Hon. Wunmi Bewaji V. Chief Olusegun Obasanjo & Ors (2007)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, JCA

This is an appeal from the decision of Hon. Justice A.I. Chikere of the Federal High Court, Abuja Division delivered on 20th January, 2006. The Appellant was the plaintiff while the Respondents were the defendants in an Originating Summons in which certain questions were sought for determination. These are the questions verbatim:

“(a) Whether having regards to the provisions, of the constitution, the 1st defendant can impose a consumption tax on the federation without the Consent of the National Assembly first had and obtained.

(b) Whether having regards to the PPPRA Act 2002, the 2nd Defendant can impose a tax or levy on any item in the federation without the consent and approval of the National Assembly first had and obtained

(c) Whether the pronouncement of the 1st Defendant can be law or can have the force of law on an issue of levy or taxation on the plaintiff without a law properly enacted.

(d) Whether having regards to the provision of the 1999 constitution, S. 162 thereof the petroleum tax imposed by the Defendants can be legally imposed not being a receipt arising from the operation of a law made by the national assembly.

(e) Whether having regards to provisions of the 1999 constitution, the National Assembly can validly grant powers to impose fuel taxation (consumption tax) and or levy to the Defendants, not being an item of taxation covered under S. 163 of 1999 constitution or under S. 59 of the Second Schedule (legislative powers) to the 1999 constitution.”

Consequently, the Appellant sought the reliefs which I hereunder reproduce verbatim as follows:

” (1) A declaration that the 2nd Defendant is not a legally constituted authority in Nigeria to impose any form of tax, levies and or charges upon the plaintiff in any manner whatsoever.

(2) A declaration, that the plaintiffs have suffered pecuniary loss through the illegal act of the 2nd Defendant via the imposition of a fuel tax.

(3) A declaration that the fuel tax and or levy of 1.50k imposed by the 1st and 2nd Defendants is unconstitutional, null and void and of no effect whatsoever.

(4) An order of perpetual injunction restraining the Defendants by themselves or through their agent’s servants or privies, from continuing to implement the illegal fuel tax and or levy imposed by the Defendants.”

On being served with the originating process, the defendants filed a notice of preliminary objection on the ground that the plaintiff had no “locus stand” to institute the action. According to the defendants, the action was frivolous, vexatious and an abuse of judicial process.

A.I. Chikere J, sitting in the Federal High Court, Abuja heard arguments of Counsel for both sides on the preliminary objection and in a ruling delivered on 20/01/06 upheld the preliminary objection and ruled that the plaintiff racked the “locus standi” to institute the suit. The plaintiff’s suit was consequently struck out. The present appeal is against that ruling.

The Appellant filed a notice of appeal on 15/2/06 containing three grounds of appeal. The three grounds with their particulars hereunder reproduced verbatim are:

“GROUND ONE

The Learned trial Judge erred in law by refusing to hold that the Appellant has the Locus Standi to institute and prosecute this action against the Respondents.

PARTICULARS OF ERROR

1. The Learned trial Judge erred in law by holding that the Appellant’s originating summons and the affidavit in support do not allege any injury or threat of injury to the Appellant’s private rights.
2. The Lower Court erred in law by holding that the Appellant failed to allege that the imposition raised by the Petroleum tax will constitute an infringement or threat of infringement to his private rights.

GROUND TWO

The Learned trial Judge erred in law by upholding the preliminary objection rose by the Respondents notwithstanding that the act being complained against by the Appellant is a violation of the 1999 Constitution.

PARTICULARS OF ERROR

1. The Learned trial Judge erred in law by failing to conform with the principle laid down by the Court of Appeal in comptroller, Nigerian Prison Service, Ikoyi V. Adekanye (1999) 5 NWLR (Pt. 602) 167 at 172, to wit: “Judges and Courts bear a particular responsibility for ensuring that all branches of government – the Legislature; the Executive and the Judiciary conform with the principles of the rule of law. And where the provisions of the Constitution are clear, strict compliance with them is not negotiable nor can it be circumscribed”
2. The Learned trial Judge erred when he refused to hold that the Appellant has locus standi to bring an action in order to challenge a violation of the provisions of the 1999 Constitution by the Respondents.

GROUND THREE

The Learned trial Judge misdirected her in law when she held that the Appellant, who’s right in personam was threatened and/or infringed upon, lacks the requisite locus standi to enforce the said right.

PARTICULARS OF MISDIRECTION

1. The Lower Court Failed or neglected to appreciate the essence and effect of the Appellant’s right in personam as canvassed by the Appellant in his Reply to Preliminary Objection.
2. The Lower Court misdirected itself by failing to appreciate that the Appellant’s obligation to pay tax to the Federal Government of Nigeria is contractual by virtue of the 1999 Constitution and that the Said tax cannot be imposed in breach of the terms of the said contract i.e. the 1999 Constitution.”

Accordingly, the Appellant filed and served on the Respondents the Appellant’s brief of argument wherein three issues were formulated from the three grounds of appeal, for determination of the appeal. The Appellant’s brief was filed on 15/11/06. The Respondents’ brief of argument was deemed filed and served on 16/5/07. The Respondents formulated one issue for determination of this appeal.

The three issues formulated by the Appellant verbatim read thus:

“1. Whether having regard to the provisions of section 6(6) (b) 1999 constitution, the Appellant lack the locus standi to institute and prosecute this action against the Respondents.

2. Whether the President of the Federal Republic of Nigeria has the power under the 1999 constitution to make laws without having any recourse to the National Assembly.
3. Whether it is necessary for the Appellant whose right in personam as opposed to right in rem is threatened and/or infringed upon to separately establish that he has a locus standi before he can be allowed to enforce same.”

On the other side of the divide, the Respondents’ sole issue is as follows:

“Whether the court below in the circumstance of this suit was right to have held that the Appellant had no locus standi to institute and maintain this suit”.

On the day this appeal came up for hearing, that is, 3/10/07, the Appellant’s counsel Bola Aidi, Esq. adopted and relied on the Appellant’s brief of argument which was filed on 15/11/06. He urged the court to allow the appeal and remit the suit to the lower court for hearing on the merits. While the Respondents’ counsel Benny R. Chabki, Principal State Counsel, Federal Ministry of Justice adopted and relied on the Respondents’ brief of argument which was deemed filed on 16/5/07. He submitted that the appeal lacks merit and it is incompetent. He therefore urged the court to dismiss it.

I will adopt the sale issue as couched by the Respondents’ counsel in the Respondents’ brief. In my view, it aptly captures the crux of the appeal which is whether the Appellant had the requisite “Locus Standi” to institute the suit before the trial court thereby clothing the lower court with jurisdiction to adjudicate upon the suit. What is more, issues one (1) and three (3) with the arguments advanced in support thereof by the Appellant’s counsel in the Appellant’s brief relate to the matter of the “locus standi” of the Appellant to maintain the suit before the lower court.

ISSUE FOR DETERMINATION.

“Whether the court below in the circumstances of this suit was right to have held that the Appellant had no locus standi to institute and maintain this suit.”

The case of the Appellant in a nut shell is that being a citizen of Nigeria and a tax payer, his civil rights and obligations under the provisions of Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 have been adversely affected and violated by the imposition and or introduction of petroleum taxation by the Respondents. The Appellant’s contention is that he possesses the requisite “Locus standi” to institute an action before any court of law established by the Constitution for the determination of his said civil rights and obligations.

It was submitted for the Appellant that in order to ascertain whether a party has “locus standi”, the statement of claim of the party must be seen to disclose a cause of action vested in the party and also establish the civil rights and obligations or interests of the party which have been or are about to be violated and in respect of which he ought to be heard upon the reliefs he seeks. Reliance was placed on the cases of:

(1) Odeneye V. Efunuga (1990) 7 NWLR (pt. 164) p. 618 at p. 621;

(2) Adefulu V. Oyesile (1989) 5 NWLR (pt. 122) p. 377 at p. 381 and

(3) Adenuga V. Odumeru (2003) 8 NWLR (Pt. 821) p.163 at p.169.

In this regard, the Appellant’s counsel outlined four factors as guidelines in deciding whether or not a person has ”locus standi” as laid down in the case of: Ogunmokun V. Military Administrator of Osun State 3 NWLR (Pt. 594) p. 261 at pg. 268 – 269. These factors are:

”(a) For a person to have locus standi in an action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed:

(b) The fact that a person may not succeed in an action does not have anything to do with whether or not he has a standing to sue;

(c) Whether a person’s civil rights and obligations have been affected depends on the particulars of the case, and

(d) The court should not give an unduly restrictive interpretation to the expression, locus standi.”

It was the opinion of the Appellant’s counsel that the Appellant met all the said requirements. The originating summons together with the affidavit in support filed by the Appellant showed unequivocally that the Appellant’s personal interest has been adversely affected by the imposition of the petroleum tax and that he has sustained and will continue to sustain injury, that is, financial loss if the petroleum tax was not annulled. He referred in particular to paragraphs 11(e) & (i) of the supporting affidavit as facts indicating his interest which must be protected. That his said position is not affected by the fact that the petroleum tax also affects the civil rights and obligations of other Nigerians who although are also affected but refused to make any complaint. He referred on this proposition to the case of: Badejo V. Fed Minister of Education (1990) 4 NWLR (Pt. 143) p. 254. Learned counsel further contended that the case of: Adediran V. Interland Transport Ltd (1991)9 NWLR (pt.214) p. 155 at p. 165; is not of general application as the principle in that case only applies to a situation where a plaintiff sues for public nuisance and seeks for consequential damages. It was the submission of learned counsel that the Appellant’s case does not border on public nuisance but rather a call upon the court to uphold and enforce some provisions of the 1999 Constitution moreso that the reliefs sought by the Appellant are declaratory in nature and no consequential damages are being claimed.

Furthermore, learned counsel for the Appellant was of the view that by virtue of the provisions of Section 24(f) of the 1999 Constitution, a citizen of Nigeria has a duty “in personam” to pay taxes hence, there exists a correlative right “in personam” on him to question the enforcement of such taxes when imposed illegally. For “where there is a right, there is a remedy” expressed in the Latin maxim, ”ubi jus ibi remedium”, Therefore, where a person, in this case the Appellant, complains of a breach of his right “in personam”, that breach of his personal right automatically vests him with the “locus standi” to maintain and prosecute an action to enforce his right and he does not need to establish separately that he has the “locus standi” before he can sue.

In his reply, learned counsel for the Respondents defined “locus standi” to mean, title to sue or standing. The term denotes legal capacity to institute proceedings in a court of law, The law relating to “locus standi”, has its root in Common Law and it is derived from the Constitution. Hence the party raising it must show in his pleadings that he has among other things a personal stake in the outcome of the case and a legal right or “sufficient interest’ peculiar to him that, is threatened with imminent invasion by the defendant’s acts. Reliance in this regard was placed on Lord Halsbury’s Law of England, 3rd Edition, and Volume 30, page 310, paragraph 570 and the cases of:

(1) Williams V. Dawodu (1988) 4 NWLR (pt. 87) p. 189 at p.217:

(2) Ichaze V. Governor, Bendel State (1984) 5 NCLR p. 792 at p. 797

(3) Ekundare V. Governor-In-Council (1961) All NLR (pt. 1) p.149 and

(4) Olagunju V. Yahaya (1998) 3 NWLR (Pt. 542) p. 501.

Learned counsel for the Respondents went on to submit that a person is said to have an interest in a thing when he has certain actual or potential rights, advantages, benefits, duties, liabilities or losses connected with such right whether in the present or future. Accordingly, for a person to be entitled to invoke judicial power for the determination of the constitutionality of some legislative or executive action, he must show that either his personal interest will immediately be or has been adversely affected by these actions or that he has sustained or is in immediate danger of sustaining an injury to himself, which interest or injury is over and above that of the general public. That although it is of paramount importance and indeed most desirable to encourage citizens to come to court in order to have the Constitution interpreted, it will amount to opening the floodgates to frivolous and vexatious proceedings if meddlesome interlopers, professional litigants and the like are allowed to sue in matters that do not directly concern them. He relied on the case of:

Adesanya V. President (1981) 1 SC p. 112.”

Furthermore, learned counsel for the Respondents argued that a claimant must palpably disclose sufficient interest which is peculiar to him. Such peculiar interest must be within the zone of interest to be protected by the Constitution and or a statute. A general interest common to all members of the public like payment of taxes is not a litigable interest to accord on the Appellant standing to sue. On this line of thought reference was made to the cases of:

(1) Nigerian Union of Journalists V. A.- G. of the Federation (1986) LRC p, 1 and

(2) Damisha V. Speaker Benue State (1983) 4 NCLR p. 625.

A private person could only bring an action to restrain a threatened breach of the law if his claim was based on an allegation that the threatened breach would constitute an infringement on his private right or would inflict such damage on him.

Learned counsel also submitted that the Issue of “locus standi” is not dependent on the success or the merits of a case but it is a condition precedent to a determination on the merits. Consequently, if a party has no “locus standi” to litigate a constitutional question, it is not necessary to consider whether the record shows the existence of a genuine case on the merits. Therefore to have the standing to sue, it is not enough for a person to merely claim that he falls within the crass of persons whose general interest have been affected by a law or statute. He must proceed further to show that he has some personal interest that has been or is likely to be affected by the action complained of. It is not sufficient merely to aver in the plaintiff’s pleading that he is a tax-payer or registered voter or businessman.

Learned counsel for the Respondents urged the Court to hold that the Appellant has failed to show that he has an interest other than other citizens and or tax payers. In the absence of an exceptional interest or injury or loss or damages peculiar to him, it cannot be accorded to him that he has “locus standi” to institute an action regarding the act complained of.

I have carefully considered the submissions of both counsel and the legal authorities cited by them in support of their respective stance in this appeal.

To start with I will restate the meaning and the connotation of the phrase “locus standi”. “Locus Standi” denotes the legal capacity to institute proceedings in a court of law; it is therefore undoubtedly a threshold issue. It is also used interchangeably with the terms like “standing” and “title to sue”. It is indeed the right to appear and be heard on the question before the court or a tribunal. It is the legal capacity of the parties to litigation. It is a condition precedent to a determination on the merits; although it is not dependent on the success or merit of the case. It literally means that the plaintiff has shown sufficient interest which is peculiar to him in the matter in controversy which entitles him to be heard.

Basically, the interest of justice demands that at all times “locus standi” should be given a broad and liberal scope by the courts to bring out the true essence of justice in accordance to law.

However, there are principally two acid tests for determining whether or not a person has “Locus Standi” to initiate an action. These are:

(a) The action must be justiciable; and

(b) There must be a dispute between the contending parties.

The above is the view of the courts in a long line of cases. I refer in particular to the cases of:

(1) Ogbuehi V. Governor of Imo State (1995) 9 NWLR (Pt. 417) p. 53;

(2) U.B.A. Plc V. BTL Ind. Ltd. (2004) 18 NWLR (Pt. 904) p.180 and

(3) Guda V. Kitta (1999) 12 NWLR (Pt. 629) p. 21.

In deciding whether a plaintiff has “locus standi” the Judge is expected to meticulously examine the statement of claim to see if it discloses a cause of action vested in the plaintiff. The averments in the statement of claim or as in this case, the affidavit deposed to in support of the originating summons filed by the Appellant, which define the confines of the plaintiff’s cause of action must disclose in clear terms the rights and obligations or interests of the plaintiff which have been or are about to be violated. See the cases of:

(1) Thomas V. Olufosoye (1986) 1NWLR (Pt. 18) p. 669;

(2) Adefulu V. Oyesile (1989) 5 NWLR (Pt.122) p. 377:

(3) Amah V. Nwankwo (2007) 12 NWLR (Pt. 1049) p. 552 and

(4) U.B.A. Plc V. BTL Ind. Ltd. (2006)19 NWLR (pt. 1013) p.61.

“Locus standi” touches on and is closely linked to the question of jurisdiction of court, in that, if a plaintiff or an applicant does not have “locus standi” or the required standing to institute an action, the court cannot properly assume jurisdiction to entertain the matter. It is a “sine qua non” to the exercise of jurisdiction because judicial powers are constitutionally limited to cases in which the parties have “locus standi”. The “locus standi” of a plaintiff in essence is a condition precedent to court’s adjudication. That is, before the court can proceed to the hearing of a matter on the merits, the plaintiff must have “locus standi”. See the cases of:

(1) M. V. Baco Liner, 1 & 2Ors. V. S. G. S. Inspection Services Ltd (2001) 52 WRN p. 168;

(2) Mogaji V. Military Administrator of Ekiti State (1998) 2 NWLR (Pt. 538) p. 425:

(3) Adesokan V. Adegorolu (1997) 3NWLR (pt. 493) p.261;

(4) Okoye V. Ebhodaghe (2000) 1 NWLR (Pt. 640) p.250;

(5) Umar V. W.G.G. Nig. Ltd. (2007) 7 NWLR Pt. 1032) p. 117, and

(6) Umoka V. Agili (2007)11 NWLR (pt. 1044) p.122.

Therefore for a plaintiff to be able to claim reliefs in a cause he must have the necessary standing to sue. Although, the cause need not be a subsisting cause of action or fight to some other reliefs. A plaintiff’s legal right of his own which is vital, real and earnest must be in issue. In the absence of a real legal right of a claimant, there is nothing relating to his legal position which the court can pronounce upon.

Existence of ”locus standi” of a plaintiff in essence is the condition precedent to right of action. See Section 46(1) of the 1999 Constitution which states that:

“46. – (1) any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” (The underlined is mine for emphasis.)

Put differently, a plaintiff who does not have sufficient legal interest in a cause or ventures to institute an action which has no bearing on him, cannot competently seek or be entitled to redress in a Court of law.

At this point it becomes pertinent to examine the reliefs sought by the Appellant in his originating summons (above reiterated) along with the relevant averments in the supporting affidavit. This is important so as to determine if the averments disclose right(s) or interest(s) of the Appellant that has/have been or is/are in danger of being violated or adversely affected by the act of the Respondents. For ease of reference, I will reproduce verbatim paragraph 11 a. – n. of the said Affidavit as follows:

”11. That I am further informed by the Plaintiff and I verily believe him that;

a. The National Assembly has not passed the budget proposal into an Appropriation Act and the 1st Defendant cannot therefore implement it.

b. That the National Assembly does not have the power to impose a consumption Tax not being an item of Taxation under the exclusive and or concurrent legislative list.

c. That the 1st Defendant having suddenly realized through the reaction of Nigerians and the National Assembly that the N1. 50k fuel Tax imposition is illegal wrote to withdrew it from the purview of the National Assembly while still going ahead with its imposition and implementation.

d. That the N1.50k petroleum Tax was immediately effected by fuel dealers allover the Nation thereby jerking up the pump price of petrol from N42. 50k to N44. 00,

e. That the Plaintiff, A Nigeria Citizen have been force into buying petroleum for his car at an illegal rate of N44. 00 thereby suffering pecuniary loss which is not backed by any law in force in Nigeria.

f. That it is only the proclamation of the 1st Defendant which have given rise to the enforcement of a fuel Tax for which the Plaintiff is presently suffering pecuniary loss on a daily basis, petroleum being an, essential and indispensable commodity.

g. That the proclamation or word of the 1st Defendant does not amount to a law under our Constitution, not being a Military Government.

h. That the Act establishing the 2nd Defendant only empowers it to regulate price and not to impose a tax and or levy under whatever guise.

i. That the set Defendant have failed in its duty in not advising the 1st and 2nd Defendant about the illegality of the act of imposing an N1.50k tax.

j. That if the Court does not act timeously on this matter by restraining the Defendants, the Defendants may further impose additional illegal taxation of another N1. 50k or more on the Plaintiff, while Plaintiff would continue to suffer an injury not regulated by law.

k. That there is need for the Court to grant all the reliefs sought.

l. That there is need for the Court to grant a perpetual injunction restraining all the Defendants from continuing the taxation or levy of N1. 50k or putting any further tax or levy on the plaintiff.

m. That Plaintiff is relying on and would rely on all materials, publications and documents flies before the court in support of the application.

n. That it is in the interest of Justice to grant all the reliefs sought.

The paramount consideration is whether from these averments it can be said that the Appellant has sufficient interest in the subject matter of the alleged dispute, that is, the introduction of petroleum tax which led to the jerking up of the pump prices of fuel and other petroleum products in Nigeria. Sufficiency of interest is the foundation upon which a complaint can be successfully built and sustained. The Appellant’s counsel relied laboriously on Section 6(6) (b) of the 1999 Constitution; that thereunder every Nigerian citizen has the “locus standi” to institute an action before any court of law established by the Constitution provided that such action is for the determination of any question as to his civil rights and obligations. It was the contention of the Appellant’s counsel that the Appellant being a tax payer of the said petroleum tax, his civil rights and obligations have been negatively affected. That accordingly, the Appellant has the “locus standi” by virtue of Section 6(6) (b) of the 1999 Constitution to bring an action for the determination of questions relating to the imposition of the said petroleum tax.

At this point, I consider it necessary to set out the provisions of this material section. Section 6(6) (b) of the 1999 Constitution provides that:

”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:”

To my mind, Section 6(6) (b) of the 1999 Constitution encompasses the full extent of the judicial powers vested in the courts by the Constitution. The purport of the Section is that courts must operate within the ambit of those judicial powers, in doing this they can only take cognizance of justiciable actions properly brought before them. This is indeed the jurisdiction of the courts, the extent of their power which no one, not any litigant or even the courts themselves can widen. All the Courts without exception have no power to prescribe jurisdiction to them. Neither do they have the power to expand or reduce their area of jurisdiction. See the cases of:

(1) Gafor V. Government, Kwara State (2007) All FWLR (Pt.360) p.1415 and

(2) Tukur V. Government of Taraba State (1997) 6 NWLR (pt. 510) p. 549.

The extent of the jurisdiction of courts are expressly defined by the Constitution or the Statutes establishing them, which statutes must not conflict but be in tune with the Constitution, the supreme law. It is a time-honoured established principle of law supported by a plethora of cases that, a court can only exercise its jurisdiction where:

(a) The subject-matter of a case is within the jurisdiction of the court and there is no feature in the case which prevents the court from exercising its jurisdiction;

(b) The court is properly constituted as regards members and their requisite qualifications and no member is disqualified for one reason or the other and

(c) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

See the cases of:

(1) Madukolu V. Nkemdilim (1962) 2 SCNLR p. 341;

(2) Skenconsult (Nig.) Ltd V. Ukey (1981)1 SC p. 6;

(3) Ishola V. Ajiboye (1994) 6 NWLR (Pt. 352) p. 506:

(4) Western Steel Works Ltd V. Iron & Steel Workers Union of Nigeria (1980) 3 NWLR (Pt. 30) p. 617;

(5) Odofin V. Agu (1992) 3 NWLR (Pt. 229) p. 350;

(6) A. – G., Anambra State V. A. – G., Fed (2007) 12 NWLR (Pt. 1047) p. 4, and

(7) Ladoja V. INEC (2007) 12 NWLR (Pt. 1047) p.119.In my opinion, section 6(6) (b) of the 1999 Constitution does not confer” locus standi” on persons. Under it, the courts have power to adjudicate on a justiciable issue touching on the rights and obligations of a person who brings the complaint to court. The complainant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury. Where therefore a plaintiff’s “locus standi” is challenged, as herein, he has the onus to establish that he has sufficient interest in the matter. See the case of: Olaniyan V. Adeniyi (2007) 3 NWLR (pt. 1020) p.1 at p. 18 para. B.

It is trite law that where a person institutes an action to claim a relief, which on the facts of the cause is enforceable to another person, then the former, cannot succeed because of lack of “locus standi”. For it is the person in whom is vested the aggregate of the enforceable rights in a cause that has the standing to sue. See the cases of:

(1) Oloriode V. Oyebi (1984) 1 SCNLR p. 390:

(2) Egolum V. Obasanjo (1999) 4 NWLR (Pt. 611) p. 423 and

(3) A. – G., Anambra State V. A. – G, Fed. Supra

Applying the above established principles of law to the case under consideration, and upon a close scrutiny of the averments in the affidavit filed in support of the Appellant’s originating summons before the lower court, can it be said that the Appellant has successfully shown how his private rights have been infringed or injured or that there was a threat of any such infringement or injury? Did the depositions of the Appellant reveal that he has any right or obligation peculiar to him that was or threatened to be infringed by the alleged imposition of the said petroleum tax as opposed to the other citizens of Nigeria to which the said taxation is generally applicable? Did the facts deposed to show that the rights sought to be enforced by the Appellant were exclusively personal to him? Did the facts show that the Appellant had vested in him any enforceable rights to sue the Respondents? Is there any personal dispute, conflict or controversy between the Appellant and the Respondents that is appropriate for judicial determination? If there is any, can it be said that the conflict or dispute or controversy is justiciable as opposed to being academic or hypothetical? It is trite law that even where there is a controversy, it must pertain to the legal relations of the parties in such a manner as to show that they have adverse legal interests in the subject-matter of the suit being sought to be instituted. See the cases of;

(1) Adesanya V. President, F.R.N. (1981) 2 NCLR p.236:

(2) A. – G., Bendel State V. A. – G., Fed (1982) 3 NCLR p. 1;

(3) A. – G., Fed V. A. – G, Abia State (2000) 11 NWLR (Pt. 725) p. 689 and

(4) A. – G., Anambra State V. A. – G, Fed Supra.

It is pertinent to restate here that the real essence of the rule in “locus standi” evolved to protect the court from being used as a playground by professional litigants, busybodies, meddlesome interlopers and cranks that have no real stake or interest in the subject matter of the litigation they are seeking to pursue. For over two decades, the Supreme Court in the case of: Adesanya V. President of Nigeria (1981) 5SC p. 112 laid down the rule for “locus standi” in civil cases, while in Fawehinmi V. Akilu (1987) 4 NWLR (Pt. 67) p. 797 it laid down the far more liberal rule for “locus standi” in criminal cases. In my humble opinion those rules remain sound and good propositions of law in the absence of any abrogation of the relevant provisions of the Constitution to countermand them. What is more, the Supreme Court has not departed or resiled from its good stance in those two cases. I am therefore bound by the decisions and it will not matter even if I have a contrary view. There are some enthusiasts who consider the rules to be rather restrictive and that in ensuring compliance with the Constitution, the rules should be made boundless. In my own understanding, the “gravamen” in the Adesanya V. President of Nigeria indeed is that, access to the courts by persons with grievances as touching their civil rights and obligations should not be restricted and shackled in any way by technicalities. The reasonable rider of course to this general rule as laid down by the Supreme Court in the said case is that, a claimant must have been conferred with exceptional and tangible interests which are justiciable before he can be accorded with ”locus standi” in the claim.

The interests of a claimant must be capable of being affected by the compliant sought to be litigated by him. The likelihood of sufferance of injury or damage by the plaintiff must be apparent. The determination of these ingredients depends on the peculiar facts and circumstances of each case. It is erroneous to think that there is a general latitude or licence without some strings of watchword under the 1999 Constitution giving a private individual a leeway to question the validity of Legislative or Executive actions in a Court of law. For any such unbridled latitude or licence would be contrary to the very spirit of the object, intent and purpose of the same Constitution and lead to anarchy, chaos and undesirable state of affairs.

I am perfectly in tune with the reasoning of Bello JSC (of blessed memory) in the case of, Adesanya V. President of Nigeria Supra at p. 384 – 385. Therein His Lordship stated thus:

“If all the oath-takers were to be the archivists of the Constitution, in whose shrine would it be preserved? If the entire oath – takers were unregimented sentries and soldiers armed to the teeth competing to protect and defend the Constitution, would there be harmony? To my mind the answer is: No. There would be anarchy and chaos. Such a situation, in my considered opinion, would be contrary to the very spirit of the object and purpose of the Constitution as firmly and solemnly resolved in the preamble therein by the people of Nigeria, which “inter alia”, is to live in unity and harmony as one indivisible and indissoluble sovereign Nation under God…”

To my mind, the Appellant in the instant appeal can not play the role of an archivist and build a shrine to preserve the sacred provisions of the Constitution. He is not a sentry or watchman to ward off all those he suspects to be real or potential offenders and transgressors of the Constitution. He has not been enlisted in the “State Armed Forces or Police” by any statute to take up arms against all those he considers to be aggressors of the Constitution. Indeed, the interpretation of Section 6(6) (b) of the Constitution is that a person who fifes a suit in court must be a proper person, natural or legal and the action must relate to him specifically and exceptionally without prejudice of course to a person suing rightly in a representative capacity.

It is also worthy of note to point out that, the claims of the Appellant are for declaration and restraining orders. In law, the claim for injunction is an adversary claim and cannot be established without any allegation of invasion or infraction or trespass, or threat of invasion or infraction or trespass to someone’s civil rights. The declaration of the unconstitutionality of the act of the Respondents sought by the Appellant at best has only the aim of depriving the Respondents constitutional, legal and legitimate protection against the allegation of invasion of or threats of invasion of the alleged Appellant’s civil rights. Under public law, an ordinary individual or a citizen or a tax payer without more will generally not have “locus standi” as a plaintiff. This is because such litigations concern public rights and duties which belong to and are owed all members of the public including the plaintiff. It is only where the individual has suffered special damage over and above the one suffered by the other members of the public generally that he can sue personally. In short, a general interest common to all members of the public is not a litigable interest and cannot accord standing to a particular member.

See the cases of:

(1) Gamioba V. Esezi (1961) 25 SCNLR p. 237:

(2) Owodunni V. Registered Trustees of C.C.C. supra and

(3) Fawehinmi V. President, F.R.N (2007) 14 NWLR (Pt.1054) p.275.

In the instant case, I am of the view that there is not in issue any legal right peculiar to the Appellant There is therefore nothing relating to his legal position which the court can declare. See the case of, Obi v I.N.E.C (2007) 11 NWLR (Pt 1046) p.565 at p.632 paras F-H).

The pronouncement of the learned trial Judge, the subject matter of this appeal is hereunder quoted verbatim thus:

“…I have thoroughly examined these processes filed by the plaintiff in support of his claim for declaration and injunctive reliefs in this case. There is no allegation of any private right of the plaintiff that has been infringed or injured or that there is a threat of injury or infringement by the operation of the law complained of. The plaintiff has not shown by the processes filed that his private rights has been infringed or injured or that there is a threat of such infringement or injury by the imposition of tax which he seeks to invalidate. I cannot find any special interest or injury peculiar to the plaintiff which he has suffered or likely to suffer as a result of that law.

In the circumstances, I hold that the plaintiff has failed to disclose his locus standi or standing to bring and maintain this suit. I shall therefore strike out this suit for want of standing to sue. It is hereby struck out.”

In my humble view the learned trial judge was right in holding that the Appellant had no “locus standi” to maintain the action. I am equally unable to find any basis for granting the Appellant “locus standi” or for conceding that he has sufficient interest to bring the claim he brought in the trial court. I can not fault the welt taken stand of the learned trial Judge. I will therefore answer in the negative all my above posers. That is:

(a) The Appellant had not successfully shown how his private rights have been infringed or injured or that there was a threat of any such infringement or injury.

(b) The depositions of the Appellant in the affidavit in support of the originating summons did not reveal that he has any right or obligation peculiar to him that was or threatened to be infringed by the alleged imposition of the said petroleum tax as opposed to the other citizens of Nigeria to which the said taxation is generally applicable.

(c) The facts averred in the said affidavit did not show that the rights sought to be enforced by the Appellant were exclusively personal to him.

(d) The facts averred in the said affidavit did not show that the Appellant had vested in him any enforceable rights to sue the Respondents.

(e) There was indeed no personal dispute, conflict or controversy between the Appellant and the Respondents that is appropriate for judicial determination.

It is trite law that, where it is established as in the instant case that a complainant lacks “locus standi” to sue, the issue of jurisdiction becomes two-pronged. The first prong is, if a claimant has no “locus standi” to institute an action, it means that the claimant has no jurisdiction to institute the action. The second prong is that, once the claimant has no “locus standi: the court itself before whom the claimant filed his claim has no jurisdiction to entertain and determine the case at all, the case will be liable to be struck out. See the cases of:

(1) Eke v Mil. Admin., Imo State (2007) 13 NWLR (Pt.1052) p.531:

(2) Adesanya V. President, F.R.N. supra:

(3) Madukolu V. Nkemdilim supra:

(4) Nwankwo V. Nwankwo (1992) 4 NWLR (Pt.238) p.693 and

(5) Erebor V. Major & Company (Nig) Ltd (2001) 5 NWLR (Pt.706) p.300.I am not unmindful of the cases cited by the Appellant’s counsel to justify his posture in this case. I have examined the cases and I found that they are not in the least helpful to the case of the Appellant. A heavy weather was made in this regard of especially the case of:

Badejo v Federal Minister of Education (1990) 4 NWLR (pt.143) p.254.

In that case, the plaintiff from Ogun State scored 293 in the Common Entrance Examination for Admission into the Federal Government Colleges in Nigeria. She was not invited for interview while her other female counterparts from certain parts of the country who scored less than 293 were invited for the interview. She instituted an action to challenge the quota system as being discriminatory against her and contrary to the provisions of Section 39 of the 1979 Constitution. The fulcrum of the judgment of this Court in that case was that, the applicant being a person directly affected was entitled to protect her own right and that she had “locus standi” to institute the action. That case in quite distinguishable from and not at all on all fours with the instant case.

I wish to also have it on record that I am not in disagreement with the good intention of constitutional archivists who are rightly of the opinion that in Nigeria it would be wrong to slam the door of the courts against complaints on Executive excesses and unconstitutionality perceived or actual, under the guise of lack of ”locus standi”. Such hard slam of a truth will defeat the very laudable objectives of the 1999 Constitution based on the principles of freedom, equity and justice for all. I am however quick to add that under the same Constitution, the function of the Courts is the interpretation of law or statute as it is and not as it ought to be. It is the exclusive preserve of the legislative Arm of Government to make laws. Judicial powers being derivable from the Constitution are limited to the extent and scope of such powers. Consequently, the judicial power which has been expressly defined by the Constitution cannot be expanded by anyone not even the Courts themselves. The Courts must operate strictly within the confines, compartments and perimeter of the powers conferred on them by the Constitution. The Courts are expected to exercise extreme caution and restraint, indeed they must resist all attempts to be lured into formulating a rule of constitutional law broader than is not required by the precise facts of a particular case nor decide questions beyond the necessities of any issue before them. Afterall, Courts have inherent powers to deal with vexatious litigants or frivolous claims. Whether an interest is worthy of judicial protection is a matter of judicial discretion which may vary depending on the remedy asked for. There is therefore no hard and fast rule set up on the’ determination of “Locus Standi” I therefore agree with the reasoning of Fatai Williams, CJN (of blessed memory) in the case of: Adesanya V. President of Nigeria Supra at p.374 para.9, that:

“…Indeed a close scrutiny of our Constitution shows that the flood gates of litigation have not been left wide open…”

In conclusion, considering the circumstances surrounding this case as a whole, I hold that the Appellant lacked the requisite ”locus standi” to maintain before the lower Court the suit under consideration. Hence, issues one (1) and three (3) are resolved in favour of the Respondents.

It is an established principle of law that where a plaintiff or an applicant, as the case may be, has no “locus standi” or standing to sue, it becomes unnecessary to consider whether or not he has a genuine case on the merits. His case must ordinarily suffer the fate of striking out for lacking in competence. Seethe cases of:

(1) Umar V. W.G.G. (Nig.) Ltd supra and

(2) Unoka V. Agili Supra.

Consequently, it becomes futile to consider issue two (2) formulated for determination by the Appellant’s counsel on the question of whether the President of the Federal Republic of Nigeria has the power under the 1999 Constitution to make laws without having any recourse to the National Assembly. To delve into such consideration will only amount to this Court adjudicating upon an issue which is moot, academic and hypothetical in nature. It is settled law that courts are forbidden from engaging in such an inordinate exercise.

Seethe cases of:

(1) PDP V. Kwara State INEC. (2005) 15 NWLR (Pt. 940) p. 230 at p. 253:

(2) Sanni V. Okenne Local Govt. (2005) 14 NWLR (Pt. 944) p. 60 at p. 77 and

(3) A. – G., Anambra State V. A. – G., Fed. & Ors. (2005) 9 NWLR (Pt. 931) p. 572 at p. 610.

I find on the whole that, this appeal lacks merit, it fails and it is hereby dismissed accordingly. The ruling of the lower Court is affirmed. I make no order regarding costs.

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Other Citations: (2007)LCN/2521(CA)