Professor T. M. Yesufu V. Governor Of Edo State & Ors (2001) LLJR-SC

Professor T. M. Yesufu V. Governor Of Edo State & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C. 

This appeal raises again the vexed question of locus standi, or standing to sue in an action.

The plaintiff, who is now appellant in this appeal, had sued the defendants/respondents claiming-

“1. A declaration that the 1st defendant has no lawful authority or power to dissolve the Governing Council of the Edo State University Ekpoma, under the law establishing the University or under any other law whatsoever.

2. A declaration that the purported dissolution of the Governing Council of the Edo State University of which plaintiff is Pro-Chancellor and Chairman by the 1st defendant as per his letter reference No. MGPAO/Vol.III/128 of 2nd July. 1992 addressed to the plaintiff is ultra vires, null and void and of no effect whatsoever.
3. An injunction restraining the defendants jointly and/or severally by themselves or through their agents, servants or privies from reconstituting, recognising or having any dealing whatsoever with any Governing Council of the Edo State University except that of which plaintiff is Pro-Chancellor and Chairman, until the expiration of his four year term of office or until removed from office in accordance with the provisions of the Edo State University Law 1991.”

He filed along with his writ a motion ex parte praying for an interim injunction “restraining the 1st defendant or the Edo State Government or the 3rd defendant, by themselves, their servants, agents and/or privies from appointing, recognising or otherwise having any dealings with any Governing Council of the Edo State University other than that chaired or headed by the plaintiff/applicant pending the hearing and determination of the motion on notice filed by the plaintiff/applicant in this suit for an order of interlocutory injunction against the defendants herein.” There was filed along also a motion on notice for an interlocutory injunction substantially along the prayer sought in the ex parte motion. To the affidavits in support of each motion was exhibited, among other documents, a letter (Exhibit A/D) dated 2nd July 1992 written by the appellant to the 1st respondent. Because of the importance of this letter to the issue raised in this appeal, I shall reproduce it in extenso at this stage. The letter reads:

“My dear Governor,

EDO STATE UNIVERSITY

RESIGNATION OF APPOINTMENT AS PRO-CHANCELLOR AND CHAIRMAN OF THE GOVERNING COUNCIL

I wish to refer to the discussions which Your Excellency and the Deputy Governor held with me on Tuesday, 30th June, 1992, during which you informed me of your intention to reconstitute the membership of the Governing Council of Edo State University, essentially because of political pressures from within the SDP. I advised, and still do so advise, that it would not be wise to politicise appointments to the University, particularly when for good traditional reasons, the relevant law took pains to insulate the institution from political and other sectional interests. Under that law each member (except ex officio) of Council, is appointed for a definite term of four years, and can only be removed on clearly defined grounds, after due process.

2. However, I accept on my part to resign, but I hinted that I would wish to consult other members of the Council. Your Excellency agreed. But last night, the Deputy Governor telephoned ostensibly to hasten my resignation because of the said political pressures.
3. Since I have no intention to embarrass you or the Government in this or any other matter, I have the honour hereby to tender my resignation as Pro-Chancellor and Chairman of the governing Council of Edo State University. The law requires me to give six months notice of such resignation; but Your Excellency indicated that you would waive the requirement and I hereby so request.

Yours very sincerely

(sgd)

Professor T. M. Yesufu”

(italics are mine)

The ex parte motion was denied by the learned trial Judge who ordered an accelerated hearing of the motion on notice. Meanwhile however, the appellant filed his statement of claim in which he pleaded, inter alia, as follows:

“5. The plaintiff avers that by letter dated 27th December, 1991 from the Secretary to the Edo State Government the plaintiff was appointed Chairman of the Governing Council of the University, which appointment he was to hold for a period of 4 years from the date of appointment as provided in paragraph 2 of the First Schedule to the Edo State University Law of 1991. The said letter shall be founded upon at the trial.

6. The plaintiff avers that as Pro-Chancellor and Chairman of the Governing Council of the University, he can only be removed from office or resign from that office in accordance with the provisions of paragraph 2(3) and paragraph 7(1)(a) of the First Schedule to the Edo State University Law 1991. This said law shall be relied upon at the trial.
7. The plaintiff avers that there is no provision in the said law for the dissolution of the Governing Council of the Edo State University which is in fact the embodiment of the University and 1st defendant and the other defendants have no power whatsoever to dissolve or reconstitute the Council.
8. The plaintiff avers that on the 28th of June, 1992 1st defendant in the presence of the Deputy Governor of the Edo State at the Government House in Benin City told him of his intention to dissolve the Governing Council of the University on grounds of political pressure and the plaintiff advised the 1st defendant against such move as it was beyond his power and as the Council is made up of various bodies within and outside the University and supposed to be completely insulated from politics.
9. The plaintiff avers that following the discussions aforesaid and subsequent pressures on him on telephone, he wrote a letter dated 2nd July, 1992 to the 1st defendant offering to resign as Chairman of Council subject to compliance with the provisions of the Law with regard to resignation from the Council. The said letter of the 2nd July, 1992 shall be relied upon at the trial”

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22. WHEREOF plaintiff claims as follows:-

(1) A declaration that 1st defendant as Governor of Edo State and/or Visitor to the Edo State University has no lawful authority or power to dissolve or reconstitute the Governing Council of the Edo State University, Ekpoma under the law establishing the University or under any other law whatsoever.

(2) A declaration that the purported dissolution of the Governing Council of the Edo State University of which plaintiff is Pro-Chancellor and Chairman by the 1st defendant per his letter reference No. MGP.4O/Vol.III/128 of 2nd July 1992 addressed to the plaintiff is ultra vires, null and void and of no effect whatsoever.”

(3) A declaration that the Governing Council of the Edo State University of which plaintiff is Chairman and Pro-Chancellor is still subsisting and the only legitimate and lawful Governing Council of the Edo State University notwithstanding the purported dissolution thereof by the 1st defendant.

(4) An injunction restraining the defendant, jointly and/or severally by themselves, their servants, agents or privies from constituting, reconstituting, recognising, or having any dealings whatsoever with, any Governing Council of the Edo State University except that of which plaintiff is Pro-Chancellor and Chairman, until the expiration of plaintiff’s four-year term of office or until the present members of the Council resign or are removed from office in accordance with the provisions of the Edo State University.”

On being served with both the motion on notice and the statement of claim, the respondents filed, by way of motion on notice, a notice of preliminary objection to both the motion and the action to the effect –

“1. That the plaintiff/respondent in this matter has no locus standi to institute this action.

2. That the whole action is incompetent and should be struck out.”

The motion was vigorously argued by both sides and, in a reserved ruling, the learned trial Judge observed:

“Having held that the plaintiff has not shown the personal interest he seeks to protect or any direct injury or likely danger to himself which he is seeking to avert by instituting this action personally, and having held that he has not brought the action in a representative capacity, I come to the conclusion that he has no locus standi to institute this action as he has done, and that the action is therefore, incompetent.”

and consequently struck out both the motion on notice and the statement of claim and dismissed the action itself.

The appellant appealed unsuccessfully to the Court of Appeal (Benin Division) which, in a dismissing the appeal to it, however, varied the order of dismissal of the action to one striking out the action.

The appellant, being still dissatisfied, has now further appealed to this court upon two grounds of appeal. Pursuant to the rules of this court, briefs of argument were filed and exchanged. In the appellant’s brief the lone issue formulated for determination reads:

“Whether the court below was right in holding that the appellant lacked locus standi on the ground that the appellant was estopped from complaining about the dissolution of the Edo State University Governing Council by 1st respondent.”

In the briefs of the 1st and 2nd respondents and 3rd respondent respectively, three issues are formulated, to wit:

“1. Whether Exh. D amounted to resignation and if so whether it thereby extinguished the interest upon which the appellant could have based his standing to sue in this case.

2. Whether the facts disclosed in the affidavits before the High Court are not sufficient for the Court of Appeal to uphold the decision of that court that the appellant lacked standing to sue in this case without reference to the statement of claim.
3. Whether a court of law and equity is precluded from invoking the doctrine of equitable estoppel where it was not pleaded by either of the parties to a suit.”

I think the appellant’s only issue is adequate enough to determine this appeal. I adopt it.

This is a convenient stage to state the facts. The appellant was by a letter dated 27th December 1991 appointed the Pro-Chancellor and Chairman of the Governing Council of the Edo State University, Ekpoma (now Ambrose Alli University); the appointment was for 4 years. On 30th June 1992, at a discussion between the appellant and the Governor of the State, the latter expressed his intention to dissolve and reconstitute the Governing Council of the University as a result of political pressures on him. The appellant advised that the affairs of the University be kept away from politics but the Governor appeared to have made up his mind to dissolve and reconstitute the Council. The Governor was, however, reluctant to dissolve the Council with the appellant as Pro-Chancellor, he, therefore, advised the appellant to resign his (appellant’s) appointment before the dissolution. On 2nd July 1992 the appellant wrote a letter to the Governor resigning his appointment and requesting the Governor to waive the notice he ought to have given. I have already reproduced the letter in the earlier part of this judgment. On the same day that the appellant wrote his letter of resignation, the Governor wrote to the former conveying to him the dissolution of the Governing Council of the University. On the 8th July 1992, the appellant issued his writ.

The question that arises in this appeal is this: will the appellant have standing to sue the Governor and the other defendants for the dissolution of the Council when he had ceased to be its chairman by his letter of resignation, Exhibit A or D But before going into the question I want to comment briefly on the attack on the judgment appealed against on the ground that the court below suo motu took the issue of estoppel and made it the basis of its decision when the issue was not placed before it by the parties. It is argued in the appellant’s brief thus:

“In our respectful submission the learned JCA was in grave error in formulating an entirely new issue in the appeal before them and on his resolution of that issue alone came to the conclusion that appellant had no locus standi. In adopting that approach the court below fell into two fundamental errors:

(a) equating locus standi with estoppel which did not arise from any of the grounds of appeal filed by appellant.

(b) resolving contentious issues in his interlocutory application on the basis of affidavit evidence only and without reference to the statement of claim.

It is our respectful submission that the factors for determining locus standi are not the same as those for determining estoppel. As learned JCA himself rightly held in Faponle v. U.I.T.H. (1991) 4 NWLR (Pt.183) 43 at 54 – 55 which he quoted in extenso at p.150 of the record:

‘Estoppel by conduct is a rule of evidence … being a rule of evidence therefore to be on the safe side, it must be pleaded and evidence must be led on it by the person relying on it.’ In other words estoppel cannot be raised as a preliminary objection to the institution of an action. It can only be raised as a defence to an action properly brought before the court. To argue that a person is estopped from making a claim in court there is a presumption that the action is properly before the court i.e .., that the action is properly constituted in all respects. Estoppel is only a defence put forward by the defendant(s) in their pleadings in the case and can only be established by evidence.

On the other hand the issue of locus standi goes to the competence or standing of the plaintiff to institute the action at all. Locus standi is the legal capacity of plaintiff/claimant to institute an action in a court of law in exercise of his right under section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979. That is why it can be raised in limine after the statement of claim has been filed and served. If the plaintiff’s statement of claim discloses no personal interest in the claim put forward by him he will have no locus standi to institute the action and the court will have no jurisdiction to entertain same. Adesanya v. President (1981) 2 NCLR 358, (1981) 5 SC 112; Fawehimni v. Akilu & Anor. (1987) 4 NWLR (Pt.67) 797 and Thomas v. Olufosile (sic) (1986) 1 NWLR (Pt. 18) 669. Consequently while estoppel is a rule of evidence, locus standi affects capacity to sue.

It is therefore our respectful submission that the lower court was in grave error when they decided the appeal before them on the basis of estoppel. Moreover estoppel was not one of the two issues distilled from the grounds of appeal before the lower court and the court should not have given it any consideration much less basing its decision thereon.”

The 1st and 2nd respondents, in their joint brief, made no answer to the submissions. The 3rd respondent, in its own brief made a rather timid answer. It is argued thus:

“The appellant contends in his brief that the Court of Appeal fell into error for ‘equating locus standi with estoppel which did not arise from any of the grounds of appeal filed by the appellant.’ By that, he is contending that estoppel could not be invoked by a Judge unless it formed part of the grounds of appeal.

Sirs, the fallacy in the appellant’s conception of estoppel is that he assumes that the rules of procedure which govern litigant’s reliance on the equitable defence of estoppel also restrict the application of the rules of equity by the courts. This conception of the law is erroneous.

It is humbly submitted that the doctrine of equitable or promissory estoppel is a rule of substantive law which all courts of law and equity are enjoined to apply – and indeed, a duty to apply – as was done in this case by the Court of Appeal. We respectfully refer to Order 3, rule 2(6) of the Court of Appeal Rules 1981 (as amended).”

Appellant’s contention is not that the court below had no power to apply the doctrines of equity in appeals before it but that in the present matter the issue in dispute was locus standi and not estoppel.

I think the criticism of the appellant on the lead judgment of the court below, per Ogundere, JCA with which Akpabio and Ige, JJCA agreed, is well taken. Ogundere, JCA devoted a considerable length of his judgment to estoppel by conduct which was not the issue placed before the court. Although at the end he related estoppel to locus standi, I think it was a most unnecessary exercise. The learned Justice of Appeal, after all the rambling on estoppel by conduct, came back to the real issue before it, that is, locus standi and concluded that the appellant had no locus standi to institute his action. The error committed by the court below has, therefore, not resulted in a miscarriage of justice. I will therefore say no more on it.

Coming back to the question of the locus standi of the appellant, the answer lies in the interpretation to be given to the letter the appellant wrote to the Governor on 2nd July 1992. Mr. Obaro, learned counsel for the appellant rightly conceded that the trial court was right in looking into this letter. The letter was pleaded by the appellant and it was he who tendered it at the hearing of the interlocutory proceedings before the court. The main contention of the appellant is that the letter was an offer to resign which took no effect until the legal procedures for effecting his resignation were complied with. It is also contended that by the 1st respondent’s letter dissolving the Council, his offer to resign was aborted.

The respondents, for their part, contend that the appellant’s letter of 2nd July, 1992 was a resignation and not just an offer to resign. They further contend that the appellant having resigned his appointment lacked locus standi to challenge the dissolution of the Council.

Having regard to the contents of appellant’s letter of 2nd July 1992, particularly the portion of it italicized by me in this judgment, the appellant, by that letter, effectively resigned his appointment as Pro-Chancellor and Chairman of Council of Edo State University. He also by that letter requested for a waiver of the notice he should have given. It does not lie in his mouth to say that he had no reply from the 1st respondent on his request for waiver of notice. The requirement of notice was not for his benefit but that of the respondents. I think the two courts below were right in finding that appellant resigned his appointment. The resignation need not to have been formally accepted by the respondents before taking effect T.O.S. Benson v. A. Onitiri (1960) 5 FSC 69, (1960) SCNLR 177, where the facts are not too dissimilar with the facts of the present case as regards the issue of resignation from an appointment. In Benson v. Onitiri, Ademola, CJF (as he then was) said at page 82 of the report:

“There is absolute power to resign and no discretion to refuse to accept notice. In the present case, I do not think it matters to whom the notice of resignation was addressed, whether to the Minister who made the appointment or to the board, on which Benson was serving.”

Later, in his judgment, to which Abbot, FJ and Brett, FJ concurred, the learned Chief Justice of the Federation added –

“I am of the view that a notice of resignation to either is good, nor do I think it necessary for the board or anybody else to reply that the resignation is accepted.”

The question of what gives a plaintiff the standing to sue or locus standi has been the subject of a number of judicial decisions See Momoh v. Olotu (1970) 1 All NLR 117; Adesanya v. The President (1981) 2 NCLR 358, (1981) 5 SC 112;Adefulu v. Oyesile (1989) 5 NWLR (PU22) 377; Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt.675) 315. It would appear from the welter of authorities on locus standi that a plaintiff, to enable him invoke the judicial power of the court, must show sufficient interest or threat of injury he would suffer. In the case on hand, I do not know what legal interest the appellant would have in the continued existence of the Governing Council from whose chairmanship he had resigned; nor the threat of injury he would suffer. I think the two courts below were right in holding that he had no locus standi to sue for the dissolution of the Governing Council after he had resigned from that body.

Consequently, I must hold that this appeal is bereft of any merit.

I dismiss it accordingly with N 10,000.00 (ten thousand Naira) costs to each set of respondents.

SC.70/1996