Ogheneovo & Anor V. Governor Of Delta State & Anor (2022)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
The present appeal is against the judgment of the Court of Appeal Benin Judicial Division, delivered on December 13th, 2015 in appeal No. CA/B/01/2015. By the judgment in question, the Court below dismissed the Appellant’s appeal and affirmed the judgment of the trial High Court of Delta State holden at Effurun.
The instant appeal has its genesis traced to the year 2013. That’s when the Delta State House of Assembly in the exercise of its constitutional powers passed into law a Bill popularly known as THE STATE ANTI-KIDNAPPING AND ANTI-TERRORISM BILL. However, the 1st Respondent as the Governor of the State deemed it expedient to decline to assent to the Bill, which ultimately had to be returned to the House of Assembly. Not unexpectedly, by a majority of constitutionally required votes, the House passed the Bill into law.
Not unnaturally, the passing of the said bill into law had generated so much controversy, thereby warranting the Appellants herein to institute an action vide an originating summons on 15/11/2013 in the trial Court. By the said originating summons thereof, the Appellants sought against the Respondents the following declaratory reliefs:
- A Declaration that Sections 11 (1) and 16(3) of the Delta State Anti-Kidnapping and Anti-Terrorism Law, 2013 are in conflict with the provisions of Sections 35, 36 and 42 of the Constitution of the Federal Republic of Nigeria 1999, as amended and therefore null and void.
- AN ORDER striking out Section 11(1) and 16(3) of the Delta State Anti-Kidnapping and Anti-Terrorism Law, 2013 on the ground of inconsistency with Section 35, 36 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
The originating summons was supported by an 18 paragraphed Affidavit deposed to personally by the 1st Appellant, a verifying Affidavit and exhibits A&B attached thereto, respectively.
The matter proceeded to trial, at the end of which, the trial Court delivered judgment on 08/10/2014 to the conclusive effect:
The applicants are not a civil Liberties organization with a track record of diligently prosecuting cases with a clear public interest in such matters that might sway this Court to regard them as having sufficient interest… This brings me to conclude that the applicants have not demonstrated that they satisfy S.46 of the Constitution aforesaid. An applicant who does not have sufficient legal interest in a cause, or ventures to institute an action which has no bearing on him, cannot competently seek or be entitled to redress in a Court of law… There must be a nexus between the applicant and the disclosed cause of action concerning his right or obligation…
I must praise the action of the applicants in this case who are legal practitioners in this state and have brought this action to beam some light on the law in question. That is one of the roles legal practitioners should play; as watchdogs for society. But the Courts must follow the Constitution and precedence.
The application is struck out.
By the notice of appeal thereof, dated 27/10/2014, the Appellants appealed to the Court below, thereby urging upon the Court to set aside the judgment of the trial Court and determine the originating summons on merits, in view of the failure of the trial Court to do so.
On 13/12/2016, consequent upon the hearing of the appeal, the Court below delivered the vexed judgment to the conclusive effect:
Consequent upon the foregoing, I am of the view that where a Court holds that a plaintiff has no locus standi to maintain an action, it implies that the Court lacks the requisite jurisdiction to entertain the suit, as locus standi is a forerunner to jurisdiction. And where it is proved that a plaintiff like the Appellant in this case the Court will decline jurisdiction. A Court cannot manufacture locus standi: for a party or arrogate jurisdiction to itself. Once a Court lacks jurisdiction to determine a matter, the proper order to make is to strike out the case…
With the resolution of the two issues for determination in this appeal against the Appellants, it is my view that this appeal lacks merit and it is hereby dismissed.
In the result, the judgment of the lower Court in suit No. EHC/265/2013… delivered on the 8th day of October, 2014, is hereby affirmed.
There shall be N100,000.00 (One hundred thousand Naira) in favour of the Respondents against the Appellant jointly and severally.
The Appellants’ notice of appeal, filed on 17/02/2017, is predicated upon four grounds.
On March 8th, when this appeal came up for hearing, the learned counsel addressed the Court and adopted the submissions contained in their respective briefs of argument, thereby warranting the Court to reserve judgment.
The Appellants’ brief of argument, settled by O.O Edun Esq. on 13/6/2017, spans a total of 12 pages. At pages 2-3 of the brief, two issues have been nominated for determination, viz:
a. Whether the lower Court was right when it dismissed the appeal of the Appellants on the ground that they lacked locus standi to challenge apparent unconstitutional provisions of the Delta State Anti-Kidnapping and Anti-Terrorism Law, 2013?
b. Whether the lower Court was not unduly restrictive in its application of locus standi against the Appellants, considering that the Delta State Anti-Kidnapping and the extant raised constitutional issues that affect members of the public?
Both issues 1&2 have been canvassed together at pages 3-12 of the brief. In the main, it is submitted that the Court below erred gravely when it affirmed the judgment of the trial Court, thereby striking out the suit on the ground that the Appellants did not show sufficient interest to ground locus standi.
Further submitted, that it’s not in dispute that the law in question- The Delta State Anti-Kidnapping And Anti-Terrorism Law 2012, (i) is a law that affects the Appellants because they must comply therewith; and (iii) that the issue of bail of an accused person has a constitutional flavour and is tied to Sections 34, 35, 36, 42 & 46 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
It is argued, that it’s not in dispute that a citizen can challenge a law that is invalid and unconstitutional. See FAWEHINMI VS. AKILU (1987) 4 NWLR (pt. 67) 797; ABRAHAM ADESANYA VS. PRESIDENT FRN (1981) 2 NCLR 338 @ 380, 385; FAWEHINMI VS. PRESIDENT, FRN (2007) 14 NWLR (pt. 1054).
It was contented, that in ADESANYA’S case (supra) the Supreme Court did not stifle public interest litigation. See ADESANYA VS. PRESIDENT FRN (supra), per Fatayi-Williams, CJN @ 376.
Further argued, that the provisions of Section 46 (1)(&(3) of the 1999 Constitution (supra) birthed the Fundamental Rights (Enforcement Procedure) Rules, 2009 which have constitutionalflavour, and therefore at a higher statutory pedestal than the Delta State Anti-Kidnapping and Anti-Terrorism Law, 2013 (supra).
It is postulated, that Section 16 (3) of the Delta State Law, (supra) is an ouster clause, which completely ousts the jurisdiction of the Courts on issues relating to bail of suspects or accused persons charged under the law. See ABACHA VS. GANI FAWEHINMI (2000) 6 NWLR (pt. 660) 228; ORDER 3 (e) of the FUNDAMENTAL RIGHTS (ENFORCEMENT) RULES, 2009.
The Court is urged to so hold.
The Appellants equally invoke the power of the Court under the provisions of Section 22 of the Supreme Court Act, 2004, thereby urging upon the Court to hear and determine the main case on the merits, and hold that the Appellants have sufficient interest in the matter. See WASSAH VS. KARA (2015) vol. 239 LRCN.
On the whole, the Court is urged to allow the appeal, set aside the judgment of the Court below, and determine the substantive case on the merits.
Contrariwise, the Respondents’ brief, settled by O.F. Enenmo Esq. on 27/8/2028, spans a total of 16 pages. At page 3 of the brief, a sole issue has been thrown up for determination:
(1) Whether the learned Justices of the Court of Appeal were right when they held that the Appellant has not shown how the law which is made to curtail the activities of kidnappers and terrorists in Delta State have affected their rights, obligations or interest.
In a nutshell, it is submitted that the Court below was right when it held that the Appellants did not have the locus standi to initiate this action. Further submitted, that the Appellants have not shown how the provisions of Sections 11(1) and 16 (3) of the Delta State Anti-Kidnapping And Anti-Terrorism Law 2013 had affected their legal rights and obligations, have been or were in danger of being infringed. See AG of Akwa Ibom State vs. IG Essien (2004) 7 NWLR (pt. 892) 288.
It is argued, that the provision of Section 46 of the 1999 Constitution (supra) envisages that the claimant must demonstrate that the contravention of the provision is in relation to him. However, in the instant case, the Appellants have not shown how the provisions of Sections 11(1) and 16(3) of the Delta State Anti-Kidnapping And Anti-Terrorism Law 2013 (supra) have affected them personally, or their clients. They have not shown what constitutional interest they sought to protect, nor the violation of their constitutional right for which they seek redress. See ADESANYA VS. PRESIDENT FRN (1981) 5 SC 69; PACERS MULTIDYNAMICS LTD VS. THE MV. DANCING SISTER (2012) ALL FWLR (pt. 618 863 @ 816-817 paragraphs G-B; et al
It is argued, that the reliefs sought by the Appellants are not founded on the provisions of the Fundament Rights (Enforcement Procedure) Rules, 2009. And that they did not state in the 18 paragraph affidavit that their fundamental right has been infringed in any manner by the Respondents. See FAJEMIROKUN VS. COMMERCIAL BANK (CREDIT IYONAIS) NIG LTD (2002) 10 NWLR (pt. 774) 95 @ 110 paragraphs F-G, 112 E-E, et al.
Further argued, that there is no iota of conflict between the provisions of the Delta State Law, 2013 (supra) and Sections 35, 36 and 42 of the 1999 Constitution (supra). The Court is urged to so hold.
Conclusively, the Court is urged to dismiss the appeal and affirm the decision of the Court below.
By the Reply Brief thereof, settled by O.O Edun Esq. on 05/9/2019, the Appellants submit that the decision of the Court of Appeal in ONAGORUWA VS. IGP (1991) 5 NWLR (pt. 193) 593 @ 636 is inapplicable to the facts of this case, and should therefore be discountenanced. And that the purported Delta State Anti-Kidnapping Law, 2016 was made pendite lite, deliberately intended to put the Court in a state of helplessness. See CHIEF JOOLSON EFTOBOR VS. CHIEF J.O. OYENIKE (CA/B/312/2013).
It is equally postulated; that the Anti-Kidnapping and Anti-Terrorism Law 2013 (supra) has been repealed thus it is obsolete, dead and has ceased to exist. See ONAGORUWA VS. I.G.P. (1991) 5 NWLR (pt. 193) 593 @ 636 paragraphs E-F.
Having contrasted the Appellants’ two issues with the Respondents’ sole issue, I am of the profound view that the issues are not mutually exclusive. However, I have deemed it expedient to adopt the Appellants’ two issues for determination of the appeal, anon.
ISSUE NO. 1
The first issue, as copiously alluded to above, raises the vexed question of whether or not the Court below was right when it dismissed the Appellants’ appeal on the ground that they lacked locus standi to challenge the apparent unconstitutional provisions of the Delta State Anti-Kidnapping and Anti-Terrorism Law, 2013.
Instructively, the term locus standi (standing) in Latin denotes ‘place of standing’. Jurisprudentially, it denotes the right to bring an action or to be heard in a given forum (a Court or Tribunal). See BLACK’S Law Dictionary 11th edition, 2019 @ 1128.
The term locus standi (standing to sue) is essentially a party’s right to make a legal claim or seek judicial enforcement of a duty or right in a Court or Tribunal. And for a person to have a standing to institute an action in a Court or Tribunal, the plaintiff must show (i) that the challenged conduct has caused actual injury thereto; and (ii) that the interest sought to be protected is within the ambit of the provisions of the constitution or law. In the case of BAKER VS. CARR (1962) 369 US 186, 204, 82 S.C 691 @ 703, the US Supreme Court aptly held:
Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.
Likewise, about four decades ago, Joseph Vining alluded to the fact that the term ‘standing’ (Locus standing) is rather recent in the basic judicial vocabulary, which apparently has not been used until the middle of the 20th century:
No authority that I have found introduces the term with proper explanations and apologies and announces that henceforth standing should be used to describe who may be heard by a Judge. Nor was there any sudden adoption by tacit consent. The word appears here and there, spreading very gradually with no discernible pattern. Judges and lawyers found themselves using the term and did not ask why they did so or where it came so or where it came from.
See JOSEPH VINING: LEGAL IDENTITY (1978) @ 55;BLACK’S LAW DICTIONARY 11TH edition 2019 @ 1695.
Undoubtedly, the right to invoke the judicial powers of the Courts or Tribunals in Nigeria is as circumscribed by the Constitution of the Federal Republic of Nigeria, 1999 as amended (or altered) and the laws made pursuant thereto. Under Section 6 of the 1999 Constitution (supra), the Courts have graciously been conferred with judicial powers to adjudicate on 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 right and obligations of that person. See Section 6(6)(b) of the 1999 Constitution, as amended, viz:
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;
Thus, against the backdrop of the provisions of Section 6 of the 1999 Constitution (supra), for any person to have locus standi (standing) to invoke the judicial power against a person, government or authority, he must establish a factual basis his right or obligations have been infringed upon, and that he was entitled to justifiable reliefs.
Indeed, the law is well settled, that for a person to have a standing (locus standi) to institute an action or appeal against a decision of a Court, he must show that he has special interest, that the interest is not vague, intangible, supposed or speculative, or that it is not an interest which he shares with other members of the society. He equally has to show that such interest has been adversely affected by the act or omission which he seeks to challenge. See RE-IJELU (1992) 9 NWLR (pt. 266) 414, per Usman Mohammed JSC @ 422-423 paragraphs H-A; AG; A.G AKWA IBOM STATE VS. ESSIEN (2004) 7 NWLR (pt. 892) 288.
Under Section 11 (2) of the Delta State Anti-Kidnapping And Anti-Terrorism Law, 2013 in question, it is provided:
“Any Community in whose domain hostages are being held, the community executive leader shall be arrested and upon conviction be sentenced to imprisonment for five years without an option of fine.”
The Appellants have deposed to an 18 paragraphed affidavit in support of their application. Having critically, albeit dispassionately, perused the Affidavit, I am unable to see any paragraph in which the Appellants have disclosed that they were community executive leaders or traditional rulers of the community in Delta State. They have equally failed to disclose in their Affidavit that they were members of trustees or Youth Executives of any community in Delta State.
As copiously alluded to above, the originating summons was filed by the Appellants in the trial Court, thereby alleging that Sections 11(1) and 16 (3) of the Delta State Law 2013 are in conflict with the provisions of Sections 35, 36 and 42 of the 1999 Constitution (supra).
Now, Section 46 of the 1999 Constitution (supra), which confers locus standi on a person provides.:
“46 Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to the High Court in that state for redress.
In the instant case, the Appellants have failed to show (as required by Section 46 of the 1999 Constitution, how or to what extent, the Delta State Anti-Kidnapping And Anti-Terrorism Law, 2013 has adversely affected them personally. Nor have they disclosed the interest they seek to protect. In the case of ADESANYA VS. PRESIDENT FRN (1981) 5 SC 69, it was aptly held by this Court:
Admittedly, in cases where a plaintiff seeks to establish a private right or special damage either under the common law or administrative law, in non-constitutional litigation, by way of an application for certiorari, prohibition or mandamus or for a declaratory and injunctive relief, the law is now well settled that the plaintiff will, have locus standi in the matter only if he has sufficient or special interest in the performance of the duty sought to be enforced, or where his interest is adversely affected; will of course, depend on the facts of each case. Whether an interest is worthy of protection is a matter of judicial discretion which may vary according to the remedy asked for. Per Fatayi Williams, CJN.
Likewise, in the case of PACERS MULTI-DYNAMICS LTD VS. THE MV DANCING SISTER (2012) ALL FWLR (pt. 618) 803 @ 816-817, this Court aptly reiterated the trite fundamental doctrine:
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 or being infringed. There are two tests for determining if a person has locus standi, they are:
(a) The action must be justifiable; and
(b) There must be a dispute between the parties.
See also OLAWOYIN VS. AG OF NORTHERN REGION OF NIGERIA (1961) ANLR 213; KEYAMO VS. LAGOS STATE HOUSE OF ASSEMBLY (2000) 12 NWLR (pt. 680) 196; SHIBKAU VS. AG. ZAMFARA STATE (2010) ALL FWLR (pt.552) @1706-1707 paragraphs. In the circumstances, the first issue ought to be and it is hereby resolved against the Appellants.
ISSUE NO. 2
The second issue raises the question of whether the Court below was not unduly restrictive in its application of locus standi against the Appellants, considering that the Delta State Anti-Kidnapping And Anti-Terrorism Law 2013 and the extant matter raised constitutional issues that affect members of the public.
Under paragraph 2.2 (at page 3) of the Appellant’s brief, it has been submitted that the Delta State Anti-Kidnapping And Anti-Terrorism Law, 2013 affects the generality of Deltans and residents within Delta State. According to the Appellants: It is not in dispute that the law affects the Appellants because they must comply with the said law. It is not in dispute that the issue of bail of an accused person has constitutional flavour and tied to Sections 34, 35, 36, 42 &46(1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It is also not in dispute that a citizen can challenge a law that is invalid and unconstitutional. The cases below have extensively entrenched these principles.
As alluded to above (under the first issue), the Appellants have not shown in their affidavit that their fundamental rights have been infringed upon in any form or manner by the Respondents. Thus, the allegation that the Fundamental Rights (Enforcement Procedure) Rules, 2009 is inapplicable to the present case.
As alluded to above, the findings of the trial Court were that the Appellants were “not traditional rulers or community leaders”, and that the Appellants’ rights as legal practitioners or citizens of Nigeria or Warri will not be imminently affected”.
See page 74 of the Record.
On the other hand, the Court below made some far-reaching findings to the following effect that:
Appellants are not running for election as community leaders. They are not legal practitioners to community leaders at least to bring them in line with cases like Adesanya v. President FRN (1981) (supra)? Gani Fawehinmi v. Akilu (1987) 4 NWLR (pt 67) at 847, Richard Oma Ahonaruogho v. Governor of Lagos state, JHRIP vol. 4 Nos 1, 2 & 3 December 1994 page. 185, Mike Ozekhome & Ors v. The President, 1 NPILR 345 at 359.
The Applicants are not registered NGOs or recognized public interest body as envisaged by the preamble to the Fundamental Rights Enforcement Procedure Rule… The Applicants are not civil liberties organization with track record of diligently prosecuting cases with a clear public interest in such matters that might sway this Court to regard as having sufficient interest.
In my considered view, the foregoing findings of the two Courts below are cogent, impeccable, unassailable and duly supported by the pleadings and affidavit evidence on record.
I am not at all unmindful of the far-reaching proposition by Fatayi-Williams, CJN (of blessed memory) in ADESANYA VS. PRESIDENT FRN (supra), viz:
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 ask for the appropriate declaration and consequential relief, if relief is required. In my view, any person, whether he is a citizen or not, who is resident in Nigeria, has obligation to see 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 done.
Indeed, there is no controversy at all, the provisions of the 1999 Constitution (supra) are superior to any law and inviolable. Under Section 1(1) & (3) of the Constitution, it is provided:
(1) The Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) If any other law is inconsistent with the provisions of this Constitution, the Constitution prevails, and that other extent of the inconsistency, be void.
The Appellants have vehemently put reliance on the provisions of Section 46 of the 1999 Constitution (supra) and Order 3 of the Fundamental Rights Procedure Rules, 2009 (supra), to the effect that the Court shall encourage and welcome public interest litigations in the human rights field and the fact that-
No human right case may be dismissed or struck out for want of locus standi in particular human rights application on behalf of any potential applicant.
However, as alluded heretofore, by the nature and circumstances surrounding the instant case, the Appellants’ claim and reliefs are mutually exclusive with the procedure and practice under the Fundamental Rights (Enforcement Procedure) Rules, 2009. Thus, Section 3(e) of the preamble to the Fundamental Rights Rules, 2009 (supra) would not be applicable to the Appellants’ case. See UMU UDOEKE UMUEZE VILLAGE ISUOFIA VS. UMUEZE VILLAGE UNION (2011) 6 NWLR (pt. 1243) 394 @ 410 paragraphs D-E.
What’s more, it is not at all in doubt, as aptly admitted by the Appellants’ learned counsel, that the entirety of the Delta State Anti-Kidnapping And Anti-Terrorism Law 2013 has been repealed (abrogated) by the new Delta State Anti-Kidnapping Law, 2016.
It is trite, that once a law is validly repealed by an enactment, the repealed law is deemed moribund dead, and spent. See ONAGORUWA VS. IGP (1991) 5 NWLR (pt. 193) 593 per Niki Tobi, JCA (as then was) @ 636 paragraphs E-F;
In my considered view, the Delta State Anti-Kidnapping And Anti-Terrorism Law, 2013 (supra), having been repealed, the issue of whether or not it’s in conflict with the provisions of the 1999 Constitutions has become rather spent and academic.
The law is well settled, beyond per adventure, that a Court is precluded from engaging itself in determination of questions, issues or points that are apparently academic. See EPEROKUN VS. UNIVERSITY OF LAGOS (1986) 4 NWLR (pt. 34) 162 @ 179; OLANIYI VS. AROYEHUN (1991) 5 NWLR (pt. 194) 652; AG ANAMBRA STATE VS. AG FEDERATION (2005) ALL FWLR (pt. 268) 1557 @ 1602; ODEDO VS. INEC (2008) 17 NWLR (pt. 1117) 554, wherein this Court aptly characterized an academic question or issue as one which does not require an answer or adjudication by a Court or Tribunal, because it is not necessary to the matter at hand:
“An academic issue or question does not relate to the live issues in the litigation because it is spent, as it will not enure any right or benefit on the successful party”.
Per Niki Tobi, JSC @ 600 paragraphs C-E.
In the circumstances, the second issue ought to be, and it is hereby resolved against the Appellants.
Hence, against the backdrop of the determination of both issues raised by the Appellants against them, the appeal inevitably fails, and it is hereby dismissed by me.
Consequently, the judgment of the Court of Appeal Benin Judicial Division, delivered on December 13th, 2016, in appeal No. CA/13/01/2015, is hereby affirmed.
Parties shall bear their respective costs of litigation.