IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THEABUJA JUDICIAL DIVISION HOLDENATABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD, OFR PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

 

DATE: 21 MAY 2024                                                                  

SUIT NO. NICN/ABJ/302/2023

 

BETWEEN

The Incorporated Trustees of Initiative on Education for Global Growth    -

 

AND

1. National Broadcasting Commission

2. Federal Ministry of Information and National Orientation

3. The Head of the Civi Service of the Federation                                    -

Claimant

 

 

 

 

 

Respondents

 

REPRESENTATION DennisAbu, for the claimant.

I. C. Nworgu, holding the brief of Afam O.Okeke, for the 1st respondent. No legal representation for any of the 2nd and 3rd respondents.

 

RULING INTRODUCTION

1. The claimant filed this suit on 1 November 2023 vide an originating motion brought pursuant to section 6(6) of the 1999 Constitution, Order 3 Rule 1(1) and Order 48 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017), section 17 of the National Industrial Court (NIC) Act 2006 and under the inherent jurisdiction of the Court.

 

2. The claimant is praying the Court for the following reliefs:

(a) A Declaration that the 1st & 2nd Respondents being public body/public officers have a duty under the extant law of the Federal Republic of Nigeria and the Civil Service Rules thereat to obey by complying and carry out lawful directive of Federal Government of Nigeria via the Head of the Civil Service of the Federation (3rd Respondent) circulars directed to them as contained in the circulars dated 12th April 2021 with Ref No: HCSF/ SPSO/ODD/NCE/CND.100/   S.10/111/104 and 21st November 2022 with Ref No: HCSF/SPSO/ODD/E&WT/649614.

(b) AN Order directing the 1st Respondent to immediately comply with the directives in the circular dated 12th April 2021 with Ref No: HCSF/SPSO/ODD/NCE/CND.100/ S.10/111/104 and 21st November 2022 with No: HCSF/SPSO/ODD/E&WT/649614 and disqualify one KALTUMI GIWA from the promotion exercise of the 1st Respondent.

(c) AND SUCH ORDER OR FURTHER ORDERS as this Honourable Court may deem fit to make in the peculiar circumstances of this case.

 

 

 

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3. The grounds upon which the originating motion is based are:

(1) The Respondents being public body/public officers under the Constitution of the Federal Republic of Nigeria 1999 (as amended) and under the Civil Service Rules and all extant laws are under a duty to obey and carry out all lawful directives of the Federal Government of Nigeria through the Head of the Civil Service of the Federation.

(2) That the Federal Government of Nigeria through the Head of the Civil Service of the Federation issued circulars dated 12th April 2021 with Ref No: HCSF/SPSO/ODD/ CND.100 S.10/111/104 and 21st November 2022 with Ref No: HCSF/SPSO/ODD/ E&WT/649614 providing specific requirement for civil servants in Accounting and Engineering who are graduates of Polytechnics to be promoted to Director cadre of the Federal Civil Services in Ministries, Agencies and Parastatals.

(3) That it was expressly provided that Civil Servants in the Accounting and Engineering profession should in addition to a professional certification, would require a PGD and Masters in Accounting and Engineering to be promoted to Director cadre.

(4) That the 1st Respondent in its promotion exercise for 2023 screened eligible candidates for the exercise and pursuant to the Circulars dated 12th April 2021 with Ref No: HCSF/SPSO/ODD/CND.100 S.10/111/104 2021 and 21st November 2022 with Ref No: HCSF/SPSO/ODD/E&WT/649614, some staff were affected by the circular including KALTUMI GIWA who was also not qualified to be promoted to the Director Cadre.

(5) That when the List of eligible staff for the promotion exercise was released, KALTUMI GIWA was surreptitiously listed amongst the eligible staff to be promoted to the Director cadre despite her ineligibility.

(6) That upon discovering the error, the 1st Respondent thereafter released another list containing the list of eligible staff and the name of KALTUMI GIWA was justifiably removed from the list.

(7) However, on the scheduled date for the promotional examination when all the eligible staff were already seated waiting for the examiners, KALTUMI GIWA was smuggled into the examination hall which caused some commotion in the hall to partake in the promotional examination.

(8) That the act of allowing and smuggling in KALTUMI GIWA into the examination hall while leaving out other staff like CECILIA EKLE, KABIRU MOHAMMED AND MR FRANCES IGBANOI AGANDE who were also affected by the directives contained in the circulars dated 12th April 2021 with Ref No: HCSF/SPSO/ODD/CND.100 S.10/111/104 2021 and 21st November 2022 with Ref No: HCSF/SPSO/ODD/E&WT/ 649614 is nepotistic and negates all the democratic principles of fairness and natural justice.

(9) That the plaintiff herein has written to the Respondents who have failed/neglected to address and correct the injustice melted out in the 1st Respondent Parastatal that is under the supervision of the 2nd Respondent.

(10) That there is a dire need to grant the instant application in the interest of justice to all staff of the 1st Respondent and restore confidence in the Nigeria System.

(11) That the Respondents will not be prejudiced by the grant of thisApplication.

 

 

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4. In support of the originating motion is an affidavit, with exhibits attached, and a written address.

 

5. The further and better affidavit of the claimant filed on 13 February 2024 was discountenanced by the Court on 22 February 2024 since it was filed without leave of court. Accordingly, arguments hinged on this further and better affidavit would be discountenanced for purposes of this ruling.

 

6. The Court had at its sitting of 25 January 2024 noted that the claimant is an NGO said to be registered, but nothing is before the Court showing its registration and its mandate. The Court further noted that the claimant is complaining about issues relating to the promotion of staff of the 1st respondent; and that it is not clear what the locus of the claimant is to raise these concerns as per the instant suit. In all, the Court questioned the competence of this suit. The Court then asked parties, starting with the claimant, to in writing address the Court on these issues. To this, the claimant on 13 February 2024 filed a written address on the issue of locus standi raised by the Court. None of the respondents (including the 1st respondent) reacted to this claimant’s process.

 

7. Instead, on 22 February 2024 the 1st respondent filed a counter-affidavit and a written address in opposition to the originating motion; and then filed a motion on notice praying the Court to strike out this suit. The motion on notice was brought pursuant to Order 17 Rule 1 and Order 29 Rule 1 of the NICN Rules 2017, section 254C of the 1999 Constitution, section 825 of the Companies and Allied MattersAct 2020 and under the inherent jurisdiction of the Court.

 

8. In reaction to the 1st respondent’s motion on notice, the claimant on 7 March 2024 filed a counter-affidavit, with exhibits, and a written address.

 

9. The 1st respondent did not file any reply on points of law in response to the claimant’s reaction to its motion praying to strike out the suit.

 

10. The 2nd and 3rd respondents did not make any appearance, nor did they file any process.

 

11. This ruling is accordingly on the prayer of the 1st respondent to strike out this suit, and the issues as to competence of this suit raised by the Court.

 

THE SUBMISSIONS OF THE 1ST RESPONDENT

12. The 1st respondent prays the Court to strike out this suit. The 1st respondent predicates this prayer on the following grounds:

(a) The Plaintiff does not have the Locus standi to institute this action.

(b) The Plaintiff does have the power either donated or statutory to institute the action on representative capacity.

(c) The Plaintiff is not a party as envisaged by the Constitution.

 

 

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(d) The applicant did not seek and obtain the leave of this court before filling the suit.

 

13. The 1st respondent then submitted four issues for determination, namely: (a) Whether the Plaintiff has the locus standi to institute this action. (b) Whether the proper party to institute this action is before this court.

(c) Whether from the community reading of the Powers of the Plaintiff from its constitution, the Plaintiff is empowered to institute an action on behalf an employee that is not even present before the court.

(d) Whether this matter could be commenced without the leave of the court.

 

14. On issue (a), the 1st respondent submitted that the claimant has no locus standi to institute this action, given that a party intending to challenge or take any legal steps to protect any interest before a court must have and demonstrate his locus standi on the matter, citing section 6(6) of the 1999 Constitution. That locus standi denotes legal capacity to institute proceedings in a court of law, citing Adewunmi & ors v. A.G. Ekiki & ors [2002] 9 NSCQR 66 at 73. That before any person can call in aid the judicial powers of the courts, the matter(s) on which he wants a decision must relate to his civil rights and obligations; and where he is unable to show that he has either civil rights or obligations, he will be held to have no locus standi or standing.

 

15. To the1st respondent, ther are so many questions begging for answers: what is the interest of the claimant? What will it benefit from this action? Is there an employer-employee relationship between the claimant and the defendant? That there are so many guesses begging for answer. That a careful consideration of the facts of this case will show that the claimant has no locus standi to even institute this action. That merely stating that it an NGO does not suffice, urging the Court to hold so.

 

16. For issue (b), the 1st respondent submitted that the proper/necessary parties to institute this action are not before this Court. That National Democratic Party (NDP) v. Independent National Electoral Commission (INEC) [2013] 16 MRSCJ 19 at 23 defined whom a necessary party is in these words:

A necessary party is someone whose presence is essential for the effectual and complete determination of the issue before the court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined. A necessary party should be allowed to have his fate in his own hands.

 

17. Citing also Lagos State Bulk Purchase Corporation v. Purification Techniques Nig. Ltd [2013] 11 MRSCJ 132 at 138, the 1st respondent submitted that the Supreme Court, on the question of necessary party and test to determine whom a necessary party, stated the following:

(a) Is it possible for the trial court to adjudicate upon the cause of action set up by the Plaintiff unless the person is added as a defendant?

(b) Is the person someone who ought to have been joined as a Defendant in the first instance?

 

 

 

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(c) As an alternative, is the person someone whose presence before the court as a defendant will be necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause?

 

18. That it is also worthy to note that in industrial related matters, the party must have an industrial relation with the defendant to be able to institute the action, citing section 254C of the 1999 Constitution. That where there is no such relationship, the party cannot be said to have locus standi, neither can be said to be a proper party. That in the instant case, the question is: are there parties that are not before this court, without whom, this case will not be completely, effectively and effectually be determined? That the answer is yes. The 1st respondent then asked: who then is that party? The 1st respondent answered that the proper parties to institute this action are: “KATUMI GIWA, CECILIA EKLE, KABIRU MOHAMMED and MR FRANCES IGBANOIN AGANDE” whom the claimant is complaining on their behalf but are not before this Court. That taking a look at the process before this Court, it is crystal clear that the proper parties to institute this action are not before this Court, urging the Court to hold so.

 

19. In respect of issue (c), the 1st respondent submitted that it is the law that any registered organization derives its powers from either the company’s memorandum and articles of association or the constitution, as the case may be. That in the present suit, the constitution of the association is clear and unambiguous. The powers cannot be stretched beyond their ordinary meanings. Therefore, that the powers of the claimant as encapsulated in their aims and objectives do not extend to instituting a matter where they don’t have locus standi, urging the Court to hold so. That a community reading of the powers of the applicant does not empower it to take up and file this suit on behalf of other people.

 

20. Regarding issue (d), the 1st respondent submitted that it is elementary law that in the filing of the applications of the nature the claimant filed, the leave of the court must be sought and obtained. That where such was not done, the procedure is irregular and a nullity. That in the instant case, the claimant failed and or neglected to seek and obtain the leave of this court before filing the instant application. Therefore, that the application is irregular and should be struck out or dismissed.

 

21. In conclusion, the 1st respondent urged the Court to strike out this application for declaratory reliefs as the claimant does not have the locus standi to institute the action, neither is it the proper party to present this case before the Court.

 

THE SUBMISSIONS OF THE CLAIMANT IN OPPOSITION

22. The claimant adopted the issues for the determination submitted by the 1st respondent.

 

23. On issue (a), the claimant submitted that, considering the principal objective of the claimant, the claims before the Court and contrary to the argument of the 1st respondent, the claimant possesses the requisite locus standi to institute the instant suit. That the term ‘locus standi’means the competence of a party to sue or defend an action. It is simply a right to appear in court to

 

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prosecute or defend an action affecting one’s legal right, citing Klifco Ltd. v. Helzmann [1996] 3 NWLR (Pt. 436) 276 at 292. That at this stage, in determining whether a party has locus standi, the chance that the action may not succeed is an irrelevant consideration, citing Taiwo v. Adegboro [2011] 11 NWLR (Pt. 1259) 562 SC at 579 - 580 and Kaduna State v. Hassan [1985] 2 NWLR (Pt. 8) 483 SC at 522 - 523. The claimant then urged the Court to be liberal in the consideration of the locus of the claimant as courts in recent times applied more liberal tests, and the trend is away from the restrictive and technical approach to questions of locus standi. That the approach these days is one of finding out whether the claimant has a genuine grievance, citing Centre for Oil Pollution Watch v. NNPC [2019] 5 NWLR (Pt. 1666) at 563.

 

24. The claimant went on that in the determination of such question, the Court will be looking at the originating processes of the claimant and not the process of the defendant (the 1st respondent in this suit). Referring to the originating process (and the further affidavit, which further affidavit had been discountenanced by this Court) filed by the claimant in support of the originating motion, the claimant asked: “whether the Claimant has sufficient interest justiciable interest or sufferance of injury or damage depends on the facts and circumstance of each case”. The claimant the referred to Centre for Oil Pollution Watch v. NNPC (supra); and then submitted that considering the peculiar fact and circumstance of this case, the claimant possesses the requisite locus to institute the case. That the aims and objective of the claimant by Exhibit LA-7 is very clear and apt in the advancement of education in the society.

 

25. To the claimant, in the determination of whether a plaintiff has locus standi, the Supreme Court in Centre for Oil Pollution Watch v. NNPC (supra) identified two factors to bear in mind, to wit:

(a) Locus standi should be broadly determined with due regard to the corporate interest being sought to be protected bearing in mind who the plaintiff is or plaintiffs are; and

(b) Ready access to the court is one of the attributes or civilized legal system. It is dangerous to limit the opportunity for one to canvass his case by rigid adherence to the ubiquitous principle inherent in locus standi which is whether a person has the stand in a case. The society is becoming highly dynamic and certain stands or yesteryears may no longer stand in the present state of social and political development.

 

26. The claimant accordingly submitted that:

(a) The corporate interest in the resolution of the suit submitted to this Honourable Court and the main objective of the Plaintiff as stated in their aims and objectives seeks the advancement of education in the society and therefore cloths (sic) the Plaintiff with the requisite locus standi. If the Honourable Court limits the corporate interest of the overall civil service of Nigeria…on the altar of Locus Standi, it will have a lasting effect on the moral of Civil Servants to advance their professional qualifications.

(b) That the Plaintiff's access to court which is one of the core attributes of a civilized legal system should not be limited by the ubiquitous adherence to the Locus Standi. The only aim (sic) of government that has being (sic) clothed with the requisite power to check the excesses of the executive arm of Government which the Respondents’ belongs

 

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to, is the Judiciary and the instant case is a clear opportunity for the Honourable Court to check the excesses of the Executive. The judicial arm by virtue of Section 6 (6) of the Constitution of the Federal Republic of Nigeria is empowered to do so.

 

27. The claimant continued that in R v. Somerset County Council & anor, Ex Parte Dixon [1998] Environmental L.R. 111, the court was admonished that when considering the issue of standi it has to ensure that the plaintiff in bringing his suit, is not prompted by an ill motive. Furthermore, that the action of the claimant “as can be gleaned from the Originating Motion is not prompted by ill motive rather it’s pursuant to genuine concern for equality and removal of every tendency of nepotism within the spare of the Civil Service and in the advancement of education in the society”.

 

28. To the claimant, by the originating process, it is not in doubt that:

(a) The claimant is a registered Non-Governmental Organization registered for the promotion of education in the society.

(b) That the core aim of the claimant as an NGO is the promotion of education in the society.

(c) That the 1st Respondent's refused (sic) to follow the 3rd Respondent’s circulars dated 12th April 202L with Ref No: HCSF/SPSO/ODD/NCE/CND.100/S.10/111/104 and 21st November 2022 with Ref No: HCSF/SPSO/ODD/E&WT/649614 issued for promotion based on educational qualification, referring to Exhibits LA-1 and LA-2 attached to the originating motion.

(d) The claimant wrote several letters to the 1st - 3rd Respondents requesting that they comply with the circulars without any response, referring to Exhibit LA-4 and LA-5 attached to the originating motion.

(e) Unfortunately, the 1st - 3rd Respondents did not respond to the letters nor complied with the circulars.

(f) Assuming the 1st - 3rd Respondents had complied with the circulars issued by the 3rd Respondent, the claimant wouldn’t have filed the instant suit before the Honourable Court. The intentional failure/neglect by the 1st Respondents (sic) and the 2nd – 3rd Respondent (sic) to act and respond to the letters of the claimant forced the hand of the claimant to institute the instant suit.

 

29. The claimant accordingly submitted that there is a grievance occasioned by the act of the 1st - 3rd respondents by not complying with their circulars and not responding to the several letters of the claimant, which had given rise to the instant suit, urging the Court to hold that the claimant possesses the requisite locus standi to institute the instant suit, citing the dictum of Onnoghen, JSC (as he then was) in Centre for Oil Pollution Watch v. NNPC (supra) at 571 - 572) that:

It would be a grave lacuna in the system of public law if a pressure group or even a single public-spirited tax payer were prevented by outdated technical rules of locus standi from bringing a matter to the attention of the courts to vindicate the rule of law and gent an unlawful conduct stopped. It is not a sufficient answer to say that judicial review of the actions of officers or department of government is unnecessary because they are

 

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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. In effect, there is consideration force in the view that it is by liberalizing the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law. Thus, in environmental matters such as the instant one, non-governmental organizations such as the appellant in the instant case, have the requisite standi to sue (emphasis is the claimant’s).

 

30. Therefore, that in respect to the instant suit, in educational matters the claimant possesses the requisite standi to sue, urging the Court to so hold.

 

31. With respect to the argument of the 1st defendant in paragraphs 1.2.5 and 1.2.6 of its written address, that there is nowhere in the claimant’s originating motion where the claimant deposed to the fact that it is an employee of the 1st defendant but the grouse of the claimant is well stated and articulated in paragraphs 8 and 9 of the originating motion and paragraph 3 of the counter-affidavit herein to the 1st defendant's motion on notice.

 

32. For issue (b), the claimant submitted that the proper parties needed for the just determination of the instant suit are before the Court. That the grouse of the claimant is the action of the 1st respondent in not following through the clear circulars of the 3rd respondent in its 2023 promotion exercise. That the proper and the necessary parties in the instant suit are, therefore, the respondents and not any other person. That it is the claim of the claimant that determines the proper and necessary parties to a suit. The cause of action of the claimant in this suit is the act of the 1st respondent who is under the supervision and control by the 2nd & 3rd respondents. That it is also trite that the claimant sues whoever he believes that he has a cause of action against and not any random person of the society, citing Green v. Green [1987] 3 NWLR (Pt. 61) 480.

 

33. To the claimant, the questions posed by the 1st respondent in paragraph 3.4 of the written address should be answered in the affirmative considering the reliefs before the Court, which relate particularly to the action of the 1st respondent and no one else.

(a) The 1st respondent is the necessary party and proper party to be sued as the order of the Court will be directed to the 1st respondent.

(b) The only person that the case cannot be adjudicated upon in his absence is the 1st respondent, hence its joinder as the 1st respondent.

 

34. Furthermore, that the 1st respondent seems confused of the status of the claimant as the claimant did not state anywhere in the originating motion that it was acting for specific individuals mentioned in paragraph 3.8 of the written address. That the address of counsel no matter how brilliant (which is not conceded herein) cannot take the place of evidence. That assuming but not conceding that the case was in a representative capacity of the specific individuals mentioned therein, the claimant would have specifically stated such in the originating motion and not otherwise. That it is a public interest litigation which the courts have over the years been advised to encourage in the interest of the general public.

 

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35. Finally, that assuming without conceding that proper or necessary parties as erroneously argued by the 1st respondent were not joined in the suit, the claimant submitted that courts have been advised that in such situation the case should not be defeated by reason of misjoinder or non-joinder. That the Court should in the circumstance proceed to determine the issue in controversy and not give in to mere technicalities to defeat the wheel of justice, urging the Court to so hold, referring to Maitagaran v. Dankoli [2021] MNWLR (Pt. 6) 134 at 184, and Order 13 Rule 14(1) of the NICN Rules 2017, to wit:

No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a judge may deal with the mater in controversy so far as regards the rights and interest of the parties actually before the Court.

 

36. Regarding issue (c), the claimant submitted that from the community reading of the powers and aims of the claimant from its constitution, the claimant is fortified and properly constituted to institute the instant suit. That the claimant is not aware of where the fact was stated that the it was representing a particular employee. This is not true and not contained in the claimant’s originating processes. That the Court cannot be misled by the 1st respondent.

 

37. The claimant went on that its aims and objectives are well captured in its constitution, which is not before the Court. That the core objective is to promote and encourage education in the society. Therefore, when the claimant as a registered NGO sees actions that will discourage and not promote education in the society, it steps in. That this is the fact is in issue in the instant suit, we urging the Court to so hold.

 

38. The claimant continued that the 1st respondent also misinterpreted the extant provision of section 254C of the 1999 Constitution when it submitted that it is only industrial related matters that can be brought before this Court. To the claimant, section 254C of the 1999 Constitution and section 7 of the NIC Act have specifically spelt out the powers and jurisdiction of this Court without any ambiguity, urging the Court to so hold as same relates to industrial actions and other matters connected therewith. That the jurisdiction to entertain suits on conditions of work and matters incidental thereto is specifically donated to this Court, referring to section 7 of the NIC Act and section 254C(1)(f), (g) and (k) of the 1999 Constitution. The claimant then urged the Court to hold that it has the requisite jurisdiction to entertain the instant suit.

 

39. In respect of issue (d), the claimant submitted that the argument of the 1st respondent is not supported by any authority or known law applicable to the National Industrial Court. The claimant then referred to Order 48 Rule 5 of the NICN Rules 2017, which provides thus:

An application for judicial review shall be brought within three (3) months of the date of occurrence of the subject of the application and no leave of court shall be required for that purpose.

 

 

 

 

 

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40. To the claimant, considering Order 48 Rule 5 of the NICN 2017, leave of this Court is not required before the filing of the instant application, urging the Court to so hold and discountenance all the arguments of the 1st respondent on the issue of leave of court.

 

41. In conclusion, the claimant urged the Court to exercise its discretion and refuse the 1st respondent’s motion for striking out as same is vexatious speculative and an attempt to waste and thwart the administration of justice in the instant case. That the Court should, therefore, assume jurisdiction in this case and do justice to it as presently constituted.

 

42. The 1st respondent did not file any reply on points of law.

 

THE CLAIMANT’S SUBMISSIONS ON THE ISSUE OF LOCUS STANDI RAISED BYTHE COURT

43. I must at the outset correct an impression created by the heading of the claimant’s written address here. The claimant titled its written address as “PLAINTIFF’S WRITTEN ADDRESS ON THE ISSUE OF LOCUS STANDI RAISED BY THE HONOURABLE COURT”. This title intuits that this Court raised only the issue of locus standi. I indicated at the start of this ruing the three issues raised by this Court:

(a) The claimant being an NGO said to be registered, but nothing is before the Court showing its registration and its mandate;

(b) The claimant complaining about issues relating to the promotion of staff of the 1st respondent, which raises the question of the locus of the claimant to come to this Court; and

(c) The competence of this suit.

 

44. In addressing only the issue of locus standi, the claimant did not fully comply with the directive of this Court.

 

45. The claimant submitted this sole issue for determination: “Considering the principal objective of the Plaintiff and the claims before the Honourable Court, whether the Plaintiff possesses the requisite locus standi to maintain the instant suit?” The submissions of the claimant on this issue were simply a rehash of its submissions regarding issue (a) submitted by the 1st respondent. There is no point repeating them here.

 

46. The claimant concluded by submitting that it will be just and equitable that the Court holds that the claimant possesses the requisite standi to sue and that the originating motion be granted in the interest of justice to ensure that nepotistic behaviors are not tolerated from public officers in Nigeria and the Civil Service. Accordingly, that every person, including NGOs who bona fide seek in the law court the due performance of statutory functions or enforcement of statutory provision or public laws, specially laws designed to protect human lives, public health and environment, should be regarded as proper persons clothed with standing in law to request adjudication on such issues of public nuisance that is injurious to human lives, public health and environment, citing Centre for Oil Pollution Watch v. NNPC (supra) at page 595.

 

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47. As I pointed out earlier, none of the respondents reacted to these submissions of the claimant, nor reacted independently to the issues raised by the Court.

 

COURT’S DECISION

48. I took time to consider the processes and submissions of the parties in this matter. For a start, in paragraphs 3.3, 3.6(a) and (b) and 3.13 of the claimant’s written address in opposition to the 1st respondent’s motion on notice, the claimant talked of its aims and objective(s) and referred variously to Exhibits LA-7 and LA-6. There are no Exhibits LA-7 and LA-6 before the Court. These exhibits were actually attached to the claimant’s further and better affidavit, which has been discountenanced by the Court. Arguments of the claimant hinged on its further and better affidavit as well as the exhibits attached thereto have equally been discountenanced.

 

49. The claimant, a Non-Governmental Organisation (NGO), is complaining that one Kaltumi Giwa was allowed and smuggled in by the 1st defendant into a promotion examination hall while leaving out staff like Cecelia Ekle, Kabiru Mohammed and Mr Frances Igbanoi Agande who were also affected by the directives contained in the circulars of 12 April 2021 and 21 November 2022, an act that is nepotistic and negates all the democratic principles of fairness and natural justice.

 

50. The question that arises presently is whether it is open to the claimant to lay this complaint. So, both the issues raised by this Court and the 1st respondent’s motion on notice are geared towards answering this question. I shall accordingly treat all these issues together in determining the competence of this suit as filed by the claimant.

 

51. The 1st respondent had argued that in industrial relations matters, the party must have an industrial relation with the defendant to be able to institute the action, citing section 254C of the 1999 Constitution. The 1st respondent did not expatiate on this point. Industrial relations is but an item of the jurisdiction of this Court. How the instant suit relates to industrial relations in the first place, the 1st respondent did not state.

 

52. On its issue (d) i.e. “whether this matter could be commenced without the leave of the court”, the 1st respondent’s submission is a sweeping generalization that was not substantiated. To the 1st respondent, it is elementary law that in the filing of the applications of the nature the claimant filed, the leave of the court must be sought and obtained; and where such was not done, the procedure is irregular and a nullity. That in the instant case, the claimant failed and or neglected to seek and obtain the leave of this court before filing the instant application. Accordingly, the instant suit is irregular and should be struck out or dismissed. What is the authority for this proposition? Which law or rule required that the claimant should seek leave of this Court before filing this suit? The 1st respondent gave none to this Court. I must accordingly discountenance the argument of the 1st respondent in that regard. And I so do.

 

 

 

 

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53. The principal ground upon which the competence of this suit is being challenged both in terms of the issues raised by the Court and the 1st respondent’s motion on notice is the issue of the claimant’s locus standi to file this suit as it did. By Professor Gregory Ibeh v. Chief Chikwendu Udensi & ors [2023] LPELR-60347(SC) per His Lordship Tijjani Abubakar, JSC, in the determination of locus standi, the claimant’s statement of claim should be the only process that should receive the attention of the Court. I shall accordingly stick to only the claimant’s originating motion in determining this issue.

 

54. Case law authorities abound that locus standi denotes the legal capacity of the claimant to institute a suit. The general learning here dictates that a claimant will have locus standi only if he has a special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. But the argument of the claimant is that this general learning has been modified where public interest litigation is concerned. And so the claimant placed much reliance on Centre for Oil Pollution Watch v. NNPC [2018] LPELR-50830(SC); [2019] 5 NWLR (Pt. 1666) at 563 as the authority that has altered the balance in this regard. Is this true of the state of the law? I shall subsequently consider in greater details Centre for Oil Pollution Watch v. NNPC as it relates to this case.

 

55. But first, I must note that Centre for Oil Pollution Watch v. NNPC is a 2018 decision of the Supreme Court dealing with public interest litigation as far as environmental matters and protection are concerned. And there have been more recent decisions of the Supreme Court on the issue of locus standi in general.

 

56. Paul Odimegwa & ors v. Daniel Ibezim & ors [2019] LPELR-46939(SC) is a 2019 decision of the Supreme Court. His Lordship Augie, JSC had this to say about locus standi:

It is settled that a Plaintiff will have locus standi only if he has a special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected - see Nyame v. FRN (2010) 7 NWLR (Pt 1193) 344; Busari V. Oseni (1992) 4 NWLR (Pt. 237) 55Z wherein this Court Tobi, JCA (as he then was) stated:

The determination of locus standi zeroes on two major and telling words. One is 'Sufficient". The other is "interest': They both make up the "sufficient interest" concept. The term sufficient interest is broad and generic. It is also vague and nebulous. It lacks a precise and apt legal meaning. It could only be determined in the light of the facts and circumstances of the particular case. The question of what constitutes sufficient interest is one of mixed law and fact; that is to say, it is not a question of law only or a question of fact only but both. In arriving at a decision one way or the other, the Court will be guided by the overall interest of the Parties in the litigation process in the absence of a specific enabling statute. This involves two apparently conflicting duties of the Court to vindicate the rights of the Plaintiff to set the litigation process in motion and the concomitant rights of the Defendant not to be dragged into unnecessary litigation by a person, who has no standing in the matter, or a mere busybody parading the corridors of the Court

 

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-- The trial judge, in determining locus standi, will be involved in the delicate balancing of divergent interests, which are diametrically opposed - - It is a very complex exercise based on the pleadings of the Plaintiff…One other test of sufficient interest is whether the Party seeking for the redress or remedy will suffer any injury or hardship arising from the litigation. If the Court is satisfied that he will so suffer, then he must be heard as he is entitled to be heard.

 

57. Taking a cue from Paul Odimegwa & ors v. Daniel Ibezim & ors, as far as the instant case is concerned, the question is: what injury will the claimant suffer if it is not heard? The answer is: NOTHING.

 

58. Prince Femi Agunsoye v. Prince Joseph Babalola Arojojoye & ors [2023] LPELR-60393(SC) is a 2023 Supreme Court decision. His Lordship Tijjani Abubakar, JSC had this to say on locus standi:

On the issue of locus standi, this Court in ENGINEER FRANK OKON DANIEL v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS (2015) LPELR-24566 (SC) (Pg. 47 paras. A) held as follows.

LOCUS standi denotes the legal capacity to institute proceedings in Court. It is a threshold issue that goes to the root of the suit. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the Court. Consequently, if the plaintiff does not have locus standi to institute the suit, the Court would have no jurisdiction to entertain the suit. Usually, it is the plaintiff that is questioned as to whether he has locus standi…

There is a long line of authorities on locus standi and the general principle is that for a person to have locus standi either to institute an action or to prosecute an appeal he has to show that he has special interest; that the interest is not vague, or intangible, supposed or speculative or that it is not an interest which he shares with other members of society. He also must show that such interest has been adversely affected by the act or omission which he seeks to challenge.

 

…………………….

 

My Lord and learned brother, OGUNWUMIJU, JSC, while elaborating on the issue of LOCUS Standi recently made this illuminating remarks in ALLIANCE INTERNATIONAL LIMITED v. SAAM KOLO INTERNATIONAL ENTERPRISES LIMITED (2022) LPELR-57984 (SC):

In B.B APUGO & SONS LTD V. OHMB (2016) LPELR-40598(SC) Pages. 85-86, paras. B-A this Court per RHODES-VIVOUR, JSC held thus:

In Pacers Multi Dynamics Ltd v. M. V. Dancing Sister (2012) 1 SC (Pt. 1) P.75. I explained locus standi as follows: I said: “A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being

 

 

 

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infringed. There are two tests for determining if a person has locus standi. They are:

1. The action must be justiciable, and

2. There must be a dispute between the parties.

In applying the test, a liberal attitude must be adopted…To have locus standi, the plaintiff's statement of claim must disclose sufficient legal interest and show how such interest arose in the subject matter of the action.

 

59. The key points to note in Prince Femi Agunsoye v. Prince Joseph Babalola Arojojoye & ors is that the claimant, to be held to have locus standi, must have special interest, which interest is not vague, or intangible, supposed or speculative or that it is not an interest which he shares with other members of society. He also must show that such interest has been adversely affected by the act or omission which he seeks to challenge. The question, in the instant case, is thus: what is the claimant’s special interest in the promotion examination conducted by the 1st respondent? The claimant identified Cecelia Ekle, Kabiru Mohammed and Mr Frances Igbanoi Agande as the employees who were shortchanged by the actions of the 1st respondent regarding the promotion examination in issue. Are they not accordingly the employees who should be filing this case? I think so. Since these employees are the major victims of the 1st respondent’s actions, has the claimant met the requirement that for it to have locus, the interest must be such “that it is not an interest which he shares with other members of society” as stipulated by Prince Femi Agunsoye v. Prince Joseph Babalola Arojojoye & ors? I do not think so.

 

60. The claimant had argued that the only arm of Government charged with responsibility of checking the excesses of the Executive arm of Government is the Judiciary and the instant case is a clear opportunity for this Court to discharge this responsibility. This argument is one that is hinged on emotionalism. In appropriate circumstances, the court may have the responsibility alluded to it by the claimant, but that responsibility is not one owed to busybodies.

 

61. I now turn to Centre for Oil Pollution Watch v. NNPC [2018] LPELR-50830(SC); [2019] 5 NWLR (Pt. 1666) at 563, a case cited and heavily relied on by the claimant. His Lordship Nweze, JSC (of blessed memory) delivered the leading judgment. He had this so say:

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. After all, as Dr. Thio (supra) opined, and I agree with the erudite author, the “judicial function (is) primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public (jurisdiction de droit objectif)”.

 

62. His Lordship Onnoghen, CJN had this to say in his concurring judgment:

…in the instant case where the plaintiff, an NGO, seeks the enforcement of the defendant's obligations under law vis-a-vis the rights of the affected communities to maintain a healthy environment which extends to their forest, rivers, air and land, they

 

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should be heard. Apart from the statutory obligations of the defendant under the Oil and Gas Pipelines Act and the regulations made thereunder, the common law principles in the law of nuisance as enunciated in the case of Rylands v. Fletcher (1868) L.R 3 H.R 330 imposes a duty of care on the defendant. It is therefore my considered opinion that from the facts pleaded in the amended statement of claim earlier reproduced in this judgment and the law, the lower Courts are in error in holding that appellant has no locus standi in instituting the present action which is aimed at saving the environment and lives of the people. The plaintiff cannot, in anyway, be described as a busy body or interloper. This is a public interest litigation in which the chambers of the Honourable Attorney-General of the Federation traditionally holds sway but the law on locus standi in that regard has grown beyond that and now encompasses public spirited individuals and NGOs

 

63. To His Lordship Musa Dattijo Muhammad, JSC in his concurring judgment:

…Appellant’s claim clearly suggest the degradation of environment occasioned by the respondent's seeming breach of relevant constitutional and statutory provisions. In insisting that the appellant herein satisfies the injury test in order to maintain an action, is to sustain injustice that would otherwise be obviated by the instant suit…this is a proper case to liberalize the frontiers of locus standi…As was allowed by Courts elsewhere, in the interest of justice, I find the appellant herein, a Non-Governmental Organization incorporated for the specific purpose of protecting the environment from being degraded, to have sufficient interest to maintain the instant action.

 

64. His lordship Aka’ahs, JSC in his concurring judgment added his voice thus:

…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 organisations 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.

 

65. For His Lordship Kekere-Ekun, JSC in his concurring judgment:

…The appellant, by its pleadings has shown that some of its members and the general public are affected by the destruction of marine life, water, flora and fauna of the Ineh and Aku streams/rivers occasioned by the alleged negligence of the defendant. It has shown that by the suit, it seeks the enforcement of the defendant's obligations under the relevant legislation on behalf of the affected communities, including some of its members. I am satisfied that it has shown sufficient interest in the subject matter of the suit to clothe it with the necessary standing to sue. It is for these and the more elaborate reasons ably advanced in the lead judgment that I would allow this appeal.

 

66. And to His Lordship Eko, JSC in his concurring judgment:

 

 

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…From the facts of this case, the appellant cannot be regarded as a mere busybody or troublemaker who is out merely to abuse the due process of the Court by the suit they had filed to enforce against the respondent the duty to remedy the nuisance caused to Ineh and Aku rivers and theAcha Community who depend on the clean water of the said rivers for their livelihood. A contaminated water and impaired environment by noxious toxicant material such as crude hydrocarbon oil not only destroys environment and the entire ecosystem, it is injurious to public health and human lives. I have, from the foregoing, shown that the Courts, in recent times, applied more liberal tests, and the trend is away from the restrictive and technical approach to questions of locus standi. The approach these days is one finding out whether the plaintiff has a genuine grievance.

 

67. I have taken time to dissect not just the leading judgment but five of the concurring opinions of their Lordships just so as to put in proper perspectives the decision, especially as it relates to the instant case given that the claimant placed heavy reliance on the case law authority.

 

68. Accordingly, what do I gather from Centre for Oil Pollution Watch v. NNPC? From my understanding of the Supreme Court decision, I come to the following conclusions:

(a) The appellant in Centre for Oil Pollution Watch v. NNPC was clothed with the locus to sue because the case dealt with environmental matters.

(b) Accordingly, the peculiarities of environmental protection weighed heavily in clothing the appellant with the locus standi to sue.

(c) Injury to public health and human lives was given much weight in allowing the appellant to sue.

(d) The respondent (NNPC) had specific statutory duties to perform especially under the Oil and Gas Pipelines Act and the regulations made thereunder and the rule in Rylands v. Fletcher (1868) L.R 3 H.R 330, which it did not adhere to. And so the appellant was allowed to sue for the discharge of the statutory duties.

(e) The appellant from its pleadings showed that some of its members suffered from the non-discharge by NNPC of the statutory duties imposed on it.

 

69. Since the claimant in the instant case is an NGO, and it claims this suit to be a public interest suit, are these considerations prevalent in the instant case as to clothe the claimant with the locus to sue? I do not think so for these reasons:

(a) The claimant did not disclose to this Court what statutory duties the respondents breached.

(b) The claimant did not show to this Court which of its members also suffered from the actions of the defendants.

(c) Even Cecelia Ekle, Kabiru Mohammed and Mr Frances Igbanoi Agande, variously named in ground (8) of the originating motion as well as paragraph 8(f) and (k) of the affidavit in support of the claimant, and said to have been left out of the “promotional examination”, have not been shown to be members of the claimant.

 

 

 

 

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