On Monday, 28 June 2021, the Chief Justice of Nigeria, Honorable (Dr.) Justice Ibrahim Tanko Muhammad, CFR presided over the swearing-in of 18 new Justices of the Court of Appeal. That exercise breathed much-needed oxygen into the veins of the Court of Appeal which hitherto was severely and literally gasping for breath consequent upon the extreme paucity of Justices in all its divisions. PUC is proud to have played a significant role in clearing the pathway for the hosting of that swearing-in event pursuant to the representation of the National Judicial Council (“NJC”) by the Firm’s Senior Partner and immediate past President of the Nigerian Bar Association, Paul Usoro, SAN in Suit No. FHC/ABJ/CS/347/2021 – The Incorporated Trustees of Alaigbo Development Foundation v National Judicial Council & 4 others. The 4 (four) other defendants in that Suit were the Federal Judicial Service Commission), the President of the Court of Appeal, the Federal Character Commission, and the Attorney-General of the Federation and Minister for Justice.
Still suffused with the excitement of its victory on Monday, 21 June 2021, in a famed oil spill case in Nigeria, PUC was back in the trenches 48 hours later for hearing at the Federal High Court, Abuja, Nigeria in the said Suit. The Plaintiff in that Suit was challenging the nomination of 18 judicial officers for appointment as Justices of the Court of Appeal on the ground that the exercise was skewed against the federal character representation from the South East Zone of Nigeria. According to the Plaintiff, the South-East Zone was entitled to not less than 3 (three) slots in the exercise based on the Plaintiff’s reading of Section 14(3) of the Constitution of the Federal Republic of Nigeria, 1999 which provides for federal character representation in, amongst others, public office appointments, as a directive principle of state policy. PUC in its representation of the 1st Defendant in the Suit, promptly filed a Preliminary Objection which raised a critical jurisdictional issue for determination by the Court, viz:
“Whether this Suit is competent howsoever in the terms, inter alia, of (a) the locus standi of the Plaintiff (or the lack thereof) to institute and maintain this Suit pursuant to Sections 6(6)(b) and 238(3) of the Constitution of the Federal Republic of Nigeria, 1999 As Amended; (b) the justiciability of this Suit vis-à-vis the Plaintiff and in the context of Sections 6(6)(c) and 158(1) of the 1999 Constitution; and (c) the disclosure of any cause of action or any civil wrong or injury caused by the Applicant to the Plaintiff.”
In addition to PUC’s contention that Section 6(6)(c) and Section 158(1) of the 1999 Constitution made the provisions of Section 14(3) of the Constitution non-justiciable, PUC most importantly contended in the Preliminary Objection, that the institution of the Suit is ultra vires the Plaintiff’s powers pursuant to its aims and objects as set out in Sections 590 and 591 of the Companies and Allied Matters Act, Cap C20, Laws of the Federation of Nigeria, 2004 (CAMA 2004) (now Sections 823 and 825 of the Companies and Allied Matters Act, 2020 (CAMA 2020) which provisions are fully reproduced in the Plaintiff’s Constitution. The ultra vires action of the Plaintiff in instituting this Suit, PUC contended, rendered the Suit incompetent and robbed the Court of jurisdiction to entertain it.
The Suit garnered national interest as its determination became critical to the completion of the judicial appointments processes. The need for the appointment of more Justices of the Court of Appeal to tackle the bulging dockets of the Court and the overwhelming workload on the current Justices of the Court fuelled the urgency that was accorded the Suit which was heard on Wednesday, 23 June 2021 followed by Judgment delivery about 48 hours later on Friday, 25 June 2021 by Honourable Justice Inyang Ekwo of the Federal High Court, Abuja who had made an earlier Order accelerating the hearing of the Suit and abridging the time for the filing of defence processes.
Delivering a well-researched and an erudite Judgment, the Court anchored its judgment on the issues pertaining to the Plaintiff’s locus standi and its vires to institute the Suit in the terms of its aims and objects pursuant to Sections 823 and 825 of CAMA. The Court after reviewing the provisions of Section 823 of CAMA came to the unassailable conclusion that the institution of the Suit is ultra vires the Plaintiff’s powers as circumscribed within its statutory aims and objectives. The Court further stated that a body registered under Part C of CAMA is simply an Association whereas the Plaintiff is a self-styled Foundation whose objectives qua Foundation should be the establishment and administration of a Fund for the attainment of its goals rather than engaging in purported public interest litigation. The Court pronounced further that the Plaintiff which described itself as a Non-Governmental Organization (“NGO”) was not registered as such and cannot therefore wear that toga. Based on the decision that the Plaintiff lacks the locus standi to institute and maintain this Suit, the Court declined jurisdiction to entertain the Suit and struck the same out.
PUC’s exposure of the action by the Plaintiff as being outside the purview of its statutory aims and objectives became an important plank on which the Court espoused the principle of law that, notwithstanding the legal powers to sue and be sued as a body corporate, an Association that is registered as an Incorporated Trustees lacks the locus standi to institute a public interest litigation where such action is ultra vires its statutory powers as expressly set out in CAMA and reproduced in the Constitution of the Association. This Judgment is an added layer on PUC’s commitment to the development of law in Nigeria.