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

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IGNATIUS IGWE AGUBE, J.C.A.

This appeal has opened once more the Pandora’s box of the concept of locus standi in Nigerian jurisprudence which concept has polarised the Supreme Court and its subordinates as well as legal practitioners and pundits particularly in the areas of public interest litigation and the limitations on individuals/class of citizens who are intent on protecting the Constitution from violation vis-a-vis the hermeneutics of Section 6(6)(b) thereof which vests the courts with the adjudicatory powers on matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person.

The facts relevant to this case are that the Plaintiffs/Respondents are both members of the Action Congress one of the registered and recognised political parties in this country. The 2nd Plaintiff/Respondent is said to be the Chairman of the said party in a Ekiti State which party has 13 elected members in the 3rd Defendant/Appellant (State House of Assembly) who by virtue of their offices were/are vested with the constitutional rights and obligations to participate in the screening and determination of the fitness of the 5th – 16th Defendants/Appellants for the positions they individually and collectively hold now in Ekiti State. On the 4th day of June, 2007, the screening of the 5th – 16th Defendants/Appellants and twelve (12) unnamed Special Advisers was undertaken by the 3rd Defendant/Appellant whose legislative tenure as provided by the Constitution, according to the Plaintiffs/Respondents had expired. The grouse of the Plaintiffs/Respondents against the Appellants, is that the screening and confirmation of the appointment of the 5th – 16th Appellants and unnamed Special Advisers into various political offices by the 1st – 4th Respondents was done in violation of the provisions of Section 105(1) of the Constitution of the Federal Republic of Nigeria 1999, same having been done by a House of Assembly whose life span had expired, thus rendering the entire screening exercise unconstitutional, null and void.

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

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

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

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

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

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

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

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

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

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

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