken by the 3rd Defendant/Appellant whose legislative tenure as provided by the Constitution, according to the Plaintiffs/Respondents had expired. The grouse of the Plaintiffs/Respondents against the Appellants, is that the screening and confirmation of the appointment of the 5th – 16th Appellants and unnamed Special Advisers into various political offices by the 1st – 4th Respondents was done in violation of the provisions of Section 105(1) of the Constitution of the Federal Republic of Nigeria 1999, same having been done by a House of Assembly whose life span had expired, thus rendering the entire screening exercise unconstitutional, null and void.

It is pertinent to note that the 1st Plaintiff/Respondent had notice or information on Friday, 1st June, 2007, that the 2nd session of the Ekiti State House of Assembly would be convened on the said 4th day of June, 2007, and he did attend the sitting on that date wherein, he raised an objection and/or point of order on the illegality of the session on the ground of expiration of tenure of the House by the operation of the provisions of the Constitution, but was shouted down. Consequently, the 1st Plaintiff/Respondent staged a walk-out and refused to participate in the business of the House for that day and all deliberations on the matters listed in the order paper (Exhibit KF 1), took place in his absence. Dissatisfied with the conduct of the 3rd – 4th Defendants/Appellants, the Plaintiffs/Respondents in the High Court of Justice, Ado -Ekiti, in the Ado-Ekiti Judicial Division, by way of Originating Summons issued at their instance sought for the following questions to be determined:-

“(1). Whether by virtue of Section 105(1) of the Constitution of the Federal Republic of Nigeria, 1999, the life and or tenure of the Second Assembly of the Fourth Session of the Ekiti State House of Assembly was still in existence or had not expired on the 4th of June, 2007, a period clearly (sic) tenure outside the Constitutional term of four (4) years commencing from 3rd day of June, 2003 when the said House of Assembly was proclaimed into existence by the Clerk of Ekiti State House of Assembly on the order of Mr. Peter Ayadele Fayose the then Governor?

“(2). Whether the sitting and or the session of the Ekiti State House of Assembly of the 4th day of June, 2007 was unconstitutional, null, void and of no effect whatsoever and ipso facto all the legislative and other businesses embarked upon, carried out or done at the said session or sitting are null and void?

“(3). Whether the screening and confirmation of appointment of the State Commissioners and the approval of twelve Special Advisers done at the said sitting of the Ekiti State House of Assembly sitting or session on the 4th of June, 2007, was unconstitutional, null and void having regards to Issue 1 above?”

Consequent upon the above questions the Plaintiffs/Respondents sought for the following Reliefs:-

“(1). A DECLARATION that by the effect of Section 105 (1) of the Constitution of the Federal Republic of Nigeria, 1999, the life of the Second Assembly of Ekiti State House of Assembly proclaimed into existence on 3rd June, 2003 for a term of four (4) years expired on the 3rd of June, 2007.

“(2). A DECLARATION that by virtue of relief 1 above, the sitting and or session of the Ekiti State Hause of Assembly Second Session held on 4th June, 2007 is clearly outside its (4) four years constitutional term or tenure and therefore.

“(3). A DECLARATION that the screening and confirmation of appointment of State Commissioners and approval of Twelve Special Advisers made by the Ekiti State House of Assembly at its session of 4th June, 2007 is unconstitutional, ultra vires, null and void of the ?kiti State House of Assembly.

“(4). AN ORDER of Court annulling the said approval and or clearance given to the 5th to 16th Defendants and unnamed twelve Special Advisers at their sitting or session of 4th June, 2007.”

In support of the Originating Summons, the Plaintiffs/Respondents filed an affidavit of eleven paragraphs deposed to by the Honourable Kola Fakiyesi (the 1st Plaintiff/Respondent) herein. Annexed to the affidavit in support was the Order Paper for sitting of the Second Session of the Ekiti State House of Assembly, on Monday 4th June, 2007 which was marked Exhibit F1.

On the 5th day of July, 2007, the Defendants (now Appellants) entered conditional appearance and subsequently followed same up with a Notice of Preliminary Objection to the effect that the suit was incompetent and on the Grounds herein following that:-

“(i). This Honourable Court lacks jurisdiction to entertain the Plaintiffs’ Suit;

“(ii). Plaintiffs lack the locus standi to file this Suit;

“(iii). Originating process as filed is incompetent for failure to conform with due process of law;

“(iv). Filing of this Suit is an abuse of Court process.”

The Appellants (then Defendants) also filed a Counter- Affidavit of 17 (seventeen) paragraphs deposed to by Taye Olatunbosun, a member of the House of Assembly of Ekiti State. A Further and Better Affidavit was also filed by the Plaintiffs/Respondents in reaction to the Counter- Affidavit.

Viva voce arguments were taken on the Preliminary Objection by counsel on both sides and in his considered Ruling delivered on the 18th day of October, 2007, the learned trial Judge most admirably and brilliantly held thus:-

1. On whether the lower court had jurisdiction to hear the case of the Plaintiffs/Respondents?

“In my respective view, the power of judicial review of legislative actions is a powerful weapon in putting society on course and in shaping the nature and extent of individual liberty; this is what the court must do in the instant case. To simply interpret the applicable section of the Constitution as it affects the instant case. I am therefore of the firm view that the Court has jurisdiction to adjudicate over the cause of action in the instant case.”

2. On whether the Plaintiffs had the locus standi to file the suit?

“In my persuaded view, I hold that the Plaintiffs have locus to institute this action.” See page 34 of the Records.

At pages 38 to 39 of the Records, the learned trial Judge further held as follows:-

“It is my considered view the 1999 Constitution of the Federal Republic of Nigeria gives all citizens of Nigeria a “CHOICE” and a “VOICE”.

“The choice to access the law Courts, to voice their views if they believe or are led to believe that there has been an infraction of any of the provisions of our Constitution. In my view, this choice and the voice must not be sacrificed on the altar of lack of locus standi, lack of jurisdiction and or abuse of Court process.

“From the totality of the consideration of the affidavit attached to the Originating Summons in the instant case, I am of the firm view that the submission of the learned silk for the Defendants should be overruled in preference to that of the learned counsel to the Plaintiffs.

“Preliminary Objection is thus overruled and consequently dismissed. Parties are ordered to proceed to hearing of the substantive matter.”

Aggrieved by the above Ruling, the Defendants/Appellants filed their Notice of Appeal with two Grounds which are here under reproduced with their particulars inter alia:-

“GROUNDS OF APPEAL”

1. The learned trial Judge erred in law in holding that, Plaintiffs have locus standi to institute their Suit, when there was no personal injury suffered by the Plaintiffs.

“PARTICULARS

(i) For a citizen to invoke the jurisdiction of the Court, he must show that he has a personal right which has been infringed upon;

(ii) The infraction of the right of the Plaintiffs, must be such that the injury arising in over and beyond that of other citizens;

(iii) Plaintiffs did not shaw what personal injury they have suffered by the sitting of the Ekiti State House of Assembly.

2. The learned trial Judge erred in low in assuming jurisdiction over the case of the Plaintiffs when from all the circumstances of the case, 1” Plaintiff participated and lost in the action which the Plaintiffs now brought to Court.

“PARTICULARS

(i) A party lacks the locus standi to bring to court the outcome of a deliberation of a legislative House in which he had participated.

(ii) 1st Plaintiff was overruled in his objection to the proceedings of the house of Assembly;

(iii) Trial Court lacked jurisdiction to entertain a complaint in which 1st Plaintiff had lost out at the House of Assembly.

“RELIEFS SOUGHT FROM THE COURT OF APPEAL

(i) An order setting aside the decision of the lower court;

(ii) An order striking out the claim of the Plaintiffs for want of locus standi.”

In line with the Rules of this Court parties filed their respective Briefs which were duly adopted as their arguments on the appeal. When the appeal came up for hearing on the 24th of February, 2009, the learned counsel for the Appellants H. O. Afolabi Esq. in oral adumbration of the arguments contained in the Appellants’ Brief settled by l. O. Fagbemi SAN referred us to the sole issue for determination insisting that the Respondents had no locus standi to bring their claim before the lower court and secondly, that the Plaintiffs did not bring the case in representative capacity and accordingly this Court should allow the appeal and strike out the Plaintiffs’ claim in the lower court.

On the part of Chief A. A. Adeniyi who settled the Brief of the Respondents and also appeared with A. Umar Esq. at the hearing, his reaction to the submission of the Learned Senior Counsel for the Appellants on the issue of the suit not being brought in representative capacity, referred us to pages 1, 5 – 7, of the Respondents’ Brief and pages 14 – 15 of the Record of Proceedings to urge the Court to dismiss the appeal.

It would be recalled that in the Brief of the Appellants, a sole issue was formulated from the two Grounds of Appeal couched in the following terms:-

“Whether considering all the facts and circumstances of this case, the Plaintiffs/Respondents have the locus to maintain this action?” The Respondents also adopted this sole issue as capable of doing justice to the determination of the appeal. Arguing the sole issue, the learned SAN for the Appellants had submitted that the law is settled that, for a Plaintiff to have legal capacity or locus standi to sue in a matter he must clearly show that his personal rights or obligations have been or about to be or are in imminent danger of being violated or invaded or adversely affected by the act complained of Zangiwa v. Commissioner for Works, Borno State (2001) 9 N. W.L.R (pt. 718) 460 at 486 para Eand Inakoju v. Adeleke (2007) 1 S.C.N.J 1 at 68 – 69 referred.

It was further submitted that in determining whether or not a person has locus standi, the only document which the court will have resort to is the claim as brought to the court by the Plaintiff, in this case, the Originating Summons and the supporting affidavits. In support of this submission, he relied on the cases of Boothia Maritima Inc. v. OT & T.A Ltd. (2001) 8 N.W.L.R (pt. 716) 534 at 543 and Inakoju v. Adeleke & Ors (supra). Relying again on Ojukwu v. Ojukwu (2000) 1 N.W.L.R (pt. 677) 65 at 86, it was contended that where on the face of the originating Summons the claim would not confer any personal benefit on the Claimant, such a Claimant lacks locus standi.

Alluding to the claim of the Respondents in this appeal at pages 1- 7 of the Records, the learned counsel posed the question whether the alleged constitutional breach (if at all) was enough to grant the Plaintiffs capacity or locus to come to court to seek the reliefs aforesaid which he answered by referring to paragraph 3 of the affidavit in support of the Originating Summons where the 1st Plaintiff stated that he ceased to be a member of the House of Assembly and according to counsel, he had become an ordinary member of the public who must show that the breach by the House affected his right more than that of other members of the public.

He maintained that the entire affidavit is bereft of such fundamental requirements adding that the 1st Plaintiff attended the sitting and even participated by raising a point of order. It was the Appellants’ further submission that section 6 (6) of the 1999 Constitution of the Federal Republic of Nigeria only confers citizens with legal right to invoke the jurisdiction of the courts in respect of complaints affecting their civil rights and obligations.

The authorities for so submitting are Keyamo v. L.S.H.A (1000) 11 N.W.L.R (pt. 680) at pages 115 para. H and 116 per Galadima, J.CA and Busari v. Oseni (1981) 4 N.W.L.R (pt. 137) 557 at 587 para. E which according to him, the trial Judge should have adopted in view of the doctrine of judicial precedent and the fact that the said case of Keyama v. L.S.H.A espoused the law on locus standi on the breach of the Constitution and the qualification of such a person who is capable of bringing an action to challenge the breach which the Respondents in this case do not possess and as such the learned trial Judge could not have held as he did at page 36 of the Records.

Turning to the Further and Better Affidavit of the Respondents, it was further contended by the learned counsel for the Appellants that it did not demonstrate that they brought the action in representative capacity of their party the Action Congress or the alleged 13 members who are members of the present Ekiti State House of Assembly. The learned SAN then asserted that it was clear that the Plaintiffs were mere busy- bodies who were wailing more than the bereaved as they were not authorised by the Action Congress and the 13 members of the House to institute the action on their behalf and accordingly, the holding of the trial court that ordinary members of the public once they are citizens of the Federal Republic of Nigeria have the locus to approach the court in the face of constitutional breach negates the very intent of Section 6 (6) of the Constitution and the decision in Keyamo.

On this score, he referred to the dictum of Oguntade, J.C.A (as he then was) in Adesanya v. President of Nigeria (1981) 1 N.C.L.R 358 where the court ruled against the Plaintiff on the ground that he did not show that the Governor of Lagos State was not competent to occupy that office and urged us to follow in Keyamo’s case.

The learned SAN also canvassed the point that this case is on all fours with that Abraham Adesanya v. President where he participated in the proceedings of the House and turned round to challenge the confirmation of Hon. Justice Ovie-Whiskey as Chairman of FEDECO at the National Assembly, when the Plaintiff lost and the Supreme Court held at page 378 per Fatayi Williams C.J.N., dismissing his claim for want of lacus standi. According to him, the trial Judge wrongly relied on the case of Fawehinmi v. President of F.R.N (1007) 14 N.W.L.R (pt. 1054) 175 at 336 which case he distinguished from the one at hand to urge us to set aside the judgment of the lower court and allow their appeal.

In their reaction to the above submissions, the learned counsel for the Respondents conceded that in determining the locus standi of a party it is the claim as endorsed in the statement of claim that the court will consider (in this case the Originating Summons and the affidavit in support). Learned counsel drew our attention to the endorsement on the Originating summons and the reliefs sought which reveal that what the court was called upon to do was merely to interpret some Constitutional provisions. Citing Inakoju v. Adeleke (2004) 4 N. W.L.R (pt. 1025) 602 & 603 paras. G- H; (S.C.) per Niki Tobi J.S.C. it was submitted that where what is brought to the court is the interpretation of a Constitutional provision to determine whether a breach of it has occurred, any party who discloses that he is a Nigerian and is governed and bound by the Constitution is clothed with sufficient locus standi to approach the court which court is Constitutionally established to interpret provisions of the Constitution.

In the instant case, the learned Chief further submitted the Appellants are not disputing the fact that the two Respondents are Nigerian subjects and/or citizens who are governed by and bound by the provisions of the Constitution and that a community reading of the affidavit and their case is to the effect that the sitting of the 3rd and 4th Appellants on the 4th June, 2007 by the expired members of the 3rd Appellant whose term of four years had expired before 4th June, 2007, was a rape on Section 105 of the Constitution of the Federal Republic of Nigeria 1999, which clothes the Respondents with sufficient locus to invoke the jurisdiction of the lower court.

Responding to the submission of the learned Senior Advocate touching on the dictum of the Supreme Court in Adesanya v. the President of Nigeria (1981) 2 N.C.L.R at 358, the learned counsel for the Respondents posited that the case and others of the like decisions were decided on their peculiar facts and circumstances of their time when the sanctity of the Constitution was respected, unlike the present dispensation where politicians consider any infraction of the Constitution not too serious to meet their partisan political ends. Again the learned counsel for the Respondents argued that Adesanya was a locus classicus on locus standi but that the courts have acknowledge and given effect to the dynamism of our law and clearly moved away from the narrow and restricted scope of locus standi and extended same in the following cases:-

(i).Elendu v. Ekwoaba (1995) 3 N. W.L.R (pt. 380) 70 at 74;

(ii).AG. Kaduna State v. Hassan (1985) 2 N.L. W.R (pt. 8) 483; and

(iii). Ogunmokun v. Milad Osun State (1999) 3 N. W.L.R (pt. 594) 261 at 285.

Thus, he further canvassed, the restricted interpretation given to locus standi in Adesanya’s case has become obsolete and anachronistic and therefore inapplicable in modern contemporary Nigeria where the breach of the Constitution has become fashionable in preference to its observance.

Distinguishing the facts of Adesanya from the facts of our case herein, the learned counsel for the Respondents noted that in the former, Adesanya was part of the decision of the House which he later turned round to challenge whereas the opposite is the case here as can be gleaned from paragraphs 6, 7, 8, and 9 of page 6 of the Record of Proceedings. The attention of the court was drawn to the dicta of Belgore J.S.C (as he then was) in Oduneye v. Efenuga (1990) 7 N.W.L.R (pt. 164) 618 at 638 paras. E – H; Galadima JCA in Alameieyeseigha v. Igoniwari NO.2 (2007) 7 N.W.L.R (pt. 1034) 525 at 577; Thomas JCA in Yusuf v. Obasanya (2003) 16 N.W.L.R (pt. 847) 554; where the scope of the concept of locus standi were expanded and urge us to adopt the decisions in the recent case of Fawehinmi v. President F.R.N (2007) 14 N.W.L.R 275 at 336 paras. H- E. and Fawehinmi v. Akilu (1987) 5 N.W.L.R (pt. 67) 797 and hold that the Respondents have locus standi to challenge the Constitutional infraction inflicted on them.

On the question as to whether the Respondents have disclosed sufficient interest and injuries arising from the cause of action to clothe them with the requisite locus standi, the learned counsel to the Respondents referred to the case of AG. Kaduna v. Hassan (1985) 2 N.W.L.R (pt. 8) at 483 to submit that one of primary consideration in the determination of locus standi of a party in a dispute is the existence of a dispute which facts must be reflected in the statement of claim and in this case the affidavit in support of the Originating Summons. Bamidele v. Commissioner for Local Government (1994) 2 N.W.L.R (pt 328) 568 at 584 was again cited to assert further that in the instant case, the Respondents have deposed to the facts that the screening of 5th to 16th Appellants done on 4th June, 2007 by an expired member of the 3rd Appellant ought to be done by the newly elected members of the 3rd Appellant where the 2nd Plaintiff/Respondent has thirteen (13) members. The dispute according to the Respondents is whether the tenure of the clearing House of Assembly had expired when they purportedly cleared the Commissioners and Special Advisers.

Still on the question of interest, it was further argued on the authority of Daniyan v. Iyagin (2002) 8 N.W.L.R 44 paras. 40 – 45 per Oduyemi, J.C.A; that the Plaintiff must show what is his interest in the case and how such interest has affected or is likely to affect him and that it is no longer the law that such interest must be strictly personal. A.G. Anambra State & Ors v. Eboh (1992) 1 N. W.L.R (pt. 218) 491 at 505 paras. G – H; Inakoju v. Adeleke (Supra) were further cited to buttress the fact that the scope of locus stondi and interest have been widened particularly where there is an allegation of breach of the Constitution.

Responding specifically to the contention of the Appellants that there is no evidence that the Respondents were acting on behalf of the Action Congress and the 13 members of the party in the House, learned counsel for the Respondents again noted that the two Respondents are members of Action Congress and that the 2nd Respondent is the State Chairman of the Action Congress which party members had the Constitutional right and duty to participate in the screening of the 5th – 16th Appellants.

The dispute according to him is that, instead of the new 3rd Appellant which has thirteen elected members of the Respondents’ political party to screen the 5th – 16th Appellants, the former members of the 3rd Appellant whose tenure had constitutionally expired screened them. It was therefore submitted that the facts and circumstances of this case had disclosed the legal and indeed constitutional interest of the Respondents and nature of dispute, which is justiciable.

On the criterion whether the Plaintiffs’ right or interest would be adversely affected or will be likely affected or that the injury would be personally or collectively suffered from the act complained of, the learned counsel for the Respondents observed that a community reading of the Plaintiffs/Respondents’ depositions in paragraphs 3, 4, 5, 6 and 7 of the affidavit in support of the Originating Summons (page 6 of the Records) and paragraphs 5 and 6 of the Further And Better Affidavit at the page 15 of the Records will show that the screening of the 5th – 16th Appellants on the 4th June, 2007 by the old/expired 3rd Appellant had breached, adversely and infringed the constitutional rights of the Plaintiffs/Respondents newly elected members of the 3rd appellant to screen and determine the 5th – 16th Appellants’ fitness to occupy the various offices into which the 1st Appellant appointed them. On the whole, he urged this Court to hold that the Plaintiffs/Respondents had passed all the legally established tests of locus standi and to dismiss the appeal.

I have carefully considered the submissions of the learned counsel on behalf of the parties in this appeal on the sole issue formulated which is whether from the totality of the evidence before the trial court, the Plaintiffs/Respondents had the locus standi to institute the action, the subject of this appeal.

The term “Locus standi” has been defined in Black’s law Dictionary, 7th Edition by Bryan A. Garner et al at page 952 as: “(latin ‘place of standing’) The right to bring an action or to be heard in a given form. “STANDING.”

In the cause celebre and locus classicus of Senator Abraham A. Adesanya v. The President of the Federal Republic of Nigeria & Anor. (1981) 2 N.C.I.R. 358, Fatayi-Williams C.J.N., delivering the lead judgment of the Supreme Court defined the concept thus: “The term ‘locus standi’ denotes legal capacity to institute proceedings in a Court of Law.” See also Daniyan v. Iyagin (2002) 8 W.R.N. 44 at 61 lines 5 – 10 where this court per Oduyemi J.C.A. adopted the dictum of the Supreme Court in Owodunni v. Registered Trustees of The C.C.C.& Anor. (2000) 2 W.R.N. 29 (2000) 6 S.C.N.J. 399; that locus standi denotes the legal capacity or status to institute proceedings and does not depend on a chance of success in the suit but the condition of the suit.

All that can be gathered from the above definitions is that locus standi is the legal right or standing of a party to an action to ventilate his grievance(s) before a court of law or tribunal without any impediment, inhibition and/or restriction from any person or quarters.

In the appeal at hand, counsel on both sides are ad idem and on the preponderance of authorities from both the Supreme Court and this court, that in the determination of whether a party to a suit possesses the requisite locus standi, the Court ought only to look at the statement of claim and the endorsement therein.

In this Appeal, since the case of the Plaintiffs was initiated by way of Originating Summons, the lower court would only be concerned with the affidavit in support of the summons which affidavit is akin to pleadings in normal suits initiated by Writs of Summons. Boothia Maritima Inc. v. O.T. & T.A. Ltd. (2001) 8 N.W.L.R. (pt. 716) 534 at S43; Inakoju v. Adeleke (2007) 4 N.W.L.R. (pt. 1025) 423 S.C. (2007) 1 S.C.N.J. 1 at 68 – 69; Global Transport Oceanica S.A. & Anor. v. Free Enterprises Nigeria ltd (2001) 12 W.R.N. 136 at 155 to 156 paras. 15 – 5. Per Kalgo J.S.C., refer. Also, it would appear from the authorities cited by the Appellants that in the realms of private and Public law litigation, the law hitherto was settled that for a Plaintiff to have legal capacity or locus standi to sue, he must demonstrate from the statement of claim and his pleadings that his personal rights or obligations have been or are likely to be or are in imminent jeopardy of violation or invasion or that he is likely to be adversely affected by the act complained of.

Indeed, in the case of Ojukwu v. Ojukwu (supra) cited by the learned Senior Advocate on behalf of the Appellants, it was decided that where on the face of the originating process, the claim would not confer any personal benefit on a claimant; such a claimant lacks locus standi. Such a position was taken in Abraham Adesanya v. The President of the Federal Republic of Nigeria and Anor. (supra) where even in the face of the liberal disposition of Fatayi-Williams J.S.C. and some of his colleagues on the broadening of the scope of locus standi in constitutional matters and in particular the interpretation of Section 6(6)(b) of the 1979 Constitution (now replicated in the current 1999 Constitution), a conservative and restrictive conclusion was given to deprive a citizen of this country (in that case a Senator of the Federal Republic of Nigeria), of the capacity to initiate an action to challenge the violation of the Constitution which he swore to an oath so to do. Incidentally, Fatayi-Williams, C.J.N.,in his lead judgment posited as follows:-

“The term ‘locus standi’ denotes legal capacity to institute proceedings in a court of law. I take significant cognisance 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 the Construction sites. To deny any member of such a 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 far organized disenchantment with the judicial process.

The framers of our 1979 Constitution had all these factors in mind by providing for the many checks and balances which appear therein. In fact, a close scrutiny of its very detailed provisions will convince anyone that reliance on the decisions, whether British, Canadian, Australian, Or American, given in a different social and political con, will only lead to restrictive rules of locus standi which, in the interest of the need for total compliance with the provisions of our Constitution, I find it difficult to accept or countenance.

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-far-all in the media as to which low is constitutional and which law is not. In any case, our courts have inherent powers to deal with vexatious litigant or frivolous claims. To re-echo the words of learned Hand ‘if we are to keep our democracy, there must be one commandment – thou shall not ration justice.’

When interpreting the provisions of our 1979 Constitution not only should the courts look at the Constitution as a whole, they should also construe its provisions in such a way as to Justify the hopes and aspirations of those who have made the strenuous effort to provide us with – ‘a Constitution’ for the purpose of promoting the good Government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the unity of our people.

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 previsions of the Nigerian Constitution. Indeed. it is his civil right to see that this is so.

In order to make it possible for such a person to exercise this basic civil right and obligation, it is provided, at the other extreme, in Section 6 Subsection 6(b) as follows:-

“the judicial powers vested in accordance with the foregoing provisions of this Section shall extend to all matters between persons, or between Government or Authority and any person in Nigeria, and to all actions or proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.’

I do not think this particular Civil Right (as opposed to fundamental right) and obligation should be restricted in any way by technicalities where none is clearly provided for in the Constitution.

Except in the extreme or obvious case of abuse of process, how then can one conceive of a judicial process where access to the courts, by persons with grievances, is based solely on the courts’ own value judgment in a multi-ethnic country where more than two hundred languages are spoken? I would rather err on the side of access than on that of restriction.”

Surprisingly, the learned Justice of the Supreme Court and his able colleagues unanimously, came to the conclusion that “Senator 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 appointment (the same subject matter) in a Court of Law”. The above reason given for depriving Senator Adesanya of his locus standi to challenge the unconstitutionality of the appointment of Honourable Justice Ovie-Whiskey as Chairman of Federal Electoral Commission by the President of the Federal Republic of Nigeria, is the same reason being peddled before this Court by the Appellants to urge us to allow this appeal. Apart from the decision of his lordship, Fatayi-Williams, C.J.N., it would appear that the contributions of his learned colleagues influenced him greatly in turning summersault having earlier taken a liberal, commendable and revolutionary posture on the scope of locus standi whenever there is a challenge to the breach of the Constitution by either the Executive or Legislative arm of government.

For instance, Bello J.S.C. (as he then was) in his contribution was emphatic at page 360 rationes 5, 6, 7 and 8 to 1- 8 of page 361 of (1981) 2 N.C.L.R. 358 that:-

“1. Locus standi or ‘standing’ may be defined as the right of a party to appear and be heard on the question before any court or tribunal.

“3. To entitle a person to invoke judicial power to determine the Constitutionality of such action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury himself

“4. A general interest common to all members of the public is not litigable interest to accord standing,

“5. A careful perusal of the problem would reveal that there is no jurisdiction within the Common Law Countries where a general licence or blank cheque – if I may use that expression, without any sting or restriction, is given to private individual to question the validity of Legislative or Executive action in a Court of Law, It is a common ground in all the jurisdictions of the Common Law Countries that a claimant must have some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action.

“8. It seems to me that upon the construction of the subsection 6(6)(b) it is only when the civil rights and obligations of the person who invokes the jurisdiction of court are in issue for determination that the judicial powers of the court may be invoked. In other words, standing will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.”

The above holdings of the learned emeritus Justice of the Supreme Court and one time Chief Justice of Federation, re-echoed the position of all the justices who sat in the panel coram: Fatayi-Williams C.J.N.; Sowemimo, Idigbe, Obaseki, Nnamani and Uwias J.J.S.C. (as all of them were); in holding that Senator Adesanya had no locus standi under the 1979 Constitution to have challenged the appointment of Hon. Justice Ovie-Whiskey as Chairman of the Federal Electoral Commission by the President.

In taking their decisions, the learned Justices alluded to both foreign and local cases including Harrington v. Schlesinger 32 SF 455 (1975), Harrington v, Bush 553 Federal Report Second Series (1977) and Daughtrey v. Carter 584 Federal Reporter, Second Series 1050 (1978); Exparte Levitt, 302 US 633; Massachusetts v. Melon (1923) 262 US 447 and Tileston v, Ullman from America; Chiranjit Lal v, Union of India (1950) S,CR, 869 and Dwarkadas v. Scholapur Spinning Co, (1954) S,C.R. 674 from India; Couriet & Others v. UPW (1978) A.C 435 and other decisions from England.

As for the local authorities, Olawoyin v. A.G. Nigeria (1961) All N.L.R. 269 and Gamioba & Ors. v. Ezesi II & Ors. (1961) All N.L.R. 584 where the Supreme Court restated their decision in the former case that it is always necessary, where the Plaintiff claims a declaration that a law is invalid, for the court to be satisfied that the Plaintiff’s legal rights have been or are in imminent danger of being invaded in consequence of the law. Furthermore, their lordships emphasized that since the validity of a law is a matter of concern to the public at large, the court has a duty to form its own judgment as to the Plaintiffs locus standi, and should not assume it merely because the Defendant admits it or does not dispute it.

The learned Uwais J.S.C. (as he then was) in his contribution even introduced another dimension to the issue of locus standi when he posited inter alia:-

“It is of paramount importance and indeed most desirable to encourage citizens to come to court in order to have the Constitution interpreted. However this is not to say, with respect, that meddle some interlopers, professional litigants or the like should be encouraged to sue in matters that do not directly concern them. In my view. to do that, is to open the flood gate to frivolous and vexations proceedings. I believe that such latitude is capable of creating undesirable state of affairs.

“The interpretation to be given to Section 6 Subsection (6)(b) of the Constitution depends on the facts or special circumstances of each case so that no hard and fast rule can really be set up. But the watchword should always be the ‘civil rights and obligations’ of the Plaintiff concerned.”

However, in a radical departure from the previous stance of the apex court, the erudite and emeritus Justice of the Supreme Court per Obaseki J.S.C. in Fawehinmi v. Akilu & Anor. IN RE: Oduneye Director of Public prosecutions (1987) 4 N.W.L.R. (pt. 66) 797 at 832 paragraph C held thus:.

“Adesanya v. President of Nigeria (supra) and Irene Thomas v. Olufosaye (supra) are both in respect of a civil cause or matter and provide sound and solid authority for the locus standi of the Appellant. The narrow confines to which Section 6(6)(b) restricts the class of person entitled to locus standi in civil matters have been broadened by the Criminal Code, the Criminal procedure Law and the Constitution of the Federal Republic of Nigeria. The powers of arrest and prosecution conferred by the various Sections of the Criminal Procedure Law and Criminal Code on “any person” has the magic effect of giving locus standi to any person who cares to prosecute an offender if and only if, he saw him committing the offence or reasonably suspects him of having committed the offence.”

It would appear that this approach was still cautious on the conferment of locus standi on litigants in civil matters as can be gleaned from the contribution of Nnamani J.S.C. at page 846 of the Report where he subscribed to the liberal approach to the issue in criminal matters as provided for under Section 6(6)(b) of the Constitution and the Criminal law and Procedure. However, the learned law lord added the rider in the following terms:-

“Nevertheless, I must not be understood to subscribe to the notion of ‘throwing the gates wide open’ even in this area of law, for no one would wont busy bodies to sprout all around us. A dose of controlled liberalism would do no harm, for unlike the situation in purely civil proceedings, there are here considerable checks and balances,”

It was this cautions approach and indeed the belief that there are no checks and balances if the same latitude were given to the scope of locus standi in civil matters that necessitated Kayode Eso J.S.C., that legendary judicial icon and activist of our time, to enthuse at page 847 – 848 of the Report that the lead judgment of Obaseki J.S.C. was an advancement on the position hitherto held by the court on locus standi and in his words:-

“…that it is a departure from the farmer narrow attitude of this Court (the Supreme Court) in Abraham Adesanya case and subsequent decisions, for strictly speaking, my Lord Nnaemeka-Agu J.C.A. (as he then was) who no doubt was bound by those decisions at that time was right in the interpretation of the stand of the court, and, so, strictly those authorities of this court, along, with his judgment could not be faulted when he said:……………………”

In answer to the position taken by Nnaemeka-Agu JCA (as he then was) which position was endorsed in the case on the need not to open the gates to interlopers and busy-bodies to institute actions challenging constitutional breaches, the eminent Jurist had earlier posited at page 846 paragraphs C- G,

“My Lords, the issue of locus standi has always been held as one of the utmost importance, by this Court for in effect, it is one that delimits the jurisdiction of the Court, for in the interpretation of the Constitution, it is to be hoped that the Courts would not possess acquisitive instinct and garner more jurisdiction than has been ascribed to it by the organic law of the land, it is this I think that has inhibited your Lordships, and rightly too, in being careful, as your Lordship should be, in threading carefully on the soil of locus standi.

“That is well and good. I hold the view, with utmost respect that as the Court has been made, by the Constitution itself, to be the guardian of that Constitution – (The judicial powers of the Federation shall be vested in the Courts to which this Section 6(1) of the Constitution relates) the Court has a constitutional responsibility, also legal and sociological, to interpret the provisions of the Constitution in the light of the socio-economic and cultural background of the people of this country. For it is for those people’s background that the Constitution is fashioned. Certainly, with respect, my Lords, this must be a major part of the functions of this Court. At all times though, core must be taken, not to constitute the judicial arm of government into a legislative body, but then, in a Federal system, there could be little fear of this for there are checks and balances, and when the Judiciary exceeds its mandate, both the Executive and the Legislative arms are there to check it. A painful experience is in the E.O. Lakanmi & Kikelomo Ola v. The Attorney General (Western State) & Ors. U.I. Law Reports 1971 vol, 1. What I am now urging is therefore, an extension of what I had respectfully urged (in regard to Fundamental rights) in Ariori v. Elemo (1983) S.C.L.R, when I said:-

“The Courts in this Country, especially this Court, being a Court of last resort have a duty to safeguard fundamental rights.” The extension should be from fundamental rights to the Constitution generally and criminal law. My reason in the Ariori v. Elemo case for broad interpretation was.

“Having regard to the nascence of our Constitution, the comparable educational backwardness, the socio-economic and cultural background of the people of this country and the reliance that is being placed and necessarily have to be placed as a result of this background on the courts, and finally, the general atmosphere in the country.”

Reacting further to the position taken by Nnaemeka-Agu J.C.A. (as he then was) who made reference to the views expressed by Dr. S.M. Thio who is sometimes referred to as a judicial anarchist, that it is the public interest and the zeal of the court to preserve same and the legal order by confining the Legislative and Executive organs of government within their powers that has complicated the problem of courts in the realm of locus standi and that what the court swore and are bound to administer is justice according to law completely devoid of sentiments and bias, the learned Jurist again replied:-

“I agree that neither bias nor sentiment should filter into justice. Indeed, once that happens, it ceases to be justice, yet the interpretation placed by the courts, once it is non-bias, non-sentimental- should be broad enough to bring out the true essence of justice according to law. A narrow interpretation, straight-jacketed on the fear of a Judge not being a legislator, into the confines of wards which might even be equivocal, is, with respect, a negation of the true essence of justice. ”

In the final analysis, his Lordship cheered the expansion of the scope of locus standi by Obaseki J.S.C. in the Fawehinmi v. Akilu case most admirably inter alia:-

“I, with respect, however, disagree with his (Nnaemeka-Agu J.C.A.’s) decision given for the Court of Appeal on this issue of locus standi for the reasons, I have given and not that he did not apply correctly our earlier decisions.

“As I have said, I accept our present decision as a happy development and advancement on what, with utmost respect to your Lordships, I have always considered a narrow path being trodden thereto by the court on locus standi.”

This radical departure from the narrow scope of the concept of locus standi in our constitutional law as laid down in the Adesanya v. The President and Fawehinmi v. Akilu cases brought about the much needed revolution in our jurisprudence on this concept, when three years later in Odeneye v, Efunuga (1990) 7 N.W.L.R, (pt. 164) 618 at 631, learned counsel for the Appellant contended that the pleading that the nomination of four candidates for the vacant stool of Alakenne of Ikenne Chieftaincy at a meeting of the Obara Ruling House held on 18th July, 1985, was invalid without any allegation of infraction of or its adverse effect on the Plaintiff’s civil rights and obligations posed no question to be settled between the Plaintiff and Appellant; and the Supreme Court per Karibi-Whyte J.S.C. held as follows:-

“That there seems to be a fundamental misconception by learned counsel to the respondent about the scope of the rights of action provided under the 1979 Constitution. It is well settled that there is locus standi wherever there is a justiciable dispute. Section 6(6)(b) of the Constitution 1979 provides that the judicial powers of the court ‘extend to all matters between persons or between government and authority and 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.”

In that case, the Supreme Court found that there was clearly a litis contestatio not only between the Respondent and 1st – 4th Defendants, who were responsible for the faulty nomination exercise but also the 5th Defendant, who claimed to have been elected to the vacant stool of Alakenne of Ikenne and that such was what accorded the Respondent locus standi. Belgore J.S.C. (as he then was) also re-echoed the stance of his colleague that it is well settled that there is locus standi wherever there is a justiciable dispute and any person who brings any matter to court for the determination of any question as to a civil right and obligation has locus standi to sue. See Elendu v. Ekwoaba (1995) 3 N.W.L.R. (pt. 380) 70 at 740 per Onalaja J.C.A.; A.G. Kaduna State v. Hassan (1985) 2 N.W.L.R. (pt. 8) at 483 and Ogunmokun v. Milad Osun State (1999) 3 N.W.L.R. (pt. 594) 261 at 285.

Earlier on, the Supreme Court had held in the case of A.G. Kaduna State v. Hassan (supra) at page 486; rationes 13 and 14 that where a person brings an action to declare an act unconstitutional, the issue of locus standi is of secondary importance and that there are two tests in determining the locus standi of a person:-

a) That the action must be justiciable; and

b) That there must be dispute between the parties.

In the recent case of Inakoju v. Adeleke (2007) 4 N.W.L.R. (pt 1025) 427 at 602, Niki Tobi J.S.C. on his part, asserted on the burden on a party claiming declaratory relief based on the Constitution that, such a party must show that he has a constitutional interest to protect and that the interest is violated or breached to his detriment. The interest must be substantial, tangible, and not vague, intangible or caricature, and that in ascertaining whether the Plaintiff in an action has locus standi, pleadings, that is, the statement of claim, must disclose a cause of action vested in the Plaintiff and the rights and obligations or interests of the Plaintiff which have been violated. The question as to the competence of a Plaintiff to institute an action is gathered from the statement of claim and not from the evidence that is subsequently led. (Adefulu v. Oyesile (1989) 5 N.W.L.R. (pt. 122) 377; Adesokan v. Adegorolu (1991) 3 N.W.L.R. (pt. 179) 293; A-G. Enugu State v. Avop Plc. (1995) 6 N.W.L.R. (pt. 399) 90; Thomas v. Olufosoye (1985) 3 N.W.L.R. (pt. 13) 523 and Ladejobi v. Shodipo (1989) 1 N.W.L.R. (pt. 99) 596 referred to] (p. 602, paras. C- E). With due deference, it would appear that my Lord still laid emphasis on sufficiency of interest which should no longer be the basis for the conferment of locus standi particularly where a citizen of this country seeks to challenge the infraction of the Constitution, in view of the liberal posture taken by their Lordships in Adesanya v. The President and Fawehinmi v. Akilu (supra). I say this with utmost humility and trepidation in view of the current liberal attitude of the courts even in the most conservative of Commonwealth jurisdictions. See R. v. Secretary of State, Exparte World Development Movement Ltd. (2000) 21 W.R.N. 177.

Going by the authorities above cited, we shall now take a look at the Affidavit in Support of the Originating Summons and the Further and Better Affidavit in order to determine whether the Plaintiffs/Respondents had the locus standi to initiate the action in the lower court. In the eleven -paragraphed affidavit in support, the Plaintiffs averred as follows:-

“(1) That I am the 1st Plaintiff in this action;

“(2) That I have the authority and consent of the other Plaintiff to swear to this affidavit;

“(3) That I was a member of the 2nd Assembly of the Ekiti State House of Assembly which was proclaimed into existence on the 3rd June, 2003 when the Assembly held its first sitting and elected its principal officers;

“(4) That I know as a fact that the House of Assembly had by the operation of the provision of the Constitution a (4) four year term;

“(5) That the (4) four year term commenced on the 3rd of June 2003 and terminated on the 3rd of June 2007;

“(6) That I had a notice and or information on Friday 1st June 2007 that the 2ndAssembly of the Ekiti House of Assembly shall be in session and sit on the 4th of June, 2007;

“(7) That I decided to attend the sitting and or session of the 4’h June, 2007 where I raised an objection and or a paint of order that the sitting of the Assembly was illegal its tenure having expired by the operation of the provisions of the Constitution;

“(8) That all other members sitting in the house shouted me dawn whilst I walked out an them and refused to participate in the day’s business;

“(9) That I know as a fact that the Assembly deliberated on matters contained in the order paper and approved everything therein. The said order paper is attached as Exhibit KF1.

“(10) That it will accord with Justice to grant Plaintiffs’ prayers; and

“(11) That I swear to this affidavit in accordance to the oaths Law of Ondo State as applicable to Ekiti State.”

The Plaintiffs/Respondents in response to counter-affidavit of the Defendants/Appellants also deposed to the following facts in their Further And Better Affidavit thus:-

“I, HONOURABLE KOLA FAKIYESI, Male, adult, Christian, Honourable member of the defunct ?kiti State House of Assembly Second Assembly of 69 Oke Alafia, Ibedoyin, Iyin Ekiti, Ekiti State Nigeria do hereby make oath and say as follows:

“1. That paragraphs 1, 2, 3, 6, 8 and 10 of the counter affidavit are true;

“2. That paragraphs 7, 9, 11, 12, 13, 14, 15, 16 and 17 of the counter affidavit are false and also untrue;

“3. That the 2nd Plaintiff is the State Chairman of the Action Congress Party which I also belong and which sponsored and won 13 Legislative seats in the present Ekiti State House of Assembly;

“4. That the 5th to 16th Defendants whose names are contained in Exhibits KF 1 in paragraph 9 of the original affidavit in support of the Originating Summons save with the exception of the 15th Defendant are presently serving as Commissioners in the administration of the 1st Defendant in Ekiti State;

“5. That it is the constitutional rights of all the said 13 elected Legislators of Action Congress Party which I and the 2nd Defendant belong to participate in the screening of the 5th to 16th Defendants to ensure that they are all fit and proper persons to serve as Commissioners in Ekiti State Government during their tenure as Legislators before they were appointed as Commissioners;

“6. That the same thing as in paragraph 5 above apply to the 12 unnamed special adviser appointed by the 1st Defendant; and

”7. That I swear to this affidavit in good faith in accordance with the Oaths Law of Ondo State Applicable in Ekiti State.”

Now, the question to be answered from all the authorities cited and facts disclosed in the affidavits of the Plaintiffs/Respondents, is whether the Plaintiffs/Respondents had met with the necessary criteria to vest them with the requisite locus standi to sue? On the first criterion as to whether there is a justiciable action, the claims of the Respondents as encapsulated in the questions for determination are:-

1. For the interpretation of the 1999 Constitution particularly Section 105 thereof as to whether the life span of the second session of the Ekiti State House of Assembly proclaimed into existence on 3rd June, 2007 for a term of four years expired on the 3rd of June, 2007;
2. Whether by virtue of relief one (1) above, the sitting of the second session of the Ekiti House of Assembly held on the 4th day of June, 2007 was clearly outside its four years constitutional term or tenure and therefore null and void and unconstitutional; and
3. Whether the screening and confirmation of appointment of State Commissioners and approval of Twelve (12) Special Advisers by the Ekiti State House of Assembly at its session of 4th June, 2007 is unconstitutional null and void of the said House of Assembly.

As for the reliefs sought by the Plaintiffs/Respondents there are for declarations that:-

1. By virtue of Section 105 of the Constitution, the life span of the House of Assembly had expired on the 3rd of June, 2007;
2. The sitting of the second session held on the said 4th day of June, 2007 was clearly outside its four (4) years constitutional term or tenure and therefore null, void and unconstitutional; and that :-
3. The screening and confirmation of appointment of the State Commissioners and approval of Twelve (12) Special Advisers by the Ekiti State House of Assembly at its session of 4th June, 2007 was unconstitutional, ultra-vires, null and void of the Ekiti House of Assembly.

Definitely, from the claim and reliefs sought by the Plaintiffs/Respondents, there was a justiciable action or litis contestatio before the trial court which bordered on the interpretation of a provision of the 1999 Constitution, in this case Section 105(1) thereof. Such an action was/is capable of invoking the adjudicatory powers of the High Court of Ekiti State as conferred upon it by section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria.

In this connection, it is necessary to rehash what the learned emeritus Obaseki J.S.C said in Adesanya v. President of the Federal Republic of Nigeria (1981) 5 S. C 112 at 176 thus:-

“The need for a liberal approach to the interpretation of the provision of the 1979 constitution (now 1999 constitution) is paramount and the case of NAFIU RABIU v. The State (1980) 8/11 S.C 130 has set the Pace. The Dictum of sir Udo Udoma J.S.C cited by my Learned brother Fatayi -Williams C.J.N which met with the unanimous approval of other Justices who heard the appeal will for a long time be the approach of the court in this country.”

Fatayi-Williams, J.S.C., in his lead judgment as had earlier been highlighted, supported this view like his colleagues -Obaseki, Eso and Idigbe J.J.S.C – of the liberalist school of thought and had rightly, in my view stated what is now the current position of the law on locus standi particularly where there is a breach of the constitution, when he held that because of the developing nature of our dear country and peculiar multi-ethnic society together with our written constitution, it would be most unconscionable to deny a citizen of this country access to court to challenge an infraction of any of the provisions of our constitution or any law or legislative action enacted or initiated which is unconstitutional.

That the 1999 Constitution of the Federal Republic of Nigeria has provided for the necessary checks and balances between the three main arms of government of which a close scrutiny of the detailed provisions of the said Constitution would reveal as the learned judicial icon had rightly observed, is amply demonstrated by the provisions of sub-section (8) of Section 4 of the 1999 Constitution. The sub-section stipulates inter alia:-

“(8) Save as otherwise provided by this constitution, the exercise of Legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of judicial tribunal established by law.”

Read together with section 6(6) (b) of the Constitution, it is clear that the learned eminent jurist was on a sound pedestal when he further took the view that in the con of Nigeria, particularly in our present dispensation where the Rule of law is one of the cardinal Agenda of Government, it is better to allow a party access to court than to deny him such since our courts possess the inherent wherewithal and have in recent times demonstrated and exhibited their tenacious capacity to deal with vexatious litigants or frivolous claims much to the admiration of even the most vitriolic and acerbic of critics.

As the learned Emeritus Justice had further observed, and I dare add, in view of the provisions of sections 4(8) and 6(6) (b) of the 1999 Constitution, any person whether a citizen of Nigeria or not, who is resident in this country and subject to the laws of the land is obligated to see to it that he is governed by a law which is consistent with the provisions of the constitution and indeed it is his civil obligation to defend the Constitution and as such, the exercise of these civil rights should not be hamstrung by mechanistic technicalities which have not been provided for in the Constitution.

To adhere and resort to such conservative and extremely restrictive position as the learned Justices of the old school of thought had taken, as we are being invited to do by the learned Senior Advocate in this case, would spell eventual doom and chaos to the much vaunted stability of this nation. As a matter of fact, Eso, J.S.C., had earlier replied to the contention of the conservatives that there would be a flood gate of cases if the scope of locus standi is broadened in the realm of public interest litigation, nay the Constitution, when in Attorney-General af Bendel State v. Attorney-General of The Federation & 18 Ors. (1981) 10 S.C.1 at 190-192; he posited that the rules of locus standi be relaxed, liberalized and made flexible in constitutional matters even if there are flood-gates of cases.

For as the affable avant-garde Judicial activist, yet erudite Pats-Acholonu J.S.C of blessed memory had put it, in the celebrated case of Ladejobi v. Oguntayo (2004) 18 NWLR (pt. 904) 149; while departing from the ubiquitous principle enunciated by the conservative camp on locus standi:-

“It is important to bear in mind that ready access to court is one of the attributes of a civilized legal system, and it will amount to setting the clock back at this stage for any court to dismiss or strike out an action based on the pleading without carefully analyzing the averments and ensuring that there is no nexus” and “on the altar of overtly overstretched interpretation and application of locus standi” see also the cases of Momoh v. Olotu (1970) A.N.L.R. 121; Obanla v. Adesina (1999) 1 S.C.N.J 1 and Bamidele v. Commissioner For Local Government (1994) 2 N.W.L.R. (part 328) 568 at 584 and 586 per Uwaifo, J.C.A. (as he then was).

On the second criterion which is that there must be a dispute between the parties, the fact that the Defendants/Appellants had filed a counter-affidavit in which case apart from the preliminary objection on locus standi, issues had been joined, has demonstrated that there was apparently a dispute between the parties. Even if we go strictly by the decisions in Abraham Adesanya v. The President (supra) and the recent case of Inakoju v. Adeleke (Supra) which are to the effect that, to have locus standi to sue, a Plaintiff must show sufficient interest in the suit; and whether the party seeking the redress or remedy would suffer some injury from the act complained of, the Plaintiffs/Respondents have met the necessary criteria for vesting them with the requisite locus standi to institute the action in the lower court.

My reasons in so holding can be gathered from the affidavit and Further and Better affidavit of the Plaintiffs/Respondents. In the first place, the 1st Plaintiff who deposed to the affidavits had stated that he was a member of the 2nd session of the Ekiti State House of Assembly which was proclaimed into existence on the 3rd day of June, 2003, by Ayo Fayose the then Governor of Ekiti State, when the Assembly had its first sitting and elected its principal officers and that the House of Assembly had by the provisions of the Constitution a (4) four year term which commenced from the 3rd day of June, 2003 and terminated on the 3rd day of June, 2007. Furthermore, as a member of that House, he had a notice and or information on Friday 1st June, 2007 that the 2nd Assembly of the Ekiti House of Assembly shall be in session on the 4th of June, 2007; and that he decided to attend the sitting and or session of 4th June, 2007, where he raised an objection and or a point of order that the sitting of the Assembly was illegal, its tenure having expired by the operation of the provisions of Section 105 of the 1999 Constitution.

According to the Plaintiffs/Respondents, all other members sitting in the house shouted him down whilst he walked out on them and refused to participate in the day’s business and that in his absence the Assembly deliberated on matters contained in Exhibit KF 1 – the Order paper – and approved everything therein. The said Order Paper is annexed to the affidavit in support of the Originating Summons as evidence of his membership of the House. See paragraphs 3 – 9 of the supporting affidavit.

By the above averments, the 1st Appellant has demonstrated that he had a constitutional interest/right to protect and an obligation to fulfil the dictates of the Oath of Office which he swore to as a bona fide member of the defunct Ekiti State House of Assembly as was inaugurated on the 3rd day of June, 2003 for a four (4) year term and by the provisions of section 105(1) of the 1999 Constitution:-

“105 (1). A House of Assembly shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House.” If from the totality of the averments in the affidavits in support, the counter- affidavit, and submissions of counsel, the court eventually found out at the hearing of the Originating Summons that the 3rd Appellant actually sat and approved the appointments of the 5th – 16th Appellants after the expiration of the four year term, as stipulated in the Constitution, then the Constitution would have been violated and whatever was done by the House would tantamount to a nullity. At that juncture of the preliminary objection therefore, the success of the suit was immaterial since the Plaintiff even as an ordinary citizen of this country, as was rightly posited by the learned trial Judge, had ‘A VOICE’ and ‘CHOICE’ to challenge the violation of the Constitution. Even if the tenure of office of the 1st Respondent had expired as at the time he initiated proceedings in the High Court and assuming but not conceding that he had no rights and obligations which were adversely affected or were in imminent jeopardy, by the act complained of, a decision on the vexed question as to whether an action taken by a Legislative House – the screening and approval of political appointees when the tenure of office of members thereof had expired was constitutional vel non – would further strengthen the rule of law particularly in our nascent democratic environment.

To further demonstrate that the Appellants have a substantial, tangible and not vague, intangible or caricature of interest on the subject matter, and that they contend that their rights and obligations have been violated, they have evinced in paragraphs 3- 6 of their Further and Better affidavit:

“3. That the 2nd Plaintiff is the State Chairman of the Action Congress Party to which 1(1st Plaintiff) also belong and which sponsored and won 13 Legislative seats in the present Ekiti State House of Assembly;

“4. That the 5th to 16th Defendants whose names are contained in Exhibits KF 1 in paragraph 9 of the original affidavit in support of the Originating Summons save with the exception of the 15th Defendant are presently serving as Commissioners in the administration of the 1st Defendant in Ekiti State;

“5. That it is the constitutional rights of all the said 13 elected Legislators of Action Congress Party which I (1st Respondent) and the 2nd Plaintiff/Respondent belong, to participate in the screening of the 5th to 16th Defendants to ensure that they are all/it and proper persons to serve as Commissioners in Ekiti State Government during their tenure as Legislators before they were appointed as Commissioners;

“6. That the same things as in paragraph 5 above apply to the 12 unnamed Special Advisers appointed by the 1st Defendant.

By these averments (particularly paragraph 5 thereof), and the arguments of counsel for the Respondents, their contention is that instead of the defunct House of Assembly which tenure had expired as at the 3rd day of June, 2003, they (Respondents) had their rights and obligations as members of the Action Congress with 13 Legislators in the nascent Assembly to participate in the screening of the 5th – 16th Appellants and the unnamed twelve Special Advisers as to whether they were fit and proper persons to be appointed as political office holders in Ekiti State. Thus, apart from their allegation that the Constitution had been breached, their complaint is that they had been deprived of their rights and obligations as a political party with thirteen members in the House from discharging their constitutional duties as legislators.

In Inakoju v. Adeleke (supra) a similar argument was proffered that the first and second Respondents who were the Speaker and Deputy Speaker of Oyo State House of Assembly lacked the requisite locus standi to initiate proceedings in the High Court but the Supreme Court, per Tobi JSC held as follows:-

“In this case, the respondents sought four declarations based on section 188 of the Constitution of the Federal Republic of Nigeria. This apart, the affidavit in support deposed to a number of violations of section 188 by the Appellants. A community reading of the reliefs sought by the Respondents and the affidavit in support clearly, in my view vest locus standi an the Respondents.

“Section 188 mentions the speaker in very substantial parts, so much so that he has sufficient interest in the protection of the section, a fortiori the violation or breach of it. By section 95 of the Constitution, at any sitting of the House, the Speaker will preside, and in his absence the Deputy Speaker will. How can a person who presides aver a House under section 95 and who is given specific constitutional function to perform in the procedure and proceedings of removal of a Governor or his Deputy, not have a sufficient interest to commence an action complaining an the violation or breach of Section 188?”

The contention by the Appellants in this appeal is that the 1st Respondent had ceased from being a member of the House which had the constitutional duty of screening and confirming the appointment of the 5th – 16th Appellants amongst other political appointees, and that he has now become an ordinary citizen who must show how the alleged sitting of the House violated his right more than that of the other members of the public and or in what manner he has suffered, than the others. Furthermore, they also contend that the 1st Respondent infact attended the sitting and even raised a point of order and was eventually overruled and as such he had no locus standi as the conduct of the House did not affect his civil rights and obligations.

The learned Senior Advocate has relied on the dictum in Keyamo v. LSHA (supra) per Galadima, J.C.A; Busari v. Oseni (supra) and has quoted copiously the dictum of Oguntade, J.C.A (as he then was) which restated the position of the Supreme Court in the case of Adesanya v. The President of Nigeria to the effect that for the purpose of conferring standing to bring a particular suit, the general interest is not regarded as sufficient because if it were possible to accept the general interest which all members of the society have in good governance and order as the determinant for conferment of locus standi, there will always be a multiplicity of suits on particular matters with which the courts will not be able to cope.

I must not hesitate to state that the decisions in the cases above cited especially Busari v. Oseni and Adesanya v. The President are now anachronistic, obsolete, and inapplicable to our present jurisprudential climate and indeed have been overtaken by events following our contemporary and social development. Although public interest litigation is still at infancy in this country, recent decisions of the Supreme Court have tended to jettison the old concept of sufficiency of interest as the bases for conferment of locus standi in constitutional matters. See for instance Odeneye v. Efunuga (supra) per Belgore, J.S.C; Fawehinmi v. Akilu (supra); Fawehinmi v, The President FRN (supra); AG. Lagos State v. AG of the Federation (2004) 18 N.W.L.R (pt. 904) 1; AG Abia State (2002) 6 N. W.L.R (pt. 674) 542; Alamieyeseigha v. Iganiwari No.2 (supra) and Yusuf v. Obasanjo (supra).

As had earlier been said, the courts even in the most conservative jurisdictions of the Commonwealth have departed from the undue reliance on sufficiency of interest as the primary consideration for the conferment of locus standi in administrative and Constitutional law, as exemplified in R v. Secretary Of State, Exparte World Development Movement Ltd. (2000) 21 W.R.N. 177.

In that case, a consortium of British Construction companies in 1988, sought from the British government aid and made provision for the construction of a dam and hydro-electric power station (the Pergau Scheme) in Malaysia. This scheme was estimated to cost about $316m, which was to be paid out of the overseas aid fund disbursable under S.1 of the Overseas Development and Co-operation Act 1980.

This section empowered the secretary of state “to promote the development or maintaining the economy of on (overseas) country or territory or the welfare of its people, to furnish any person or body with assistance, whether financial, technical or of any other nature.”

However in 1989, officials of the Overseas Development Administration following appraisals of the Scheme came to the conclusion that it was uneconomic and therefore should not be implemented.

The foreign secretary, against that advice, on 26 Feb. 1991, took the decision to approve aid and made provisions for the project, taking into considerations the fact that it had already made formal offers of financial support for the scheme to the Malaysian government, as well as the need to maintain its (the U.K’s) credibility as a reliable friend and trading partner.

This application for judicial review of the decision of the foreign secretary was brought by the applicants a non-partisan pressure group (World Development Movements Ltd), which campaigned to increase the amount and quality of British aid to developing countries. They (the applicants) also applied for an order for the disclosure of two minutes, dated S & 7 of Feb. 1991, from the Permanent Secretary in the Overseas Development Administration to the Minister of Overseas Development. The Foreign Secretary on the other hand, contended, inter alia, that the applicant had no locus standi to make the application, and further that he was entitled to take account of wider political and economic considerations when deciding to make a grant of aid. In a unanimous decision, the Queen’s Bench Divisional Court held as follows:-

On when a non partisan pressure group can be seised of locus standi to bring an action, Per Rose L.J at pg. 187 -188) para 15 – 5, posited.

“For my part, I accept that standing (albeit decided in the exercise of the court’s discretion, as Danaldson MR. said) goes to jurisdiction, as Woolf L.J. said. But I find nothing in IRC v. National Federation of Self – Employed and Small Businesses Ltd to deny standing to these applicants. The authorities referred to seem to me to indicate on increasingly liberal approach to standing on the part of the courts during the last 12 years. It is also clear from IRC v. National Federation of Self-Employed and Small Businesses Limited that standing should not be treated as a preliminary issue, but must be taken in the legal and factual con of the whole case (see 198112 All ER 93 at 96, 110. 113, (1982) AC 617 at 630, 649, 653 per Lord Wilberforce, Lord Fraser and Lord Scarman). It seems pertinent to add this, that if the Divisional Court in Exp Rees-Mogg eight years after Exp Argyll Group was able to accept that the applicant in that case had standing in the light of his sincere concern for constitutional issues’ a fortiori, it seems to me that the present Applicants, with their national and international expertise and interest in promoting and protecting aid to underdeveloped nations, should have standing in the present application”.

On factors that are considered in determining the issue of locus standi in modern times, the learned Justice further held:

“Furthermore, the merits of the challenge are an important if not dominant factor when considering standing. In professor sir William Wades words in Administrative Law (7th edition. 1994) p 712.

‘…the real question is whether the Applicant can show some substantial default or abuse, and not whether his personal rights or interest are involved.

Leaving merits aside for a moment, there seem to me to be a number of factors of significance in the present case: the importance of vindicating the rule of law, as Lord Diplock emphasized in IRC v. National Federation of Self-Employed and Small Businesses Limited (1981) 2 ALL ER 93 at 107, (1982) AC 617 at 644; the importance of the issue raised, as in Exp Child Poverty Action Group; the likely absence of any other responsible challenger, as in Exp Child Poverty Action Group and Exp Green peace Ltd; the nature of the breach of duty against which relief is sought (see IRC v. National Federation of Self-Employed and small Businesses Limited (1981) 2 ALL ER 93 at 96, (1982) AC 617 at 630 per Lord Wilberforce); and the prominent role of these applicants in giving advice, guidance and assistance with regard to aid (see Exp Child Poverty Action Group (1989) 1 All ER 1047 at 1048, (1990) 2 Q.B. 540 at 546. All, in my judgment, point in the present case, to the conclusion that the applicants hereto have a sufficient interest in the matter to which the application relates within s. 31(3) of the 1981 ACT and Order 53, R 3(7)”. Per Rose L.J (p,187) para 25 – 40.

Again, it is also necessary to refer to the position of the Law in India which we ought to borrow a leaf from their Public Interest Litigation system where locus standi can be given to any person who writes a letter of complaint in the name of the People’s Union for Democratic Rights to the Chief Justice, justifying the rationale of the complaint. As was held by Dayal J. in the case of People’s Union for Democratic Rights v. Minister of Home Affairs:

“Following English and American decisions, our Supreme Court has of late admitted exceptions from the strict rules relating to locus standi and the like in the case of a class of litigation which have acquired classification known as “public interest litigation” that is, where the public in general are interested in the enforcement of fundamental rights and other statutory rights…” see also a Nigerian case of Adediran v. Inter Land Transport Ltd, (1991) 9 NWLR 225 where the Supreme Court held that Section 6 (6)(b) of the Constitution of the Federation has removed the limitation of the common Law where by only the Attorney General could bring an action for public nuisance. Now both the individual affected by the nuisance and the Attorney General have equal rights to sue.

These authorities in the main, settle the vexed issue as to whether in the determination the constitutionality of the action of the Ekiti State House of Assembly the 1st Respondent was adversely affected or that he has not shown sufficient interest or that having ceased to be a member of the House of Assembly he is an ordinary person who must show how the alleged sitting of the House on the 4th June 2007 violated his right more than other members of the public and in what manner he has suffered more than others.

It seems clear from the case of R. v. Secretary of State Exparte WDM Ltd. (supra) and others cited above, that there is increasingly a shift from the restrictive to a more liberal approach to standing in recent times by Commonwealth courts and even in the United States of America from where our legal system and our present Constitution emanated.

Thus the factors which should be taken into consideration in the determination of locus standi generally and especially in constitutional matters are:-

1. Whether the Applicant can show some sincere concern for constitutional issues and that there has been substantial default or abuse as in this case where the Respondents complained of the violation of Section 105(1) of the 1999 Constitution and not whether his personal rights or interests are involved.
2. The importance of vindicating the rule of law which is one of the cardinal agenda of the present administration, as in this case.
3. The importance of the issue raised in the claim of the Respondents – in this case the constitutional issue of the exercise of the legislative powers of the Ekiti State House of Assembly which tenure had allegedly expired.
4. The likely absence of any other challenger of the act complained of – in this case the fact that the 1st and 2nd Plaintiffs/Respondents were/are an ex-Legislator and party chieftain respectively in Ekiti State who have challenged the act of the defunct Assembly in the absence of other challengers.
5. The nature of the breach of duty against which relief is sought – in this case the alleged breach of section 105 of the 1999 Constitution by the defunct Ekiti State House of Assembly; and
6. The prominent role the Respondents as members of a political party with thirteen legislators in the Ekiti State House of Assembly ought to play in the screening of the 5th – 16th Appellants and the unnamed twelve Special Advisers appointed by the 1st Appellant.

Even then, the submission by the Appellants that the 1st Respondent did not sue in representative capacity of the Action Congress, is ridiculous to the extremes since he has shown from his affidavits that he is a member of that political party and an ex-legislator who is now a senior citizen of Ekiti State and can bring an action of that nature to defend the Constitution and the rule of law. See Fawehinmi v. Akilu (supra); Adesanya v. The President (supra) per Fatayi-Williams C.J.N Held 1- 9 at pages 359 – 360 and Fawehinmi v. President FRN (2007) 14 N.W.L.R (pt. 1054) 275 at 336 cited by the learned Senior Advocate on behalf of the Appellants. Again, neither the Action Congress nor any of its members has challenged or disowned the capacity under which the 1st Respondent initiated this action in the High Court. Indeed the 2nd Respondent on behalf the political party is a joint plaintiff and had given his consent to the depositions in the affidavit in support and the Further and Better affidavit.

It is trite law that even where there was no authorization and leave of court for the 1st Respondent to sue in representative capacity, where the pleadings and evidence conclusively show a representative capacity and the case is fought throughout in that capacity (assuming but not conceding that this is the situation in this case), the trial court can justifiably enter judgment for or against the 1st Respondent in that capacity. See Afolabi & Ors v. Adekunle (1983) 8 S.C 98; Otapo v. Sunmanu (1987) 2 N.W.L.R 587 and Chief Gbogbalulu of Vakpo v. Head Chief of Hodo of Anfoega Akukome (1941) 7 W.A.C.A 164 at 165.

Finally on the submission that the 1st Respondent’s case is similar to that of Adesanya v. President (supra) in that he partook in the debate of the House on the 4th day of June, 2007, wherein he raised an objection but was overruled, from the depositions in paragraphs 6, 7, 8, and 9, it is clear that Adesanya’s case is distinguishable from the facts and circumstances of our instant case. In the case at hand, the 1st Respondent attended the meeting of 4th June quite alright but drew the House’s attention to the illegality of holding that session and for the purpose connected therewith because of the expiration of their tenure pursuant to section 105(1) of the 1999 Constitution, but was shouted down and he walked out of the House refusing to participate in the day’s deliberations. In his absence, the House deliberated on the matters contained in the Order Paper (Exhibit KF1) and proceeded to approve every item listed therein. The 1st Respondent therefore, neither voted nor partook in the deliberations of the House as against Adesanya’s case where he participated, voted and was overwhelmed by majority of his fellow members’ votes.

This formed the bases for the deprivation of his fellow to sue as the Supreme Court held that he could not approbate and reprobate. Assuming but not conceding, that he actually partook in the deliberations of the House on that day, that participation alone or his being outvoted did not preclude him under section 6(6)(t) of the 1999 Constitution to challenge the supposedly apparent and flagrant affront on the Constitution by those who were supposed to be the angel guardians of the said Constitution. The attempt to justify the ratio of Adesanya’s case on the bases of his participation and being overwhelmed by majority votes nay the introduction of the Rule in Foss v. Harbottle which was adopted by the Supreme Court in Alhaji Imam Abubakri v. Smith (1973) All N.L.R 634 was staunchly resisted by Tobi, J.S.C in Inakaju v. Adeleke (supra). at pages 602 – 604 paras. H- D; when he said:-

“In search for locus standi in the Constitution, the searcher would have good company in section 6(6) (b) and any specific section in the Constitution, such as section 188 as it relates to this appeal. The searcher will not go outside the Constitution for case law on minority shareholding because that is inapposite.”

With this authority, I hold the considered view that the holding by the learned trial Judge that he was opposed to the submissions of the learned Silk on behalf of the Defendants/Appellants that the Plaintiffs/Respondents were ordinary members of the public, and his further holding that: “Indeed, they may be ordinary members of the public but they are citizens of the Federal Republic of Nigeria;” and every other thing he said at pages 36- 37 of the Records, and above all at page 38 that every Nigerian is given a voice and a choice to access the law court, to express their views if they believe and are led to believe that there has been an infraction of the Constitution and that such a voice or choice should not be sacrificed on the altar of locus standi, lack of jurisdiction, or abuse of court process cannot be faulted. The position taken by the learned trial Judge is not only sound law but a re-echo of the dicta of Fatayi-Williams J.S.C and his apostles of the liberal theory of locus standi but accords with the contemporary disposition of the courts almost universally on that concept in public law. Accordingly, I find the decision of the learned trial Judge unassaiiable as there is no rational basis for interfering with same. I therefore resolve the sole issue for determination in this appeal in favour of the Respondents.

This appeal lacks merit and is accordingly dismissed. Parties shall proceed back to the court of first instance for the case of the Respondents to be heard on the merits. They shall also bear their respective costs in this Court.

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Other Citations: (2009)LCN/3270(CA)