IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUNMI
DATED 13TH FEBRUARY, 2023 SUIT NO: NICN/ABJ/152/2022
BETWEEN
1. PROF CHIDI ODINKALU APPLICANTS
2. UZOEZIE, IKEMEFUNA RALPH-COLLINS
AND
1. GODWIN EMEFIELE
(GOVERNOR OF THE CENTRAL BANK OF NIGERIA)
2. CENTRAL BANK OF NIGERIA RESPONDENTS
3. ATTORNEY GENERAL OF THE FEDERATION
REPRESENTATIONS
Obioma Ezenwobodo Esq for Applicants.
A.O. Adeniyi Esq for the 1st Respondent
J.O. Fakulude Esq with Chidubem Ezeilo Esq, I.S Afolabi Esq. Romeo Rupu Esq, Musa Adeiza Esq and K.V. Benekum Esq for the 2nd Respondent.
Oyin Koleosho Esq for the 3rd Respondent.
JUDGMENT
1. This action was commenced by an Originating Summons filed on the 12th day of May, 2020 wherein the Applicants pray the Court to determine the following questions;
1. Whether by the combined effect of the provisions of Sections 1(3) and 9 of the Central Bank of Nigeria Act, 2007, the 1st Respondent is statutorily mandated to devote the whole of his time to his employment with the 2nd Respondent (as an independent entity) and the Federal Republic of Nigeria and not engage in any full or part time employment or vocation which in the context includes belonging to a political and participating in its primaries, congresses or other convention for the purposes of nomination of its candidates to contest election for the office of the President of the Federal Republic of Nigeria schedule for 25th February 2023.
2. Whether by the combined effect of the provisions of Sections 40 and 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 1 (3) and 9 of the Central Bank of Nigeria Act, 2007, the overriding interest of public order and morality required of the 1st Respondent in the independent discharge of his functions while in the employment of the 2nd Respondent does not override the protection of his interest to belong to a political party and participate in its primaries, congresses or other convention for the purposes of nomination of its candidates to contest election for the office of the President of the Federal Republic of Nigeria scheduled for 25th February 2023.
3. Whether by the combined effect of Section 40, 45 and 137 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 1 (3) and 9 of the Central Bank of Nigeria Act, 2007, it would not amount to absurdity to interpret these provisions as conferring the 1st Respondent the right to belong to a political party and participate in its primaries, congresses or other convention for the purposes of nomination of its candidates to contest election for the office of the President of the Federal Republic of Nigeria scheduled for 25th February 2023, while in the employment of the 2nd Respondent and to only resign, withdraw or retire from the employment at least thirty 30 days before the date of the election.
4. Whether by the combined effect of the provisions of Sections 5, 40 and 45 Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 1 (3) 9 and 11(2)(f) of the Central Bank of Nigeria Act, 2007, 1st Respondent by belonging to a political party and participating in its primaries, congresses or other convention for the purposes of nomination of its candidates to contest election for the office of the President of the Federal Republic of Nigeria scheduled for 25th February 2023 has greatly compromised his independence in the discharge of his functions while in the employment of 2nd Respondent, which mandates the President of the Federal Republic of Nigeria to remove him from office as an employee of the 2nd Respondent.
2. Upon the determination of the above stated questions, the Claimants are praying the Court for the following reliefs:
1. A Declaration that by the combined effect of the provisions of Sections 1(3) and 9 of the Central Bank of Nigeria Act, 2007, the 1st Respondent is statutorily mandated to devote the whole of his time to his employment with the 2nd Respondent (as an independent entity) and the Federal Republic of Nigeria and not engage in any full or part time employment or vocation which in the context includes belonging to a political and participating in its primaries, congresses or other convention for the purposes of nomination of its candidates to contest election for the office of the President of the Federal Republic of Nigeria schedule for 25th February 2023
2. A Declaration that by the combined effect of the provisions of Sections 40 and 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 1 (3) and 9 of the Central Bank of Nigeria Act, 2007, the overriding interest of public order and morality required of the 1st Respondent in the independent discharge of his functions while in the employment of the 2nd Respondent does not override the protection of his interest to belong to a political party and participate in its primaries, congresses or other convention for the purposes of nomination of its candidates to contest election for the office of the President of the Federal Republic of Nigeria scheduled for 25th February 2023.
3. A Declaration that by the combined effect of Sections 40, 45 and 137 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 1 (3) and 9 of the Central Bank of Nigeria Act, 2007, it would amount to absurdity to interpret these provisions as conferring the 1st Respondent the right to belong to a political party and participate in its primaries, congresses or other convention for the purposes of nomination of its candidates to contest election for the office of the President of the Federal Republic of Nigeria scheduled for 25th February 2023, while in the employment of the 2nd Respondent and to only resign, withdraw or retire from the employment at least thirty 30 days before the date of the election.
4. An Order that by the combined effect of the provisions of Sections 5, 40 and 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 1 (3), 9 and 11(2)(f) of the Central Bank of Nigeria Act, 2007, 1st Respondent by belonging to a political party and participating in its primaries, congresses or other convention for the purposes of nomination of its candidates to contest election for the office of the President of the Federal Republic of Nigeria scheduled for 25th February 2023 has greatly compromised his independence in the discharge of his functions while in the employment of 2nd Respondent, which mandates the President of the Federal Republic of Nigeria to remove him from office as an employee of the 2nd Respondent.
3. In support of the originating Summons is a 4-paragraph affidavit deposed to by one Joy Anne John female, Nigerian and a Litigation Secretary in the law firm of the Counsel to the Applicants. Therein, it was deposed that the 1st Applicant is a citizen of the Federal Republic of Nigeria and has interest in the manner the affairs of the country is conducted and he is also a tax paying citizen , legal Practitioner , civil Rights activist and former Chairman of the Human Rights Commission who is interested in seeing a greater Nigeria where the provisions of the laws are adhered to. The 2nd Applicant is a tax paying citizen. The 1st Respondent is participating in active politics and has through proxies procured nomination form to contest for the office of the President under the platform of the All Progressives Congress and that he has equally taken out a case before the Federal High Court seeking amongst other things an order of the Court that he is entitled to vote and be voted for as a candidate of any Political Party. The 1st Respondent would not have procured the nomination form without first being a member of the All Progressives Congress. By the provisions of Section 1(3) of the Central Bank of Nigeria Act 2022, the 2nd Respondent which is being headed by the 1st Respondent should be apolitical and that Section 9 of the Central Bank Act, 2007 that created the office of the 1st Respondent mandates him to devote his time to the service of the 2nd Respondent which devotion includes not participating in any political party activity in order to protect the independence of the 2nd Respondent. The 1st Respondent by Section 9 of the Central Bank of Nigeria Act, 2007 is not supposed to engage in any employment or vocation that conflicts with or detracts from his full duties and that meddling in political party activities is a flagrant breach of Section 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The involvement of the 1st Respondent in political party activities has led to more devaluation in the value of the naira which has personally affected Applicant’s financial stability of thereby making it impossible for him to meet up with his local and financial obligation. The actions of the 1st Respondent is weakening international trust and faith on our monetary policy, economy and democracy which negatively affect his international scholarly research work as many of his foreign donors are threatening to opt out. The 1st Respondent meddling and participating in political party activities is in conflict with his employment and detract from his duty as the Governor of the 2nd Respondent and that it is believed that granting this application would be in the greater interest of the general public and that the Respondents would not in any way be prejudiced.
4. The 3rd Respondent in response to the originating process filed a memorandum of conditional appearance and a Notice of Preliminary Objection on the 20th June 2022. The grounds upon which the objection is sought are as follows;
1. The Applicants’ cause of action, if any, or subject matter does not involve a trade dispute as to confer jurisdiction on this Honourable Court.
2. The Applicants lack the locus standi to institute and maintain this suit.
3. The Applicants herein have not disclosed any special or overriding interest in the subject-matter of this case.
4. The Applicants’ reliefs are hypothetical and academic.
The reliefs sought is as follows;
AN ORDER dismissing or striking out this suit in its entirety for lack of jurisdiction
5. In support of the Notice of Preliminary Objection is a 6 paragraph affidavit deposed to by one Friday Zakari, male, Christian and Litigation Officer in the Ministry of Justice wherein he averred that the depositions in the affidavit in support of the Applicants’ Originating Summons are false argumentative and misconceived innuendos or conjectures of the Applicants. The instant suit is based on political matters and not labour or trade union related matters and that the National Industrial Court of Nigeria is not clothed with powers or jurisdiction to determine the eligibility of any person for any elective political office. The alleged decision of the 1st Respondent to vie for the Office of the President of the Federal Republic of Nigeria did not arise from his official engagement with the 2nd Respondent and that there is no employer-employee relationship between the Applicants and the Respondents. There is no labour or work-related dispute between the 1st Respondent or the 2nd or 3rd Respondent. The Applicants are not the appointing or confirming authority of the of the 1st Respondent neither are they members of the Governing Board of the 2nd Respondent and as such have no role to play in the appointment or removal of the 1st Respondent. The President and the Governing Board have not made any complaints against the 1st Respondent over his alleged participation in political activities and whether same contravenes the terms of his engagement. The applicants have failed to disclose any sufficient interest in the subject matter of this case and have not disclosed how their civil or fundamental rights have been violated by the alleged aconduct of the 1st Respondent. The Applicants have no supervisory function over the 1st and 2nd Respondents and the terms and conditions of service of the 1st Respondent are not before the Court. It was deposed further that the Applicants are not parties to the contract of service between the 1st and the 2nd Respondents. They have not placed any document before this Court to evince that they are indeed tax payers or engaged in the business of banking neither are they members of the All Progressive Congress which the 1st Respondent is alleged to belong. The All Progressive Congress has conducted its Presidential primary and the 1st Respondent did not partake in it and the winner of the Congress was announced on the 8th of June 2022 after this suit was filed. It is the interest of equity and justice to refuse the reliefs sought by the Applicants in this suit.
6. Also filed in support of the Notice of Preliminary Objection is a written address wherein learned counsel on behalf of the 3rd Respondent formulated three issues for the determination of this Court as follows;
a. Whether this Honourable Court has subject- matter jurisdiction over the Applicants’ suit as presently constituted.
b. Whether the Applicants are clothed with the requisite locus standi upon which this Honourable Court can assume jurisdiction to entertain Applicants’ case.
c. Whether by the doctrine of privity of contract, the Applicants can intervene in the contractual agreement between the 1st Defendant and the Federal Government.
7. With regards to issue one, it was submitted that jurisdiction is at the center of an action and a threshold issue. He cited in support; Inakoju v. Adeleke [2007]4 NWLR (Pt 1025)423@588, Paras E-H; SPDCN v. Goodluck [2008]14 NWLR (Pt 1107)294@309, Paras F-G. It was submitted further that jurisdiction is usually conferred by statute. He relied on the case of Obiuweubi v. CBN [2011]17 NWLR (Pt 1247)465@507, Paras F-G; Madukolu v. Nkemdilim [1962]2 SNLR pg 314. It was submitted that Claimant’s action does not fall within the jurisdiction as the subject matter of this action does not involve trade dispute or employment matter. He submitted that this action does not fall within the jurisdiction of this Court as provided under Section 254 C of the Constitution of the Federal Republic of Nigeria, 1999. It was submitted that this Court does not entertain political or pre-election matter. He relied on the case of Jegede & Anor v. INEC & Ors [2021]LPELR-55481(SC)48-49, Paras D-A. Counsel submitted further that this action bothers on the interpretation of Sections 1(3), 9 and 11 (2) (f) of the Central Bank of Nigeria Act and Sections 40, 45 and 137 (1) (g) of the Constitution as amended, as such this action bothers on whether or not the 1st Respondent can participate in political activities while still holding office as Governor of the 2nd Respondent. It was submitted that the action of the Claimant cannot be entertained by this Court. He commended to the Court the decision of Aderemi JSC in Oloruntoba-Oju v. Dopamu [2008]7 NWLR (Pt 1085)1@36, Paras A-F and also the case Oshiomole v. FGN [2007] 8 NWLR (Pt 1035)58@78, Paras A-E. It was submitted that certain factors must co-exist for an action to be considered as a trade dispute. He relied on the decision of Chukwuma-Eneh JSC in the case of National Union of Electricity Employees & Anor v. B.P. E [2010]LPELR-1966 (SC)28-31, Paras A-D and the case of R.T.E.A.N & Ors v. Ajewole & Ors [2016]LPELR-41271 (CA)26-28, Paras F-A.
8. On issue two, it was submitted that assuming but without conceding that the subject matter is even within the purview of the jurisdiction of this Court, it is only the existence of a trade dispute that or employment matter that clothes the Applicants with locus standi. It was submitted that the Applicants are not the employers of the 1st Respondent and they have equally failed to establish a trade or employment dispute between them and any of the Respondents neither are they members of the Governing Board of the Central Bank of Nigeria which is the body conferred with responsibility under Section 9 of the CBN Act to make sure the engagements of the Governor and Deputy Governor of the CBN does not conflict or detract from their full time duties. It was submitted that the Applicants have not shown that they have any specific legal right or exceptional interest or suffered any injury or damage higher than that of every other member of the public and as such have no locus standi. It was submitted that the judicial powers vested in Courts under Section 6 (6) (b) of the Constitution can only be invoked by a proper party with a reasonable cause of action. He cited in support the following cases; Akintemi v. Onwumechi [1985]1 NWLR ( Pt 1) 68; A.G Kaduna State v. Hassan [1985]NLWR (Pt 8) 483; Fawehinmi v. IGP[2002]7 NWLR (Pt 767)606. It wa submitted that there must be a real and not imaginary or academic dispute between the parties. He relied on the case of Adesanya v. President FRN & Anor [1981]LPELR-147 (SC). It was submitted that the Applicants have no role or duty to play in the appointment or retirement of the 1st defendant or in the management and running of the 2nd defendant and they also do not fall within the regulatory framework of the 2nd Respondents whether as an entity carrying on banking or financial services. He relied on the case of Nworika v. Ononeze-Madu & Ors [2019]LPELR -46521(SC)7-11, Para E. It was further submitted that a public interest or right such as political engagement of the 1st Respondent does not confer a right to sue on the Applicants and that the Applicants have not established how they have suffered a disadvantage or loss or injury for the invocation of judicial powers under the constitution. He relied on the case of Adesanya v. President FRN & Anor, supra. Learned counsel submitted further that all the questions for determination and the consequential reliefs sought in the instant even if granted will confer no benefit or advantage on the Applicants thus they lack the legal vires to institute this action. He relied on the case of Edun v. Governor of Delta State of Nigeria & Ors [2019]LPELR-47464 (CA)15-27, Paras E-D; U.O.O. Nig Plc v. Okafor & Ors [2020]LPELR-49570(SC)49-50, Paras A-B; PDP v. Edede & Anor [2022] LPELR-57480(CA)30-31, Paras E-B. It was submitted that the effect of the absence of locus standi is an order of a strike out. Counsel relied on the cases of CITEC Estates Ltd & Ors v. Francis & Ors [2021]LPELR(SC)67-69, Paras E-C; Supermaritime (Nig) Ltd v. Essential Seafoods Ltd [2018]LPELR-4510-(CA)23, Paras B-E. He urged the Court to strike out the suit in view of the clear absence of locus standi on the part of the Applicants.
9. According to learned counsel for the applicant, in his argument on issue three, the applicants are neither privies nor parties to the contract of employment between the 1st and 2nd Defendants or his employers and as such there is no legal basis for suing the Respondents. He submitted that there is no relationship between the Applicants and the defendants. He relied on the case of Rebold Industries Ltd v. Magreola & Ors [2015]LPELR-24612 (SC)32-34, Paras D-C. It was submitted that what the Applicants are calling for in this suit is the adherence of the 1st Respondent to his contract of employment as a public officer which the Applicants are not parties to and which contract imposes no right or obligation on the Applicants. He submitted while relying on the case of Coast Oil Ltd v. Tuboscope Vetco International & Anor [2019]LPELR-46450 (CA)17-18, Paras B-D that the Applicants has no reasonable cause against the Respondents. He also referred the Court to the dictum of Kekere-Ekun JSC in the case of Rebold Industries Ltd v. Magreola & Ors, supra at page 45, paragraphs C-E. It was also submitted by counsel that the issues and claims raised by the Applicants in this suit have been overtaken by events and as such academic and hypothetical because all parties have conducted their Presidential primaries which the 1st Respondent did not partake in. Counsel submitted that there is no basis for the Court to embark on an adjudicatory process that will confer no utilitarian value. He urged the Court to decline jurisdiction in the instant suit as the application amounts to mere hypothesis, speculation or conjectures which the Court can not accommodate. The following cases were cited in support; Salik v. Idris [2014]15 NWLR (Pt 1429)36@66-67, Paras F-D; AGIP (Nig) Ltd v. AGIP Petroli Intl [2010]5NWLR (Pt 1187)348@413, Paras B-D.
10. On the 8th day of July, 2022, learned counsel on behalf of the 1st Respondent upon an application for change of counsel filed his memorandum of conditional appearance and a Motion on Notice though belatedly but subsequently regularized. The following orders were sought in the Motion on Notice filed;
1. AN ORDER striking out/dismissing the suit for lack of jurisdiction.
2. AN for such further order (s) as this Honourable Court shall deem fit to make in the circumstances.
11. The grounds upon which the application was sought are as follow;
1. This Honourable Court does not have jurisdiction to entertain this suit as constituted, as the subject matter is outside the purview of the matters within the jurisdiction of this Honourable Court.
2. The Applicants/Respondents’ case is frivolous, speculative and lacking in substance.
3. The Applicants/Respondents’ Affidavit in support of their Originating Summons contravenes the provisions of Section 115 of the Evidence Act 2011
4. The Applicants/Respondents lack the locus standi to institute this action before this Honourable Court.
12. In support of the Motion on Notice is an affidavit deposed to by one Iheanyichukwu Kingsley Elekwa, male, legal practitioner in the employ of the 2nd Respondent wherein it was deposed that this suit relates to the interpretation of the provisions of the Central Bank of Nigeria Act, 2007 and the Constitution of the Federal Republic of Nigeria 1999 as it affects the rights and obligations of the 1st Respondent and that the Applicants have not alleged that any of their rights have been breached or violated in anyway by the 1st Respondent in this suit. There is no employment dispute of any nature between the Applicants and the 1st Respondent or between any of the parties in this action. The Applicants have not shown any special accruable rights or wrong affecting them over and above any or every member of the society. The subject matter of this action is outside the scope of labour, employment, trade unions, industrial relations and incidental matters to which this Court has jurisdiction to entertain and that the reliefs sought by the Applicants in the Originating Summons cannot be granted by this Court and that all the allegations as contained in the Applicants’ Affidavit in support of the Originating Summons are contentious and would require the calling of witnesses. It would be in the overall interest of justice to grant this application by dismissing this suit in its entirety against the 1st Respondent.
13. Also filed in support of the Motion on Notice is a written address in compliance with the Rules of the Court. Therein, learned counsel on behalf of the 1st Respondent formulated the following issues for determination;
1. Whether this Honourable Court has the subject matter jurisdiction to entertain this suit.
2. Whether this suit ought not to be struck out or dismissed in view of the fact that the Applicant/Respondent lacks the requisite locus standi to institute and maintain this action against the 1st Respondent/Applicant.
3. Whether this suit ought not to be struck out or dismissed in view of the fact that the Honourable Court does not have the jurisdiction over a suit which claims are academic and hypothetical.
4. Whether Applicants’ Affidavit in support of their Originating Summons is not defective for being in contravention of the provisions of Section 115 (1) and (2) of the Evidence Act, 2011.
14. On issue one, learned counsel submitted this Court does not have the jurisdiction to entertain this action considering the crux of this case which is outside the jurisdiction conferred on this Court by Section 254C of the Constitution. He referred the Court to the provisions of Section 254C1(a), (d) and (q) of the Constitution. He submitted further the provision of Section 254C (1) (a) and (d) of the Constitution is clear on the subject matter jurisdiction of the National Industrial Court and which is to the effect that the exclusive jurisdiction of the Court shall be in respect of labour and related matters. He submitted that reference to labour related matter is not a gateway to cloth the Court with jurisdiction on subject matter that are extraneous and unconnected to labour and employment. He relied on the case MTS Limited v. Akinwumi [2011]2 NNLR 90. He submitted that the meaning of labour and matters incidental thereto has been explained in the case of Omang v. Nsa [2021] 10 NWLR 55@52. He submitted that paragraph 4.5 of its affidavit in support of the application of the 1st Respondent has shown that there is no employment dispute or dispute of any nature between the Applicants and the 1st Respondent. It was thus submitted that this action is outside the jurisdiction of the Court and urged the Court to so hold. Counsel therefore urged the Court to strike out this suit as it does not fall within its jurisdiction.
15. Respecting issue two, it was submitted that the Applicants lack the requisite standing to institute this action. He relied on the cases of Omega Bank Plc v. Government of Ekiti State [2007] 16 NWLR (Pt 1061)445; Ararume v. Ubah [2021]8 NWLR (Pt 1779)511; Adesokan & Ors v. Adegorolu & Ors [1993]3 NWLR (Pt 179)293@295. It was submitted further that the Applicants lack the requisite standi as against the 1st Respondent as per the reliefs claimed by the Applicants because the reliefs are for protection of public order and morality. Counsel submitted further that the Applicants have not from the whole application shown how the actions or inactions of the 1st Respondents affect them as citizens of Nigeria. It does not behoove on the Applicants to bring the present suit. He relied on the case of Nyesom v. Peterside [2016]7 NWLR (Pt 1512)452@514, Paras C-D; Nsirim v. Nyeche & Ors [2021]LPELR-55955(CA). It was submitted in conclusion that the Applicants lack the locus standi to institute this action as the Applicants have not evidentially shown or proven how the actions of the 1st Respondent affected them.
16. On issue three, it was submitted that this suit is speculative, frivolous and lacking in substance. It was submitted that Courts to do not meddle in academic and speculative matters. Counsel relied on the following cases; Abdullahi v. Military Administrator, Kaduna State [2004]5 NWLR (Pt 866)232@236; AG. Kwara State v. Alao [2000]9 NWLR (Pt 671)84; Adegbanke v. Ojelabi & Ors [2021]LPELR-54992(SC). It was submitted that the failure of the Applicants to adduce any evidence in support of their allegation only shows that the Applicants intend to waste the time of the Court and this makes the suit speculative and academic. Counsel submitted that this suit is an abuse of Court process because it is frivolous as there is no legal basis for it. In support, he relied on the case of Idoko v. Ogbeikwu [2003]7 NWLR (Pt 819)275. He submitted that the entirety of the originating process is premised on a subjective interpretation of the provision of Section 9 of the Central Bank of Nigeria, Act 2007. He urged the Court to hold that the Applicants’ case is frivolous, speculative and lacking in substance.
17. On issue four, learned counsel submitted that the affidavit in support of the Originating Summons is defective because the facts therein are not within the personal knowledge of the deponent neither are they based on information which the deponent believes. It was submitted that the affidavit contains extraneous matters which by the provisions of Section 115 91) and (20 of the Evidence Act, 2011 are not supposed to be contained in an affidavit. It was submitted that paragraph 3 of the Affidavit offends the provision of Section 115 (1) of the Evidence Act as the depositions therein are not within her personal knowledge and it was not stated that the depositions were believed to be true. He relied on the case of Ahmed v. CBN [2013]11NWLR (Pt 1365)352. It was also submitted that the Affidavit is in breach of the provisions of Section 115(2) of the Evidence Act as it contains prayers, conclusions and legal arguments. He relied on the cases of Bamaiyi v. State [2001]8 NWLR (Pt 715)270 and Nigeria LNG Limited v. African Development Insurance Company Limited [1995]8 NWLR (Pt 416)677@698. It was further submitted that paragraphs 3 (i) (k) (l) (m)(n)(o)(p)(q)(r) and (s) of the affidavit contravene the provision of Section 115 (2) of the Evidence Act. He submitted that when these paragraphs are expunged there will be no substantial affidavit evidence upon which the suit of the Applicants stand. He relied on the case of Macfoy v. UAC Limited [1962]AC 153. In conclusion he urged the Court to strike out or dismiss this suit in its entirety.
18. On the 8th day of July, 2022, learned counsel on behalf of the 2nd Respondent filed his memorandum of conditional appearance and a Motion on Notice on page 188 of the Record. The following orders were sought in the Motion on Notice filed;
1. AN ORDER striking out/dismissing the suit for lack of jurisdiction.
2. AND for such further order (s) as this Honourable Court shall deem
fit to make in the circumstances;
19. The grounds upon which the application was sought are as follow;
1. The Applicant/Respondents has made no claim in their Originating Summons dated May 12, 2022, against the 2nd Respondent/Applicant.
2. This Honourable Court does not have jurisdiction to entertain this suit as constituted, as the subject matter is outside the purview of the matters within the jurisdiction of this Honourable Court.
3. The Applicants/Respondents lack the locus standi to institute this action before this Honourable Court
4. The Applicants/Respondents’ case is frivolous, speculative and lacking in substance.
5. The Applicants/Respondents’ Affidavit in support of their Originating Summons contravenes the provisions of Section 115 of the Evidence Act 2011
20. In support of the Motion on Notice is an affidavit deposed to by one Iheanyichukwu Kingsley Elekwa, male, legal practitioner in the employ of the 2nd Respondent wherein it was deposed that this suit relates to the interpretation of the provisions of the Central Bank of Nigeria Act, 2007 and the Constitution of the Federal Republic of Nigeria 1999 as it affects the rights and obligations of the 1st Respondent and that the Applicants have not alleged that any of their rights have been breached or violated in anyway by the 1st Respondent in this suit. There is no employment dispute of any nature between the Applicants and the 1st Respondent or between any of the parties in this action. The Applicants have not shown any special accruable rights or wrong affecting them over and above any or every member of the society. The subject matter of this action is outside the scope of labour, employment, trade unions, industrial relations and incidental matters to which this Court has jurisdiction to entertain and that the reliefs sought by the Applicants in the Originating Summons cannot be granted by this Court and that all the allegations as contained in the Applicants’ Affidavit in support of the Originating Summons are contentious and would require the calling of witnesses. It would be in the overall interest of justice to grant this application by dismissing this suit in its entirety against the 1st Respondent.
21. Also, filed in support of the Motion on Notice is a written address in compliance with the Rules of the Court on pages 194-208 of the Record. Therein in the written address, learned counsel on behalf of the 1st Respondent formulated the following issues for determination;
1. Whether the name of the 2nd Respondent/Applicant ought not to be struck out, there being no claim made by the Applicants/Respondents against the 2nd Respondent/Applicant.
2. Whether this Honourable Court does not lack the requisite the subject matter jurisdiction to adjudicate over this matter in light of the provisions of Sections 251 and 254C of the Constitution of the Federal Republic of Nigeria, 1999(as amended).
3. Whether this suit ought not to be struck out or dismissed in view of the fact that the Plaintiff/Respondent lacks the requisite locus standi to institute this suit.
4. Whether this suit as instituted is not frivolous, speculative and lacking in substance.
5. Whether Applicants’ Affidavit in support of their Originating Summons is not defective for being in violation of the provisions of Section 115 (1) and (2) of the Evidence Act, 2011.
22. On issue one, learned counsel submitted that a cursory look at the Originating Summons leaves no one in doubt that the determination of the four reliefs sought in the Originating Summons will reveal no claim is made against the 2nd Respondent because the reliefs sought are targeted at the 1st Respondent and not the 2nd Respondent. He equally submitted that there is no allegation of wrongdoing against the 2nd Respondent in any of the paragraphs of the Affidavit in support of the Originating Summons. Counsel submitted that a party can not proceed against another party against whom it has no claim. He relied on the following cases; Ojukwu v. Ojukwu [2000]11 NWLR (Pt 677)65; Julius Berger Nigeria Plc v. Obaseki & Anor [2013]LPELR-21011; Mbanefo v. Molokwu [2014]6 NWLR (Pt 1403)377@421, Paras B-C. It was further submitted that a relief cannot be granted against a party against whom there is no claim. He relied on the case of Newbreed Press Ltd v. Jaiyesin [2000]6 NWLR (Pt 662)561 @ 571-572, Paras G-B. He urged the Court to strike out the name of the 2nd Respondent from this suit as there is no claim against it.
23. In respect of issue two, it was the submission of counsel that this Court lacks the jurisdiction to entertain this suit. He referred the Court to the provisions of Section 251 (1) (q) and Section 254C (1) (a) and (d) of the Constitution. He submitted that the provisions of Section 254C (1) (a) and (d) is clear as to the scope of the jurisdiction of this Court. He submitted that reference to labour related matter is not a gateway to cloth the Court with jurisdiction on subject matter that are extraneous and unconnected to labour and employment. He relied on the case MTS Limited v. Akinwumi, supra. He submitted that the meaning of labour and matters incidental thereto has been explained in the case of Omang v. Nsa, supra. It was counsel’s further submission that the matter before the Court as distilled from the questions for determination is not connected with employment of either the Applicants or the Respondents. It was submitted that paragraphs 4.5, 4.6 and 4.7 of the affidavit in support of this Application have established that there is no employment relationship whatsoever between any of the parties. He urged the Court to hold that this matter not being a labour matter is outside the purview of the jurisdiction of this Court.
24. On issue three, Counsel submitted that the Applicants lack locus standi to institute this action. He relied on the case of Bakare v. Ajose Adeogun [2014]6 NWLR (Pt 1403)320; Ajayi v. Adebiyi [2012]11 NWLR (Pt 1310)137. It was submitted that the reliefs sought by the Applicants is in respect of the protection of public order and morality. It was submitted that the Applicants in the whole of the Affidavit in support of the Originating Summons did not show how the action or inaction of any of the Respondents affect them and they have equally not proven how the actions of the 2nd Respondent has affected them as citizens of Nigeria. He relied on the case of Mulima v. Borno State Housing Corp & Anor [2021]LPELR-54827(CA) and Anozia v. A.G Lagos State [2010]15 NWLR (Pt 1216)207. In view of the foregoing, learned counsel submitted that the Applicants lack the requisite locus satndi to institute this action.
25. In respect of issue four, submitted that the Court does not give attention to speculative issues canvassed by parties. He submitted that the case of the Applicants as evinced by their application is at best speculative. He relied on the following cases; Abdullahi v. Military Administrator, Kaduna State, supra; AG. Kwara State v. Alao, supra; Adegbanke v. Ojelabi & Ors, supra. It was submitted that the failure of the Applicants to adduce any evidence in support of their allegation only shows that the Applicants intend to waste the time of the Court and this makes the suit speculative and academic. Counsel submitted that this suit is an abuse of Court process because it is frivolous as there is no legal basis for it. In support, he relied on the case of Idoko v. Ogbeikwu, supra. He submitted that the entirety of the originating process is premised on a subjective interpretation of the provision of Section 9 of the Central Bank of Nigeria, Act 2007. He urged the Court to hold that the Applicants’ case is frivolous, speculative and lacking in substance. Thus, Counsel urged the Court to dismiss the suit for lacking in merit.
26. On issue five, it is the submission of counsel that the affidavit in support of the Originating Summons is incompetent as the facts deposed therein are not within the personal knowledge of the deponent neither are they based on information which the deponent believes. It was submitted that the Affidavit in contravention Section 115 (1) and (2) of the Evidence Act contains extraneous matters. It was also submitted that paragraph 3 of the Affidavit offends the provision of Section 115 (1) of the Evidence Act as the depositions therein are not within her personal knowledge and it was not stated that the depositions were believed to be true. He referred the Court to the decision of the Court in the case of Ahmed v. CBN, supra. It was also submitted that the Affidavit is in breach of the provisions of Section 115(2) of the Evidence Act as it contains prayers, conclusions and legal arguments. He referred the Court to the following cases; Bamaiyi v. State, supra and Nigeria LNG Limited v. African Development Insurance Company Limited, supra. It was further submitted that paragraphs 3 (i) (k) (l) (m)(n)(o)(p)(q)(r) and (s) of the affidavit contravene the provision of Section 115 (2) of the Evidence Act. He submitted while relying on the case of Macfoy v. UAC Limited, supra that when these paragraphs are expunged there is nothing substantial upon which the suit of the Applicants stand. In conclusion he urged the Court to strike out or dismiss this suit in its entirety.
27. Also filed by the 1st Respondent is a 26 paragraph counter affidavit on the 8th day of July, 2022 in opposition to the Originating Summons which counter affidavit is deposed to by one Iheanyichukwu Kingsley Elekwa , male, Legal Practitioner in the employ of the 2nd Respondent though belatedly but was regularized vide application filed on the 31st day of October 2022 on page 234 of the record. Therein in the counter affidavit it was deposed that the desires expressed by the Applicants in paragraph 3 (a) and (c) of the affidavit in support of the originating summons are desires held by all Nigerians and that the averments in paragraphs 3(f), (g) and (h) of the affidavit are admitted. Suit No FHC/ABJ/CS/610/2022 –Mr. Godwin Emefiele v. INEC & AGF was withdrawn and struck out by the Federal High Court and that there is no legislation known as Central Bank of Nigeria Act, 2022. The deposition in paragraph 3m and 3 (o) of the affidavit in support of the Originating Summons is factually incorrect. The deposition that the alleged involvement of the 1st Respondent in political activities has led to devaluation of the naira is factually incorrect and unsupported by scholarly research as renowned authors like Dr M.A. Loto and Professor Eghosa Osagie in their respective Articles reasoned that devaluation of the Naira is so as to shrink trade deficits, reduce sovereign debt burdens and boost exports. There is nothing placed before the Court by the Applicants in order to substantiate their allegation above. The 2nd Respondent is not aware of any action or inaction of the 1st Respondent that has weakened international faith and trust in the monetary policy, economy and democracy and negatively affected the 1st Applicant’s international scholarly research work. The 1st Respondent has not detracted from his duties as the Governor of the 2nd Respondent and the 2nd Respondent is not aware of any action in action of the 1st Respondent which breaches the provisions of the Central Bank Act, 2007. The grant of this application will not be in the greater interest of the public and the 2nd Respondent will be greatly prejudiced by the grant of the application.
28. In support of the Counter affidavit is a written address wherein learned counsel on behalf of the 1st Respondent formulated five issues for determination to wit;
1. Whether in the light of the failure of the Applicants to prove by any shred of evidence that the 1st Respondent is a member of a political party, participated in its primaries, congresses or other convention, the Honourable Court ought not to dismiss the Applicants’ suit in its entirety.
2. Whether this Honourable Court has the subject matter jurisdiction to entertain this suit.
3. Whether this suit ought not to be struck out or dismissed in view of the fact that the Applicant lacks the requisite locus standi to institute and maintain this action against the 1st Respondent.
4. Whether this suit ought not to be struck out or dismissed in view of the fact that the Honourable Court does not have jurisdiction over a suit which claims are academic and hypothetical
5. Whether Applicants’ Affidavit in support of their Originating Summons is not defective for being in violation of the provisions of Section 115 (1) and (2) of the Evidence Act, 2011.
29. On issue one, learned counsel submitted that there is nothing to substantiate the allegation that the 1st Respondent is a member of All Progressives Congress and that allegation ought to be discountenanced. He relied on the case of Tongo v. Tongo [2020] LPELR-2244(CA). He submitted that such allegation requires positive evidence to substantiate same which could be by way of a membership card or a Register of members. He relied on the case of PDP & Anor v. Kawuwa [2015] LPELR-26044(CA). He submitted that such allegations which is not backed up by evidence goes to no issue and urged the Court to so hold. He submitted that the Applicants who have not placed any evidence before the Court cannot send the Court on a voyage of discovery. He relied on the following cases; Maduka v. Nwosu [2013] LPELR-20679(CA); Frontline Holdings Ltd & Anor v. Wema Bank Plc & Ors [2017] LPELR-50020(CA). He submitted that in the absence of any evidence in support of the claims of the Applicants as contained in their Originating summons, there is no justifiable ground for the removal of the 1st Respondent form the position of the Governor of the 2nd Respondent and the reliefs sought in that regard are baseless and unfounded. Counsel further submitted that the appointment of the 1st Respondent being one with statutory flavor according to the provisions of Sections 6 and 7 of the Central Bank of Nigeria Act, the Respondent can only be removed by strict adherence to the law. He relied on the case of University of Nigeria Teaching Hospital Mgt Board & Anor v. Nnoli [1994] LPELR-3420(SC)31, Paras B-F. He submitted that Section 11 of the Act provides for the instances in which the Governor may be removed from office and none of the grounds includes participating in electoral process. He urged the Court to resolve the issue in favor of the 1st Respondent.
30. The submissions of learned counsel on jurisdiction, locus standi, the case being academic and hypothetical and the affidavit in support of the Originating Summons being in contravention of the Evidence Act is the same in all respect with the arguments already proffered in the written address in support of the Motion on Notice of the 1st Respondent and which submissions have already been captured earlier. It would be sheer repetition for this Court to still summarize same herein. It is consequence that I refrain from summarizing them again.
31. The 2nd Respondent on the 8th day of July 2022, filed a 27 paragraphs counter affidavit in opposition to the Originating Summons. It is worthy of note that this counter affidavit which was also deposed to by one Iheanyichukwu Kingsley Elekwa , male, legal practitioner in the employ of the 2nd Respondent is the same in the most part with that of the 2nd Respondent captured on pages 241-244 of the Records. As such would not be summarized again in this judgment.
32. In support of the counter affidavit filed by the 2nd Respondent is a written address on pages 246-263 of the Records wherein the learned counsel on its behalf formulated the following issues for determination;
1. Whether in the entire circumstances of this case, the reliefs sought by rhe Applicants in their Originating Summons are grantable.
2. Whether this Honourable Court does not lack the requiste the subject matter jurisdiction to adjudicate over this matter in light of the provisions of Sections 251 and 254C of the Constitution of the Federal Republic of Nigeria, 1999(as amended).
3. Whether the applicants do not lack the locus standi to institute this instant suit before this Honourable Court.
4. Whether this suit as instituted is not frivolous, speculative and lacking in substance.
5. Whether Applicants’ Affidavit in support of their Originating Summons is not defective for being in violation of the provisions of Section 115 (1) and (2) of the Evidence Act, 2011
33. On issue one, it is the submission of learned counsel that declaratory reliefs are not granted as a matter of course but lies within the discretion of the Court as the Applicants/Claimants pray the Court to declare a state of affairs in law in his favour as deducible from the averments in the statement of claim or affidavit in an action commenced by Originating Summons. He relied on the case of Sifax (Nig) Ltd v. Migfo (Nig) Ltd [2016]7 NLWR (Pt 1510)10@53, Paras C-F. A person who claims a right must show the existence of such a right and the burden of establishing a case in a declaratory action rest on the Applicant whose evidence must be credible, convincing and unequivocal in support of his case. He relied on the case of Consolidated Ltd v. Abofarve (Nig) [2007]6 NWLR (Pt 1030)221. It was submitted further that declaratory actions will only succeed on the strength of the plaintiff/ Applicant’s case. He cited in support the case of Mohammed v. Wammako [2018]7 NWLR (Pt 1619)573@586, Paras A-B. It is part of counsel’s submission that the burden so placed on the plaintiff in a declaratory action is very high and the Court cannot make declarations even on admissions. It was submitted that the Applicants have not placed any evidence before the Court to entitle them to the reliefs sought as the affidavit in support of the Originating Summons are bare and stripped. Thus, the suit is liable to be dismissed. He cited in support the case of Mohammed v. Wammako, supra. It was submitted that the issues for determination shows the crux of this case which is the purported participation of the 1st Respondent in political activities while being Governor of the 2nd Respondent which allegations in the affidavit are a moonshine without material evidence. He referred the Court to the following cases; PDP v. Asadu [2016]17 NWLR (Pt 1541)215@223, Paras C-D and Okoye v. C.P.M.B.Ltd [2008]15 NWLR (Pt 1110)335@362, Paras C-D. He submitted that the documents that tend to prove the allegations were not annexed to the affidavit which makes same without any merit. He commended to the Court the case of Zakirai v. Muhammad [2017]17 NWLR (Pt 1594)181@244, Paras A-B. It was submitted that the Applicants have not put before the Court any documentary evidence that shows the 1st Respondent engaged in any part-time or full time employment vocation or one which shows he is am member of a political party and thus the invocation of the independence of the 2nd Respondent under Section 1 of the Central Bank of Nigeria Act does not arise. The allegation of the Applicants is without evidence and as such the said has not been breached. The Courts are not to be concerned with academic exercises. He relied on the decision of the apex Court in the case of Imegwu v. Okolocha & Ors [2013] LPELR-19886(SC). It was submitted that the case of the Applicants is purely academic and of no utilitarian value and thus ought to be dismissed. H referred the Court to the case of Shettima v. Goni [2011]18 NWLR (Pt 1279)413; Salik v. Idris [2014] 15 NWLR (Pt 1429)36; Adekunle v. A-G, Ogun State [2018]9 NWLR (Pt 1623)1. Counsel submitted further that the Applicants are mere busy bodies who have not stake in the subject matter. He cited in support the case of Emezi v. Osuagwu [2005]12 NWLR (Pt 939)340@362. Counsel submitted also that sentiments or blackmail have no place in law. He referred the Court to the case of Chemiro Int’l Ltd v. Stabilini Visioni Ltd [2018]17 NWLR (Pt 1647)62@83, Para F.
34. The submission advanced in respect of issue of jurisdiction is the same as the submission of the 2nd Respondent in the written address in support of the Motion on Notice. Thus, it will amount to mere repetition if this Court repeats the same submission hereunder. It is in the light of this that this Court adopts the summary of in respect of issue two in the Motion of Notice filed by the 2nd Respondent which is already summarized earlier. In the same vein, the submissions of learned counsel in respect of issue three is a direct verbatim repetition of the submissions of 1st Respondent on issue two in the written address of the 1st Respondent in support of the Motion on Notice filed in objection to the jurisdiction of this Court and which issue has been summarized earlier. The submissions on issues four and five are also a direct repetition of its issues four and five in the motion of Notice already summarized earlier. At the risk of unnecessary repetition, this Court adopts all the said submissions.
35. The Applicants in response to the Motion on notice of the 1st and 2nd Respondents objecting to the jurisdiction of this Court at page 205 of the Record filed a 5 paragraph affidavit deposed to by one Chidimma Eke female, Nigerian and a consultant in the law firm of the Applicants’ counsel wherein it was deposed that the subparagraph 5.3 to 5.8 of the affidavit in support of the 1st respondent Motion on notice are factually incorrect as the applicants have the right to uphold the provisions of the Constitution and the Central Bank Act. The facts deposed in the Applicants affidavit in support of the Originating Summons are non-contentious and can be decided without the need to call witnesses. That granting this application is in the interest of the general public and the Respondents would not in any way be prejudiced.
36. In support of the counter affidavit is a written address wherein learned counsel on behalf of the Applicants formulated three issues for determination thus;
1. Whether the Court has the jurisdiction to adjudicate on this matter
2. Whether the Applicants have the locus standi to institute this matter.
3. Whether the Applicants/Respondents’ Affidavit in support of their Originating Summons complies with the provisions of the Evidence Act 2011.
37. On issue one, it is learned counsel’s submission that this Court has jurisdiction in respect of employment and other related matter. He submitted that the issues for determination as submitted by the Applicants in the Originating Summons centers on the nature of the employment of the 1st Respondent as the head of the 2nd Respondent which starts and ends with the limit and extent of his employment in the 2nd defendant and as such is within the ambit of the jurisdiction of this Court. He relied on Section 254C (1) (d) of the Constitution. It was submitted by counsel that that this suit is a civil suit which seeks to determine the employment of the 1st Respondent and thus falls within the jurisdiction of this Court. He submitted further that to determine otherwise would be in contravention of the provisions of the Constitution.
38. In respect of issue two learned counsel submitted it was submitted by counsel that the Applicants are responsible, bona fide and esteemed citizens of Nigeria which facts are contained in paragraphs of the affidavit in support of the Originating Summons. He submitted further that the law on locus standi has improved beyond the level captured by the 1st and 2nd Respondent as the strict application of the doctrine was lowered in the case of Gani Fawehinmi v. IGP [2002]7 NWLR (Pt 777)606. It was submitted that the apex Court has streamlined the application of locus standi by allowing citizens and Non-Governmental Organizations to approach the Court in respect of public interest litigation. He relied on the decision of the Supreme Court in the case of Centre for Oil Pollution Watch v. NNPC [2018] LPELR-50830(SC). Counsel submitted further that this suit being a public interest litigation which seeks to remedy the wrong committed by the 1st Respondent against the 2nd Respondent is one which the Applicants have the requisite locus to bring before the Court.
39. Learned counsel submitted in respect of issue three that the affidavit deposed to by one Joy is not defective and does not violate Section 115 (1) and (20 of the Evidence Act. He referred the Court to the provisions of Section 115 (1) and (20 of the Evidence Act. Counsel submitted further that paragraph 4 of the affidavit suffices to show that the deponent believes the content of the affidavit. It was equally the submission of learned counsel that paragraph 3(i) (k) (l) (m), (n) (o),(p), (q) (r) and (s) in the affidavit in support of the Originating summons are not in contravention of Section 115(2) of the Evidence Act because they are facts with annexures to back them up and as such are not legal argument, conclusion, opinion or extraneous matter. He urged the Court to answer the issues in favour of the Applicants. It is worthy of note that the above submissions were equally captured in the written address in support the counter affidavit of the Applicants to the Notice of Preliminary Objection. This explains why same would not be summarized again in this judgment.
40. The Applicants equally filed a Reply on Points of law in opposition to the 1st and 2nd Respondents Counter-affidavits to the Originating Summons on the 13th day of October 2022. The issues formulated for the Court therein and the arguments proffered in support are the same as the ones formulated in the written address in support of the counter affidavit in opposition to the Originating Summons which are already summarized hereinbefore. At the risk of repetition, I refrain from summarizing them again.
41. The 1st Respondent on the 31st day of October 2022 filed a Further affidavit in support of its Motion on Notice dated 7th July 2022. In support of the further affidavit is a Reply on Points of law in opposition to the Applicants’ counter affidavit and written address. With respect to submission of the Applicants on jurisdiction, learned counsel on behalf of the 1st Respondent submitted that the jurisdiction of this Court cannot be activated upon a perusal of the Originating Summons and the affidavit in support. He relied on the case of Direct On PC Ltd v. Binkam (Nig) Ltd [2016]3 NWLR (Pt 1498)50. He submitted that the Applicants failed to establish that the have any form of employment relationship with the 1st Respondent or any of the parties in this action. It was thus reiterated that this Court does not have jurisdiction to entertain this action.
42. In response to the submission on locus standi, while relying on the case of Adekunle v. Adelugba [2011]16 NWLR (Pt 1272)158 that locus standi is a threshold issue. He equally referred the Court to the case of Oduneye v. Ofunga [1990]7 WR (Pt 164)618 and Global Trans Oceanico A. v. Free Enterprises Nigeria Ltd [2001]5 NWLR (Pt 706)426. He submitted that public interests available to members of the public in general are not litigable by individuals as a person must establish a legal actionable right accruing to him personally. He submitted that the Applicants by their processes are only seeking to rectify an unestablished wrong against the public and as such are mere busy bodies in seeking to activate the jurisdiction of the Court. He commended to the Court the case of Nworka v. Ononeze-Madu, supra. He submitted that the Applicants are not entitled to protect such right except there exists a legal right specific and accruable to them.
43. In response to the submissions of the Applicants on the affidavit not being defective, counsel submitted that the affidavit in support of the Originating summons is in contravention of the provisions of Section 115 (1) of the Evidence Act. It was submitted further that where a paragraph in the affidavit offends the provisions of the Evidence Act, it must be struck out by the Court. The following cases are cited in support; Josien Holdings Limited v. Lornamead Limited [1995]1 NWLR (Pt 371)254@265; Nigeria LNG Limited v. African Development Insurance Co Ltd, supra. It was submitted that paragraph 3 (i)(k)(l)(m)(n)(o)(p)(q)(r)and (s) of the affidavit in support of the Originating Summons are clearly contrary to the provisions of the Evidence Act as they amount to legal arguments and conclusions. He relied on the following cases; NIDB Ltd v. Fembo Nig Ltd [2001]7NWLR (Pt 713)681@693 and; Nigeria LNG Limited v. African Development Insurance Co Ltd ,supra. He submitted that the legal consequence of such defect is that the paragraphs ought to be struck out. He cited in support the case of Izedonmwen v. U.B.N [2012]6 NWLR (Pt 1295)48.
44. The 2nd Respondent equally filed in response to the counter affidavit of the Applicants and written address in opposition to the Motion on Notice a 5 paragraph further affidavit and a Reply on Points of law on the 31st day of October, 2022. On the preliminary, it was submitted that the procedure adopted by the Applicants in jointly responding to the different applications of the 1st and 2nd Respondents is unknown to law. He relied on the case of Rev. King v. Sabo [2021] LPELR-55835 (CA). It was submitted that such approach being an unknown procedure amounts to an abuse of Court process. He relied on the case of Mobil Producing Nigeria Unlimited & Anor v. Monokpo & Ors [2003]18 NLWR (Pt 852)346@433, Paras C-D; Manson v. Halliburton Energy Services Limited [2007]2 NWLR (Pt 1018)211. He equally relied on the provision of Order 17 Rule 10 of the National Industrial Court (Civil Procedure) Rules, 2017. Counsel submitted that the Applicants ought to have files separate counter affidavit and written address in response to each of the Applications even if the two applications have similar goals. He relied on the case of Ojo & Ors v. The Attorney General of Oyo State & Ors [2008] LPELR-2379(SC); Saraki v. Kotoye [1992]9 NWLR (Pt 264)156.
45. In response to the issue of jurisdiction, learned counsel for the 2nd Respondent submitted that jurisdiction goes to the root of an action. He relied on the case of Oni v. Fayemi [2013]12 NWLR (Pt 1369)431. He submitted that once a Court lacks jurisdiction any order made in the course of the proceedings is null and void. He relied on the case of D.E.N.R. Ltd v. Trans Intl Bank Ltd [2008]18 NWLR (Pt 1119)388. It was submitted that in the absence of any proof of employment relationship which is purely contractual between the Respondents and Applicants, the most compelling thing for the Court to do is to strike out the name of the Applicant. He relied on the following cases; Toyinbo v. UBN Plc [2022] LPELR-58586(SC); First Bank v. Momoh [2020] LPELR-51517. It was submitted further that it is the reliefs and claims of a plaintiff that determines the jurisdiction of the Court and as such the jurisdiction of this Court cannot be activated upon a perusal of the Originating Summons ans the Affidavit in Support. He relied on the case of Direct On PC Ltd v. Binkam (Nig) Ltd, supra. Counsel urged the Court to resolve the issues in favor of the Respondent.
46. Reacting to the issue of locus standi learned counsel disagreed with the submissions of the Applicants and referred the Court to the case of Daniel v. INEC & Ors [2015]LPELR-24566 (SC). He submitted that the Applicants have not shown by the affidavit how any action of the 2nd Respondent has given rise to a legal right sufficient enough for them to maintain this action against the 2nd Respondent. He equally submitted that the Applicants have not shown that they have sufficient interest in this action to entitle them to sue. He submitted that the Applicants by their processes are only seeking to rectify an unestablished wrong against the public and as such are mere busy bodies in seeking to activate the jurisdiction of the Court. He commended to the Court the case of Nworka v. Ononeze-Madu, supra. He submitted that the Applicants are not entitled to sue except where there exists a specific and accruable right to them. He commended to the Court, Sections 38, 40 and 41 of the Central Bank of Nigeria Act.
47. In response to the submissions of the Applicants on the affidavit not being defective, counsel submitted that the affidavit in support of the Originating summons is in contravention of the provisions of Section 115 (1) of the Evidence Act. It was submitted that where a paragraph in the affidavit offends the provisions of the Evidence Act, it must be struck out by the Court. He relied on the case of Ahmed v. CBN. It was submitted that the two requirements in Section 115 (1) of the Evidence Act which requires fact deposed in an affidavit to be of personal knowledge or within the facts which the deponent believes to be trues have not been met by the affidavit in support of the Originating Summons. It was submitted that paragraph 3 (i)(k)(l)(m)(n)(o)(p)(q)(r) and (s) of the affidavit in support of the Originating Summons are clearly contrary to the provisions of the Evidence Act as they amount to legal arguments and conclusions. He relied on the case of Nigeria LNG Limited v. African Development Insurance Co Ltd, supra. He submitted that the said paragraph of the affidavit must be struck out in consequence of its defect. He commended to the Court the case of Izedonmwen v. U.B.N, supra. Counsel urged the Court to dismiss this suit against the 2nd Respondent for lacking in merit.
48. After a painstaking perusal of the Originating Summons along with its accompanying processes, the counter affidavit of all the Respondents in opposition to the Originating Summons together with the written addresses of counsel in support, the Preliminary Objection filed by the respondents, and the Applicants’ Counter affidavit in opposition to same, I am of the respectful view that the issues that would best determine the contention of parties in this suit are;
1. Whether this action is competent before this Court and if this question is answered in the affirmative;
2. Whether the Applicants are entitled to the reliefs sought.
49. In addressing issue one, I will like to take the issue of the competence of this suit which goes to the adjudicatory power of this Court to entertain this suit first, because if this Court does not have jurisdiction in this case, it will not be competent to decide the main issues in this cause. It is the contention of each of the Respondents in their respective applications objecting to the jurisdiction of this Court that this Court does not have the requisite jurisdiction to entertain this case. They have all contended that the subject matter is outside the jurisdiction of this Court and that the applicants have no locus standi to institute this action. The law is settled beyond peradventure that the substantive jurisdiction of a Court is governed by statue creating the Court and nothing else. See Manomi v. Dakat [2022]15 NWLR (Pt 1853)231@@262, Paras C-D. The issue of jurisdiction is so radical that it forms the very foundation of adjudication. As such, if a Court lacks jurisdiction, it also lacks the necessary competence to try the case ab initio. A defect in competence is fatal for all the proceedings is null and void no matter how well conducted. See the following cases; Manomi v. Dakat, supra @261-262, Paras E-A; IGP v. Fayose [2007]9 NWLR (Pt 1039) 263@280-281, Paras H-D. Ordinarily the Court is supposed to determine an objection to its jurisdiction at the earliest opportunity. However, where the substantive suit is of a nature that it does not require taking oral evidence such as one commenced by either Originating summons as in this instant or originating motion, the Court can take both the substantive action and the preliminary objection to its jurisdiction together. See the following cases; CBN v. Akingbola [2019]12 NWLR (Pt 1685)84@98, Paras D-F, 99, Paras B-D,105, Paras B-H, 106, Paras A-F and; A-G Lagos State v. A-G Fed [2014] 9 NWLR (Pt 1412)217@263, Paras E-G.
50. It is expedient at this juncture to consider the vires of this Court in the light of provisions of Section 254 C (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that is, the Constitution (Third Alteration) Act, 2010, which provides thus:
254C - (1) Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters-
(a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service including health, safety welfare of labour, employee, worker and matters incidental thereto or connected therewith.
The above captured constitutional provisions is similar to Section 7 (1) (a) (i) of the National Industrial Court Act, 2006. The above provision is to the effect that the National Industrial Court (This Court) is vested with exclusive jurisdiction in civil causes/matters relating to or connected with labour employment, trade unions, industrial relations and matters arising from workplace. See the cases of SCC (Nig.) Ltd and Ors. v. Yusuf Sedi [2013] 1 NWLR (Pt. 1335) 231; National Union of Teachers (NUT) Niger State v. Conference of Secondary School Tutors (COSST) Niger State Chapter & Ors. [2012] 1 NWLR (Pt. 1307) 89 @112-113. It is the position of the 3rd Respondent vide its Notice of Preliminary Objection that the subject matter of this action does not involve a trade dispute as to confer jurisdiction on this Court. Yes! I agree that the subject matter of this action does not involve a trade dispute, however, it must be clearly pointed out that going by the above provision of the Constitution, this Court’s jurisdiction is not limited only to trade disputes. The 2nd Respondent has also referred this Court to the provisions of Section 251 (1) (q) of the Constitution which provides that the Federal High Court shall have jurisdiction in respect of interpretation of the provisions of the Constitution in so far as it affects the Federal Government or any of its agency. Learned counsel fails to take cognizance of the fact that the interpretation sought in the suit at hand is not one relating to the Federal Government or any of its Agency. It is specifically relating to the position/seat of the 1st Respondent as the Governor of the Central Bank and not relating to the Central Bank itself. It is specifically against the continuation of the 1st Respondent in the employment of the 2nd Respondent and not against the 2nd Respondent. Thus, it is one that affects the 1st Respondent and not the 2nd Respondent as an Agency of the Federal Government. Besides, the said provision specifically provides that the jurisdiction of the Federal High Court in respect of such matters is subject to the provisions of the same Constitution. Now, it is the same Constitution that vests exclusive jurisdiction on this Court in labour, employment and any matter connected therewith. The Court of Appeal in the recent case of MT Sam Purpose (Ex MT Tapti) v. Amarjeet Singh Bains & 6 Ors, unreported Appeal No CA/LAG/ CV/419/2020 which judgment was delivered on the 5th day of March, 2021 have held that notwithstanding that the Federal High Court is the one with jurisdiction in respect of Admiralty and Maritime, the fact that what is being sought relates to wages of crew members even though on the sea, the Court with jurisdiction is the National Industrial Court. By the combined effect of the Sections 251 (1) (q) and Section 254C (1) (a) of the Constitution where the issues that calls for interpretation is one that bothers on or relates to the employment of any person, I am of the respectful view which is rooted in the Constitutional provision captured supra, that this Court is the one with the jurisdiction to entertain same. Thus, in so far as what is sought is one that touches on the continuation of the 1st Respondent in the employment of the 2nd Respondent, it is this Court that has the jurisdiction to entertain this suit being the one with jurisdiction in respect of employment.
51. The applicants in this case are by their action asking the Court to consider the provisions of the relevant laws as it pertains to the employment of the 1st respondent with the 2nd respondent and declare whether the 1st Respondent is still entitled to continue in that employment. In my own humble view, this Court has the exclusive jurisdiction over civil cases bothering on employment and it does not necessarily have to be between the employer and employee before this Court can exercise jurisdiction. In fact, questions 2, 3 and 4 for determination in the Originating Summons is asking this Court to interpret the provisions of Sections 40 and 45 of the Constitution as it relates to the continuance of the 1st Respondent in office as Head of the 2nd Respondent. These provisions are no doubt in Chapter IV of the Constitution. By the provisions of Section 254C 1(d) of the Constitution, it provides thus- “Notwithstanding the provision of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court Shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters-relating to or connected with any dispute over the interpretation and application of Chapter IV of this Constitution as it relates to any employment labour, industrial relations, trade unionism, employers Association or any other matter which the court has jurisdiction to hear and determine” It is so clear as crystal from the captured provision of the Constitution, that this Court has the sole jurisdiction to the exclusion of any other Court in respect of interpretation of the provisions of Chapter IV of the Constitution as it relates to any employment/appointment, including the employment of the 1st respondent in the 2nd respondent. Thus, this Court in view of questions 2, 3 and 4 for determination in the Originating Summons has the exclusive jurisdiction to entertain this case. See Sky Bank v. Iwu [2017] LPELR-42595SC; Coca Cola & Anor v. Titilayo Akinsanya. In the case of Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd. [2007] All FWLR (Pt. 372) 1721@ 1752, the Supreme Court per Mohammed JSC, stated thus: “Judge's duty is to interpret and not to make the law. In the interpretation process, the judge should be liberal and give the natural meaning of the Statute where the words are clear and unambiguous” The provisions of Section 254C (1) (a) and (d) of the Constitution is clear and not ambiguous in any way and as such words not contained in it cannot be read into it. See the cases of; Amobi v. Nzegwu & Ors [2013]LPELR-21863(SC)1@36, Para; Ndoma-Egba v. Chukwuogor & Ors [2004] LPELR-1974(SC)1@45-47, Para F and; Eboigbe v. N.N.P.C. [1994] 5 NWLR (Pt. 347)649. There is nowhere in that provision or anywhere in the Constitution pertaining to the jurisdiction of this Court where it is stated that the civil case which this Court has jurisdiction must be one between employer and employee. In fact, in the case of Omang v. NSA [2020]LPELR-50225(CA)1@ 30-35, Paras. E-E the Court of Appeal per Owoade JCA(Rtd); held inter alia thus; “… Clearly, and as pointed out by the learned authors - Offornze D. Amuchenzi and Paul U. Abba in their book "The National Industrial Court of Nigeria - Law Practice and Procedure" (2013, Wildfire) page 71
"...the jurisdiction of the NIC extends to all matters related to incidental thereto or connected with any labour or employment dispute." In effect therefore, its exclusive jurisdiction extends to matters having a nexus, inextricably linked or reasonably connected to subject matters over which jurisdiction is conferred in Section 254C."
Put in another way the jurisdiction of the National Industrial Court relates to the ramifications of labour and labour relations in its length and breadth and does not make any distinctions between employer - employer relations, employer - employee relations and as in the instant case employee - employee relations as far as it concerns labour. For example to show the width of the jurisdiction of the NIC, the word 'labour' appears separately on the same line with "employment" in Section 254C - 1 (a)…” drawing inference from the quoted decision of the Court of Appeal and from the simple interpretation of Section 254C of the Constitution, once the civil cause or matter is one which relates to or connect with any employment and matters incidental thereto or connected therewith, this Court has exclusive jurisdiction to entertain same. I am thus, in agreement with the position of the Applicants in their Reply on points of law in opposition to the 1st and 2nd Respondents’ counter affidavit that this Court has the sole jurisdiction on any matter relating or pertaining to any employment. The import of which is that this Court no doubt has exclusive jurisdiction to entertain this action as it relates to the employment of the 1st Respondent particularly his continued stay in employment in view of the interpretation of the provisions commended to this Court for interpretation. In view of the above reasons, I must say that I am not enthused by the objection of each of the Respondents as to the jurisdiction of this Court to entertain this case and as such discountenanced both.
52. Now, let me address the objection of each of the Respondents to this suit on the ground that the Applicants have no locus standi to institute this action. The question of locus standi as a threshold issue, is inextricably linked to the exercise of jurisdiction by a Court. Where the party initiating an action lacks locus standi, the Court would be robbed of jurisdiction because it also goes to the very root of adjudication. There are abundant judicial authorities as to the meaning and effect of locus standi in adjudication. See Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor. [1981]5 SC 112@128-129 per Fatayi Williams, CJN (as he then was). In the case of Alhaji Saka Opebiyi & Anor v. Layiwola Muniru [2011] 18 NWLR (Pt. 1278) 387@ 403, Paras D-F, the apex Court per Adekeye, JSC (Rtd) stated thus; “Locus Standi is the legal capacity to institute an action in a Court of law. Where a Plaintiff is held to lack locus standi to maintain an action the finding goes to the issue of jurisdiction as it denies the Court of jurisdiction to determine the action.” More emphatically, the apex Court in the case of B. B. Apugo &Sons Ltd v. Orthopaedic Hospital Management Board [2016] 13 NWLR (Pt. 1529) 206, Kerere-Ekun, JSC stated: “Locus standi is the legal right of a party to an action, to be heard in litigation before a Court or Tribunal. The term connotes the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. It is also the law that to have locus standi to sue, the Plaintiff must have sufficient interest in the suit. For instance, one of the factors for determining sufficient interest is whether the party seeking redress will suffer some injury or hardship from the litigation.” [Emphasis mine] The law on locus standi is firmly settled beyond argument and it is to the effect that the locus standi of a Claimant must be stated in his pleadings and can easily and readily be found in his Writ of Summons/Originating Summons and Statement of Claim/affidavit in support of originating summons. It is to these most vital processes that a Court would have recourse to and scrutinize to see if indeed it discloses his locus standi. See Shuaibu & Anor v. Koleosho [2021]LPELR-53435(CA)1@46-47, Paras. B-B and Nyesom v. Peterside & Ors, supra.
53.In the case of B.B. Apugo & Sons Ltd v. Orthopaedic Hospitals Management Board, supra at 269 Paras D-H per Rhodes-Vivour JSC (Rtd) held that there are two tests for determining whether there is locus standi or not and they are; 1. The action must be justiciable, and; 2. There must be a dispute between the parties. Thus, it is clear for a Claimant to have locus standi, first the action must be justiciable. In fact, in the case of Re-Ijelu v LSDPC & Ors [1992] 9 NWLR (Pt. 266) 414 @423 the Court per Mohammed JSC held in paragraph D thus; “Locus standi or standing to sue is an aspect of justiciability and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent to justiciability…” The question that needs to be asked at this stage is can one say the present action of the Applicants justiciable? In answering this question, I will like to place reliance on the Constitution. The issue as to the person who has the civil right and obligation to sue has been made clear by Section 6(6)(b) of the Constitution states:-"6(6) The judicial powers vested in accordance with the foregoing provisions of this section - (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.” It means that for a person to be able to sue, it must relate to the civil rights and obligations of that person. Thus, before it can be said that an action is litigable or justiciable, the civil rights and obligations of a person must have been shown to have been breached or likely to be infringed. According to the position of Bello JSC (Rtd) in the case of Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor, supra wherein the learned jurist stated that general interest common to all members of the public is not a litigable interest to allow standing. In Adesokan v. Prince Adegorolu [1997] 3 NWLR (Pt. 493) 261, the Supreme Court held that, in order to determine whether a plaintiff has "locus standi" or not, a defendant who challenges in limine the "locus standi" of the plaintiff is deemed to accept as correct, all the averments contained in the plaintiff's statement of claim which in this case is represented by the affidavit in support of the Originating Summons. Assuming the facts in the affidavit in support are even true and that 1st Applicant according to paragraph 3 (p) and (q) has suffered a personal breach in the sense that more devaluation of the naira has personally affected his financial stability thereby making it difficult to meet his financial obligation and has also weakened international trust and faith on our monetary policy which has had negative implications on his international scholarly works, the 1st Applicant must show that this damage suffered is over and above the one suffered by other members of the public generally that he can sue personally. In short, what I am trying to say here is that devaluation of the Naira affects everyone in the society in this Country and not just the 1st Applicant alone. Also, the alleged actions of the 1st Respondent weakening international trust and faith on the monetary policy, economy and democracy which negatively affect 1st Applicant’s scholarly research works as many of his foreign donors are threatening to opt out will not operate to give Applicants locus because the Applicants have not shown that they have suffered a special damage far above that which any Nigerian has suffered by reason of the alleged weakening of international trust and faith on our monetary policy. The allegation that foreign donors of the 1st Applicant are threatening to opt out has not shown any special damage suffered by the Applicants to warrant them to be clothed with the necessary locus. In fact, the affidavit has not shown any personal damage done to the 2nd Applicant by reason of the alleged breach of the public duty by the 1st Respondent. The facts deposed to in paragraphs 3 (a) and (b) and 3 (t) of the affidavit clearly show that the Applicants only have a general interest which is common to all members of the public. In fact, it was stated clearly in paragraph 3 (t) of the said affidavit in support of the Originating Summons that granting the application would be in the greater interest of the general public. This fact was equally reiterated by the Applicants at page 206 of the Record in paragraph 4 (g) of the counter affidavit of the Applicants to the Motion on Notice filed by the 1st and 2nd Respondent to the jurisdiction of this Court. The Applicants have not stated that granting the Application will even be in the best interest of the 1st Applicant who is making the allegations in paragraph 3 (p) and (q) of the Affidavit. This clearly shows that the Applicants’ interests are not in any way affected because if they were it would not have been deposed in paragraph 3 (t) of the affidavit in support of the Originating Summons and paragraph 4 (g) of the counter affidavit to the motion on notice of the 1st and 2nd Respondents that granting the application would be in the greater interest of the general public. The point I am making is that paragraph 3 (t) of the affidavit in support of the Originating Summons and paragraph 4 (g) of the Applicants counter affidavit to the motion on Notice clearly show that this action is a public interest application and not one touching on the personal interest of any of the Applicants. The Applicants have equally not shown how they would be adversely affected over and above every other member of the public by the outcome of this action. One thing is apparent respecting locus standi, and that is the fact that a litigant cannot come out of the blues to challenge the constitutionality or breach of a statutory provision as in this instant, when that litigant/applicant/claimant did not show how hurtful or injurious to him alone to the exclusion of others the breach of that statutory provision has been.
54.In the case of Bewaji v. Obasanjo [2008] 9 NWLR (Pt. 1093) 540 at 576 where Omoleye JCA held thus, as regard interest common to members of the society; “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.” [Emphasis mine]. See also Garki & Ors v. INEC & Ors [2013]LPELR-20488(CA)1@ 18-23, Para B and Owodunni v. Registered Trustees of CCC [2002]LPELR-2852(SC)1@18-19, Para E. The point needs to be emphasized that under public law, an ordinary individual will generally not have locus standi as a Claimant to sue on public rights which is vested in everyone. This is because such litigations concern public rights and duties which belong to, or are owed to all members of the public, including the Claimant. It is only where he has suffered special damage over and above the one suffered by the public generally that he can sue personally. See: Owodunni v. Registered Trustees of Celestial Church of Christ, supra. In an action to assert or protect a public right or to enforce the performance of a public duty as in this instant, it is only the Attorney-General of the Federation, that has the requisite locus standi to sue. A private person can only bring such an action if he is granted a fiat by the Attorney-General to do so in his name. This is referred to as a "relator action’. The Applicants in this case have not shown that they have a fiat of the Attorney General to sue to protect and assert the public rights and interest. In fact, they would not have been given a fiat, and still sue the Attorney General as the 3rd Respondent.
55. The second parameter for determining locus standi is that there must be a dispute between parties that is a live controversy between parties. Which controversy exists between the Applicants and the Respondents? Relief 4 in the Originating Summons shows that the Applicants wants this Court to order that the 1st Respondent has breached the provision of the law which mandates the President of the Federal Republic of Nigeria to remove him from office as the employee of the 2nd Respondent. The Applicants by that relief wants the President to act. Besides, none of the 2nd or 3rd Respondent is the appointing authority or the body with power to confirm the appointment of the 1st Respondent. In fact, from the nature of the reliefs sought, none of the reliefs shows conferment of any special benefit of any kind on any of the Applicants. Thus, I cannot see how any of the reliefs sought would benefit any of the Applicants. If there were live controversies between Applicants and the Respondents in this case, at least one of the reliefs sought by the Applicants should have conferred a benefit or right on one or any of the Applicants. I therefore find that there is no dispute between parties.
56. In view of the above reasoning, I must say that from whatever angle it is looked at, the Applicants have not disclosed in their affidavit in support of the Originating Summons sufficient interest to have the locus standi to bring this action. The nature of this action and the reliefs sought are not such that this Court can expand the scope of locus standi in favour of the Applicants. In fact, in driving home the point I am trying to make, I will place reliance on the opinion of Uwais, JSC in Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor, supra where the great jurist opined and warned thus; “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 meddlesome 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.”
57. I am not unmindful of the case of Centre for Oil Pollution Watch v. NNPC, supra which is a decision of the apex Court as regards the expansion of locus standi as it relates to public interest litigation. It should be noted that no two cases are the same and cases are decided based on their individual facts and circumstances. In that case the reason for the decision of the apex Court by allowing a Non-Governmental- Organization to sue is because the issue relates to the protection of lives of the members of the public which is vested in the State by Section 20 of the Constitution and the Claimant therein being a vanguard in the protection of the environment no doubt has locus standi to sue since the Respondents have failed in their obligation under Section 20 of the Constitution thereof. This is aptly captured in the dictum of Nweze JSC thus;
“...Locus standi of Non-Governmental Organizations (NGOs) in Environmental Protection: Perspectives from the Constitution
Mahmoud SAN, one of the amici curiae, had submitted that the plaintiff's action will vindicate the rule of law, that is, it will ensure that the respondent complies with the relevant provisions of the Federal Environmental Protection Agency Act (FEPA) Cap. F10 LFN, 2004, particularly, Section 22 (2) (c) of the Act and or with Section 6(2) and (3) of the National Oil Spill Detection and Response Agency (Establishment) Act, 2006. He equally submitted that Section 14 OPA prohibits depositing materials in water that diminish its domestic use. He canvassed the view that the legislature had more than satisfied its obligation to protect the environment, pursuant to Sections 13 and 20 of the Constitution, leaving the judiciary to determine the rest.
My lords, there is considerable merit in the above submission. Although, Section 6 (6)(c) of the Constitution, read narrowly, would appear to render the entire chapter 11 of the Constitution non-justiciable. However, this need not be so, Attorney-General, Lagos State v. Attorney-General, Federation (2003) All FWLR (Pt.168) 909, (2003) 12 NWLR (Pt. 833) 1, (2003) 35 WRN 1; Federal Republic of Nigeria v. Anache (2004) 1 SCNJ 1, (2004) 13 WRN 1, Olafisoye v. F.R.N (2004) 4 NWLR (Pt. 864) 580, 659.
In the latter case, Tobi JSC, explained that:
Section 6 vests judicial powers on the Courts, which are enumerated in subsection 5. By subsection 6 (6) (c) of the Section, judicial powers shall not, except as otherwise provided by the Constitution, extend to any issue or question as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter 11 of the Constitution. In my humble view, the non justiciability of Section 6 (6)(c) of the Constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of the words 'except as otherwise provided by this Constitution.' This means that if the Constitution provides in another Section, which makes a Section or Sections of Chapter 11 justiciable, it will be so interpreted by the Courts. Federal Republic of Nigeria v. Anache (supra); Olafisoye v. F.R.N (supra) 659.
The implication of this authoritative pronouncement is that the proper approach to the interpretation of the said chapter should be by the mutual conflation of other provisions of the Constitution with the provisions of Chapter 11. This is so because "if the Constitution provides otherwise in another Section, which makes a Section or Sections of Chapter 11 justiciable, it will be interpretation by the Courts," Federal Republic of Nigeria v. Anache (supra); Olafisoye v. F.R.N (supra) 659. Now, Section 20 of the Constitution provides that the "States shall protect and improve the environment and safeguard the water, air and land, forest and wild life of the country." On its part, Section 17 (4) of the Oil Pipelines Act (supra) forbids the compromise of public safety by the holder and prevention of pollution of land and waters as in the case under consideration in these trenchant words:
"Every license shall be subject to the provisions contained in this Act... And to such regulations concerning public safety, the avoidance of interference with works of public utility in, over and under the land... And the prevention of pollution of such land or any waters..."
It is obvious that it was pursuant to Section 17 (4) of the Oil Pipelines Act (supra) that the Oil and Gas Pipeline Regulations were promulgated. A community reading of the above constitutive provision with regulation 9 (a) (ii); (b) (ii) and (iii) would reveal that they require the oil pipeline license holder to institute mechanisms for prevention of accidents (like crude oil spill) and for remedial action for the protection of the environment and control of accidental discharge from the pipeline. Now, since the Interpretation Act, Cap. 123 Vol. 7 LFN, defines "person" to include "anybody" or "persons corporate" or "unincorporated,"
I take the view that, paragraph 2 of the amended statement of claim, page 31 of the record, read together with paragraph 1 of the said amended statement of claim, as determinant of the appellant's locus standi, the reliefs sought, I am on safe grounds by making a finding in favour of the appellants' locus standi. Beyond this fact, what is obvious, from the appellants' pleadings is that the respondent, a public authority, has by these acts complained of, acted in violation both of its constitutional obligation (Section 20 thereof) and its statutory obligations. These have occasioned injury to public interest or public injury. In this instance, the answer to the question as who has the standing to complain against the above violations of the respondents can be found in the understanding of the true purpose of the judicial function…It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited tax-payer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped… It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to parliament for the way in which they carry out their functions. They are accountable to parliament for what they do so far as regards efficiency and policy, and of that parliament is the only judge; they are responsible to a Court of justice for the lawfulness of what they do, and of that the Court is the only judge…In all, then, I take the humble view that, in environmental matters, such as the instant one, NGOs, such as the plaintiff in this case, have the requisite standi to sue…”
Aka’ahs JSC (Rtd) on his own part opined thus;
There is no gainsaying in the fact that there is increasing concern about climate change, depletion of the ozone layer, waste management, flooding, global warming, decline of wildlife, air, land and water pollution. Both nationally and internationally, countries and organizations are adopting stronger measures to protect and safeguard the environment for the benefit of the present and future generations. The issue of environmental protection against degradation has becomes a contemporary issue. The plaintiff/appellant being in the vanguard of protecting the environment should be encouraged to ensure that actions or omissions by government agencies or multi-national oil companies that tend to pollute the environment are checked. Since other commonwealth countries such as England, Australia and India have relaxed their rigidity in the application of the concept of locus standi in public interest litigations, Nigeria should follow suit. The communities affected by the spillage leading to the environmental degradation may not muster the financial muscle to sue and if good spirited organizations such as the plaintiff is denied access to sue, it is the affected communities that stand to lose”.
It is on account of this and the more detailed reasons advanced by my learned brother, Nweze JSC, that I am of the firm view that this Court being a Court of policy should expand the locus standi of the plaintiff to sue”
The Applicants herein by their affidavit in support of the Originating Summons unlike the Claimants in the above case have not shown sufficient interest in the protection of the public right and they have in their affidavit not stated that the President who is the one with the appointing power or the Senate that is vested with the power to confirm the appointment of the 1st Respondent have refused to act or breached their obligations. In my view the circumstance necessitating the enlargement of locus standi to accommodate an NGO in the above case is not present in the case at hand. It is in view of this that I find the case inapplicable to the case at hand.
58. Now let me assume that the Claimants should not be denied access to the Court for the enforcement of the provisions of the law by relying on the advice and opinion of Fatayi –Williams CJN in Adesanya v. President of the Federal Republic of Nigeria, supra where the learned jurist opined:-
"I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written Federal Constitution, where rumour mongering is the pastime of the market places and construction sites. To deny any member of such society who is aware or believes, or is led to believe, that there has been an infraction of any of the provisions of our Constitution, or that any Law passed by any of our Legislative Houses, whether Federal or State, is unconstitutional, access to a Court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organized disenchantment with the judicial process ....
In the Nigerian context, it is better to allow a party to go to Court and to be heard than to refuse him access to our Courts. Non-access, to my mind, will stimulate the free-for-all in the media as to which Law is constitutional and which Law is not. In any case, our Courts have inherent powers to deal with vexatious litigants or frivolous claims. To re-echo to words of learned hand, if we are to keep our Democracy, there must be one Commandment - Thou shall not ration Justice…
To my mind, it should be possible for any person who is convinced that there is an infraction of the provisions of Sections 1 and 4 of the Constitution which I have enumerated above to be able to go to Court and ask for the appropriate declaration and consequently relief, if relief is required. In my view, any person, whether he is a citizen of Nigeria or not, who is resident in Nigeria or who is subject to the Laws in force in Nigeria, has an obligation to see to it that he is governed by a Law which is consistent with the provisions of the Nigerian Constitution. Indeed, it is his civil right to see that this is so…”
59. It is the submission of each of the Respondents vide their respective application that this action is merely academic, hypothetical and of no utilitarian value. This contention is with respect unsupportable with any evidence by the respondents. This action relates to the interpretation of the provisions of the Constitution of the Federal Republic of Nigeria which is a living/organic law for all intent and purposes and also the provisions of the Central Bank of Nigeria Act which is equally a living law. Such a case cannot be said to be hypothetical or academic. According to Tobi J.S.C in Plateau State v. A.G. Federation [2006] 3 NWLR (Pt.967) 346 @ 419,Paras G-H, a hypothetical or academic suit is: "A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity… A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a "mirage" to deceive the defendant and the court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought.” See also; Agbakoba v. INEC [2008] 18 NWLR (Pt. 1119) 489 and; Chief Olafisoye v. Federal Republic of Nigeria [2004] 4 NWLR (Pt. 864) 580@654-655. A case that bothers on the interpretation of the Constitution and any other living law which obviously affect the citizenry cannot be said to be hypothetical, speculative, academic or conferring no utilitarian value because there is a practical utilitarian value in seeing that the laws of the land are obeyed and interpreted correctly by the Court. In fact, Kutigi JSC (Blessed Memory); in the case of Plateau State v. A.G. Federation, supra drove home this point thus; “Issues relating to the interpretation of a living Constitution as in this case, cannot in my view be dead, academic, speculative or hypothetical. A declaration of a State of emergency is a serious business anytime, anywhere.” [Emphasis mine] See also NCP & Anor v. National Assembly & Ors [2015] LPELR-25990(SC)1@13-15, Para D. It is in view of all said considering the facts before the Court as well as the position of the law ditto the Constitution that I find that this case is not hypothetical, or academic.
60. It is also the submission of learned counsel on behalf of the 1st Respondent in his Reply on points of law to the counter affidavit of the Applicants that the use of a single counter affidavit to respond to the affidavits of both 1st and 2nd Respondents in support of their respective motion on notice is an abuse of Court process. The position of the law on abuse of Court process is clear and to the effect that abuse of Court process is imprecise and as such encompasses a wide range of situations wherein a party intentionally misuses the process of the Courts improperly, to achieve an unlawful purpose. A common feature of abuse of Court process revolves around the improper use of Judicial process by a party in litigation aimed or targeted at interference with due administration of justice. Abuse of Court process includes the filing of multiplicity of actions on the same subject matter between the same parties on the same issues. See; Ogar & Ors v. Igbe & Ors [2019] LPELR-48998(SC)1@23-24, Para D and; Dabiri & Ors v. Bakare & ors [2018] LPELR-50851(CA)1@22, Para B. Thus, for a process to be an abuse of Court process it must be targeted at annoying the other or to achieve an unlawful purpose or aimed at interfering with the administration of justice. It is worthy of note that the affidavit of each of the 1st and 2nd Respondents in support of their individual Motion on Notice objecting to the jurisdiction of this Court was sworn by the same person. In fact, the written address in support of both are almost similar in most respect except for some little differences. Although it would have been neater for the Applicants to respond to each separately rather than the way it was done in this case. However, I do not believe that responding to both together the way it was done is an abuse of Court process because in my respectful view same cannot be said to be targeted at interfering with the course of justice.
61. The foregoing being so, the pertinent question at this stage is can the case of the Applicants fly even if they are granted access to this Court? I will answer this question while considering the objection of the 2nd and 3rd Respondents to the competence of the affidavit in support of the Originating Summons on the ground that same breached the provisions of Section 115 of the Evidence Act, 2011 (hereafter referred to as the EA). It should be noted that the Applicants’ affidavit in support of the Originating Summons was deposed to by one Joy Anne-John female who claimed to be "the litigation Secretary in the Law firm of Resolution Attorneys, Counsel to the Applicants in this suit. The said Joy Anne-John, however, did not give any reason why none of the Applicants could not personally depose to the said affidavit or the facts deposed to in paragraph 3 sub-paragraphs (a) to (t) thereof. Worse still, the deponent of the affidavit did not state that she believes the information as to the facts deposed to be true and equally failed to state the facts and circumstances forming the basis or ground of her belief of the information she got or received. This is in clear breach of Section 115 (1) and (3) of the EA which provide thus:
115. (1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
62. I bear in mind the submission of learned counsel on behalf of the Applicants in paragraph 6.3 of his written address in support of the counter affidavit to the motion on notice at page 21 of the Record that paragraph 4 of the affidavit suffices to show that the deponent believes the facts deposed in paragraph 3 (a) to (t) of the affidavit. It is expedient for me at this stage to capture the contents of the said paragraph 4 of the Affidavit which states thus; “I depose to the Affidavit in good faith, conscientiously and sincerely believing the contents therein to be true and correct to the best of my knowledge and in accordance with the Oaths Act Cap 01, Laws of the Federation of Nigeria, 2004.” The provision of Section 115 (1) of the EA is clear to the effect that every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. Thus, where the affidavit contains facts that are derived from information, the deponent must believe the information to be true. Now, the deponent of the said affidavit vide paragraph 4 which is the regular concluding/closing paragraph of an oath merely stated that she believes the content of the affidavit are true and correct to the best of her knowledge and in accordance with the Oaths Act. The question to be asked at this stage is are the facts contained in paragraphs 3 (a) to (t) of the affidavit result of the deponent’s personal knowledge which she could be said to believe to be true to the best of her knowledge? The answer is undoubtedly in the Negative as paragraph 3 of the said affidavit is instructive and to the effect that those facts are facts gotten from information she obtained and not her personal knowledge. She averred in her opening words at paragraph 3 thus-“That in a conference meeting held on the 10th of May 2022 at our office EFAB Mall, Suit 20, 1st Floor, Extention Block E, Area 11, Abuja at 12 noon, I was informed by the 1st Applicant of this facts:” It is clear from this opening words that the deponent failed to state that she believes the information to be true. It goes to show that the deponent could not have been referring to paragraph 3 (a) to (t) when she said at her closing paragraph 4 that the information contained therein in the affidavit are true to the best of her knowledge. In my respectful view, the fact deposed in paragraph 4 of the affidavit that the information contained therein is true to the best of her knowledge cannot suffice because the information contained therein particularly in paragraph 3(a) to (t) are not a product of deponent’s knowledge but a product of the information she got, which are hearsay averment. Paragraph 4 with respect to the fact that the deponent believes the content to be true to the best of her knowledge will only relate to the information contained in paragraphs 1 and 2 and not the information contained in paragraph 3(a) to 3(t). Thus, paragraph 4 cannot suffice to say that the deponent believes the information she got to be true. The proper thing was for the deponent to have stated in paragraph 3 of the affidavit when deposing to the circumstances of the information gotten that she verily believes the information to be true and she shall therefore proceed to state the basis or ground for her belief in the information in line with Section 115 (3) of the EA.
63. In the case of Jimoh v. Hon. Minster Federal Capital Territory [2018] LPELR-46329(SC)1@10-12, Para A-A, the apex Court per Eko JSC (Rtd) held inter alia thus; “…Section 115 (1) of the Evidence Act, 2011 enjoins the deponent as witness to depose to facts in an affidavit that “either of his own personal knowledge or from information which he believes to be true”. It is not enough to set out in the preamble paragraphs of an affidavit for the deponent to restate the facts that he has been authorized either by his principal or employer, and the client to make the affidavit; and that he derived the facts averred in the affidavit in the course of his employment and/or from his personal knowledge and/or information generally. For every assertion in a specific averment the deponent, consistent with Section 115 (1), (3) & (4) of the Evidence Act, must disclose with particulars his source of information and belief…” [Emphasis mine]. See also Deutches Haus (Nig) Ltd & Anor v. Union Home Savings [2020] LPELR-50221(CA)1@23-25, Para F and; Benson & Ors v. C.O.P Delta State & Anor [2018] LPELR-44196(CA)1@19-21, Para E. Obviously, the affidavit deposed to by one Joy Anne-John in support of the Originating Summons breached the provisions of Section 115 (1) and (3) of the EA. I so find and hold.
64. It is also worthy of note that the 1st respondent vide his objection and specifically in paragraph 4.34 of his written address in support of the Motion on Notice submitted that paragraphs 3(i), (k) (l) (m) (n) (o), (p) (q), (r) and (s) of the Applicants’ Affidavit in support of the Originating Summons contravenes the provision of Section 115 (2) of the EA. Section 115 (2) of the EA provides; (2)An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion. See the following cases; Inakoju v. Adeleke, supra and; A.-G., Adamawa State v. A.-G. Fed [2005] 18 NWLR (Pt. 958) 581. The apex Court, per Uwaifo, JSC has laid down the litmus test for determining whether an Affidavit contains extraneous matter by way of objection, arguments or conclusions in the case of Bamaiyi v. State & Ors, supra in these illuminating words thus: “The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument, or it may be a conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a Statement of facts and circumstances which may be deposed to in an Affidavit, it therefore means that prayers, objections and legal arguments are matters which may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in Affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach." [Emphasis mine] See also the case of Eyitayo v. Kazeem [2020] LPELR-50360(CA)1@10-14, Para E. That being so, I have been able to peruse the contents of paragraphs 3 (i), (k) (l) (m) (n) (o), (p) (q), (r) and (s) of the Applicants’ Affidavit in support of the Originating Summons in the light of the above stated principles of the law. I am of the view that paragraphs 3 (i) (k) (p) (q) are conclusions which is within the prerogative right of a Court to draw from the facts and legal arguments and has dismal consequence on the affidavit. Paragraph 3 (l), (m) (n) (o) (r) and (s) are fit only for legal arguments. These paragraphs have violated/infringed on the provision of Section 115 (1) and (2) of the EA captured above. The penalty for such paragraph is striking out. See Emeka v. Chuba-Ikpeazu [2017]15 NWLE (Pt 1589)345. In due compliance to the law, I strike out those paragraphs of the affidavit in support of the Originating Summons. The excision of those paragraphs of the affidavit has caustic effect on the affidavit itself. The remaining paragraphs 1, 2, 3(a)–(h) are mere preambles which are bereft of any facts or circumstances while paragraphs 3(j) and (t) would have nothing to stand on.
65. Besides, as reasoned earlier the affidavit equally breached the provisions of Section 115 (1) and (3) of the EA. The net result of all the above is that the affidavit is totally void of facts and circumstances. The Originating Summons, which the vacuous affidavit supports, seeks for an indulgence of this Court through the reliefs sought. It is trite that in exercise of judicial discretion, a Court does not act in vacuo but upon material facts that will enable it reach a conclusion one way or the other. See the cases of; PDP v. ANDP & Ors [2020] LPELR-50993(CA)1@8-12, Para C and Gen & Aviation Serv. Ltd v. Thahal [2004] 10 NWLR (Pt. 880) 50. The above makes the affidavit barren and renders the Originating summons bereft of evidence and thus impotent which, in turn, erodes and ruins its validity. It is in view of the foregoing that I find that even if this Court enlarges the concept of locus standi and allows the Applicants to approach this Court, their action would still not succeed in view of the manifest defect in the affidavit in support of the Originating summons. The point I am trying to make is that no matter how one looks at it the case of the Applicants cannot succeed because of the fundamental defect in the affidavit which goes to the root of the Originating process even if the Court enlarges the concept of locus standi to accommodate the Applicants. It is in view of all reasoned supra that I find that the case of the Applicants is incompetent and has thus robbed this Court of jurisdiction to entertain same. It is therefore, liable to be dismissed, parties having joined issues. This case is hereby dismissed.
66. Parties are to bear their respective costs.
Judgment is accordingly entered.
Hon Justice Oyebiola O. Oyewumi
Presiding judge.