Court dismisses federal character suit seeking to stop appointment of new justices of Appeal Court

The Federal High Court, Abuja, on Thursday dismissed a suit seeking to challenge the appointment of 18 new justices for the Appeal Court over alleged breach of federal character principles.

Delivering judgment, Justice Inyang Ekwo dismissed the suit filed by an Igbo socio-cultural group; the Incorporated Trustees of Alaigbo Development Foundation, for lack of locus standi (legal right) to institute the matter.

Justice Ekwo held that going by Section 283 (1) of Companies and Allied Matters Act (CAMA) Part A in the avirement of the plaintiff, the action of the group ran contrary to the law.

He said he noted that the 1st, 2nd and 3rd defendants in the suit raised an issue of locus standi of the plaintiff to institute the case and that the plaintiff too had joined issues in the matter.

According to him, the issue of locus standi of the plaintiff will have to be determined first before going into the substantive matters.

“Where the court finds out that the plaintiff does not have a locus standi to file the suit, the case ends there,” the judge said citing previous cases to the effect.

However, he said where the group had the legal right, ‘the case succeeds’. “The plaintiff must demonstrate that he has the capacity to sue and be sued,” he added.

Justice Ekwo pointed out that after studying the group’s application, it failed to prove in the copy of certificate of incorporation with the Corporate Affairs Commission presented before the court that it had the right to file the suit.

He noted that the group was registered as a foundation to raise funds and engage in charity activities and not to engage in public interest litigation.

The judge further said that though the group claimed to be a non-governmental organisation (NGO), it ought to have studied what an NGO does before registering as one.

“People think they can do anything they like provided that they are giving publication.

“The plaintiff has exceeded the perimeter of their operation,” he ruled, adding that the action of the group was ultravire.

Ekwo, who advised the group not to mislead itself anymore, urged them to go and mind their business of raising funds for charity purpose they were established to do.

“Once the court finds out that the plaintiff has no legal right to file an action, the jurisdiction of the court is affected.

“I, therefore, make an order striking out the suit for lack of locus standi of the plaintiff,” he ruled.

The group had, in an originating summons marked FHC/ABJ/CS/347/21 dated March 15 and filed March 16, urged the court to restrain the defendants from continuing the exercise pending the hearing and determination of the suit.

The plaintiff sued the National Judicial Council (NJC), the Federal Judicial Service Commission, President of the Court of Appeal, Federal Character Commission (FCC) and the Attorney General of the Federation (AGF) as 1st to 5th defendants respectively.

NJC had, on March 19, announced that it recommended 18 candidates to President Muhammadu Buhari for appointment as justices of the Court of Appeal.

The Director of Information, NJC, Soji Oye, said the council, under the chairmanship of the Chief Justice of Nigeria, Ibrahim Muhammad, had at its 94th meeting held on December 17 and 18, 2020, considered the list of candidates presented by its interview committee.

However, the socio-cultural group had challenged the exercise alleging that the NJC violated the provisions of the 1999 Constitution on the grounds that the South East region had been marginalised in the selection.

The group, through its lawyer, Max Ozoaka, alleged that the Principles of the Federal Character was breached in the way and manner the new Appeal Court justices were nominated and subsequently urged the judge to nullify the exercise.

But counsel to the NJC (1st defendant), Paul Usoro, SAN, while arguing his preliminary objection, prayed Justice Ekwo to decline jurisdiction in the matter on the grounds that the plaintiff lacked locus standi (legal right) to institute the action.

Usoro told the court that the plaintiff was an Igbo socio-cultural organisation and that the aims and objectives of the group did not include instituting cases of public interest.

The senior lawyer further disagreed on the premise that photocopies of certificate of incorporation of the group certified by a court registrar was
tendered.

He averred that only officials of the Corporate Affairs Commission (CAC) were empowered to certify such documents and urged the court to dismiss the case.

Corroborating Usoro’s argument, counsel to the 2nd and 3rd defendants, Yakubu Maikyau, SAN, urged the court to refuse to entertain the matter.

According to him, Section 20 of the Companies and Allied Matters Act (CAMA) did not permit the group to embark on instituting such an action.

NAN reports that the plaintiff, in the application, had sought the court order compelling the defendants to replace the three vacancies in the South East slots by three new justices from the zone.

In the application, they asked the court to determine that “having regard to the oath of office of the defendants to uphold the Constitution of the Federal Republic of Nigeria, 1999, as amended, whether the defendants can completely ignore, disregard or infringe at will the principles of justice, fairness, equity, due process and federal character in the ongoing exercise of appointment of Justices of the Court of Appeal, particularly with regard to the South East Zone of the Federation.

“Having regard to the principles of equity and a good conscience and the true intendment and purpose of the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, is the South East Zone of the Federation not entitled in the ongoing exercise of appointment of justices of the Court of Appeal to 3 (three) new slots in the bench of the Court in direct replacement of the vacancies occasioned and existing in the bench of the court arising from the elevation, retirement and death of three justices of the court from that zone.”

The plaintiff, who averred that if the answers to the above questions are in its favour, urged the court to declare the action of the defendants, particularly the 1st, 2nd and 3rd, in allocating one slot only to the South East Zone in the ongoing exercise as “unjustifiable, unfair, inequitable and contrary to the true intendment of the relevant provisions of the 1999 Constitution.

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