Friday, 13 March 2020

Illegal Ministries? High Court strikes out suit on Ayade’s creation of Aviation, Foreign Affairs Ministry for want of jurisdiction


13 March 2020 

A Federal High Court sitting in Nigeria's southern port city of Calabar and presided over by Justice Simon Amobeda has declined jurisdiction to entertain a public interest suit seeking the court's interpretation of the constitution to decide whether the action of appointing commissioners of aviation, foreign affairs and solid minerals by Governor Ben Ayade of Cross River state was in order. 

Justice Amobeda in an hour long judgment delivered on Thursday also held that the plaintiff in suit number FHC/CA/CS/4/2020 lacked the locus standi to institute a case against the six defendants listed having failed to "show to the court that he has suffered personal injury or will do so in the future by the action of the first defendant."

The plaintiff is First Baba Isa, a rights lawyer while the six defendants as listed in the matter are: the governor of Cross River state; the government of Cross River state; the Attorney General and commissioner for justice of Cross River state while the fourth, fifth and sixth defendants were the commissioners of foreign affairs, aviation and solid minerals in Cross River state.

The Attorney General, Mr. Tanko Ashang had appeared in person for himself and for the other five defendants.

And, in his ruling Justice Amobeda said the court had relied on order 29 of its rules to hear the preliminary objection filed by the defendants and the substantive suit on the same day on February 19, 2020.

Justice Amobeda in his ruling on the preliminary objections said three issues were brought up for determination. He began with issue three which sought whether the fourth, fifth and sixth defendants were juristic individuals. 

Justice Amobeda who relied on the case of Thomas vs Local Government Service (1965) NSCT at 125 and Scalem vs University of Jos (1994) 1 NWLR part 3, 323 at 658 among others, held that: "the fourth to sixth defendants in the instant case are jurisditive persons that can sue or be sued."

However, on the issue of locus standi, he ruled in favour of the defendant while on the issue of jurisdiction, he held that if the plaintiff was right, then the first defendant would have usurped the powers of the federal executive council in which case, it would have been the duty of the Attorney General of the federation as the Chief Law Officer to decide whether he will institute a case against the defendants or not and not a private citizen.

Justice Amobeda's judgment was however silent on the issue of public interest as canvassed in the written address of the plaintiff.

Furthermore, Justice Amobeda held that going by the debate of the plaintiff, the principal claim to determine was the validity of the actions of the first defendant which were "executive and administrative" and not whether the first defendant had the powers to create the said ministries.

Justice Amobeda who described Isa's argument as "persuasive" also said by virtue of the above, the Federal High Court therefore lacked jurisdiction to entertain the matter aa it should have been filed before the High Court of Cross River State.

He, however refused to award cost against the plaintiff as canvassed by Mr. Ashang and struck out the case.

The director of civil litigation in the Cross River ministry of justice who appeared for the defendants with a host of other lawyers declined comment.

But, Baba Isa whom Justice Amobeda praised for his dexterity after reading his judgment told journalists that: "I will apply for the judgement, I will study it, digest it and decide whether to appeal or to re-file because it is a striking out and not a dismissal. What that entails is that I can re-file at the Federal High Court, I can re-file at Cross River state High Court. I think appeal will be best for me because I think that there are some issues that my Lord did not consider like the issue of public interest litigation."

Isa who was reluctant to discuss some aspects of the judgment, also added that: "At this age, in the 21st century, this is 2020; the Supreme Court, the Court of Appeal is very clear on that; nobody is talking about locus standi now, anybody can sue. So, he adopted some, with all due respect, old school interpretation of locus standi - the law, has changed in that regard - so, I will study it very well and decide on what to do. But, I feel very good. With all sense of modesty, I am proud of myself. In the end, I always say something, let nobody say 'nobody did anything.' So, somebody did something and I feel good."

This means that Mr. Ayade's decision to appoint commissioners of foreign affairs, aviation and solid minerals remains technically, unchallenged before any known court of law.



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