Legalpedia Citation: (2025-02) Legalpedia 21546 (SC)

In the Supreme Court of Nigeria

Fri Feb 7, 2025

Suit Number: SC.255/2007

CORAM

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Jummai Hannatu Sankey Justice of the Supreme Court of Nigeria

Moore Aseimo Abraham Adumein Justice of the Supreme Court of Nigeria

Stephen Jonah Adah Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar Justice of the Supreme Court of Nigeria

PARTIES

1. (MRS.) NGOZI OKONJO-IWEALA

APPELLANTS

1. MR. SAHEED FAWEHINMI
2. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
3. REVENUE MOBILIZATION, ALLOCATION AND FISCAL COMMISSION
4. ATTORNEY-GENERAL OF THE FEDERATION

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, LOCUS STANDI, CIVIL PROCEDURE, JUDICIAL POWERS, PUBLIC INTEREST LITIGATION, TAX LAW, PUBLIC SERVICE, REMUNERATION OF PUBLIC OFFICERS, APPELLATE JURISDICTION

SUMMARY OF FACTS

The appeal stemmed from a suit commenced via an Originating Summons dated 25th February 2004 at the Federal High Court by the original plaintiff, Chief Gani Fawehinmi, SAN (now deceased and replaced by Mr. Saheed Fawehinmi as the 1st Respondent). The plaintiff challenged the payment of foreign currency salaries to the 3rd Defendant (now Appellant), Dr. (Mrs.) Ngozi Okonjo-Iweala, then Federal Minister of Finance, and the 4th Defendant, Ambassador Olufemi Adeniji, then Federal Minister of External Affairs. The plaintiff contended that the Ministers were being paid yearly salaries of $247,000 (approximately N36 million) and $120,000 (approximately N17 million) respectively, which far exceeded the N794,085 prescribed by the “Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No. 6 of 2002.” The plaintiff alleged that such payments violated the Act and that the authorization by the President (1st Defendant) constituted an abuse of power.

At the trial Court, the Defendants filed Notices of Preliminary Objection challenging the plaintiff’s locus standi to institute the action. The Federal High Court upheld the objections and struck out the plaintiff’s suit for lack of locus standi. Aggrieved, the plaintiff appealed to the Court of Appeal. The Court of Appeal allowed the appeal, set aside the ruling of the trial Court, and proceeded to grant all the reliefs sought by the plaintiff in his Originating Summons. Dissatisfied with this decision, the 3rd Defendant (Dr. Ngozi Okonjo-Iweala) appealed to the Supreme Court.

During the pendency of the appeal, Chief Gani Fawehinmi, SAN, passed away on September 5, 2009, and was initially substituted by his son, Mr. Mohammed Fawehinmi, who also later died on August 11, 2021. Subsequently, Mr. Saheed Fawehinmi was substituted as the 1st Respondent in the appeal.

HELD

1. The appeal was allowed.
2. The Supreme Court held that the 1st Respondent lacked locus standi to institute the action, as he failed to demonstrate how his civil rights and obligations had been or were likely to be infringed.
3. The Court also held that the Court of Appeal wrongly invoked Section 16 (now Section 15) of the Court of Appeal Act to determine the entire case and grant reliefs without addressing the questions posed in the Originating Summons and without hearing from the appellant.
4. The judgment of the Court of Appeal delivered on July 20, 2007, with all the orders made therein, was set aside.
5. The Originating Summons was struck out for being incompetent.
6. Parties were ordered to bear their respective costs.

ISSUES

1. Whether the Court of Appeal was right in holding that the 1st Respondent had locus standi to institute the suit at the trial Court?
2. Whether the Court of Appeal was right in invoking its powers under Section 16 of the Court of Appeal Act to grant the reliefs contained in the Originating Summons in the circumstances of this case?

RATIONES DECIDENDI

LOCUS STANDI – THE ISSUE OF STANDING BEING A FUNDAMENTAL REQUIREMENT IN NIGERIAN CONSTITUTIONAL JURISPRUDENCE

I have carefully reviewed all the submissions of the parties on this first issue. This Court has over the years progressively and in an expansive mode settled the subject of locus standi as it operates in the context of the Nigerian Constitution and the law. Starting from the decision in the case of Senator Abraham Adesanya v. The President of Nigeria (1981) 2 NCLR 358, A.G. Bendel State v. A.G. Federation (1982) 3 NCLR 1, Fawehinmi v. Akilu (1987) 4 NWLR (Pt 67) 797 and Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) 606, to date, this Court has tremendously fashioned out all that we need to know on locus standi. – Per STEPHEN JONAH ADAH, J.S.C.

LIBERAL INTERPRETATION OF LOCUS STANDI – THE NEED TO BALANCE ACCESS TO COURTS WITH PREVENTING ABUSE OF PROCESS

I wholeheartedly endorse the pronouncement of Fatai-Williams, CJN when in Adesanya’s case (supra) he said: ‘With these observations in mind, I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written Federal Constitution, where rumor-mongering is the pastime of the marked places and the construction sites. To deny any member of such a society who is aware or believes, or is led to believe, that there has been an infraction of any of the provisions of our Constitution, or that any law passed by any of our Legislative Houses, whether Federal or State, is unconstitutional, access to a Court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organized disenchantment with the judicial process.’ – Per STEPHEN JONAH ADAH, J.S.C.

CONSTITUTIONAL CHALLENGE VS. EXECUTIVE ACTION – DIFFERENT STANDARDS OF LOCUS STANDI

The Court, therefore, must shun the temptation of giving a blank cheque to everyone to prime up the zeal to approach the Court over every decision of the Executive and the Legislature. This will not be a problem, if there is no abuse. There is in our clime high tendency of abuse of such unguarded open door which will cause a floodgate of baseless and irritable litigations that will worsen the congestion that is rocking the Courts. – Per STEPHEN JONAH ADAH, J.S.C.

CONSTITUTIONAL CHALLENGE VS. EXECUTIVE ACTION – DISTINCTION IN SHOWING LOCUS STANDI

To be unconstitutional means to be in conflict with the letters and intent of the Nigerian Constitution. Having regards to the fact that the Constitution is the grund norm, any assault to it can be challenged in Court by any citizen of Nigeria. But when it comes to issue of steps or decisions of the Executive such as payments of salaries, one needs to show sufficiently his interest or right that is in danger.– Per STEPHEN JONAH ADAH, J.S.C.

BURDEN OF PROOF OF LOCUS STANDI – DUTY TO PROVIDE EVIDENCE OF STANDING

His being a tax payer, however, must be backed by solid evidence such as his tax certificate or receipt just as he was readily annexing the copy of his oath as a senior advocate of Nigeria. Once this is not done, it is still not proven or satisfactory that he is truly a tax payer. The fact that his deposition in the affidavit in support was not controverted by a counter affidavit is not enough to satisfy the Court that he is a tax payer. The duty of establishing his locus standi is absolutely that of the plaintiff. – Per STEPHEN JONAH ADAH, J.S.C.

LEGAL PROFESSIONAL STATUS – DISTINCTION BETWEEN PROFESSIONAL STATUS AND LEGAL INTEREST

The plaintiff being a lawyer and a senior advocate, no doubt, is a tremendous and commendable achievement and distinction as a Nigerian but that does not confer on him the duty or obligation of challenging the decision to pay any type of salary to the appellant by the Government that hired her. This cannot confer any standing on him to prosecute this claim. – Per STEPHEN JONAH ADAH, J.S.C.

LIMITATION OF SECTION 16 OF THE COURT OF APPEAL ACT – PROPER INTERPRETATION OF APPELLATE JURISDICTION

Section 15 must be approached with extreme caution. It cannot be construed in a manner as would bring it in conflict with the 1999 Constitution. In the cases of Danpianlong & Ors v. Dariye & Ors (2007) LPELR -928 (SC); and Kusamotu v. APC (2019) LPELR-46802(SC), Onnoghen, JSC, (as he then was), cautioned that Section 15 is not an all-purpose or limitless power for the Court of Appeal to divest the High Court of the original jurisdiction conferred on it by law. It is settled law that the Court of Appeal cannot hide under Section 15 to expand its jurisdiction. – Per STEPHEN JONAH ADAH, J.S.C.

PROCEDURE FOR DETERMINING ORIGINATING SUMMONS – REQUIREMENT TO ADDRESS QUESTIONS BEFORE GRANTING RELIEFS

This case as earlier indicated in this judgment was originated vide an originating summons. The trial Court did not consider the merit of the case. It was only the objection against the case that was considered. The Originating Summons procedure from the standpoint of our law is always deployed to answer some questions and the consequential reliefs. If the lower Court seized of the process wants to hear it, the Court must first consider the questions raised before touching the consequential reliefs. The Court without settling the questions cannot jump to granting the reliefs.– Per STEPHEN JONAH ADAH, J.S.C.

RIGHT TO FAIR HEARING – IMPORTANCE OF HEARING BOTH PARTIES

If the lower Court found the need to dabble into the merit of the case, the Court ought to have heard from the other parties. Since the lower Court did not hear the other parties before going into the merit of the case which was not before the lower Court, the Court had rudely violated the right of the appellant to fair hearing. – Per STEPHEN JONAH ADAH, J.S.C.

NATURE OF ORIGINATING SUMMONS – PROCEDURE FOR HANDLING ORIGINATING SUMMONS ON APPEAL

A plaintiff intending to benefit from the time and effort saving procedure of originating summons in Order 3 of the Federal High Court (Civil Procedure) Rules, 2009 must raise the question or questions for determination on the instrument in question and ask for declaration of rights based on the answers to the question. In my view, the plaintiff cannot properly raise that question without seeking a declaration of right nor can he simply seek declaration of rights without the questions for determination.” – Per STEPHEN JONAH ADAH, J.S.C.

PERSONAL NATURE OF LOCUS STANDI – NON-TRANSFERABILITY OF LOCUS STANDI

The issue of locus standi in any given case, is a personal right which inured to the plaintiff alone. It is not perpetual and it is not transferrable. This right is not hereditary so it does not form part of his estate. Locus standi is a personal right and generally where a plaintiff is not an incorporated entity or an artificial personality which has a perpetual succession, such an action cannot survive the demise of the plaintiff. – Per STEPHEN JONAH ADAH, J.S.C.

LOCUS STANDI AND JURISDICTION – INTERCONNECTION BETWEEN STANDING AND COURT’S COMPETENCE

It is settled law that locus standi is the legal capacity of a party to institute an action in a Court of law. Where a party has no locus standi the Court will have no jurisdiction to hear and determine any claim/action. Locus standi and jurisdiction are interconnected. Where a party lacks locus standi in a matter, the Court by implication, will lack jurisdiction to adjudicate on the matter. – Per JUMMAI HANNATU SANKEY, J.S.C.

DETERMINATION OF LOCUS STANDI – FACTORS TO BE CONSIDERED IN ESTABLISHING STANDING

Locus standi is unquestionably a threshold issue and it has been held in a number of cases that it is dependent, not on the merits of a plaintiff’s case but on the showing of the plaintiff’s cases in his statement of claim. The following cases will suffice – Momoh v. Olotu (1970) 1 All NLR117; Bolaji v. Bamgbose (1986) 4 NWLR (Pt. 37) 632; Adesanya v. The President (1981) 1 All NLR (Pt. 1) 1; Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377; Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) 618. In all these cases it was held that the issue as to whether or not a plaintiff has a Locus standi to bring the suit is determinable from the averments in the Statement of Claim. Once the averments disclose the rights and obligation or interest of the plaintiff which has been violated or threatened with violation or infringement then the plaintiff clearly has locus standi to institute the suit. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) Act No. 6 of 2002
3. Court of Appeal Act, Section 16 (now Section 15)
4. Federal High Court Rules 2000, Order 7 Rule 3
5. Federal High Court (Civil Procedure) Rules, 2009, Order 3

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