Austin Ayowe, Esq V. The President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo & Ors. (2005)

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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

This is an appeal from the ruling on the preliminary objection raised by the now respondent to the action of the now appellant. The appellants were plaintiffs in the Federal High Court of Nigeria.

The plaintiffs in that Court had commenced proceedings therein by originating summons dated 15/11/2004. In the said summons, the plaintiffs named Austin Awoye Esq. (ii) Dafe Karl Chuks. For themselves and on behalf of members of the Niger Delta Democratic Union (NDDU) seek through the court the reliefs hereafter itemized from the following (1) The President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo (2) The Attorney-General of the Federation (3) The Petroleum Production Pricing Regulatory Authority (PPPRA).

From whom the plaintiffs claim the following reliefs-

“1. A declaration that by virtue of (a),(b),(d) above, the office and functions of the Minister of Petroleum Resources shall/must be exercised by a Minister duly appointed for petroleum resources by the President of the Federal Republic of Nigeria.

2. An order directing the 1st defendant to appoint a Minister of Petroleum Resources in accordance with the mandatory provisions of the Petroleum Act Cap. 350 Laws of the Federation of Nigeria, 1990, as amended especially Section 15 thereof and Sections 5(1)(a)(b) and 315(1)a of the Constitution of the Federal Republic of Nigeria, 1999.
3. An order restraining the 1st and 3rd Defendants from further exercising any functions or powers of a Minister of Petroleum Resources as set out in the said Petroleum Act Cap. 350 Laws of the Federation, 1990 as amended.
4. A declaration that the direct activities of the President of the Federal Republic of Nigeria and (PPPRA) in respect of the Ministry of Petroleum and/or oil industry since 29th May, 1999 in the absence of a Minister of Petroleum Resources is unconstitutional, illegal, null and void.
5. A declaration that the 3rd defendant does not have the legal powers to fix the prices of petroleum products, including fuel, kerosene and diesel under the Petroleum Act Cap. 350 Laws of the Federation of Nigeria, 1990 as amended.”

The preamble to the plaintiffs in the originating summons in it’s a, b, c & d above are the questions posed by the plaintiffs which purport to derive from the plaintiffs interpretation of the provisions of the Petroleum Act Cap. 350 Laws of the Federation of Nigeria, 1990 as amended and Section 5(1)(b) and 315 of the Constitution of Federal Republic of Nigeria viz:

a, Whether by virtue of Section 15 of the Petroleum Act Cap. 350 Laws or the Federation, 1990 as amended there is a mandatory provision for the office of a Minister of Petroleum Resources.

b. Whether the Petroleum Act Cap.350 Laws of the Federation 1990 as amended is an existing law within the meaning of Section 315(1) (a) of the 1999 Constitution.

c. Whether by virtue of Section 5(1)(a) of the Constitution of the Federal Republic of Nigeria (1999) the President is enjoined to execute, implement and comply with all laws made by the National Assembly and or deemed to have been made by the National Assembly of the Federal Republic of Nigeria.

d. Whether by virtue of Sections 6(1) and 15 of the Petroleum Act Cap. 350 Laws of Federation 1990 as amended, any person and or body could increase the prices of petroleum products, except a Minister of petroleum resources duly appointed and sworn in.”

After filing the originating summons on 7/8/2003. The writ was supported by an affidavit. The appellant sought the leave of the court by a motion, and the court below, granted leave to the plaintiff to prosecute the claim in a representative capacity on 2/10/2003.

The originating summons has annexed to it several annexures, including a 105 page Constitution of the Niger Delta Democratic Union said to be registered with the directorate of Youths and Sports at the Governors Office – Delta State. Its certificate of registration at page 20 of the record of proceedings in the court below. Twelve newspaper cuttings from different newspapers on pages 20-24, 28-30,106-112.

When the originating summons with its annexures were served on the named respondents they filed a preliminary objection dated 11/8/03, after entering an appearance in the suit. The grounds of the preliminary objections are as follows.

1. The plaintiff has no locus standi to institute the action.
2. The court lacks jurisdiction to hear the matter.
3. The action is frivolous, vexatious, and an abuse of judicial process.

The respondents urge the court to dismiss the action. The learned trial Court heard arguments for and against the motion and adjourned ruling thereon to 15/9/04. On that day, the trial court found “(a) That the sole or principal question at issue is or likely to be one of the construction of a written law or of any instrument made under any written law or of any deed, will contract or other document or some question of law (b) There is likely to be any substantial dispute of facts.” The court then ruled as allows: “Beyond averments in the further affidavit there is nothing put forward in the claim to show the interests of the plaintiffs. The line of interest exhibited by these averments is to the effect that the plaintiffs are from Delta State which is said by the plaintiffs to be the largest oil producing State in Nigeria and that they are compelled by the questionable government policies and petroleum price hike to purchase the petroleum products at exorbitant prices from their meager resources. The interest deposed to in the further affidavit of the plaintiffs with all respect are not shown in any sense to have interest or injury that can be quantified to be over and above that of the general public constituting the Federal Republic of Nigeria the issue of operation of the Petroleum Act of 250 LFN 1990 and appointment of a Minister for Petroleum Resources are not issues that are personal to the plaintiffs but issues that are located in the realm of public right for the plaintiffs to invoke judicial power to determine the constitutionality of the executive action complained of in the instant case, they must show that their personal interest which are over and above the interest of other citizens of the Federal Republic of Nigeria are adversely affected. From the process filed in this case, there is nowhere the plaintiffs in this case indicate such line of interest or where it is established that they have suffered some specific injury which are particularly affecting their personal interests which are over the interest of other citizens of the Federal Republic of Nigeria are adversely affected. From the process filed in this case there is nowhere the plaintiffs indicate such line of interest or where it is established that they have suffered some specific injury which are particularly affecting their personal interest which are over and above those of the general interest of the citizens of the Federal Republic of Nigeria and it is not of the fact that other members of the Nigerian public have given them any leave to sue on their behalf too canvass for any public right which is general and not peculiar to their own personal interest since that has not been disclosed and the interests level they have shown here is not sufficient to accord them a standing in this case there is no way this court will assume jurisdiction to entertain this matter. The plaintiff in that writ have failed the test of locus standi. They have not shown any interest that is sufficient to accord them capacity to sue in this case. The objection is therefore sustained and the suit is hereby struck out.”