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(1981) 5 S.C. 69
BEFORE THEIR LORDSHIPS:
SENATOR ABRAHAM AIDE ADESANYA
Chief G. FawehinmI (with him Mr. A. Odunowo) for the Appellant.
Chief R.O. Akinjide, S.A.N. (A.G. Fed.) (with him F.N. Nwadialo (Asst. Director of Litigation),
Miss O. Akinjide (State Counsel), for the 1st AND 2nd Respondents.
JURISPRUDENCE AND PUBLIC LAW:- Interpretation of Nigeria’s Constitution and statutes – Need to take significant cognisance of the fact that Nigeria is a developing country with a multiethnic society and a written federal constitution – Duty of court to take a liberal approach to applications connected to access to court of law for people to air their grievances – Effect of failure thereof – Whether a ready recipe for organised disenchantment with the judicial process.
CONSTITUTIONAL LAW AND CIVIL RIGHTS:- Citizens and defence of the sanctity of the Constitution – Locus standi – Need to interpret provisions relating to same as liberally as would aid justice
CONSTITUTIONAL LAW AND HUMAN RIGHTS:- Access to Court – Locus standi or standing to sue – As an aspect of justiciability – How determined – Effect and cost for party seeking to get his complaint before the High Court before he is allowed to ventilate the issues he wishes to have adjudicated
CONSTITUTIONAL LAW AND CIVIL RIGHTS:- Legislature – Law making and other powers authorised by the Constitution – Whether every member is bound by the majority decisions – Whether there judicial jurisdiction powers provided in section 6 of the Constitution for any legislator to appeal to any court against the majority decisions
CONSTITUTIONAL LAW AND CIVIL RIGHTS:- Member of the Senate – Responsibilities, Powers and privileges – Whether restricted to performance in the Senate as such – Whether outside the Senate, a Senator can only pursue his right as a private citizen
CONSTITUTIONAL LAW AND CIVIL RIGHTS:- Constitutional Oath of Allegiance as sworn by a Senator or public officer – Defence of the Constitution – Whether reduces to locus standing at large to sue concerning any perceived slight on the Constitution – Whether the broader interpretation of the words of the Oath will not serve the interest of the Constitution whereas the narrower interpretation will best carry out its object and purpose
GOVERNMENT AND ADMINISTRATIVE LAW: Distinction between the public services of the Federation and that of a State under the 1979 Constitution – Executive bodies – Appointments which constitutes disqualification for appointments into Executive bodies – Exceptions thereto
CONSTITUTIONAL LAW AND CIVIL RIGHTS:– Separation of powers – Judicial powers – Meaning – Extent of
CONSTITUTIONAL LAW:- Appointment of Chairman of Federal Electoral Commission – Confirmation by senate – Validity thereof – Power of court to interfere with process
CONSTITUTIONAL LAW:- Section 6 (6) (b) of the 1979 Constitution, – Justiciability and locus standi – Constitutional framework of interpretation relating to same
CHILDREN AND WOMEN LAW:- Children/Women and Justice Administration – Access to court – Constitutional basis – Locus standi to defend breach of provisions of the Constitution – Duty of Court in the interpretation of constitutional provisions relating thereto
PRACTICE AND PROCEDURE – COURT:- Interpretation of the Constitution – Preferred approach to construction of its provisions – Whether one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat – Whether it is the duty of court not to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends
PRACTICE AND PROCEDURE – LOCUS STANDI:- Parties – Access to court – Determination of locus standi to bring matter – Need for court to examine the cause of action to ascertain whether there is disclosed a locus standi or standing to sue
PRACTICE AND PROCEDURE:- Claim for injunction – As an adversary claim which cannot be established without any allegation of infraction of or trespass or threat of infraction of or trespass to one’s civil rights being set out – Implication for locus standi of plaintiff and a claim based on unconstitutionality of act
WORDS AND PHRASES:- “locus standi” – Meaning
FATAI-WILLIAMS, C.J.N. (Delivering the Judgment of the Court): The plaintiff, now appellant, is a member of the Senate of the National Assembly. The first defendant, now first respondent, is the President of the Federal Republic of Nigeria. Under the 1979 Constitution of Nigeria, the first defendant is empowered to appoint the Chairman of the Federal Electoral Commission, one of the bodies established under section 140 of the Constitution. In this connection, k is, I think, pertinent, at this stage, to refer to the provisions of section 141 subsections (1) and (3) of the said Constitution which read –
“(1) Except in the case of ex officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the President, and the appointment shall be subject to confirmation by the Senate.
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(3) In exercising his powers to appoint a person as Chairman or member of the Federal Electoral Commission, the Federal Judicial Service Commission or the National Population Commission, the President shall consult the Council of State.” (The Italics are mine).
From the above provisions, it is clear that not only must the President consult the Council of State (another body established under section 140) before making the “appointment”, the “appointment” is also subject to confirmation of the Senate.
Be that as it may, the first defendant in the exercise of his power under section 141 subsection (1) of the Constitution “appointed” the second defendant (now second respondent) Chairman of the Federal Electoral Commission. According to paragraph 6 of the statement of claim, which the plaintiff filed in support of the claim made by him later –
“On the 17th of July, 1980, the appointment of the second defendant by the first defendant was confirmed by the Senate.”
Being dissatisfied with the confirmation, the plaintiff commenced proceedings in the High Court of Lagos State wherein he claimed –
“1. A DECLARATION that the appointment of the 2nd defendant by the 1st defendant as a member and Chairman of the Federal Electoral Commission is unconstitutional, null and void in that at the time of his appointment by the 1st defendant, Hon. Mr. Justice Ovie-Whiskey (the 2nd defendant) was the Chief Judge of Bendel State and is therefore disqualified from being appointed a member of the FEDERAL ELECTORAL COMMISSION.
Paragraphs 3, 7, 8, and 9 of the plaintiff’s statement of claim read:-
“3. On the 3rd of June, 1980, the 1st defendant appointed the 2nd defendant as Chairman of the Federal Electoral Commission.
It is pertinent, at this stage, to point out that none of the parties testified at the trial although some exhibits were tendered by consent.
After hearing the arguments put forward on behalf of each of the parties, the learned trial judge gave judgment on 15th August, 1980. He granted the declaration asked for and set aside the said appointment on the ground that it was unconstitutional and was therefore null and void. He, however, refused the two injunctions which the plaintiff also claimed. Being dissatisfied with the judgment, the defendants appealed to the Federal Court of Appeal.
At the hearing before the Federal Court of Appeal, the court called the attention of learned counsel for each of the parties to the observation of the learned trial judge, made in the judgment while considering the issue of costs, that he was of the view that the plaintiff had no personal interest in the matter. The observation reads:-
‘The plaintiff has gone to this length to assert a constitutional point which does not affect him personally but which he may well have felt compelled to take a desire to ensure that any requirement in our Constitution however minute should be observed.” (The Italics are mine.)
The point whether the plaintiff was personally interested in the issue raised by him in his suit never arose at the trial nor was it canvassed. Consequently, the trial judge, except for the above observation, did not deal with it in his judgment. The Court of Appeal having raised the point suo motu, however, indicated that it would like to hear both parties on it.
A summary of the argument which followed showed that the learned Attorney-General contended that since the plaintiff had no personal Interest in the matter he had no locus standi to bring the proceedings where the relief sought by him would confer no tangible benefit on him.
In reply, Chief Gani Fawehinmi, who appeared for the plaintiff, contended that the plaintiff had locus standi to institute the proceedings. After making other submissions in support of his contention, Chief Fawehinmi indicated that he would like to invoke the provisions of section 259 subsection (3) of the Constitution under which he would ask that the matter be referred to the Supreme Court for interpretation. The provisions of section 259 subsection (3) read –
“(3) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal Court of Appeal and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Federal Court of Appeal as it deems appropriate.”
The Court thereafter directed learned counsel for the plaintiff to formulate the questions upon which he wanted a reference to be made under the section of the Constitution referred to above.
The questions which were eventually formulated after amendment read –
“(1) Whether by the combined effect of section 6(6)(b), 33(1), 48, 141, 236(1) of the Constitution the issue raised in the plaintiff’s claim as to the validity of the appointment of 2nd defendant by the President as Chairman of FEDERAL ELECTORAL COMMISSION calls for the determination of any question as to the civil rights and obligations of the plaintiff/respondent?
(2) What does the expression ‘THE DETERMINATION OF ANY QUESTION AS TO THE CIVIL RIGHTS AND OBLIGATIONS OF THAT PERSON,” under section 6(6)(b) mean in relation to the competence of the plaintiff to institute the said action?
(3) In the light of the answers to questions 1 AND 2 whether or not the plaintiff/respondent has the LOCUS STANDI to challenge in a court of competent jurisdiction the constitutionality of the appointment made by the 1st appellant of the 2nd appellant under section 141(1) of the Constitution as Chairman of the Federal Electoral Commission?”
The Court of Appeal, in the course of the ruling in which it referred the above questions for a decision of this Court, found as follows:-
“We think that it is pertinent here to point out that the plaintiff is a member of the Senate, and the subject matter is one in respect of which he has been defeated in the Senate; and in our view sections 48 and 141 of the Constitution do not confer on him any right to prosecute outside the Senate a matter in respect of which he had been defeated within.
The duty of the court to declare on a violation of the provision of the Constitution arises only where there Is a dispute before it brought by legitimate disputants who would be affected by the illegality complained of. This is the essence of all the decisions of the English Courts already considered.
In Paul Poe vs. Abraham Uhman 367 U.S. 497 Led 6 2d 989. 81 S.Ct 1752 a decision of the Supreme Court of the United States of America, it was observed that:
‘The requirement for adversity was classically expounded in Chicago AND G.T.R. Co. vs. Wellman, 143 US 339, 334, 345, 36 L ad 176, 179, 12 S.Ct. 400: as follows:
…The theory upon which, apparently this suit was brought is that par-ties have an appeal from the legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.’
We must bear in mind that we operate a Constitution which has adopted the principle of separation of powers. As the appellant is a legislator, his duty as such is limited to the exercise of legislative powers as defined in section 4(2), (3) and (4) but subject to the limitations imposed by section 4(8) and (9) of the Constitution. It does not extend to the legislator interfering with the exercise of executive or judicial powers which are vested elsewhere.”
At the hearing of the reference on 16th March, 1981, this Court pointed out to learned counsel to both the plaintiff and the defendants that the questions which the Federal Court of Appeal was asked to refer to the Supreme Court under section 259(3) of the Constitution for determination had already been determined by that Court in the portion of their ruling quoted above. For ease of reference, section 259(3) is again reproduced hereunder:-
Where any question as to the Interpretation or application of this Constitution arises in any proceedings in the Federal Court of Appeal and the court is of opinion that the question involves a substantial question of law, the court may, and shall ff any party to the proceedings so requests. refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Federal Court of Appeal as it deems appropriate.”
We also referred to the provisions of Order 6 rules 1 and 3 of the Supreme Court Rules which read:-
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Chief Gani Fawehinmi, as could be expected, said he disagreed with that finding of the Federal Court of Appeal and that he would like this Court to reconsider it after hearing argument. The learned Attorney-General said that he had no objection. Because of this irregularity, both parties consented that, in order to save the delay and expense which would be involved ff the case was sent back to the Federal Court of Appeal to make the necessary consequential orders, the reference should be deemed to be an appeal by the plaintiff to this Court against the ruling of the Federal Court of Appeal on this crucial Issue of locus stand. We agreed and accordingly made the necessary order.
Before proceeding further, I would like to express my own views of the scope and extent of the provisions of section 259(3) of the Constitution and of the procedure laid down in Order 6 rules 1 and 3 of the Supreme Court Rules when any substantial point of law is being referred to the Supreme Court by a lower court by virtue of section 259(3).
It cannot be disputed that what can be referred to the Supreme Court for a decision under section 259(3) of the Constitution Is:
any question as to the Interpretation or application of the Constitution which involves a substantial question of law.
A decision already made by the Federal Court of Appeal cannot be referred to the Supreme Court for another decision under that section. Once a decision “on the substantial question of law” is given by the Federal Court of Appeal, the only way to obtain a review of that decision is by way of appeal to the Supreme Court.
With respect to the procedure applicable to a reference made under section 259(3), the provisions of order 6 rules 1 and 3 to which I have referred earlier will apply. A close scrutiny of the provisions of rule 1 together with the format and wording of Form 10 (the appropriate Form) referred to therein show that it is the “question of law” and not any answer given to such a question that is being referred by the lower court to the Supreme Court for determination. Admittedly, the provisions of rule 3 could have been better drafted with clarity and precision. Nevertheless, a close look at the said provisions shows that the only finding which a lower court, In the course of stating a case when making a reference to a higher court, can make is one “of fact”, not law. In the same context, the words –
‘the opinion or decision (if any) of the court stating the case”
used in the penultimate sentence therein can only mean and do mean the opinion or decision of the court as to the facts. To construe the words otherwise would make nonsense of the word “question” used both in section 259(3) of the Constitution and rule t of Order 6 referred to above.
For the above reasons. I am of the opinion that the Federal Court of Appeal erred in first determining, as it did, the question of law which Chief Fawehinmi re-quested it to refer to the Supreme Court for determination.
In the course of the submission before us at the hearing of what is now deemed to be an appeal against the finding of the Federal Court of Appeal, Chief Gani Fawehinmi contended that the plaintiff clearly has locus standi in the case because, on a broad Interpretation of the provisions of sections 141(1), 236, 277(1), and 6(6)(b) of the 1979 Constitution, there is no doubt that the plaintiff has sufficient interest to institute the action. He further contended that, to appreciate the locus of the plaintiff, a wider Interpretation of these provisions, as opposed to a narrow Interpretation, Is called for. He then referred to the decision of Sir Udo Udoma, JSC in the case of Nafiu Rabiu v. The State (1960) 6-11 SC. 130.
Chief Fawehinmi further submitted that any appointment made by the President of the Federal Republic of Nigeria is made subject to the provisions of the Constitution which both the plaintiff and Mr. President have sworn to preserve, protect, and defend, and that if Mr. President acted contrary to the provisions of that Constitution, the plaintiff is entitled to come to court and ask for the appropriate declaration. Learned counsel also contended that being a member of the Senate, the plaintiff has a function, a duty, and an obligation, to perform under the Constitution and that 8 he cannot, by virtue of this, challenge the appointment made by the President, he did not know who can do it.
Learned counsel said that he disagreed with the argument that the Attorney-General is the only one who can represent the public where public interest is involved by way of a relator action, and further submitted that the relator action is relevant to the issue of locus standi only under the common law of England and In a country without a written constitution. Where there Is a written constitution under which the Attorney-General is a functionary of the Executive President, he (the Attorney-General) could not be expected to bring an action against the President.
Chief Fawehinmi further pointed out that cases deckled in other countries can-not be of much help to the interpretation of the provisions of the Nigerian Constitution. Finally, he contended that, in countries with written constitutions, a liberal approach has been taken to questions of locus standi in order to obviate a violation of the provisions of the Constitution. In this connection, he referred to the Canadian case of Torson v. The Attorney-General of Canada (1974) 1 N.R.225 at 241 and the Australian case of Ex Re/ McKinlay v. The Commonwealth (1975) 135 C.L.R. page 1. In his attack on the decision of the Federal Court of Appeal on the matter, Chief Fawehinmi contended that references to English cases and American cases by the Federal Court of Appeal, in his opinion, were not helpful since there are no constitutional provisions in England and America similar to those in the Nigerian Constitution. He, nevertheless, referred us to the decision in Cole-man v. Miller (1939) S.C. Reporter 307 U.S. p.973. This is a case heard in the Supreme Court of the United States. There, twenty-one Senators and three Congressmen of the Kansas State Legislature instituted an action In the Supreme Court of that State to compel the Secretary of its Senate to erase an endorsement to the effect that a particular Resolution had been passed by the Senate and instead to endorse thereon the words “not passed”. The claim was dismissed. The United States Supreme Court granted their application for certiorari to review the judgment. The appeal was dismissed on various grounds but on the issue of the standing of the plaintiffs, the Court was split, Chief Justice Hughes and four other Justices holding that they had standing while Justice Frankfurter and three other Justices held that they had no standing in the case. This decision illustrates how even in the United States, the issue is not completely settled.
In reply, the learned Attorney-General of the Federation, both in his Reply Brief and in his submission before us, contended that the plaintiff/appellant has no locus standi in the instant case. His submission may be summarised as follows. Since the plaintiff/appellant’s action is for a “declaration of right’, he must be a party to the “right”. His legal right must be affected or must be in jeopardy as a consequence of the decision which he seeks to attach to the action. In this connection, learned Attorney-General referred to section 6(6)(b) of the Constitution.
The learned Attorney-General supported the decision of the Federal Court of Appeal on the issue and referred to the following cases in support:
(i) Michael Harrington v. J. B. Schlesinger 32 S.F. 2d. 455 (1975).
(ii) M. J. Harrington v. George Bush 553 Federal Reporter 2d. Series (1977) p.190.
(iii) R. Norlan Daughtrey v. Jim Carter 584 Federal Reporter 2nd Series 1050 (1978).
All these cases show that the status of a congressman or any other legislator does not give him standing to sue for a declaration that the action of the Executive is illegal.
With respect to the case in hand, it was submitted that section 236 of the Constitution is irrelevant because it is subject to the other provisions of the Constitution Including section 6(6)(b).
The learned Attorney-General then contended that the fact that what is to be interpreted is the Nigerian and not the English Constitution does not mean that re-sort should not be had to the English Common Law as such law is part of the legal framework of Nigeria. He then submitted that, on the issue of locus standi the position in Nigeria is still much the same as In England and that the common law still applies. Under the common law it is only the Attorney-General alone who can sue for the protection or enforcement of the public interest notwithstanding the fact that under our Constitution, the Attorney-General is a functionary of the Executive. In such a case, a private person: argued the learned Attorney-General, has no locus standi. He referred to –
(a) Gouriet v. Union of Post Office Workers (1977) 3 All E.R. p.70; (b) LPTB v. Moscrop (1942) 1 All E.R. p.97;
(c) Clark v. Epsom Rural District Council (1929) 1 Ch. 287 at p.249; and (d) Gambioba AND OTHERS. v. Ezesi AND OTHERS. (1961) 1 All N.L.R. 584 at p.588 in support of this submission.
In my opinion, this issue of who has locus standi is very crucial to the interpretation and application of the provisions of the 1979 Constitution. I propose, there-fore, to deal first with this general issue before dealing with it in relation to the particular facts and circumstances of the Instant case.
The term ’locus standi’ denotes legal capacity to institute proceedings in a court of law. It is used interchangeably with terms like “standing” or ‘title to sue”. The questions which, of course, naturally arise are these. If, in a developing country like Nigeria with a written constitution, a legislative enactment appears to be ultra vires the Constitution or an act Infringes any of its provisions dealing with Fundamental Rights, who has locus standi to challenge its constitutionality? Does (or should) any member of the public have the right to sue? Or should locus standi be confined to persons whose vested legal rights are directly interfered with by the measure, or to persons whose interests are liable to be specially affected by its operation, or to an Attorney-General who is a functionary of the Executive Branch? Experience has shown that different legal systems have offered diverse answers, sometimes experimental answers, to these questions.
Dr. Thio at page 1 of her authoritative book entitled “Locus Standi and Judicial Review” makes the following pertinent observations:-
‘The requirement of locus standi is mandatory in some jurisdictions where the judicial power is constitutionally limited to the determination of a ’case’ or ’controversy’, or a ‘matter’ which is defined by reference to criteria which include the legal capacity of the parties to the litigation. In other jurisdictions, the requirement is a product of judicial expedience and public policy.”
She observed further at pages 2 and 3 as follows:-
‘The problem of locus standi in public law is very much intertwined with the concept of the role of the judiciary in the process of government. Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the Interest of the public (jurisdiction de droit objectio, or is it mainly directed towards the protection of private individuals by preventing illegal encroachments on their individual rights (jurisdiction de droit subjectio? The first contention rests on the theory that the courts are the final arbiters of what is legal and illegal. Since the dominant objective is to ensure the observance of the law. this can best be achieved by permitting any person to put the judicial machinery in motion, like the actio popularis of Roman law whereby any citizen could bring such an action in respect of a public delict. Requirements of locus standi are therefore unnecessary !n this case since they merely impede the purpose of the judicial function as conceived here. On the other hand, where the prime aim of the judicial process is to protect individual rights, its concern with the regularity of law and administration is limited to the extent that individual rights are Infringed, and !n the absence of the latter, it does not come Into play.
The problem Is highlighted in a country with a written constitution which establishes a constitutional structure involving a tripartite allocation of power to the legislature, the executive and the judiciary as co-ordinate organs of government. On one hand, the judiciary, as the guardian of the fundamental law of the land has the role of passing on the validity of the exercise of powers by the legislature and executive and to require them to observe the constitution of the land. The situation thus calls for a system of judicial control in favour of jurisdiction de droit objectif.”
With these observations in mind, I take significant cognisance of the fact that Nigeria is a developing country with a multiethnic society and a written federal constitution, where rumour-mongering is the pastime of the market 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 organised disenchantment with the judicial process.
The framers of our 1979 Constitution had all these factors in mind by providing for the many checks and balances which appear therein. In fact, a close scrutiny of its very detailed provisions will convince anyone that reliance on the decisions, whether British, Canadian, Australian, or American, given in a different social and political context, will only lead to restrictive rules of locus standi which, in the interest of the need for total compliance with the provisions of our Constitution, I find it difficult to accept or countenance. As a matter of fact, what can be discerned from the cases to which we are referred and, indeed, to other cases, is this: The Canadian Supreme Court now takes a liberal view of locus standi; so do the Australian High Court and the Court of Appeal !n England presided over by Lord Denning. The House of Lords, on the other hand, takes a more restrictive view. Of course, England does not have a written constitution.
In view of the scantiness of the language of the American Constitution when compared with ours, and the great opportunities thereby offered to use the American courts for expounding the intentions of the founding fathers through its interpretation, one is not surprised that the American courts were so inundated with legal proceedings that access to court had to be restricted through the use of the rules, formulated by the courts themselves, as to the locus standi of a plaintiff.
In the Nigerian context, it is better to allow a party to go to court and to be heard than to refuse him access to our courts. Non-access, to my mind, will stimulate the free-for-all in the media as to which law is constitutional and which law is not! In any case, our courts have inherent powers to deal with vexatious litigants or frivolous claims. To re-echo the words of Learned Hand, if we are to keep our democracy, there must be one commandment – thou shall not ration justice!
Moreover, as Barwick, CJ pointed out in Attorney-General v. Commonwealth of Australia (1975) 135 C.L.R. page 1 at page 17 –
‘The only true guide and the only course which can produce stability in constitutional law is to read the language of the Constitution itself, no doubt generously and not pedantically but as a whole.”
(The Italics are mine.)
Not so long ago, Sir Udo Udoma, J.S.C., in Naflu Rabid v. The State (1980) 8-11 SC. 130 at pages 148-149. observed:-
‘the function of the Constitution is to establish a framework and principles of government, broad and general in terms intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.
My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
I only need to add that 1 am also strongly of the view that when Interpreting the provisions of our 1979 Constitution. not only should the Courts look at the Constitution as a whole, they should also construe its provisions in such a way as to justify the hopes and aspirations of those who have made the strenuous effort to provide us with –
“a Constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the Unity of our people.”
Apart from the law relating to locus standi which have their roots in the common law, in a country like ours, locus standi is also derived from the Constitution, and the Fundamental Rights provisions in Chapter IV of the Constitution. Indeed, a close scrutiny of our Constitution shows that the flood-gates of litigation have not been left wide open.
At one extreme are the provisions in our Constitution that, in the exercise of its powers, the Federal Civil Service Commission, Federal Judicial Service Com-mission, the Federal Electoral Commission and the National Population Com-mission shall not be subject to the direction or control of any other authority or person (section 145 refers). It is also provided in section 267 that no civil or criminal proceedings can be instituted or continued against any person holding the office of President of the Federal Republic of Nigeria, Vice-President, Governor of a State, or Deputy Governor, during his period of office. Furthermore, there is provision that no proceedings or determination of the Committee appointed to investigate allegations of misconduct made against the President or Vice- President, Governor or Deputy Governor, or any matter relating thereto shall be entertained in any court. [Sections 132(1) and 170(10) refer.]
In between, and this is crucial because of its restrictive nature, there is provision that any person who alleges that any of the provisions dealing with his Fundamental Rights as enumerated in Chapter IV of the Constitution, has been, is being, or likely to be contravened in any State IN RELATION TO HIM may apply to a High Court in that State for redress (see section 42(1) of the Constitution).
Notwithstanding all the above provisions, it is also provided in section 1 of the Constitution as follows:
“(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any per-son or group of persons take control of the Government of Nigeria or any part thereof except in accordance with the provisions of this Constitution.
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”
In addition to the above, it is provided in section 4 subsections (4), (5), (8) and (9) as follows:-
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(4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say –
(a) any matter In the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the in-consistency be void.
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(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.
(9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.” (the Italics are mine.)
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 and ask for the appropriate declaration and consequential relief if relief is required. In my view, any person. whether he is a citizen of Nigeria or not, who is resident in Nigeria or who is subject to the laws in force in Nigeria, has an obligation to see to it 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 so. This is because any law that is inconsistent with the provisions of that Constitution is, to the extent of that inconsistency, null and void by virtue of the provisions of sections 1 and 4 to which I have referred earlier.
In order to make it possible for such a person to exercise this basic civil right and obligation, it is provided, at the other extreme, in section 6 subsection 6(b) as follows:
‘The judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions or proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
I do not think this particular civil right (as opposed to fundamental right) and obligation should be restricted in any way by technicalities where none is dearly provided for in the Constitution. Section 236 which, in any case, merely provides for the unlimited jurisdiction of the High Court of a State, is subject to the all embracing provisions of section 6(6)(b). The only restriction which I could discern in subsection (6) will be found in paragraphs (c) and (d).
Unlike the words used in section 6(6)(b) of our 1979 Constitution, it is provided in Article 111 section 2 of the Constitution of the United States of America that the judicial power of the United States vested in the courts shall extend to specified “cases” or “controversies”. The words “cases” and “controversies” have been turned into terms of art through interpretation by the American courts in order to determine the locus standi of a plaintiff in proceedings before the courts. They have been Interpreted either liberally or restrictively as the circumstances demand. Thus, in some Instances, a suit known as a “class-action” is permitted when a litigant has only a minor personal Interest but is acting for a large number of persons in a particular situation. Other rulings continued the process of constriction in the right to sue by narrowly interpreting the words and so cutting the ground away from a plaintiff’s case. It is significant, however, that no reference is made in the said Article 111 to a plaintiff’s “civil rights and obligations” which are used in section 6(6) (b) of our Constitution.
Since the wording of section 6(6)(b) of our Constitution places emphasis on the civil rights and obligations of the person suing, the decisions of the American courts based solely on their own interpretation of the words “cases” or “controversies” used in their own Constitution are, in my view, totally irrelevant to the circumstances prevailing in Nigeria.
However, except in the extreme or obvious case of abuse of process, how then can one conceive of a judicial process where access to the courts, by persons with grievances, is based solely on the courts own value judgment in a multiethnic country where more than two hundred languages are spoken? 1 would rather err on the side of access than on that of restriction.
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 a special legal right or alternatively, if he has sufficient or special interest in the performance of the duty sought to be enforced, or where his interest is adversely affected. What constitutes a legal right, sufficient or special interest, or interest 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. Finally, in the Nigerian context and having regard to the detailed provisions of our 1979 Constitution, the point which, I think, needs to be stressed is that there are explicit provisions therein which deal with the locus standl which is required in order to sustain a claim that there has been an infringement of particular provisions of the Constitution. Consequently, other infractions of the provisions of the said Constitution, to which no restrictions are attached, should not be fettered by the common law or the administrative law concepts of locus standi. The complainant in such cases should be accorded a hearing subject only to the Constitutional restrictions to which I have referred earlier.
I will now proceed to deal with the case in hand. It is not disputed that the plaintiff/appellant adduced no evidence in support of the allegations made in his statement of claim. For his part, the first defendant/respondent must be deemed to have consulted the Council of State as required by the Constitution before nominating the second defendant/respondent for appointment as Chairman of the Federal Electoral Commission. The Senate, in the exercise of their powers, and after due deliberation in which the plaintiff/appellant took part, confirmed the appointment. It seems to me that the plaintiff/appellant came to court because he was unable to persuade his fellow Senators to agree to his stand in the matter. Furthermore, the learned trial judge who heard the case in the High Court found that he (the plaintiff/appellant) had no personal interest in the matter, a finding which the plaintiff/appellant had not disputed either in the Federal Court of Appeal or in this Court.
As a person, the plaintiff/appellant is, in my view, one of those persons who not only have the right but are also under an obligation, under section 6(6)(b) of the Constitution, to go to court to complain about any infraction of the Constitution. But he is also more than that. He is a special person. He is a Senator, a member of that august body known as the Senate, established under section 43 of the 1979 Constitution. Under that Constitution, the Senate (with the House of Representatives) has the power to make laws in respect of certain specific matters. It can also make laws with respect to the implementation of treaties. It also has power to determine by a simple majority any matter, within its competence, proposed before it for decision. (See section 52(1).) In addition, it has the power to confirm appointments made by Mr. President to certain bodies. Finally, it has the power to regulate its own procedure. (Section 56 refers.)
The plaintiff/appellant admitted in his pleadings that he took part in the deliberations in the Senate on the issue of the confirmation of the appointment of the 2nd defendant/respondent. There was no complaint about the procedure adopted during the deliberations. If his views had prevailed, it is doubtful whether he would have instituted the present proceedings in court. Because those views, urged by him on his fellow senators, did not prevail, he went to court to ask for a declaration that what the Senate did was null and void. Shorn of all embellishments, what the plaintiff/appellant has gone to court to attack is the stand taken by his fellow senators on the issue. He did not approve of the confirmation of the appointment.
Surely, these are matters that not only concern the appointing powers of Mr. President and the confirmation powers of the Senate but are of the very essence of the exercise of those powers. In no sense, to my mind, are they matters concerning the plaintiff/appellant’s civil rights and obligations as a person. They pertain to him, not as an individual exercising his civil rights and obligations, but as a Senator (a political representative) exercising his right to vote in the confirmation proceedings in the Senate.
Undoubtedly, certain matters, such as the appointment of the Chairman and members of the Federal Electoral Commission, may sometimes present great controversy; such controversies are, however, not suited for resolution by the courts since, according to the Constitution, they have been entrusted to the other two branches of the government – the Executive and the legislature – for deliberation and eventual solution. To open the law courts to such controversies is to have the courts sit in judgment over disputes arising from such confirmation proceedings in the Senate.
By coming to court to ask for a declaration, the plaintiff/appellant, in these circumstances, has completely misconceived his role as a Senator. In short, Senator Adesanya has no locus standi in this particular case. He participated in the debate leading to the confirmation of the appointment of the 2nd defendant/respondent and lost. For him, that should have been the end of the matter. The position would probably have been otherwise if he was not a Senator.
In these circumstances, l entirely agree with the decision of the Federal Court of Appeal that the plaintiff/appellant has no locus standi in the matter of the appointment of the second defendant/respondent as the Chairman of the Federal Electoral Commission. To that extent, the decision of that Court is affirmed.
Consequently, the appeal to the Federal Court of Appeal against the judgment of the High Court of Lagos State in Suit No. LD/977/80, delivered on 18th August, 1980, is allowed; the judgment, including any order made as to costs, is set aside; the plaintiff/appellant’s claim for declaration in the High Court of Lagos State is dismissed and this shall be the order of that Court.
The defendants/respondents are awarded costs assessed in the High Court of Lagos State at N300, in the Federal Court of Appeal at N100, and in this Court at N300.
My Lords, this case was instituted by the appellant in the High Court of Lagos State against the respondents. In the record of proceedings, the pleadings were set out but the judgment of the court of trial was omitted. Both parties agreed however that the High Court judgment was that the appointment of the second respondent by the first respondent was unconstitutional, null and void. The other two reliefs for injunctions were however refused. The respondents being dissatisfied with the judgment of the High Court, appealed to the Federal Court of Appeal, Lagos.
During the course of argument before the Court of Appeal, the learned Attorney-General for the appellants, now respondents before us, made some submissions, buttressed by arguments. The fifth submission by the learned Attorney-General reads:
‘There is no locus standi where the reliefs sought by the Plaintiff will confer no tangible benefit on the Plaintiff.”
Chief Gani Fawehinmi replied to the arguments of the learned Attorney-General and in conclusion stated thus:
“In view of the serious nature of this case I would like to invoke the provisions of section 259(3) of the Constitution that this matter be referred to the Supreme Court for the interpretation of the Constitution.”
The questions were then drafted and submitted to the Court of Appeal. There were six questions. As my Lord, the Chief Justice has stated in his judgment, which I have read in draft, the Court of Appeal did not follow the provisions of Order 6 Rule 1 of the Supreme Court Rules 1977. Instead both Counsel were allowed to argue the questions and the Court of Appeal gave a decision thus:
‘We must bear in mind that we operate a Constitution which has adopted the principle of separation of powers. As the appellant (respondent) is a legislator his duty as such is limited to the exercise of legislative powers as defined in sections 4(2). (3), and (4) but subject to the limitations imposed by section 4(8) and (9) of the Constitution. it does not extend to the legislator interfering with the exercise of executive or judiciary powers which are vested elsewhere. “Civil rights and obligations on that person” therefore means his private rights – personal, proprietary and pecuniary rights – his private duties, arising from agreement or undertakings or by operation of law. In conclusion, the questions of law as to the interpretation or application of the Constitution of 1979 which the Plaintiff/Respondent has requested this court to refer to the Supreme –Court of Nigeria under section 259(3) of the same Constitution and which in our opinion required the decision of the said court.”
The court then set out the questions. I have read in the draft judgment of the Hon. the Chief Justice, an exhaustive reasonings of his views and I agree with all the points set out in his judgment. I wish to lay great emphasis, and hope, that when our courts are faced with similar questions, they may be persuaded to follow the principle set out in the judgment of the Supreme Court of the United States of America in Paul Poe vs. Abraham Ullman 367 U.S. 497 Led 6 2d 989. 81 S.Ct 1752 as quoted in the judgment of my Lord the Chief Justice at pages 9 and 10.
I wish to observe that when legislators either in the National or State Assemblies exercise their right of either making laws or in circumstances in which they are authorised by the Constitution to approve or confirm certain actions they are bound by the majority decisions. There is no provision in the judicial powers provided in section 6 of the Constitution for any legislator to appeal to any court against the majority decisions. That is the internal matter which I believe is governed by rules approved by the legislators themselves. In this particular appeal, the appellant as Senator took part in the decision and I can see no provision In the Constitution giving right to a member who happens to be in the minority to sue against such decision.
I have had the opportunity of reading in drafts the judgments of my brethren Bello, Idigbe and Uwais. It is agreed in the three judgments that the appellant had no locus stand! since his interest was not alleged to be adversely affected. As I earlier mentioned the judgment of the High Court was not in the record of proceedings and no arguments were canvassed before us on the merits. On the narrow compass of locus standi or standi, as my brother Bello preferred, I am in complete agreement with the conclusions in these three judgments that the appeal be dismissed. On interpretation placed on section 6(6)(b) I prefer to reserve my comments until a direct issue really arises for a determination.
I agree that this appeal be dismissed for the above reasons on the ground that the appellant has no locus standi to institute the action as set out in the judgment of my brother the Chief Justice.
I have had the advantage of reading in draft the judgment just delivered by my learned brother, the Chief Justice of Nigeria. He has ably stated the facts, the questions on reference as an appeal. 1 agree with the interpretation put by the Chief Justice on the provisions of section 259(3) of the Constitution of the Federal Republic of Nigeria 1979, hereinafter referred to as the Constitution, read with Osier 6 rules 1 and 3 of the Supreme Court Rules 1977 as to the form and contents of a case stated. I agree with his conclusion on that issue.
The main question for determination on the appeal is a narrow one. It is whether or not a Senator as such or in his capacity as a citizen has locus standi to challenge the constitutionality of an appointment made by the President and confirmed by the Senate in accordance with the provisions of section 141(1) of the Constitution. Locus standi or “standing” may be defined as the right of a party to appear and be heard on the question before any court or tribunal. I would prefer to use the word “standing” in the course of this judgment.
I agree with the submission of Chief Fawehinmi, learned counsel for the Appellant, that the answer to the question for determination must be found within the four corners of our Constitution in which the aspirations and ideals of the diverse people of Nigeria have been enshrined. However, in my endeavour to so find, I may refer for guidance as has always been the practice of this Court, to the rules of constitutional law formulated by the courts of those countries with whom we share the heritage of the common law of England and particularly, the courts of those countries who gave to themselves, as the people of Nigeria have done, federal systems of government under written constitutions.
1 think it is pertinent to point out at this stage that the American Supreme Court held that the question of standing was not dependent on the success on the merits but was a condition precedent to a determination on the merits: See Everson v. Board of Education (1952) 342 U.S. 429. In Tileston v. Ullman (1943) 318 U.S. 44-46 the same court stated that where the appeal was dismissed on the ground that the appellant had no standing to litigate the constitutional question which the record presented, it was unnecessary to consider whether the record showed the existence of a genuine case on the merits. In a dictum in Gamioba AND OTHERS. v. Esezi AND OTHERS. (1961) All NLR 584 at 588 our former Federal Supreme Court adopted the same attitude in these terms:
‘The plaintiff’s locus standi has not yet been disclosed, and ff he has none, his claim must be dismissed on that ground, and it will be unnecessary to decide the question involved in the declaration he claims.”
The question for determination on the appeal before us was taken in limine and without going into the merits of the case. Neither in their written briefs nor in their oral arguments did learned counsel for the parties canvass the appeal on the merits. There has been no hearing on the merits. For this reason alone I would refrain myself from making any pronouncement as to whether or not there is a genuine case on the merits.
I may also refer to the rule of self-restraint exercised by the American Supreme Court that it would not formulate a rule of constitutional law broader than is required by the precise facts of the case nor would it decide questions beyond the necessities of the issue. The reasons for this rule were explained by Sutherland J. in Euclid v. Amber Realty Co. (1926) 272 U.S. 365 47 S.Ct. 114 at 121:
“in the realm of constitutional law, especially, this court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities or the immediate issue. It has preferred to follow the method of gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases, as they arise, rather than by out-of-hand attempts to establish general rules to which future cases must be fitted.” (Italics are mine.)
The Supreme Court of India also adhered to the same rule: Saghir Ahmed v. State of WPA 1955 S.C. 728 (742) and Seshadd v. D.M. (1955) 1 S.C.R. 686.
In view of the complexity of the provisions of our Constitution, its peculiarities of details, its subjection of the provisions of some of Its sections to the provisions of other sections and the necessity for cross-references to discover the scope of some of the sections, I prefer to be on the side of caution and consequently, in my view, the question of standing ought to be decided on the very narrow compass it has been canvassed before us. I endorse the method of gradual approach in constitutional matters so that each case will be decided on its particular facts and circumstances and after the issues involved have been ventilated by the parties to the dispute.
Now before giving consideration to the relevant provisions of our Constitution, which have been referred to us by learned counsel, I would venture to scan the practice of some other countries relating to the issue of standing. It has been an established rule of practice in the United States of America that the court will not allow a private individual to challenge the constitutionality of executive or legislative action unless he has a personal interest. To entitle a person to invoke judicial power to determine the constitutionality of such action, he must show that either his personal Interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself: Massachusetts v. Melon (1923) 262 U.S. 447 and Tileston v. Ullman (Supra).
A general interest common to all members of the public is not a litigable interest to accord standing. Thus a citizen without more, though a member of the bar of the American Supreme Court, had no standing to challenge the constitutional validity of the appointment of a Justice of that Court made by the President of the United States of America and confirmed by the Senate: Ex parts Levitt 302 U.S. 633. On the same principle their status did not give standing to congressmen to question the validity of executive actions: Harrington v. Scheslinger 32 S.F. 455 (1975). Harrington v. Bush 553 Federal Report 2nd Series (1977) and Daughtrey v. Carter 584 Federal Reporter, 2nd Series 1050 (1978) which were cited by Chief Akinjide, the learned Attorney-General of the Federation in his brief.
The decisions of the Supreme Court of India are in line with the general rule in the United States of America: Chiraniit Lai v. Union of India (1950) SCR. 869 and Dwarkadas v. Sholapur Spinning Co. (1954) SCR. 674.
I wish to comment briefly on Couriet AND Others v. U.P.W. (1978) A.C. 435 and the other decisions of the courts in England, which learned counsel for the Appellant and the learned Attorney-General of the Federation exhaustively dissected in their briefs and oral argument before us. The ratio in Gouriet’s case sums up the position under the public law of England. It may be summarised thus: Firstly, that only the Attorney-General can sue on behalf of the public for the purpose of preventing public wrongs; that although a private individual cannot do so on behalf of the public, he may be able to do so if he will sustain or has suffered injury or if he will suffer or has suffered damage as a result of the public wrong. Secondly, the jurisdiction of the court to declare public rights can only be invoked at the suit of the Attorney-General ex officio or ex relations i.e. where the Attorney-General permits a relator to sue in the name of the Attorney-General.
I now proceed to examine how our former Federal Supreme Court dealt with the problem. In Olawoyin v. A-G NR (1961) All N.L.R. 269 wherein the appellant sought to declare void some of the provisions of the Children and Young Persons Law, 1958 of the former Northern Region of Nigeria on the ground that the provisions offended the fundamental rights provisions of the Nigeria (Constitution) Order in Council 1954, the Federal Supreme Court applied “interest” and “injury” tests and rejected the submission of learned counsel for the appellant that any person was entitled to sue. In a later case, Gamioba AND OTHERS. v. Esezi (Supra), the Federal Supreme Court restated their decision in Olawoyin’s case, though as obiter dictum, thus:
“It is always necessary, where the plaintiff claims a declaration that a law is invalid, that the Court should be satisfied that the plaintiffs legal rights have been, or are in imminent danger of being, invaded in consequence of the law. We dealt with this point at length in Olawoyin v. Attorney- General Northern Region. (FSC.290/1960), (1961) All N.LR. 269, and it will be enough to say here that since the validity of a law is a matter of concern to the public at large the Court has a duty to form its own judgment as to the plaintiffs locus standi, and should not assume it merely because the defendant admits it or does not dispute it. The plaintiff’s locus standi in the present case has not yet been disclosed, and if he has none, his claim must be dismissed on that ground, and it will be unnecessary to decide the question involved in the declaration he claims.”
Finally, I would like to make the following observations: A careful perusal of the problem would reveal that there is no jurisdiction within the common law countries where a general licence or a blank cheque – if I may use that expression, without any string or restriction, is given to private individual to question the validity of legislative or executive action in a court of law. It is a common ground in all the jurisdictions of the common law countries that the claimant must have some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. In most cases the area of dispute, and some time, of conflicting decisions has been whether or not on particular facts and situations the claimant has sufficient justiciable interest or injury to accord him a hearing. In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case: Bengal Immunity Co. v. State of Bihar (1955) 2 S.C.R. 602, Frothingham v. Mellon (1925) 262 U.S. 447; for India and America respectively. Even in the Canadian case of Thorson v. Attorney-General of Canada (1974) 1 N.R. 225, and the Australian case of Mckinlay v. Commonwealth (1975) 135 C.LR.1 cited by Chief Fawehinmi, in which liberal views on standing were expressed, the issue of sufficiency of interest was the foundation upon which the decisions in both cases were reached.
The relevant provisions of our Constitution may now be considered. I dismiss summarily the submission of Chief Fawehinmi that section 33(1) has guaranteed standing to institute action against government or authority to question any constitutional act. The provisions of the section are patently misconceived. The section does not confer any jurisdiction on any court. It does no more than guarantee right to fair hearing to litigants in a court or tribunal constituted in such a manner as to ensure its independence and impartiality.
Chief Fawehinmi argued that by virtue of the Oath of Allegiance and the oath of membership which the Appellant as Senator took and subscribed as required by section 48(1), the Appellant has a fundamental obligation and a civil right to “preserve, protect and defend the Constitution”. Furthermore. learned counsel contended that the Appellant in his capacity as a Senator has a power to exercise and a duty to perform in the confirmation of the appointment of the 2nd Respondent under section 141(1). The two sections, according to learned counsel, conferred superior status on the Appellant as a Senator and accorded him standing as such to discharge his obligation to preserve, protect and defend the Constitution.
Having referred to sections 236(1), 277(1) and 6(6)(b), learned counsel concluded that on the broad interpretation of the provisions of these sections, there is no doubt that the Appellant has sufficient interest to institute the action. He referred to Nafiu Rabiu v. The State (1980) 8-1 T S.C. 130, and urged us to interprets the provisions of the sections in the wider sense.
In response, the learned Attorney-General of the Federation submitted that the power of confirmation given in section 141(1) is vested in the Senate as a body and that if anybody has a power or duty to perform in the confirmation of an appointment under section 141(1), it is the Senate as a body. The argument, says the learned Attorney-General, that because of the Oath of Allegiance sworn to by the Appellant that he has a civil right and obligation to preserve and defend the Constitution, is not tenable within the context of the questions before the Court. He contended that the implication of taking the Oath is that as a Senator, while acting as such and in the course of his duties as such, will abide by all the undertakings therein. The oaths do not enable him to discharge functions that are outside the purview of those of a Senator.
With regard to the submission that upon “broad interpretation” of sections 6(6)(b), 141(1), 236 and 277(1) the Appellant has sufficient interest to give him standing, the learned Attorney- General replied that the operative words of section 6(6)(b) are “civil rights and obligations” and contended that learned counsel for the Appellant had not stated in his argument what the phrase “civil rights and obligations” mean when defined under “wider interpretation” and “narrow interpretation” harped on by learned counsel.
I agree with the submission of Chief Fawehinmi that the Appellant as a Senator had a function to perform in the confirmation process under section 141(1). Subject to the Standing Orders of the Senate, he had the right to participate in the deliberations which led to the confirmation by the Senate and he, in fact, did so. However, in my opinion that function could only be performed or exercised by the Appellant in the Senate. Outside the Senate, the function of the Appellant as a Senator in relation to the appointment ceased. Section 141(1) does not confer any function on him outside the Senate. Consequently, if the Appellant has any complaint outside the Senate against the appointment, he can only pursue it as a private citizen but not under the cover of his status as a Senator.
The argument of Chief Fawehinmi relating to the Oath of Allegiance is ingenious and superficially tempting. Only deeper reflection would reveal its absurdity. The Appellant, like all those who took the Oath, swore to “preserve, protect and defend the Constitution”. The promise and undertaking were solemn and weighty. The question is: how can the Appellant and all those who took it discharge those onerous duties? In this connection several questions may be asked: Is it intended by the Oath that the Appellant should play the role of an archivist and build a shrine to preserve the sacred provisions of the Constitution? Does the Oath also make him a sentry to ward off all those he suspects to be potential transgressors of the Constitution? Does the Oath further enlist him in the army to take up arms against all those he considers to be its aggressors? Finally, does the Oath appoint him as a busybody to perambulate all over Nigeria sueing and prosecuting all those he regards as constitutional offenders? If the words of the Oath of Allegiance are to be construed broadly, as Chief Fawehinmi urged us to do, it seems to me all the four foregoing questions must be answered in the affirmative. All the questions are within the purview of the literal meaning of the words “to preserve, protect and defend the Constitution”. it may be recalled that apart from those persons who are required by the Constitution to take the Oath of Allegiance, there are thousands of other persons that are required to take and subscribe to that Oath under the Oaths Act, 1963 and the Oaths Laws of the several States of Nigeria. If all the oath-takers were to be the archivists of the Constitution, in whose shrine would it be preserved? If all the oath-takers were unregimented sentries and soldiers armed to the teeth competing to protect and defend the Constitution, would there be harmony? To my mind, the answer is: No. There would be anarchy and chaos. Such a situation, in my considered opinion, would be contrary to the very spirit of the object and purpose of the Constitution as firmly and solemnly resolved in the preamble therein by the people of Nigeria, which inter alia, is to live in unity and harmony as one Indivisible and Indissoluble Sovereign Nation under God. In the circumstances the broader interpretation of the words of the Oath will not serve the interest of the Constitution whereas the narrower interpretation will best carry out its object and purpose. The narrower sense is consistent with reason and common sense. The observation of Idigbe, J.S.C. in Rabiu v. The State (Supra) at p.195 is apt:
‘Where the question is whether the Constitution has used an expression in the wider or in the narrower sense the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the content or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.”
For the above reasons I endorse the narrow interpretation advocated by the learned Attorney-General that the Oath of Allegiance does not impose any duty on the Appellant as a Senator beyond his duties as such and that it does not enable him to discharge functions that are outside the purview of those of a Senator. It follows therefore, the mere fact that he took and subscribed to the Oath did not give him standing to challenge the validity of the appointment.
I have already rejected the contention of the Appellant that as a Senator sections 48 and 141(1) vested in him standing to challenge the validity of the appointment. The next point is: Has he standing as a private citizen to do so? This question arises because Chief Fawehinmi has asserted that the Appellant instituted the suit as a Senator and also as a private citizen and relied on the provisions of the combined effect of sections 236(1), 141(1) and 6(6) (b) in respect of his citizen status.
I do not consider it necessary to set out the provisions of section 236(1) be-cause it does not confer standing on any person to institute a suit but it simply sets out the general jurisdiction of the High Court of a State. The section material to the Issue is section 6(6)(b) which reads:
“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 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;”
It may be observed that this sub-section expresses the scope and content of the judicial powers vested by the Constitution in the Courts within the purview of the sub-section. Although the powers appear to be wide, they are limited in scope and content to only matters, actions and proceedings “for the determination of any question as to the civil rights and obligations of that person”. It seems to me that upon the construction of the sub-section, it is only when the civil rights and obligations of the person, who invokes the jurisdiction of the court, are in issue for determination that the judicial powers of the courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of. The Appellant has not alleged that the appointment of the 2nd Respondent has in any way affected or is likely to affect his civil rights and obligations.
For the foregoing reasons, l agree with the conclusion of the learned Chief Justice that the Appellant has no standing and consequently the appeal should be dismissed. I also agree with all the orders made by him.
I was privileged to read in draft the judgments just read by my learned brothers, the Chief Justice of Nigeria and Bello JSC, and I would also dismiss the appeal.
I am in respectful agreement with the interpretation the learned Chief Justice of Nigeria has placed on the provisions of section 259(3) of the Constitution of the Federal Republic of Nigeria, 1979 – hereafter referred to simply as the “1979 Constitution” – as well as the provisions of Order 6 rules (1) and (3) of the Supreme Court Rules, 1977, relating to the content and form of a case stated. For the reasons given by my learned brother, Bello JSC. I agree that the plaintiff (i.e. the appellant herein) has no locus standi to prosecute the claims in these proceedings; I have very little to add, and what I have to say is in relation to the provisions of section 6(6)(b) of the 1979 Constitution which read:-
“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 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 expression “judicial power” in the above quotation is ’the power of the Court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision” [see Justice Miller: The Constitution p.314]. Judicial Power is therefore invested in the Court for the purpose of determining cases and controversies before it; the cases or controversies however, must be justiciable’. That being so, it is necessary to know in what circumstances a court can, in the exercise of its judicial power pronounce on the constitutional validity of an ‘Act’ (i.e. legislation) of the Legislature or, an ‘act’ (i.e. action) of the National Assembly. In attempting to answer this question, I would gratefully adopt the views of Marshall CJ. in Marbury v Madison (1803) 1 Cranch 137, which, in a summary, are that the right of the Court to declare unconstitutional an act of Congress can only be exercised by it when a proper case between opposing parties has been submitted to it for judicial determination; and that there is no general veto power, in the Court, over the legislation, or other acts of Congress. According to him, the authority of the Court to declare an Act of the Legislature or an action of the Congress unconstitutional derives from the requirement that in applying the ordinary laws or a particular law of the land and comparing them with the provisions of the Organic law that is, the Constitution, in order to or for the purpose of determining the rights of the parties in the case before it, the Court should enforce the Constitution as the suprema lax. The foregoing views are also in accord with those expressed in Chicago vs. Wellman 12 (U.S.) Supreme Court Re-porter 400; by Brewer J. at p.402 that:-
“Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one Individual against another, there is presented a question involving the validity of any act of any legislature … and the decision necessarily rests on the competency of the legislature to so enact, the courts must in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of the courts. It is legitimate only in the last resort, and as a necessity in the determination of the real, earnest and vital controversy between the individuals.”
The type of case or controversy which will justify the exercise by the court of its judicial power must be justiciable and based on a bona fide assertion of right by the litigants (or one of them) before it. Under our Constitution, government is divided into three separate and independent sections viz: The Executive, the Legislature and the Judiciary; and it is, I apprehend, the duty of each section to avoid encroachment by one on the sphere of the other; which is why I take the view that the circumstances in which the judicial power under section 6(6)(b) of the 1979 Constitution can be exercised by the Court for the purpose of pronouncing on the constitutional validity of an act of the National Assembly or, more particularly, any legislation must be limited to those occasions in which it has become necessary for it (i.e. the Court) in the determination of a justiciable controversy or case based on bona fide assertion of rights by the adverse litigants (or anyone of them) before it to make such a pronouncement. The Court does not, in my view, possess a general veto power over legislation by, or acts of, the National Assembly; its powers, properly construed; are supervisory, and the supervisory power, in my view, can only be properly exercised in circumstances to which I have referred above. This is why the courts in countries with written Constitutions similar to the 1979 Constitution will not declare on the constitutionality of a statute – even where it is patent – in a case brought by a plaintiff who has neither sustained an injury nor shown that he is in immediate danger of it by virtue of the existence of the statute in question [see: Massachusetts vs Mellon (1923) 262 U.S. 447. And so it is that where a declaration was ’sought by Federal employees in the United States of America as to the constitutionality of the Hatch Act (1940) which prohibited Federal Government employees “to take any active part in political management”, it appeared that as regards some of the plaintiffs there was neither any allegation by the defendants (who were Members of the Civil Service Commission) that they had violated the Act; nor were they threatened by the defendants with any disciplinary action; and that they sought a declaration on the constitutional validity of the Act only because they desired to engage in acts of political management contrary to the provisions of the Act, the Court refused to make a declaration at the instance of these plaintiffs. But amongst the plaintiffs there was one Poole, who had been charged by the Commission with violations of the Act and called upon to reply to the charges and against a proposed order by the Commission for the removal from the Federal Service upon those charges. The Court held that the suit for declaration was maintainable at Poole’s instance because there was a justiciable controversy between him and the Commission (i.e. the defendants), since his alleged right to engage in political activity (i.e. political management) under the 5th, 9th and 10th Amendments to the U.S. Constitution had been definitely threatened by the action proposed by the Commission [see United Public Workers vs Mitchell (1947) 330 U.S. 75.1 On the same principle and on the basis of a similar reasoning it was held in ASHWANDER vs T.V.A. (1936) 297 U.S. 288 at 346-8 that the Court will never decide the question of the constitutionality of a statute or act of Congress IN ADVANCE of the necessity for its decision (i.e. the necessity for it to do so).
As my brother. Bello JSC pointed out in the judgment just read by him the Appellant -Abraham Adesanya – has not alleged that the appointment of the Respondent – Justice Ovie-Whiskey – as the Chairman of the Federal Electoral Commission has in any way affected, or that it is in any way likely to affect his right or interest, that is, any of his civil rights and obligations; in those circumstances he cannot possibly be considered as having any locus standi to prosecute his claims in these proceedings which have been set out in the judgment just read by the learned Chief Justice of Nigeria.
I have had the advantage of reading, in draft, the judgment of the Honourable Chief Justice of Nigeria just delivered and I find that it wholly accords with my thinking on this matter. My concurrence in the judgment leads me to make, by way of emphasis, the following observations.
The serious point highlighted in this judgment deals with the duty to preserve and protect the Nigerian Constitution and the questions I ask are these:
(1) Is it confined to our activities within our respective spheres of public service?
(2) Are Nigerian citizens who are not in the public service and who have not subscribed to the oath of allegiance excused the duty of preserving and protecting the Constitution?
(3) Does the oath to preserve and protect the Constitution give the person who subscribed to the oath unlimited access to the court whenever there is a breach of or non-compliance with the provisions of the Constitution?
These are questions over which we must all ponder in view of the wave of enthusiasm by all Nigerians to see and ensure compliance with every provision of the Constitution and the equally strong desire by some authorities to evade compliance whenever compliance is against or does not serve their interest.
The judicial powers vested in the court, expansive as it is, can only be invoked by a proper application to the court, the easy access to all Nigerians notwithstanding. Litigation envisaged by Section 6(6)(b) seems to be largely contentious and adversary. Despite the enthusiasm of all to ensure compliance with the constitution, the right of the individual to engage in such an exercise in court can only arise where circumstances of an oppressive or hostile nature exist and where rights of the citizens guaranteed under the law and constitution are curtailed or invaded or breached by a breach of or non-compliance with the constitution.
A party who comes to court after alleging infraction of the constitution does not discharge the onus of proof by keeping mute and after presenting some documents leave all other elements to be proved to the imagination of the judge. In my view, it was this situation that forced the decision that the appellants’ interests were not breached by the non-compliance with the provision of the constitution.
The 2nd respondent was a judicial officer in the employ of the Bendel State Government not a judicial officer in the employ of the Government of the Federation.
Does this circumstance amount to a disqualification for appointment? This was the question for determination before the High Court which that court answered in the affirmative having regard to S.143(1)(a) and (2); Section 181(1) and (2); Section 62(1)(f) and Section 101(1)(f). These provisions of the constitution read:
Section 143(1): No person shall be qualified for appointment as a member of any of the bodies aforesaid (i.e. the Federal Electoral Commission, etc.) if:
(a) he is not qualified or if he is disqualified for election as a member of the House of Representatives.
Section 143(2): Any person employed in the public service of the Federation shall not be disqualified for appointment as chairman or member of any such bodies: provided that where such person has been duly appointed he shall, on his appointment, be deemed to have resigned his former office as from the date of the appointment.
Section 181(1): No person shall be qualified for appointment as a member of any of the bodies aforesaid (State Electoral Commission, etc.) if:
(a) he is not qualified or it he is disqualified for election as a member of a House of Assembly;
Section 181(2): Any person employed in the public service of a state shall not be disqualified for appointment as chairman or member of any of such bodies provided that where such a person, not being an ex officio member of the State Council of Chiefs has been duly appointed, he shall on his appointment be deemed to have resigned his former office as from the date of his appointment.
Section 61(1): No person shall be qualified for election to the Senate or the House of Representatives if:
(f) he is a person employed in the public service of the Federation or of any State.
Section 101(1): No person shall be qualified for election to a House of Assembly If
(f) he is a person employed in the public service of the Federation or of any State:
Section 277(1): Public Service of the Federation means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as:
(b) member or staff of the Supreme Court, the Federal Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory as established pursuant to Part 1 of Chapter VIII of the Constitution or other Courts established for the Federation by this Constitution and by the National Assembly;
Public Service of a State: means the service of the State in any capacity in respect of the government of the State and includes service as:
(b) member or staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal or other courts established for a State by this Constitution or by a House of Assembly.
A stage at which a decision on the point or a determination of the question must be reached before the court can pronounce on the question. The sections of the Constitution set out above contain all the guidelines the executive and the legislature need to follow in making the appointments.
The public services of the Federation and that of a State are quite distinct services and the Constitution has recognised and set out the distinctness and separate nature of, each. While any appointment in either of the services constitutes a disqualification for election into either the Senate, the House of Representatives or the House of Assembly of a State, it is only the appointment in the public service of the Federation that is saved from constituting a disqualification in any member for appointment to any of the Federal executive bodies including the Federal Electoral Commission. In regard to State executive bodies including State Electoral Commission, it is only appointment in the State public service that is saved from constituting a disqualification. Appointment in the public service of the Federation constitutes a disqualification for such appointment to the State Electoral Commission.
The principal questions to which the above answers relate would have arisen if the appellant had had any locus standi in the action now before us.
It appears to me that the High Court was not called upon to determine any question as to the civil rights and obligations of Senator Abraham Adesanya. The High Court is not an extension or an arm of the National Assembly and the debate in the National Assembly cannot and should not be transferred to the court for conclusion. The court is not interested in determining whether the majority or minority of the members of the National Assembly is right or wrong when it is not properly seised of justiceable complaint. It appears from the conduct of the case before the High Court that that was the question placed before it.
Locus standi or standing to sue is an aspect of justiceability and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent in justiceability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issues he wishes to have adjudicated.
In conclusion, I will refer to two cases not binding on us but of strong persuasive authority. They are decisions of the U.S. Supreme Court. The Constitution of the U.S. bears similarity to ours in its demands for compliance although in de tail, the U.S. Constitution bears no similarity with the Nigerian Constitution. The first case is Board of Education v. Allen 392 US 236, 88 SCI: 1923. The short facts are that members of a local school board having taken an oath to support the United States Constitution and believing a state statute requiring the school board to lend text books to private parochial school students to be unconstitutional are in a position of having to choose between violating their oath and taking a step – refusal to comply with the statute -which would be likely to bring their expulsion from office and also a reduction in the state funds for their school district. It was held that they thus have personal stake !n the outcome of litigation challenging the constitutionality of the statute so as to give them standing to press their constitutional claims on appeal to the United States Supreme Court.
On the other side is the case of Ex parte Levitte 302 US 633; 82 LEd. 493. This case was decided on October 11, 1937. It was on a motion for leave to file petition for an order requiring Mr. Justice Black to show cause why he should be permitted to serve as an Associate Justice of the Supreme Court.
Refusing the application, the court per curiam held:
‘The grounds of this motion are that the appointment of Mr. Justice Black by the President and the confirmation thereof by the Senate of the United States were null and void by reason of his ineligibility under Article 1, Section 6, Clause 2 of the Constitution of the United States and because there was no vacancy for which the appointment could lawfully be made. The motion papers disclosed no interest upon the part of the petitioner other than that of a citizen and a member of the bar of this Court. This is insufficient. It is an established principle that to entitle a private individual to invoke the judicial powers to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as a result of that action and it is not sufficient that he has merely a general interest common to all members of the public.”
The first authority dearly shows the situation in which the oath of loyalty can operate to give a plaintiff locus standi or standing to sue while the second authority shows that Interest common to all citizens in the context of the American Constitution is not sufficient to give standing to challenge legislative and executive action.
The need for liberal approach to the interpretation of the provisions of the 1979 Constitution is paramount and the case of Naliu Rabiu v. The State (1980) 8-11 SC.130 has set the pace. The dictum of Sir Udo Udoma, JSC. cited by my learned brother, Fatayi-Williams, CJN, which met with the unanimous approval of the other Justices who heard the appeal will for a long time be the approach of the court in this country.
The interpretation which the United States has adopted was lucidly stated in the judgment of Chief Justice Stone delivered in 1944 in the case of Yakus v. United States 321 US 414. He said at pp. 424-5. 426:
‘The constitution as a continuously operative charter of government does not demand the impossible or the impracticable. It does not require that Congress find for itself every fact upon which it desires to base legislative action or that it make for itself detailed determination which it has declared to be prerequisite to the determination of the legislative policy to particular facts and circumstances impossible for Congress itself to investigate. The essentials of the legislative functions are the determination of the legislative policy and its formulation and promulgation as a defined binding rule of conduct … These essentials are preserved when congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that a statutory command shall be effective. It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and the declaration of policy call for the exercise of judgment and for the formulation of subsidiary administrative policy within the prescribed statutory framework … Only if we could say that there is an absence of standards for guidance of the administrators’ action, so that it would be impossible in a proper proceeding to ascertain whether the will of congress has been obeyed would we be justified in over-riding its choice of means for effecting its declared purpose…”
In Australia and Canada, the tradition of separation of powers has little or no force as the two federations have parliamentary executives. Still, the trend is towards liberal interpretation of the constitutional provisions.
This adoption of liberal interpretation cannot lead us and should not lead us to depart from the spirit and letter of the Constitution.
What is judicial power? The Privy Council in the case of Shell Co. of Australia v. Federal Commissioner of Taxation (1931) AC 275 at 295 adopted the definition given by Griffith. CJ. in Huddart Parker AND Co. v. Moorehead 8 CLR 330, 357 an Australian case, as one of the best definitions. Griffith, CJ. In that case said:
“I am of the opinion that the words ‘judicial power’ as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding authoritative decision (whether subject to appeal or not) is called upon to take action.”
This definition meets my own concept of judicial power and I would adopt it. Section 6(1) and 6(2) of the 1979 Constitution vests the judicial powers of the Federation and of the States in the courts established for the Federation and for the States respectively. The two subsections read as follows:
“(1) The judicial powers of the Federation shall be vested in the courts to which this section relates being courts established for the Federation; and
(2) The judicial powers of a state shall be vested in the courts to which this section relates being courts established subject as provided by this Constitution for a State.”
The letter and spirit of these subsections cannot bear a narrow or restrictive interpretation. The only restriction that can be imported is the one expressed in paragraphs c and d of subsection 6 and they are as follows:
‘The judicial powers vested in accordance with the foregoing provisions of this section
(c) shall not, except as otherwise provided by this constitution, extend to any Issue or question as to whether any act or omission by any authority or per-son or as to whether any law or any judicial decision is in conformity with the fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.
(d) shall not as from the date when this section comes into force extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.”
The two areas from which the judicial powers vested in the courts are excluded from operating having been expressly set out, the provisions of paragraphs (a) and (b) which extended the judicial powers to inherent powers and sanctions of a court of law and to all matters cannot be interpreted as imposing a limitation on the exercise of judicial power in areas not expressly set out and which are not included in paragraphs c and d of subsection 6.
The phrase “shall extend” in paragraphs (a) and (b) does not in my view amount to a limitation and cannot be interpreted to read “is limited” or “is restricted” or “is confined”. Paragraph (b) of subsection 6 of section 6 with which we are herein concerned reads:
“(b) The judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and 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.” (Italics mine.)
This provision by itself, in my opinion and respectful view, does not create the need to disclose the locus standi or standing of the plaintiff in any action before the court and imposes no restriction on access to the courts.
It is the cause of action that one has to examine to ascertain whether there is disclosed a locus standi or standing to sue.
Thus, in this instant appeal, one has to look at the claims before the court to ascertain whether the appellants’ locus standi is disclosed. The claims are a declaration and orders of injunction. The claim for injunction is an adversary claim and cannot be established without any allegation of infraction of or trespass or threat of infraction of or trespass to one’s civil rights being set out. The declaration of unconstitutionality sought has only the aim of depriving the respondent of constitutional, legal and legitimate protection against the allegation of invasion of or threats of invasion of appellant’s civil rights.
The mere fact that an act of the executive or legislature is unconstitutional without any allegation of infraction of or its adverse effect on one’s civil rights and obligations poses no question to be settled between the appellant and the respondents as to the civil rights and obligations of the appellant.
I am therefore in no doubt as to the justice of the Federal Court of Appeal decision that the appellant has no locus standi to initiate these proceedings and I agree totally with the reasons for dismissing this appeal set out in the judgment of my learned brother, Fatayi-Williams, CJN.
I would also for the same reasons and those set out above, dismiss this appeal and I hereby dismiss it with costs to the respondents fixed at N300.00 (Three Hundred NAIRA).
I agree with all the other orders made by my learned brother, Fatayi-Williams, C.J.N.
I have had the advantage of reading in draft the judgment just delivered by the learned Chief Justice of Nigeria and I agree with his conclusions on the main issue raised before us in this appeal. I particularly agree with him that the words of Section 259(3) of the Constitution of the Federal Republic of Nigeria, 1979, (hereinafter referred to as the Constitution) are quite clear and that the Federal Court of Appeal was with all due respect in error in writing an opinion on the question of law it was to refer to this Court.
I share his view that “opinion or decision (if any) of the court stating the case” which appear in Order 6 Rule 3 of the Supreme Court Rules, 1977 must be interpreted to limit the lower court to an opinion on facts and not law. (See Gamioba vs. Esezi (1961) All N.L.R. 484 at 589). The rule is not without difficulty in interpretation but I too think that if it were to be given a different interpretation it would not only be inconsistent with the provisions of Section 259(3), but would make the reference pointless.
The issue which was canvassed before us in this appeal was the question of the locus standi of the appellant in challenging in court the constitutionality of the appointment of the 2nd respondent by the 1st respondent. On that issue, I would also deny the appellant standing but, with all respect, for the reasons stated in the judgment of my learned brother, Bello, JSC, a preview of which I also had.
If I may add a few remarks on a general note, it seems to me that this question of determining who has title to sue (or who has locus stands) is one in which a delicate balance has to be maintained. The issue is one which is not without much difficulty in older common law jurisdictions such as England, America, Canada, Australia and India – some giving unbridled access to anyone who complains of an unconstitutional action, others taking a more restrictive approach and granting such standing only if the complainant’s rights have been injured. In arguing this complex issue before us, the learned Attorney-General of the Federation referred to several legal authorities from America, England, Australia and India. These authorities admittedly have only persuasive authority, but I am of the view that in interpreting our new constitution, they cannot but be of immense value. It has been argued, quite rightly, that our constitution is different from the American, Indian or any other constitution for that matter, and that in determining the meaning of its provisions it is to it (i.e. our constitution) that we must turn. I do not think, however, that our constitution ought to be interpreted in the abstract without recourse, if only for assistance, to the manner to which similar provisions in constitutions having the same underlying principles have been desk with. As Viscount Simonds said:
“It is right, however, that In the Interpretation of constitutional Instruments, guidance should be sought from those courts whose constant duty it has been to construe similar Instruments. fl only because, as k appears to me, a flexibility of construction is admissible in regard to such Instruments which ought to be rejected in construing ordinary statutes or inter panes documents. The courts of Northern Ireland have not hesitated to adopt this course and have found assistance in their task of construing their own constitution from the manner in which great judges among the English-speaking peoples overseas have dealt with kindred problems.”
See Belfast Corporation v. O. D. Cars Ltd. 1960 Appeal Cases 490 at p.518.
Still on a general note, learned counsel for the appellant had urged us, in as such as the issue of locus standi may affect access to the Courts, “to open the door wide” at this stage and close it gradually. In our complex society, and having regard to the state of the democratic process, I would have rather preferred a situation in which each case is considered on its particular circumstances and in which the courts allow a liberal spirit to prevail in their determination in each such case of what amounts to or the scope of sufficient interest which will entitle the complainant to sue.
More specifically, I would finally and briefly make references to Sections 48 and 6(6)(b) of the Constitution which were also relied on by learned counsel for the appellant for his contention that the appellant had locus standi both in his capacity as a Senator and as a private citizen of this country.
On Section 48, it was argued that the appellant as Senator had an obligation, following the oath of allegiance and membership to which he subscribed to challenge the action of the 1st respondent if he thought it was unconstitutional. Section 48 subsection as provides:
“Every member of the Senate or the House of Representatives shall, before taking his seat, take and subscribe the Oath of Allegiance and the Oath of Membership prescribed in the Sixth Schedule to this Constitution.”
The Oath of Allegiance contained in the Sixth Schedule provides:
“I… do solemnly swear that I will be faithful and bear true allegiance to the Federal Republic of Nigeria and that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria. So help me God.”
And the Oath of Membership of the National Assembly in the same Schedule is as follows:
“I … do solemnly swear that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; that as a member of the Senate/House of Representatives … I will perform my functions honestly to the best of my ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law, and the rules of the Senate House of Representatives … and always in the interest of the sovereignty, integrity, solidarity well-being and prosperity of the Federal Republic of Nigeria; that I will strive to preserve the Fundamental objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria; and that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria; and I will abide by the Code of Conduct contained in the Fifth Schedule of the Constitution of the Federal Republic of Nigeria. So help me God.” (Italics mine.)
1 am also unable to find in these oaths the basis for granting the appellant locus standi or for conceding that he has sufficient Interest to bring the claim he brought in Court. it seems to me that the obligations which arise from the Oath of Member-ship of the National Assembly are limited to the performance of the duties of the appellant as a Senator. In other words, they relate to his functions and duties as a Senator. In my view. he is to preserve, protect and defend the Constitution in the context of the performance of his duties as a Senator. From the facts of this case as set out in the judgment of the learned Chief Justice, he seems to have fully carried out his duties. He took part in the deliberations of the Senate consequent upon which the appointment of the 2nd respondent was confirmed by that body.
Section 6(6)(b) of the Constitution formed the bedrock of the argument on this issue in the Federal Court of Appeal. Section 6 of the Constitution provides as follows:
“(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
(6) The judicial powers vested in accordance with the foregoing provisions of this section …’
(b) shall extend to all matters between government or authority and 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” (Italics mine).
Section 6(6)(b) to my mind encompasses the full extent of the judicial powers vested in the Courts by the Constitution. Under it, the Courts have power to adjudicate on a justiciable issue touching on the rights and obligations of the person who brings the complaint to court. The litigant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat to such infringement or Injury. It seems to me that the Courts must operate within the perimeter of the judicial power vested in them by Section 6(6)(b) of the Constitution and that they can only take cognisance of justiciable actions properly brought before them In which there is dispute, controversy, and above all, in which the parties have sufficient interest. The Courts cannot widen the extent of this power which has been so expressly defined by the Constitution.
In Rolla Coleman vs. Clarence Miller 122 American Law Reports page 695 at p.710 to which learned counsel for the appellant drew our attention, Justice Frank-furter (of the United States Supreme Court) delivering a minority judgment with which Justices Roberts, Black and Douglas concurred) observed:
“In endowing this court with “judicial power” the Constitution presupposed an historic content for that phrase and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges. The Constitution further explicitly indicated the limited area within which judicial action was to move – however far reaching the consequences of action within that area – by extending ‘Judicial power” only to “cases” and ‘Controversies’.”
Then on the issue of the standing of the 20 Senators who were plaintiffs in the original suit in the State of Kansas. Justice Frankfurter had this to say at p.711. and I respectfully agree with him:
‘The requisites of litigation are not satisfied when questions of constitutionality though conveyed through the outward forms of a conventional court proceeding do not bear special relations to a particular litigant. The scope and consequences of our doctrine of judicial review over executive and legislative action should make us observe fastidiously the bounds of the litigious process within which we are confined. No matter how seriously infringement of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialised interest of their own to vindicate, apart from a political concern which belongs to all.”
See also Jenkins vs. McKeithen 89 S.Ct. 1843, 395 U.S. 411, 23 L Ed. 2d 404: Laird vs. Tatum 92 S.Ct. 2318. 408 U.S.1. 33 L Ed. 2d 154; Doremus vs. Board of Education of Borough of Hawthorne 72 S.Ct. 394, 342 U.S. 429. 96 L.Ed. 475.
What peculiar interest of the appellant is involved in the circumstances of this case? What rights and obligations personal or peculiar to him have been injured or infringed by the appointment of the 2nd respondent by the 1st respondent, and the confirmation of that appointment by the Senate in accordance with Section 141(1) of the Constitution? The short answer, in my view, is none.
I would, in the circumstances, agree with the learned Chief Justice that the appellant has no locus standi. I would also dismiss the appeal. I agree with all the orders made in the judgment of the learned Chief Justice of Nigeria.
I have had the opportunity of reading in draft the judgment read by my learned brother the Chief Justice of Nigeria. I agree with the reasons and conclusions therein except, I regret, as to the question of the interpretation to be given to section 6 subsection (6) (b) of the Constitution of Nigeria, 1979.
It is of paramount importance and indeed most desirable to encourage citizens to come to court in order to have the Constitution interpreted. However this is not to say, with respect, that meddlesome interlopers. professional litigants or the like should be encouraged to sue in matters that do not directly concern them. In my view, to do that is to open the flood-gate to frivolous and vexatious proceedings. I believe that such latitude is capable of creating undesirable state of affairs.
By section 6 subsection (6) (b) of the Constitution:
“(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 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;” (Italics mine)
This limitation which is imposed on the judicial powers of our courts is not in principle peculiar to Nigeria but indeed universal. As Professor de Smith observes at p.363 of his book – Judicial Review of Administrative Action, 3rd Edition:
“in Roman law it was open to any citizen to bring an actio popularis in respect of a public delict or to sue for a prohibitory or restitutory interdict for the protection of res sacrae and res republicae, but title to sue or otherwise depended upon the Infringement of a private right. Today nearly all foreign systems require that, save in exceptional cases, a plaintiff must have a special personal interest in the proceedings he institutes.”
One of the exceptional cases in question is for instance the relator action which the Attorney-General in England can bring as a guardian of public interest although he has no special personal interest in the subject of the litigation. We are not here concerned with the exceptions.
It is for the foregoing reasons and those given by my learned brother, Bello JSC (which I had the privilege of reading in draft) that I feel that the interpretation to be given to section 6 subsection (6)(b) of the Constitution will depend on the facts or special circumstances of each case. So that no hard and fast rule can re-ally be set-up. But the watchword should always be the “civil rights and obligations” of the plaintiff concerned.
Accordingly, I agree that the appeal be dismissed and orders be made as contained in the judgment of the Chief Justice.