Ghani vs FRN

CHIEF GANI FAWEHINMI v. PRESIDENT OF THE
FEDERAL REPUBLIC OF NIGERIA & ORS
CITATION: (2007) LPELR-9005(CA)
In The Court of Appeal
(Abuja Judicial Division)
On Friday, the 20th day of July, 2007
Suit No: CA/A/190/04
Before Their Lordships
RABIU DANLAMI MUHAMMAD
ABDU ABOKI
CHIDI NWAOMA UWA
Justice, Court of Appeal
Justice, Court of Appeal
Justice, Court of Appeal
CHIEF GANI
FAWEHINMI
Between
Appellant
And
1. PRESIDENT OF THE
FEDERAL REPUBLIC OF
NIGERIA
(General Olusegun
Obasanjo)
2. REVENUE
MOBILISATION,
1
Respondents

ALLOCATION AND
FISCAL COMMISSION
3. DR. (MRS.) NGOZI
OKONJO-IWEALA
(Minister of Finance)
4. AMBASSADOR
OLUFEMI ADENIJI
(Minister of External
Affairs)
5. ATTORNEY-
GENERAL OF THE
FEDERATION
2
RATIO DECIDENDI
1 WORDS AND PHRASES - "CIVIL RIGHTS
AND OBLIGATIONS": Meaning of "civil
rights and obligations"
"The meaning of civil rights and obligations
has been explained in the case of Okechukwu
v. Etukokwu (1998) 8 NWLR (Pt. 562) page
513 at 526 where Tobi, JCA (as he then was)
defined the phrase thus: 'The word "civil" is
derived from Latin word "civilis" which means
a citizen. The word "civil" relates to the state
or its citizenry. Civil right is a constitutional
liberty guaranteed in the Constitution. A civil
right within the meaning of Section 33(1) of
the Constitution is distinct from a private or
domestic right. Above all, a civil right is a civil

liberty. A civil obligation, on the other hand,
simply means an obligation which binds in
law, and may be enforced in a Court of
justice." His Lordship stated further at page
536:- "For a right to be qualified as a civil
right, it must have a domineering and
dominant base or appeal and a universal
spread. And here, the word universal, does
not convey its universal meaning of the
universe but restricted to the Nigerian polity.
In other words, the civil right should have a
general Nigerian base, devoid of all peculiar
domestication with all locality or localisation.
A civil right is a right which all persons in the
polity should generally share in common
without discrimination." Per ABOKI, J.C.A. (Pp.
57-58, paras. G-F) - read in context
2 INTERPRETATION OF STATUTE -
CERTAIN POLITICAL, PUBLIC AND
JUDICIAL OFFICE HOLDERS (SALARIES
AND ALLOWANCES ETC.) ACT, 2002:
Interpretation of Certain Political, Public and
Judicial Office Holders (Salaries and
Allowances etc.) Act, 2002 with respect to the
Salary for Certain Political and Public Officers
"By an Act which came into force on 29th
may, 1999 the National Assembly of the
Federal Republic of Nigeria promulgated the
Certain Political Public and Judicial Office
Holders (Salaries and Allowances etc.) Act,
3

2002 and it provided: "Section 2(1) - A
person who is - (a) elected or appointed to an
office in the Executive Arm of the Federal
Government or the Federal Capital Territory,
Abuja as specified in the First Column of Parts
I and IV of the Schedule to this Act shall be
entitled to salary, allowances and fringe
benefits set out in the Second Column of Part
I(a) and (b) Part IV(a) and (b); and (b) ... (2)
Holders of the offices mentioned under I(a)
and (b) of this Act shall receive their
allowances and fringe benefits and severance
benefits as provided for under the Schedule to
this Act." Part 1A of the Schedule to the Act,
titled Annual Basic Salary for Certain Political
and Public Officers in the Executive (Federal)
reads: "Secretary to the Government of the
Federation/Minister N794,085.00, Minister of
State N783,032.00" It is therefore illegal for a
Minister or a Minister of State in the Federal
Executive to receive a salary above what has
been stipulated under the Certain Political,
Public and Judicial Office Holders (Salary and
Allowances etc.) Act No.6 of 2002. It is also
unlawful for any person or authority to pay a
Minister or Minister of State a salary below
what has been stipulated under the said Act."
Per ABOKI, J.C.A. (Pp. 70-71, paras. B-B) -
read in context
4
3 ACTION - ENFORCEMENT OF PUBLIC

5
RIGHT: Whether an ordinary individual has
the locus standi to institute an action to assert
or protect a public right or to enforce the
performance of a public duty
"Under public law, an ordinary individual will
generally not have locus standi as a plaintiff.
This is because such litigations concern public
rights and duties which belong to, or are owed
to all members of the public, including the
plaintiff. It is only where he has suffered
special damage over and above the one
suffered by the public generally that he can
sue personally. See: Gamioba & Others v.
Esezi & Others (1961) 2 SCNLR 237, (1961)
All NLR 584 at 585, (1961) 2 SCNLR 237;
Owodunni v. Registered Trustees of Celestial
Church of Christ (supra) page 73. In an action
to assert or protect a public right or to enforce
the performance of a public duty, it is only the
Attorney-General of the Federation, that has
the requisite locus standi to sue. A private
person can only bring such an action if he is
granted a fiat by the Attorney-General to do
so in his name. This is referred to as a "relator
action." Per ABOKI, J.C.A. (Pp. 60-61, paras.
F-C) - read in context
4 ACTION - LOCUS STANDI: Meaning of locus
standi
"It is clear from a plethora of decisions of the

Apex Court that the term locus standi denotes
legal capacity to institute proceedings in a
court of law; and can therefore be referred to
as "standing" or "title to sue"." Per ABOKI,
J.C.A. (P. 54, paras. A-B) - read in context
6
5 ACTION - LOCUS STANDI: Who has a locus
standi to sue
"There must be a cause of action before a
person can have an enforceable right. The
person in whom this enforceable right is
vested as his personal right is the person that
has locus standi to sue. A person who makes a
claim which in actual fact belongs to someone
else has no locus standi before the court. See
Oloriode v. Oyebi (supra)." Per ABOKI, J.C.A.
(P. 54, paras. B-C) - read in context
6 ACTION - LOCUS STANDI: Effect of the
principle of locus standi
"Locus standi principle operates to deprive a
party of the right to institute an action on the
ground that such intended plaintiff lacks
connection or sufficient connection with the
subject matter of the action. It is therefore of
paramount importance, for a prospective
litigant to ascertain upon whom the
enforceable right in the cause of action is
vested, to enable him decide whether he
himself can properly sue." Per ABOKI, J.C.A.

(P. 54, paras. D-F) - read in context
7
7 ACTION - LOCUS STANDI: How to ascertain
whether the plaintiff in an action has locus
standi
"In ascertaining whether the plaintiff in an
action has locus standi, it is necessary to
examine the statement of claim filed in court,
to see if it discloses a cause of action vested
on him. Thus, only the plaintiff's statement of
claim should be looked into to see if the
plaintiff has locus standi to institute the
action. In Adesokan v. Adegorolu (1997) 3
NWLR (Pt.493) page 261 at 278 Ogundare,
JSC held that: ''To determine whether the
plaintiff has locus standi, it is to the statement
of claim one looks." See also the case of Bolaji
v. Bamgbose (1986) 4 NWLR (Pt. 37) page
632 at 646." Per ABOKI, J.C.A. (Pp. 54-55,
paras. F-B) - read in context
8 ACTION - LOCUS STANDI: Ways by which a
defendant can raise the issue of locus standi;
Proper order a Court will make when a
Plaintiff lacks locus standi
"On whether a defendant can raise the issue
of locus standi the position of the law is stated
by this court in the case of Ebongo v.
Uwemedimo (1995) 8 NWLR (Pt. 411) page 22
at 51, Per Tobi, JCA (as he then was) as

follows:- "A defendant can raise the issue of
locus standi in two main ways: (a) By a
motion and (b) in his defence. In either way,
he relies only on the statement of claim and
not his defence. And so, a defendant can raise
the issue of Locus standi, even before he files
his statement of defence, and that is by (a)
above. Where a defendant raises the issue of
Locus standi in a motion, the court must look
at the statement of claim and not the affidavit
in support. The rationale is straightforward. If
the court looks at the affidavit evidence, this
is in effect seeking supportive evidence from
the defendant, which should not be the
situation. By such a procedure the defendant
has succeeded in introducing through the back
door part of his statement of defence (if not
the whole), what he cannot introduce through
the front door camouflaged or disguised as
affidavit in support. In the instant case, the
learned trial Judge dealt with the threshold
issue of locus standi at the stage of writ of
summons and motion with supporting
affidavit. With respect, he was fairly in some
hurry. He might have waited for the filing of
the statement of claim. He was therefore in
error, and I so hold. There is yet another
error, this time by dismissing the suit. The
state of the law is that where a plaintiff lacks
locus standi, the court can strike out the suit
and not dismiss it." See also: Global Trans
Oceanica S.A. v. Free Ent. (Nig.) Ltd. (2001) 2
8

SC 145: (2001) 5 NWLR (Pt. 706) 426;
Douglas v. Shell Petroleum Development Co.
Ltd. (1999) 2 NWLR (Pt.591) page 466 at
414; Multi-purpose Ventures Ltd. v. A.G.
Rivers State (1997) 9 NWLR (Pt.522) page
642 at 666; Elendu v. Ekwoaba (1995) 3
NWLR (Pt.386) page 704; Olagbegi v.
Ogunoye II (1996) 5 NWLR (Pt. 448) page
332; Adefulu v. Oyesile (1989) 5 NWLR (Pt.
122) page 377." Per ABOKI, J.C.A. (Pp. 55-56,
paras. B-E) - read in context
9
9 ACTION - LOCUS STANDI: What the Court
will consider to determine whether a
plaintiff has locus standi in an action
commenced by an originating summons
"However, where the action is commenced by
an originating summons, it is the affidavit in
support that will be looked into to find out if
the plaintiff has locus standi to file the action.
The action filed in court must relate to the
determination of any question as to the civil
rights and obligations of the litigant." Per
ABOKI, J.C.A. (P. 56, paras. E-G) - read in
context
10 ACTION - LOCUS STANDI: Whether locus
standi depends on the success or merit of a
case

"Locus standi does not depend on the success
or merit of a case and all that is required of a
plaintiff is to plead and prove facts
establishing his right, interest and obligation
in respect of the subject matter of the suit."
Per ABOKI, J.C.A. (Pp. 56-57, paras. G-A) -
read in context
10
11 ACTION - LOCUS STANDI: Who qualifies as
a person with sufficient interest to bring an
action in court under public law
"The plaintiff/appellant is a political elite in
Nigeria and represents the conscience of the
people and by the averments in paragraph 6
of the affidavit in support of the originating
summons and paragraph 5 of the further
affidavit, he qualifies as a person who has
sufficient interest to bring an action in court
in respect of an infraction of the provisions of
"Certain Political, Public and Judicial Office
Holders (Salaries and Allowances etc) Act
No.6 of 2002, promulgated on 13th
December, 2002 and deemed to have come
into force on 29th May, 1999." Per ABOKI,
J.C.A. (P. 65, paras. B-D) - read in context
12 ACTION - LOCUS STANDI: Current attitude
of the Court to the issue of locus standi with
respect to public interest

"I have earlier said in this judgment that the
learned trial Judge relied on the case of
Adesanya to strike out the plaintiff/appellant's
claim on the basis of lack of locus standi.
Fortunately, the Apex Court has now departed
from the former narrow approach in the
Adesanya's case and the subsequent
decisions. In Fawehinmi v. Akilu (1987) 4
NWLR (Pt.67) page 797, the Supreme Court in
its considered judgment, per Eso, JSC,
considered the locus standi of the appellant
and held at page 847 that: "In this instant
appeal before this court, I think, with respect
that the lead judgment of my learned brother
Obaseki, JSC is an advancement on the
position hitherto held by this Court on "locus
standi". I think again with respect, that it is a
departure from the former narrow attitude of
this court in the Abraham Adesanya case and
subsequent decisions, for strictly speaking, my
Lord Nnaemeka-Agu, JCA (as he then was)
who no doubt was bound by those decisions at
that time was tight in his interpretation of the
stand of this court, and so, strictly on those
authorities of this court, along, his judgment
with respect, could not be faulted when he
said:- "In this country, the result of all the
cases is that the common law concept that a
person who has a locus and can sue is only
one who has a legal right, or whose legal right
has been adversely affected or who has
suffered, or is in imminent danger of suffering
11

an injury- damage, or detriment personal to
himself. This is the result of all decided cases,
including Adesanya's case (supra); Thomas v.
Olufosoye (1986) 1 NWLR (Pt. 18) 669 and
Gamioba II v. Esezi (1961) All NLR 584.' My
humble view and this Court should accept it as
such, is that the present decision of my
learned brother, Obaseki, JSC in this appeal
has gone beyond the Abraham Adesanya's
case. I am in complete agreement with the
new trend and with respect, my agreement
with the judgment is my belief that it has
gone beyond the Abraham Adesanya's case."
Adapting to the new reality on the approach
to the issue of locus standi, this Court in
Williams v. Dawodu (1988) 4 NWLR (Pt. 87)
page 189 at 218, Akpata, JCA (of blessed
memory) stated that: "There is now the
recent case of Chief Gani Fawehinmi v. Col.
Halilu Akilu & Anor. In Re Oduneye (1987) 2
NWLR (Pt. 67) page 797 which shows that the
Courts have become increasingly willing to
extend the ambit of locus standi for public
good. The Courts have broken new grounds.
The significance of this judicial revolution is
that whereas in the past the court showed
little or no reluctance in any given case in
construing the import of "sufficient interest"
against the individual and tended to be more
Executive than the Executive, now the term
"sufficient interest" is construed more
favourably in order to give an applicant a
12

hearing." This court had an occasion to
consider the expanded horizon of locus standi
in order to encourage the public interest in
litigations in the case of Shell Petroleum
Development Co. Ltd. & 5 Ors. v. E.N. Nwaka
& Anor. (2001) 10 NWLR (Pt.720) page 64 at
pages 82-83. Pats-Acholonu, JCA (as he then
was and of blessed memory) held as follows:-
"It needs the courage, wisdom and proper
understanding of our social-economic
environment for an activist Judge to widen the
scope of the law on Locus Standi. Some Judge
and advocates have shown some trepidation
in handling this matter. I believe we have to
take the bull by the horn and do justice to a
matter before the court without bending
overly backwards because a matter is on
borderline in respect of whether the initiator
of an action has the standing order to do so. I
think that where the cause is laudable and will
bring peace, justice and orderliness that will
reflect the spirit of the Constitution then we
should not shirk our responsibility in this area
to help in advancing the cause of Social,
Economic and Cultural matters as they affect
this society. The development of the law of
locus standi has been retarded extensively
due to fear of floodgate of persons meddling
into matters not even remotely connected
with them. In my opinion, let them meddle
and let the Court remove the wheat from the
chaff. I believe that it is the right of any
13

citizen to see that law is enforced where there
is an infraction of that right or a threat of its
being violated in matters affecting the public
law and in some cases of private law such as
where widows, orphans are deprived, and a
section of the society will be adversely
affected by doing nothing." Per ABOKI, J.C.A.
(Pp. 65-68, paras. E-E) - read in context
13 CONSTITUTIONAL LAW - RIGHT OF A
CITIZEN: Constitutional right of a citizen to
institute an action in Court
"The term locus standi can not be divorced
from the provisions of Section 6(6)(b) of the
Constitution since it provides that the
Constitutional right of a citizen to institute an
action in court can only be exercisable by a
person who has complaints touching on his
civil rights and obligation. Where a plaintiff
fails to raise in his statement of claim or in
the affidavit in support of his originating
summons any question as to his civil rights
and obligations that have been violated or
injured, the statement of claim or the
originating summons as the case may be will
be struck out. The issue as to the person who
has the civil right and obligation has been
made clear by section 6(6)(b) of the
Constitution of the Federal Republic of
Nigeria, 1999 which states:- "6(6) The judicial
powers vested in accordance with the
14

foregoing provisions of this section - (a) ... (b)
Shall extend to all matters between persons,
or between government or authority and to
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." Per
ABOKI, J.C.A. (P. 57, paras. A-G) - read in
context
14 CONSTITUTIONAL LAW - RIGHT OF
ACTION: Whether a citizen can bring an
action in court against executive excesses and
unconstitutionality
"I am of the opinion that in the Nigerian
context and particularly under the
Constitution of the Federal Republic of
Nigeria, 1999, it would be wrong to slam the
door of the courts against complaints on
executive excesses and unconstitutionality
under the guise of lack of locus standi. Where
this is done, the objective of the 1999
Constitution beautifully phrased as freedom,
equity and justice may not be attained. The
Constitution or any other Law can only be
tested in Courts; it is access to the courts for
such test that will give satisfaction to the
people for whom the Constitution or the Law
is made. This view is supported by the English
case of Inland Revenue Commissioners v.
National Federation of Self-employed and
15

Small Businesses Ltd. (1981) 2 WLR 722 at
740 where the House of Lords, Per Lord
Diplock held as follows: "It would, in my view,
be a grave lacuna in our system of public law
if a pressure group, like the Federation or
even a single public-spirited taxpayer, were
prevented by outdated technical rules of locus
standi from bringing the matter to the
attention of the Court to vindicate the rule of
law and get the unlawful conduct stopped."
See also A.G., Bendel v. A.G. Federation
(1982) 3 NCLR 1 at 97. The provisions of the
Certain Political Public and Judicial Office
Holders (Salaries and Allowances) Act No.6 of
2002 made pursuant to section 1-3(1)(n) and
Part 1 N item 32(d) of the Third Schedule to
the Constitution of the Federal Republic of
Nigeria, 1999 possesses constitutional flavour
and must be accorded, Constitutional dignity.
See Zakari v. Inspector-General of Police
(2000) 8 NWLR (Pt. 670) page 666 at 679."
Per ABOKI, J.C.A. (Pp. 74-75, paras. B-B) -
read in context
16
15 INTERPRETATION OF STATUTE -
SECTION 153(1)(N) OF THE 1999
CONSTITUTION & PART 1 N ITEM 32(D)
OF THE THIRD SCHEDULE: Interpretation of
Section 153(1)(n) of the 1999 Constitution &
Part 1 N Item 32(d) of the Third Schedule to
the Constitution as regards remuneration of

17
political office holders
"The Revenue Mobilization Allocation and
Fiscal Commission is established pursuant to
section 153 of the Constitution of the Federal
Republic of Nigeria, 1999 which states:
"153(1) There shall be established for the
Federation the following bodies namely- (a) ...
(b) ... (c) ... (d) ... (e) ... (f) ... (g) ... (h) ... (i)
... (j) ... (k) ... (l) ... (m) ... (n) Revenue
Mobilization, Allocation and Fiscal
Commission." The powers of the Revenue
Mobilization Allocation and Fiscal Commission
have been spelt out in the Third Schedule,
Part 1 N Item 32 thus: "32. The Commission
shall have power to- (a) ... (b) ... (c) ... (d)
determine the remuneration appropriate for
political office holders, including the President,
Vice-President, Government, Deputy-
Governors, Ministers, Commissioners, Special
Advisers, Legislators and the holders of the
offices mentioned in sections 84 and 124 of
this constitution, and (e) ... A community
reading of Section 153(1)(n) and part 1 N
item 32(d) of the Third Schedule to the
constitution will reveal that only the Revenue
Mobilization, Allocation and Fiscal Commission
has the power to determine the remuneration
appropriate for political office holders
including ministers. It therefore follows that
the determination of remuneration for
Ministers of the Federal Government of

Nigeria by any person or authority other than
the Revenue Mobilization, Allocation and
Fiscal Commission is unconstitutional, illegal,
null and void." Per ABOKI, J.C.A. (Pp. 68-70,
paras. F-B) - read in context
16 EVIDENCE -
UNCHALLENGED/UNCONTROVERTED
EVIDENCE: Position of the law where
affidavit evidence has not been challenged or
controverted by way of counter-affidavit
"The position of the law is that where affidavit
evidence has not been challenged or
controverted by way of counter-affidavit facts
deposed to in such affidavit are deemed
admitted. See: Mohammed Hassan Rimi v.
INEC & Anor (2004) 15 NWLR (Pt. 895) page
121 at 131; Alhaji Mohammed Sanusi
Daggash v. Hajiya Fati Ibrahim Bulama & Ors.
(2004) 14 NWLR (Pt.892) page 144 at 223. In
the case of The Honda Place Ltd. v. Globe
Motors Holding Ltd. 23 NSCQR page 74 at
84-89, (2005) 14NWLR (Pt.945) 273 at 293,
per Katsina-Alu, JSC: "The Law is that where
the facts in an affidavit remain unchallenged
and uncontroverted, the court is bound to
accept those facts as established as those
facts were deemed to have been admitted.
See Nwabuoku v. Ottih (1961) 2 SCNLR 233.
No counter-affidavit was filed by the
respondent with the result that the facts
18

deposed to in support of the application were
neither challenged nor disputed by the
respondent. What this means is this. Those
facts remain unchallenged and
uncontroverted. The inevitable consequence is
that those facts deposed to in the affidavit led
by the applicant must be deemed to have
been admitted by the respondent and must
also be taken as true by the court unless they
are obviously false to the knowledge of the
court. See Alagbe v. Abimbola (1978) 2 SC 39
at 40." Per ABOKI, J.C.A. (Pp. 71-72, paras.
D-C) - read in context
19
ABOKI, J.C.A. (Delivering the Leading
Judgment): This is an appeal against the ruling of
B.F.M. Nyako, J. of the Federal High Court, Abuja
delivered on Thursday, 7th October, 2004 in which
the learned trial Judge struck out the appellant's
suit on the basis that the appellant has no locus
standi to maintain the action.
The facts of the case are that the appellant as
plaintiff in the lower court instituted an action
against the respondents seeking for determination
of the following questions:-
"(a) Whether any public officer in Nigeria
particularly a Minister of the Federal Republic of

Nigeria is entitled to be paid yearly salary outside
the salary prescribed by Certain Political, Public and
Judicial Office Holders (Salaries and Allowances,
etc.) Act No.6 of 2002.
(b) Whether any Public Officer in Nigeria
particularly a Minister of the Federal Republic of
Nigeria is entitled to be paid in Foreign currency
outside the currency prescribed by Certain Political,
Public and Judicial Office Holders (Salaries and
Allowances, etc.) Act No. 6 of 2002.
(c) Whether the authorization by the President of
the Federal Republic of Nigeria, 1st respondent, of
payment of a Minister's salary outside that
prescribed by the Act of the National Assembly and
in foreign currency is not an abuse of power under
the Constitution of the Federal Republic of Nigeria,
1999."
The suit was commenced at the lower Court by an
originating summons in which the appellant sought
the following reliefs:
"1. A DECLARATION that the 3rd and 4th
defendants (Ministers of the Federal Republic of
Nigeria) who are Public Officers are not entitled to
earn salaries above those prescribed by the -
Certain Political, Public and Judicial Office Holders
(Salaries and Allowances etc.) Act No.6 of 2002
made on 13th December, 2002 but which is
deemed to have come into force on the 29th of
20

May, 1999.
2. A DECLARATION that no public officer under the
"Certain Political, Public and Judicial Office Holders
(Salaries and Allowances, etc.) Act No.6 of 2002
made on 13th December, 2002 but which is
deemed to have come into force on the 29th of
May, 1999, is entitled to receive his or her salary in
any other currency other than the Naira.
3. A DECLARATION that the yearly salary of
$247,000 (about N36 million) being paid to the 3rd
defendant Dr. (Mrs.) Ngozi Okonjo Iweala, the
Federal Minister of Finance, is a flagrant violation
of Certain Political, Public and Judicial Office
Holders (Salaries and Allowances, etc.) Act No.6 of
2002 which prescribes a yearly salary of
N794,085.00 for every Minister of the Federal
Republic of Nigeria.
4. A DECLARATION that the yearly salary of
$120,000 (about N17 million) being paid to the 4th
defendant Ambassador Olufemi Adeniji, Federal
Minister for External Affairs is a flagrant violation
of Certain Political, Public and Judicial Office
Holders (Salaries and Allowances, etc.) Act No.6 of
2002 which prescribes a yearly salary of
N794,085.00 for every Minister of the Federal
Republic of Nigeria.
5. AN ORDER compelling the 3rd and 4th
defendants to refund to the Federal Government of
21

Nigeria any amount in excess of the prescribed
salary in Certain Political, Public and Judicial Office
Holders (Salaries and Allowances, etc.) Act No.6 of
2002.
6. A DECLARATION that the authorization by the
1st defendant (The President of the Federal
Republic of Nigeria) of the salaries being paid to the
3rd and 4th defendants in violation of the Certain
Political, Public and Judicial Office Holders (Salaries
and Allowances, etc.) Act No. 6 of 2002 amounts to
an abuse of power which is contrary to:
(a) Section 15(5) of the Constitution of the Federal
Republic of Nigeria; and
(b) Section 153 of the Constitution of the Federal
Republic of Nigeria which empowers the 2nd
defendant to determine the remuneration
appropriate for political office holders, including the
President, Vice-President, Governors, Deputy
Governors, Ministers, Commissioners, Special
Advisers, Legislators and the holders of the offices
mentioned in sections 84 and 124 of the
Constitution and in pursuance of which an Act
titled: Certain Political, Public and Judicial Office
Holders (Salaries and Allowances, etc.) Act No.6 of
2002 was promulgated.
7. AN INJUNCTION restraining the Federal
Government of Nigeria, its agents, servants, privies
or howsoever called particularly the 1st defendant
from paying Ministers or any other Public Officers
covered by the Certain Political, Public and Judicial
22

Office Holders (Salaries and Allowances, etc.) Act
No.6 of 2002 outside the salaries prescribed in the
said Act."
23
The 1st respondent is the President, the Chief
Executive and the Commander-in-chief of the
Armed Forces of the Federal Republic of Nigeria as
provided for in Section 130 of the Constitution of
the Federal Republic of Nigeria, 1999.
The 2nd respondent is an Executive Body of the
Federation provided for in Section 153 of the
Constitution of the Federal Republic of Nigeria,
1999 to, amongst other constitutional duties set
out in Sections 84, 124 and Third Schedule, Part 1,
N, item 32 of the Constitution, determine the
appropriate remuneration for political office
holders.
The 3rd and 4th respondents are Ministers of the
Federal Republic of Nigeria as established under
section 147 of the Constitution of the Federal
Republic of Nigeria, 1999; whilst the 5th
respondent is the Chief Law Officer of the
Federation.
The appellant's originating summons was supported
by a 13-paragraph affidavit dated 25th February,
2004 and a 6-paragraph further affidavit dated
26th April, 2004. Attached to the further affidavit
was an exhibit called exhibit Gani 1.

The 1st, 3rd, 4th and 5th respondents in reply filed
a notice of preliminary objection dated 10th March,
2004 in which they sought to dismiss and/or strike
out the action in its entirety on the following
grounds:
"i. The plaintiff/appellant has no locus standi to
institute the action;
ii. The action is frivolous, vexatious, speculative,
hypothetical, academic and abuse of judicial
process;
iii. The Honourable Court lacks the requisite
jurisdiction and competence to entertain the suits."
The 2nd respondent on 12th March, 2004 filed
another objection in which it sought the following:
"i. The instant plaintiff lacks the competence/locus
standi to institute this action against the 2nd
defendant.
ii. The suit discloses no cause of action or reliable
cause of action against the 2nd defendant.
iii. An order of court striking out the name of the
2nd defendant from the suit."
Both the appellant and the respondents addressed
the trial court over the respondents' preliminary
objection and on Thursday, 7th October, 2004, the
trial court delivered its ruling striking out the
appellant's suit on the grounds inter alia that the
appellant has no locus standi to maintain the action
and that the matter was not justiciable.
24

On the 28th day of October, 2004, the appellant
filed a notice of appeal against the said ruling on 5
grounds.
In their brief of argument dated the 26th day of
July, 2005, the respondents adopted the issues as
formulated by the appellant.
At the hearing of this appeal, learned counsel for
the appellant Clement Onwuenwanor informed the
court that they filed their brief of argument on
26/7/2005 and that he is adopting same as the
argument of the appellant in this appeal. He
referred the court to page 50 of the record of
appeal.
He contended that the case of Adesanya does not
apply to this matter. Learned counsel urged the
court to allow this appeal and to note that the
appellant has locus standi to maintain this action.
Alfred Uwaka learned counsel for 1st, 3rd, 4th and
5th respondents told the Court that their brief of
argument was filed on 15/2/06 and that they are
adopting same and he urged the court to dismiss
the appeal and uphold the decision of the lower
court as well as award a substantial cost against
the appellant. The 2nd respondent was absent and
unrepresented even though it was served with a
hearing notice on 14/5/2007.
In support of the originating summons at the trial
court, the plaintiff/appellant filed a thirteen
25

paragraph affidavit. Paragraphs 1, 2, 3, 4, 5, 6, 8,
9, 10, 11 and 12 are pertinent and they are hereby
reproduced thus:-
"1. That I am a counsel in the Chambers of Chief
Gani Fawehinmi, SAN, plaintiff's counsel by virtue
of which I am familiar with the facts deposed to in
this affidavit.
2. That I have the consent and authority of the
plaintiff herein to depose to this affidavit in support
of this originating summons.
3. That the 1st defendant is the President of the
Federal Republic of Nigeria.
4. That the 2nd defendant is a Federal Executive
body established by section 153 of the Constitution
of the Federal Republic of Nigeria, 1999 to amongst
other constitutional functions determine the
remuneration appropriate for political office
holders, including the President, Vice-President,
Governors, Deputy Governors, Ministers,
Commissioners, Special Advisers, Legislators and
the holders of the offices mentioned in sections 84
and 124 of the Constitution.
5. That the 3rd and 4th defendants are Ministers of
the Federal Republic of Nigeria.
6. That the plaintiff is the Chairman of the National
Conscience Party (NCP), former presidential
candidate, a tax payer who is bound by the
provisions of the Constitution of the Federal
Republic of Nigeria, 1999.
7. That the salaries and allowances of Ministers and
some other Public Officers have been prescribed in
26

an Act of National Assembly titled "Certain Political,
Public and Judicial Office Holders (Salaries and
Allowances etc.) Act No.6 2002 promulgated on
13th December, 2002 and deemed to have come
into force on the 29th of May, 1999.
8. That the yearly salary of a Minister of the
Federal Republic of Nigeria is N794,085.00 (Seven
Hundred and Ninety-Four Thousand, Eighty-Five
Naira).
9. That the 3rd defendant Dr. (Mrs.) Ngozi Okonjo
Iweala is earning a yearly salary of $247,000
(about N36 Million) which is far above what the law
has prescribed.
10. That the 4th defendant is earning a yearly
salary of $120,000 (about N17 Million) which is far
above what the law has prescribed.
11. That the salaries being earned by the 3rd and
4th defendants were authorized by the President,
General Olusegun Obasanjo the 1st defendant who
swore to an oath of office prescribed in the seventh
schedule of the Constitution to uphold the
Constitution of the Federal Republic of Nigeria on
the 29th of May, 1999 and on the 29th of May,
2003.
12. That it is in the interest of justice to grant this
application as the defendants would not be
prejudiced if the plaintiff's claims are granted."
The 2nd defendant/respondent filed a counteraffidavit
of three paragraphs. Paragraphs 2 and 3
are relevant to this matter and they are hereby
adumbrated as follows:-
27

"2. That I have the consent of the 2nd defendant
and my employers to depose to this affidavit.
3. That I am informed by Abdulhamid Mohammed,
Esq. (the Managing Partner) of Messrs HAMMART &
Co. on the 11th day of March, 2004 at about 4.30
p.m. in Chambers of the following facts which I hold
as true and correct viz:-
a. That he has gone through the affidavit of Adindu
Ugwuzor and state that paragraphs 6, 8, 9, 10, 12
and 13 of the affidavit in support of the originating
summons deposed on the 25th February, 2004 are
false.
b. That the 2nd defendant has no statutory duty or
functions of paying salaries or allowances to
political, public and judicial office holders in the
Federal Republic of Nigeria.
c. That the 2nd defendant has determined the
remunerations appropriate for the political holders
as contained in the Constitution of the Federal
Republic of Nigeria, 1999 which an Act titled:
Certain Political, Public and Judicial Office Holders
(Salaries &Allowances etc.) was promulgated by the
National Assembly.
d. That I depose to this affidavit in good faith
believing the contents to be true and correct by
virtue of the Oath Act, 1990."
The plaintiff/appellant also filed a further affidavit
of six paragraphs in Support of the originating
summons. Paragraphs 1, 2, 3, 4, and 5 of the said
28

affidavit are in pari materia to the suit and they are
hereby reproduced thus:
"1. That I am a counsel in Gani Fawehinmi
Chambers, plaintiff's counsel by virtue of which I
am familiar with the facts deposed to in this further
affidavit.
2. That I have the consent and authority of the
plaintiff herein to depose to this further affidavit in
support of the originating summons.
3. That on the 25th of February, 2004, I swore to
an affidavit in support of the originating summons.
4. That this is a further affidavit in support of the
originating summons dated 25th February, 2004.
5. That I was informed by the plaintiff, Chief Gani
Fawehinmi, SAN in our Chambers on Thursday,
22nd April, 2004 at about 6p.m. and I verily
believe him that on the 10th day of September,
2001 when he was sworn in as a Senior Advocate
of Nigeria, (SAN) he swore to an Oath before the
Chief Justice of Nigeria and other Justices of the
Supreme Court there present on the occasion of
the conferment of the rank of Senior Advocate of
Nigeria on him. A copy of the Oath is attached
herewith and marked exhibit Gani 1."
A copy of the Oath sworn to by the
plaintiff/appellant before the Chief Justice of
Nigeria and other Justices of the Supreme court
when he was sworn in as a Senior Advocate of
Nigeria, (SAN) and referred to in paragraph 5 of
the further affidavit in support of the originating
29

summons, attached and marked exhibit Gani 1, is
hereby reproduced thus:
"FEDERAL REPUBLIC OF NIGERIA THE LEGAL
PRACTITIONERS' ACT (CAP. 207, LFN) (AS
AMENDED)
I, Ganiyu Oyesola Fawehinmi upon whom the rank
of Senior Advocate of Nigeria has been duly
conferred declare that I will at all times well and
truly serve the interest of the Federal Republic of
Nigeria in the capacity of Senior Advocate of
Nigeria and to that end will support and uphold the
Constitution of the Federal Republic of Nigeria,
1999, as by law established; that I will to the best
of my ability well and truly assist the courts of law
duly established in the Federal Republic of Nigeria
in the performance of their judicial functions; and
that I will at all times uphold the dignity of the rank
of Senior Advocate of Nigeria.
(SGD)
GANI FAWEHINMI
At Abuja this 10th day of September, 2001.
DECLARED BEFORE ME
(SGD)
M. L. UWAIS
Chief Justice of Nigeria."
The 2nd defendant/respondent as earlier stated in
this judgment was absent and unrepresented at the
hearing of the appeal and did not file any brief of
argument.
30

The appellant formulated the following issues for
determination in this appeal:
"1. Whether the plaintiff has locus standi to
institute this action.
2. Whether the learned trial Judge gave full
consideration to all the relevant sections of the
1999 Constitution and other relevant authorities
before holding that abuse of power under section
15(5) of the 1999 Constitution is not justiciable.
3. Whether the action of the appellant was not a
challenge to the paying authorities for
non-compliance with the provisions of the Act.
4. Whether the appellant as a citizen of Federal
Republic of Nigeria is precluded from challenging
any failure to observe or comply with the provisions
of the "Certain Political, Public and Judicial Office
Holders (Salaries and Allowances, etc.) Act No.6 of
2002.
5. Whether the appellant's action has not
challenged the fact that the 3rd and 4th
defendants/respondents are paid in a currency
other than the Naira."
The learned counsel for the 1st, 3rd, 4th and 5th
respondents in the Respondents' Brief of Argument
dated 15th day of February, 2006 and filed on the
same date said the respondents adopted issues (I)
to (V) as formulated by the appellant in the brief of
its argument dated 26th July, 2005. Learned
counsel for the respondent maintained that just as
31

the appellant had argued the issues differently, the
1st, 3rd, 4th and 5th respondents propose also to
argue the issues differently.
32
A meticulous examination of the issues formulated
for determination in this appeal will reveal that the
only issue for determination in my opinion is
"whether the plaintiff/appellant has locus standi to
institute this action."
In his argument on the said issue, learned counsel
for the appellant, Sikiru Akinrele, Esq. submitted
that the learned trial Judge was wrong in his
holding and did not appreciate the status of the
appellant and the nature of his complaint which
border on infraction of the Constitution of the
Federal Republic of Nigeria, 1999 and Certain
Political, Public and Judicial Office Holders (Salaries
and Allowances, etc.) Act No.6 of 2002.
He contended that it is trite that when objection is
raised as to the competence of an action on ground
of want of locus standi, the party raising the
objection is deemed to have admitted the facts
stated by the plaintiff in his statement of claim or
in the affidavit in support of the originating
summons. He argued that consequently, the
respondents by raising the issue of locus standi of
the appellant, were deemed to have admitted the
facts stated by the appellant in his affidavit in
Support of the originating summons.

Learned counsel maintained that the appellant has
shown in paragraph 6 of the affidavit in support of
the originating summons at pages 5 and 6 of the
record of appeal that he is the Chairman of the
National Conscience Party (NCP), former
Presidential Candidate, a tax payer and a Senior
Advocate of Nigeria who is bound by the Provisions
of the Constitution of the Federal Republic of
Nigeria, 1999.
He referred the Court to paragraph 5 of the further
affidavit in support of the originating summons at
page 20 of the record of appeal, as well as the oath
he subscribed to as a Senior Advocate of Nigeria at
page 22 of the record of appeal.
Learned counsel for the appellant contended that
the basis of the appellant's action is clear from
paragraphs 7-11 of the affidavit in support of the
originating summons at pages 5-6 of the record of
appeal.
He argued that it is necessary to consider the
status of the President and Ministers in the
Constitution of the Federal Republic of Nigeria,
1999 and other relevant laws against certain
uncontroverted facts in this appeal.
On what he termed as the salient uncontroverted
facts, learned counsel submitted that the President
and his Ministers are public officers under the
Constitution of the Federal Republic of Nigeria,
1999 and that the appointment of Ministers is
governed by Section 147 of the Constitution.
He submitted that section 14(3) of the Constitution
33

concerns the reflection of the Federal character in
the appointment of Ministers.
He maintained that it is therefore clear that all
Ministers of the Federal Government represent
Nigeria and not any external foreign country or
institution in the Cabinet. He argued that no
Minister represents United Nations Development
Programme (UNDP), United States Agency for
International Development (USAID), the World
Bank or any external body in the Nigerian Cabinet.
He contended that the only recognized
representation is for and on the basis of the
geographical expression called Federal Character.
Learned counsel submitted that the Constitution
considers the Ministers as public officers. He further
submitted that the 5th Schedule Part I item 19 on
Code of Conduct of Public Officers (i.e. the
interpretation Section of the Constitution) defines a
public officer as a person holding any of the public
offices specified in Part II of the 5th Schedule. He
maintained that Part II of the 5th Schedule titled
"Public Officers for the purposes of the Code of
Conduct", listed Public Officers inter-alia to include
the President of the Federation and Commissioners
of the Government of the States.
Learned counsel argued that Ministers of the
Federation are public officers established by the
Constitution and appointed to reflect Federal
Character of Nigeria and they must be Nigerians.
34

He maintained that by Section 153 of the
Constitution, the Revenue Mobilization Allocation &
Fiscal Commission was established and that some of
its functions in the 3rd Schedule, Part I Item 32(c),
(d) are to determine the remuneration of Ministers.
He argued that based on the determination of the
salaries of these officers by the Revenue
Mobilization Allocation and Fiscal Commission, the
National Assembly promulgated in December, 2002,
an Act titled "Certain Political, Public and Judicial
Office Holders (Salaries and Allowances, etc.) Act
No.6 of 2002" and published it in the Federal
Government Official Gazette No. 122 Volume 89
dated December 27, 2002.
He submitted that under that Law, Ministers are to
be paid in Naira just as other officers covered by
that Law.
He maintained that the salary of a Minister is fixed
in that Law at N794,085.00 (Seven Hundred and
Ninety-Four Thousand, and Eighty Five Naira) per
annum. Each Minister is also entitled to certain
allowances, which are either provided in cash or in
kind. These are:-
"(1) Accommodation allowance: 100% of Annual
Basic Salary
(2) Transport allowance: 20% of Annual Basic
Salary
(3) Utility allowance: 20% of Annual Basic Salary
(4) Domestic Staff allowance: 75% of Annual Basic
Salary
35

(5) Entertainment allowance: 10% of Annual Basic
Salary.
(6) Medical allowance: In kind
(7) Security allowance: In kind
(8) Furniture allowance: 300% of Annual Basic
Salary
(9) Personal Assistant allowance: 25% of Basic
Salary
(10) Special Assistant allowance: In kind
(11) M/V Maintenance and Fuel allowance: 30% of
Annual Basic Salary
(12) Severance gratuity; 300% of Annual Basic
Salary
(13) Leave allowances and benefits are either
provided in cash or in kind."
Learned counsel for the appellant maintained that
the complaint of the appellant before the trial court
is that outside the Constitution and the Laws of
Nigeria, the 3rd and 4th respondents, (Ministers of
Finance and External Affairs) at the instance of and
by the authorization of the 1st respondent, General
Olusegun Obasanjo, are being paid salaries that
were not determined by the Revenue Mobilization
Allocation and Fiscal Commission. He contended
that their salaries are well over and above the
salaries under the Act i.e. Certain Political, Public
and Judicial Office Holders (Salaries and Allowances
etc.) Act, No.6 of 2002.
Learned counsel argued that they have deposed in
paragraphs 9 and 10 of the affidavit in support of
36

the originating summons pages 5-6 of the record of
appeal that the 3rd respondent earns a basic salary
of 247,000.00 Dollars per annum which in Nigeria
currency and at today's exchange rate is about 36
Million Naira while the 4th respondent earns a basic
salary of 20,000 Dollars which amounts to about 17
Million Naira per annum.
Learned counsel for the appellant argued that since
these payments contravene the specific law made
for such purpose pursuant to the Constitution of
the Federal Republic of Nigeria, 1999, it amounts to
illegality and therefore unconstitutional.
37
Learned counsel contended that if the appellant,
who has a civil obligation and a right to uphold the
Constitution of the Federal Republic of Nigeria
cannot move the court to pronounce on the breach
of the Constitution of the Federal Republic of
Nigeria, who else can?
He posed the question whether it is being
suggested that it is the Government that will sue
itself or rather the Attorney-General that will sue
the Government and consequently sue himself
where there is a breach by the Executive? Or when
there are breaches of the Constitution and Law
made pursuant to specific provisions of the
Constitution by government, who has the locus to
complain to the Court about such breaches of the
Constitution and that Law made pursuant to the
specific provision of the Constitution.

He maintained that a proper answer to the 1st
three questions raised in paragraphs 3.1.2.1,
3.1.2.2 and 3.1.2.3 above as to who has breached
the Constitution, who has breached the Law made
pursuant to the Constitution and the nature of the
breach. He submitted that the court should consider
the unconstitutionality, illegality, absurdities and
implications of the uncontroversial facts arising
from this action.
On the implications and absurdities of the 3rd and
4th respondents, learned counsel submitted that
the trial Court was wrong in holding that the
plaintiff/appellant has not shown how the
nonobservance of the provisions of Certain Political,
Public and Judicial Office Holders (Salaries and
Allowances etc) Act No.6 of 2002 affects him or will
cause him injury.
It is undisputable he argued that the absurdities of
the flagrant misuse of power by the President of
Nigeria which thereby constitutes an outright
violation of the Constitution and certain Laws made
pursuant to the Constitution clearly cause obvious
damage to the society and the entire citizenry
including the appellant and to which the appellant
because of his special class can protest through the
court process.
Learned counsel stated that the implication and
absurdities of these anomalies, illegal and
unconstitutional salaries can best be appreciated
38

with the following analysis:
"(a) The 247,000 Dollars per annum salary of the
Minister of Finance, the 3rd respondent as
authorized by the President, the 1st respondent,
can pay the salary of another Minister for more
than 35 years.
The 170,000 Dollars per annum salary of the
Minister of Foreign Affairs, the 4th respondent as
authorized by the President, for 1st respondent,
can pay the salary of another Minister for more
than 17 years.
The Dollar salary of the Minister of Finance the 3rd
respondent per annum as authorized by the
President, the 1st respondent can pay the salary of
the Chief Justice of Nigeria which is 1.3 Million
Naira per annum for at least 27 years.
The Dollar salary of Minister of Foreign Affairs the
4th respondent which is 17 Million Naira per annum
as authorized by the President, the 1st respondent,
can pay the salary of 16 Justices of the Supreme
Court including that of the Chief Justice of Nigeria
(all totaling 14 Million Naira) because each Justice
of the Supreme Court earns 990,884 Naira per
annum. The Minister of Foreign Affairs will still
have some Million Naira left to spend."
Learned counsel further argued that another area
of unconstitutionality, is the basis for calculating
the allowances of the Ministers under Certain
Political, Public and Judicial Office Holders (Salaries
and Allowances etc.) Act No.6 of 2002.
39

He contended that this can properly be appreciated
by the following analysis and the poser raised
therein:-
"(i) Accommodation Allowance:
The Act prescribes 100% of Minister's salary as
accommodation allowance. Is it 100% of the
247,000 Dollars (36 Million Naira) that is
Accommodation allowance for the Minister of
Finance, the 3rd respondent, and 100% of 120
Dollars (17 Million Naira) that is accommodation
allowance for the Minister of Foreign Affairs, the
4th respondent?
(ii) Transport Allowance:
The Act prescribes 350% of Minister's salary as
Transport allowance. Is it 350% of the 120,000
Dollars (17 Million Naira) that is Transport
allowance for the Minister of Foreign Affairs, the
4th respondent?
(iii) Utility Allowance:
The Act prescribes 20% of Minister's salary as
Utility allowance. Is it 20% of the 247,000 Dollars
(36 Million Naira) that is Utility allowance for the
Minister of Finance, the 3rd respondent, and 20%
of the 120,000 Dollars (17 Million Naira) that is
Utility allowance for the Minister of Foreign Affairs,
the 4th respondent?
(iv) Domestic Staff Allowance:
40

The Act prescribes 75% of Minister's salary as
Domestic Staff allowance. Is it 75% of 247, 000
Dollars (36 Million Naira) that is Domestic Staff
allowance for the Minister of Finance, the 3rd
respondent, and 75% of 120,000Dollars (17 Million
Naira) that is domestic staff allowance for the
Minister of Foreign Affairs, the 4th respondent?
(v) Entertainment Allowance:
The Act prescribes 10% of Minister's salary as
Entertainment allowance. Is it 10% of the 247,000
Dollars (36 Million Naira) that is Entertainment
allowance for the Minister of Finance, the 3rd
respondent, and 10% of 120,000 Dollars (17
Million Naira) that is Entertainment allowance for
the Minister of Foreign Affairs, the 4th respondent?
(vi) Furniture Allowance:
The Act prescribes 300% of Minister's salary as
Furniture allowance. Is it 300% of the 247,000
Dollars (36 Million Naira) that is Furniture
allowance for the Minister of Finance, the 3rd
respondent, and 300% of 120,000 Dollars (17
Million Naira) that is Furniture allowance for the
Minister of Foreign Affairs, the 4th respondent?
(vii) Personal Assistant Allowance:
The Act prescribes 25% of Minister's salary as
Personal Assistant allowance. Is it 25% of the
247,000 Dollars (36 Million Naira) that is Personal
Assistant allowance for the Minister of Finance, the
3rd respondent, and 25% of 120,000 Dollars (17
41

Million Naira) that is Personal Assistant allowance
for the Minister of Foreign Affairs, the 4th
respondent?
(viii) Motor Vehicle Maintenance & Fuel Allowance:
The Act prescribes 30% of Minister's salary as
Motor Vehicle Maintenance & Fuel allowance. Is it
30% of the 247,000 Dollars (36 Million Naira) that
is Motor Vehicle Maintenance & Fuel allowance for
the Minister of Finance, the 3rd respondent, and
30% of 120,000 Dollars (17 Million Naira) that is
Motor Vehicle Maintenance & Fuel Allowance for
the Minister of Foreign Affairs, the 4th respondent?
(ix) The Act prescribes 300% of Minister's salary as
Severance Gratuity. Is it 300% of the 247,000
Dollars (36 Million Naira) that is Severance
Gratuity for the Minister of Finance, the 3rd
respondent, and 300% of 120,000 Dollars (17
Million Naira) that is Severance Gratuity for the
Minister of Foreign Affairs, the 4th respondent?"
Learned counsel for the appellant argued that from
the above analysis, the 3rd and 4th respondents on
the authorization of the President, the 1st
respondent, are earning salaries well above what is
prescribed by the enabling Law prescribing the
salaries of Public Officers, including Ministers in
Nigeria.
Learned counsel for the appellant submitted that
since no Public Officer in Nigeria, particularly a
42

Minister of the Federal Republic of Nigeria is
entitled to a yearly salary outside the salary
prescribed by Certain Political, Public and Judicial
Office Holders (Salaries and Allowances etc.) Act
No.6 of 2002, the present salaries of the 3rd and
4th respondents run foul of the said Act No.6 of
2002 and thereby become absurd, illegal and
unconstitutional.
He argued that under the Decimal Currency Decree
No. 21 of 1971, the unit of our currency changed
from Pound to Naira with effect from 1st January,
1973. He submitted that under section 15 of the
Central Bank of Nigeria, 1990 Act, the unit of our
currency is the Naira. Learned counsel maintained
that by virtue of the "Certain Political, Public and
Judicial Office Holders (Salaries and Allowances
etc.) Act No.6 of 2002", Ministers are to be paid in
Naira just as other public officers covered by that
Law.
Learned counsel for the appellant argued that
contrary to the Constitution and other enabling
Laws of Nigeria, the 3rd and 4th respondents at the
instance of the 1st respondent are being paid in
Dollars in the manner not determined by the
Revenue Mobilization.
Allocation and Fiscal Commission, the 2nd
respondent, who has the duty to prescribe salaries
of Public Officers under our Laws pursuant to item
32(d) Part 1 of the 3rd Schedule to the
Constitution.
43

Learned counsel submitted that it is trite that
Ministers as Public Officers must not maintain a
bank account outside Nigeria. This is contained in
item 3 Part 1 of the 5th Schedule to the
Constitution.
He argued that it is therefore unconstitutional and
illegal for the salary of a Minister to be paid in
foreign currency and or into an account outside
Nigeria.
Learned counsel for the appellant maintained that
what the President has done in disregarding the
Constitution and the "Certain Political, Public and
Judicial Office Holders (Salaries and Allowances,
etc.) Act No.6 of 2002" clearly amounts to abuse of
power and gross misconduct under section 43 of
the Constitution of the Federal Republic of Nigeria,
1999.
He further maintained that the action of the 1st
respondent amounts to a gross abuse and violation
of the provisions of the Constitution which he, the
1st respondent swore to preserve, protect and
defend on the 29th May, 1999 and 29th May, 2003
pursuant to the Oath of Office of the President
contained in the Seventh Schedule of the
Constitution.
He argued that by paying two Ministers, 3rd and
4th respondents, who are Nigerians representing
two States in the Federation, in foreign currency
(U.S. Dollars), the President is violating the Code of
44

Conduct established under Item 3 Part 1 of the 5th
Schedule to the Constitution because these
payments are obviously made into the private
accounts of these Ministers which they maintained
abroad contrary to the Code of Conduct which the
President swore to abide by in the Oath of
Allegiance or Oath of Office of the President
contained in the 7th Schedule of the Constitution to
the Federal Republic of Nigeria, 1999.
45
Learned Counsel maintained that the Constitution
states that a breach of the Oath of Allegiance or
Oath of Office is an act of Misconduct. He referred
the court to Item 19 Part 1 of the 5th Schedule to
the Constitution. He contended that in the face of
such breaches of constitutional and statutory
provisions, who then has locus standi to complain?
Learned counsel submitted that what determines
locus standi had been succinctly stated in the cases
of: Gani Fawehinmi v. Col.Halilu Akilu & Anor.
(1987) 4 NWLR (Pt.67) page 797 at 830;
Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493)
page 261 at 278;
Bolaji v. Bambose (1986) 4 NWLR (Pt. 37) page
632 at 646;
Ebongo v. Uwemedimo (1995) 8 NWLR (Pt. 411)
page 22 at 51;
Douglas v. Shell Petroleum Development Co. Ltd.
(1999) 2 NWLR (Pt. 591) page 466 at 474;
Multi-purpose Ventures Ltd. v. A.G. Rivers (1997) 9
NWLR (Pt. 522) page 642 at 666.

Learned counsel for the appellant posed the
question whether from the facts of this matter and
within the purview of the above decisions, could it
be said that the appellant, Chairman of a registered
Political Party, a former presidential candidate, a
Senior Advocate of Nigeria and a tax payer has
locus standi to sue in this matter? He submitted
that the clear answer to this poser, is an emphatic
yes.
Learned counsel submitted that the trial Judge was
wrong in relying on the restrictive approach in the
case of Adesanya v. President of Nigeria (1981) 2
NCLR 358 in considering the locus standi of the
appellant. He argued that the restrictive approach
of the Supreme Court since Abraham Adesanya's
case has changed with respect to locus standi of
parties in constitutional matters. Learned counsel
also stated that the cases of Owodunni v. RTCCC
(2000) 10 NWLR (Pt.675) page 315 and Busari v.
Oseni (1992) 4 NWLR (Pt. 237) page 557 referred
to by the trial Judge have no bearing on breaches
of constitutional and statutory provisions as in the
instant case. He argued that the facts are not the
same.
46
Learned counsel argued that the Supreme Court in
Adesanya v. President of Nigeria (supra) stated that
for a person to have to sue in a situation of the
breach of the Constitution of Nigeria, such person
must have an interest that is above that of the
ordinary citizen.

Learned counsel for the appellant submitted that
the plaintiff is not an ordinary person in the street.
He was at the material time to this suit a Chairman
of a political party, a presidential candidate, a tax
payer, a Senior Advocate of Nigeria, and has also
sworn to an Oath under the Legal Practitioners Act
(LPA), 1975 to support and uphold the Constitution
of the Federal Republic of Nigeria.
He contended that the Legal Practitioners Act, Cap.
207, Laws of the Federation of Nigeria, 1990 is an
existing Law pursuant to section 315 of the
Constitution of the Federal Republic of Nigeria,
1999.
Learned counsel argued that a person who has the
civil right and obligation to sue in the instance
under adjudication is clear under section 6(6)(b) of
the Constitution.
He contended that the operative phrase in this
constitutional provision is civil rights and
obligations and a cursory look at their meanings
will shed more light on the locus standi of the
appellant.
He referred the court on the meaning of civil rights
and obligations to the case of Okechukwu v.
Etukokwu (1998) 8 NWLR (Pt. 562) page 513 at
526.
Learned counsel argued that in this case, it is clear
from the provisions of section 6(6)(b) of the
Constitution that actions are only competent
between persons and Governments or between two
47

State Governments or between State
Government(s) and the Federal Government; but
definitely not between the Federal Government and
the Federal Government.
He contended that if this position is so, then it will
be absurd to suggest that Attorney-General as was
the position under the common law, who is a
functionary of the Executive is the one who shall
have the locus standi to sue where the Executive is
in breach of the Constitution. The Attorney-General
of the Federation cannot perform such duty and of
course, he will not. Importantly too, he argued
there is no provision in our Constitution for the
State to sue itself.
Learned counsel for the appellant submitted that in
view of the appellant's questions and reliefs sought
before the trial court as can be found at pages 1-3
of the record of appeal, the appellant contrary to
what the trial court held, has locus standi to
maintain this action in his capacity as the former
presidential candidate, a tax payer and a Senior
Advocate of Nigeria and his obligations therewith to
ensure observance of and compliance with the
Constitution of the Federal Republic of Nigeria and
to prevent the promotion of breaches of same by
any arm of government.
He argued that it cannot be otherwise if the court
examines the trend that permeates the decisions in
the following very important Supreme Court
cases:-
(1) Senator Abraham Adesanya v. President of
48

Nigeria (1981) 2 NCLR 358
(2) Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67)
page 797
(3) Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767)
page 606
Learned counsel for the appellant submitted that
based on the above authorities and the special
circumstances of this case with regards to the
status of the appellant and the constitutional and
statutory breaches he complained about, the trial
court was wrong in striking out the suit on the
ground that the appellant has no locus standi.
Learned counsel further submitted that contrary to
the decision of the trial court adopting the
restrictive approach on locus standi in Abraham
Adesanya's case, this court should adopt the broad
view on locus standi in the case of Akilu v.
Fawehinmi (supra).
He argued that this is so pertinent because locus
standi has the dangerous tendency of frustrating
the whole spectrum of the rule of law and its due
process thereby unwittingly creating executive
dictatorship.
Learned counsel submitted that the decision of the
trial court in this matter is erroneous and should
not be followed by this court.
The court is referred to the case of In Re-Adadevoh
and in the matter of Estate of Samuel Herbert
Macaulay (1951) 13 WACA 304.
49

In his response on this issue, learned counsel for
the respondents referred the court to the ruling of
the trial court on page 50 of the record of appeal
and submitted that the learned trial Judge was
right in its decision because the position of the Law
as established in several authorities before the trial
court is that no matter the status of the plaintiff or
the nature of his complaint, once he lacked locus
standi, the proper thing for the court to do is to
strike out the action.
Learned counsel argued that the preliminary
objection raised by the respondents to the
competency of this suit on the ground of locus
standi did not in any way signify admission of facts
stated by the plaintiff in his averment in his
statement of claim or in the affidavit in support of
the originating summons because the rule is that
any party raising any objection must do so
timeously. He maintained that the appellant
therefore lacks basis to say that the respondents
admitted the appellant's averment.
Learned counsel argued that the position and status
of the plaintiff as deposed to in his affidavit is not
in question and the respondents are not
challenging this, what is really before the court for
determination is whether the position and status of
the plaintiff are cogent enough to confer on him
locus standi. He urged the court to uphold the
decision of the trial court that the plaintiff lacks
50

locus standi to institute the action.
Learned counsel for the respondents referred the
court to pages 21-25 of the appellant's brief where
some issues which he learned "The salient
uncontroverted facts" were raised. Learned counsel
submitted that these issues raised by the appellant
did not treat the issue as contained in the decision
of the trial court as provided for in pages 43-52 of
the record of appeal and therefore should be
discarded by this court.
Learned counsel for the respondents maintained
that the main issue, which was rightly determined
by the trial Court, is the issue of locus standi. On
what determines locus standi, he referred the Court
to the following cases:
Owodunni v. Registered Trustees of CCC (2000) 10
NWLR (Pt. 675) 315;
Oloriode v. Oyebi (1984) 1 SCNLR 390;
Ojukwu v. Governor of Lagos State & Anor. (1985)
1 NWLR (Pt. 10) page 806;
Olawoyin v. Attorney-General of Nigeria (1961) 2
SCNLR 5;
Adesanya v. President of the Federal Republic of
Nigeria (1981) 2 SCNLR 358.
Learned counsel for the respondents submitted that
it is crystal clear from the facts of this matter and
from the authorities he has cited above that the
ruling of the trial Court in this matter that the
appellant had no locus standi is an established fact.
51

He argued that the trial Judge having adverted her
mind liberally to the issues raised by the appellant
and the status of the appellant, correctly ruled he
had no locus standi.
Learned counsel submitted that the ruling of the
trial Court is the correct and pragmatic position of
the Law with regards to locus standi and that this
Court should uphold the holding of the trial Court.
He submitted that the cases relied on by the trial
Court in holding that the appellant had no locus
standi have nexus to the breaches of the
Constitution and that this court should hold same.
He argued that fundamentally, the purport of the
decisions in all the authorities cited is based on the
premise that for a person to have a locus standi to
sue, he must have sufficient interest to sustain the
claim. Learned counsel submitted that the plaintiff
though a Chairman of a political Party, a
Presidential Candidate, a tax payer and a Senior
Advocate does not in this case have sufficient
interest to sustain his claim.
This does not place him above other Chairmen of
the Political Parties, Presidential Candidates, Tax
payers and a Senior Advocate to clothe him with
locus standi in a matter which he does not have
sufficient interest to sustain his claim. Learned
counsel referred to the case of Oloriode v. Oyebi
(supra) and submitted that there is no benefit to be
conferred on the appellant in the reliefs claimed in
this suit and this court should therefore confirm the
52

uling of the trial court by holding that the
appellant has no locus standi.
Learned counsel argued that the appellant in this
case has not shown how his personal interest has
been or is about to be adversely affected, neither
has he sustained nor is in immediate danger of
sustaining an injury to himself and which interest
or injury is over and above that of the general
public.
Learned counsel for the respondents submitted that
if the court looks at the status of the appellant and
confers locus standi on him, this will amount to
laying a bad precedent because so many other
senior citizens of this great country who are even
of higher ranking in the society than the appellant
would not hesitate in rushing to court to challenge
the actions of the Government which would have
otherwise not been justiciable. He argued that this
will ultimately have a great adverse and negative
effect on the constitutional provision and the
Constitution should be held sacred.
Learned counsel submitted that this court should
affirm the decision of the trial court by holding that
the appellant lacks locus standi.
I have diligently perused both the oral and written
submission of counsel in this appeal as well as the
decided authorities and statutes cited before the
court. I am of the opinion that it will be appropriate
53

to begin consideration of this appeal by
ascertaining what the term locus standi denotes.
It is clear from a plethora of decisions of the Apex
Court that the term locus standi denotes legal
capacity to institute proceedings in a court of law;
and can therefore be referred to as "standing" or
"title to sue".
There must be a cause of action before a person
can have an enforceable right. The person in whom
this enforceable right is vested as his personal right
is the person that has locus standi to sue. A person
who makes a claim which in actual fact belongs to
someone else has no locus standi before the court.
See Oloriode v. Oyebi (supra).
Locus standi principle operates to deprive a party of
the right to institute an action on the ground that
such intended plaintiff lacks connection or sufficient
connection with the subject matter of the action. It
is therefore of paramount importance, for a
prospective litigant to ascertain upon whom the
enforceable right in the cause of action is vested, to
enable him decide whether he himself can properly
sue.
In ascertaining whether the plaintiff in an action
has locus standi, it is necessary to examine the
statement of claim filed in court, to see if it
discloses a cause of action vested on him. Thus,
only the plaintiff's statement of claim should be
looked into to see if the plaintiff has locus standi to
54

institute the action.
In Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493)
page 261 at 278 Ogundare, JSC held that:
''To determine whether the plaintiff has locus
standi, it is to the statement of claim one looks."
See also the case of Bolaji v. Bamgbose (1986) 4
NWLR (Pt. 37) page 632 at 646.
On whether a defendant can raise the issue of locus
standi the position of the law is stated by this court
in the case of Ebongo v. Uwemedimo (1995) 8
NWLR (Pt. 411) page 22 at 51, Per Tobi, JCA (as he
then was) as follows:-
"A defendant can raise the issue of locus standi in
two main ways: (a) By a motion and (b) in his
defence.
In either way, he relies only on the statement of
claim and not his defence. And so, a defendant can
raise the issue of Locus standi, even before he files
his statement of defence, and that is by (a) above.
Where a defendant raises the issue of Locus standi
in a motion, the court must look at the statement
of claim and not the affidavit in support. The
rationale is straightforward. If the court looks at
the affidavit evidence, this is in effect seeking
supportive evidence from the defendant, which
should not be the situation.
By such a procedure the defendant has succeeded
in introducing through the back door part of his
statement of defence (if not the whole), what he
cannot introduce through the front door
camouflaged or disguised as affidavit in support.
55

In the instant case, the learned trial Judge dealt
with the threshold issue of locus standi at the stage
of writ of summons and motion with supporting
affidavit. With respect, he was fairly in some hurry.
He might have waited for the filing of the
statement of claim. He was therefore in error, and I
so hold.
There is yet another error, this time by dismissing
the suit. The state of the law is that where a
plaintiff lacks locus standi, the court can strike out
the suit and not dismiss it."
See also: Global Trans Oceanica S.A. v. Free Ent.
(Nig.) Ltd. (2001) 2 SC 145: (2001) 5 NWLR (Pt.
706) 426; Douglas v. Shell Petroleum Development
Co. Ltd. (1999) 2 NWLR (Pt.591) page 466 at 414;
Multi-purpose Ventures Ltd. v. A.G. Rivers State
(1997) 9 NWLR (Pt.522) page 642 at 666; Elendu
v. Ekwoaba (1995) 3 NWLR (Pt.386) page 704;
Olagbegi v. Ogunoye II (1996) 5 NWLR (Pt.
448) page 332; Adefulu v. Oyesile (1989) 5 NWLR
(Pt. 122) page 377.
However, where the action is commenced by an
originating summons, it is the affidavit in support
that will be looked into to find out if the plaintiff
has locus standi to file the action. The action filed
in court must relate to the determination of any
question as to the civil rights and obligations of the
litigant.
Locus standi does not depend on the success or
merit of a case and all that is required of a plaintiff
56

is to plead and prove facts establishing his right,
interest and obligation in respect of the subject
matter of the suit.
The term locus standi can not be divorced from the
provisions of Section 6(6)(b) of the Constitution
since it provides that the Constitutional right of a
citizen to institute an action in court can only be
exercisable by a person who has complaints
touching on his civil rights and obligation. Where a
plaintiff fails to raise in his statement of claim or in
the affidavit in support of his originating summons
any question as to his civil rights and obligations
that have been violated or injured, the statement
of claim or the originating summons as the case
may be will be struck out.
The issue as to the person who has the civil right
and obligation has been made clear by Section
6(6)(b) of the Constitution of the Federal Republic
of Nigeria, 1999 which states:-
"6(6) The judicial powers vested in accordance with
the foregoing provisions of this section -
(a) ...
(b) Shall extend to all matters between persons, or
between government or authority and to 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 meaning of civil rights and obligations has been
explained in the case of Okechukwu v. Etukokwu
57

(1998) 8 NWLR (Pt. 562) page 513 at 526 where
Tobi, JCA (as he then was) defined the phrase thus:
'The word "civil" is derived from Latin word "civilis"
which means a citizen. The word "civil" relates to
the state or its citizenry. Civil right is a
constitutional liberty guaranteed in the
Constitution. A civil right within the meaning of
Section 33(1) of the Constitution is distinct from a
private or domestic right. Above all, a civil right is a
civil liberty. A civil obligation, on the other hand,
simply means an obligation which binds in law, and
may be enforced in a Court of justice."
His Lordship stated further at page 536:-
"For a right to be qualified as a civil right, it must
have a domineering and dominant base or appeal
and a universal spread. And here, the word
universal, does not convey its universal meaning of
the universe but restricted to the Nigerian polity. In
other words, the civil right should have a general
Nigerian base, devoid of all peculiar domestication
with all locality or localisation.
A civil right is a right which all persons in the polity
should generally share in common without
discrimination."
In the ruling which is the subject matter of this
appeal, the learned trial Judge said on page 50:
"A challenge of the Constitution which is the
general law governing all Nigerians is quite
different from a challenge of a specific law
governing a special class of people. It may well be
58

true that the specific law takes its life from the
general law, in this case, the Constitution. It is in
such a situation to my understanding that the
Adesanya's case and the Owodunni's case apply,
same as the Busari's case. In such a situation, the
plaintiff needs to show his interest and how it is
affected or infringed upon as it relates to the
situation at hand, the plaintiff would need to show
how he has been or is likely to be affected by the
non adherence to the provisions of the Certain
Political, Public and Judicial Office Holders (Salaries
and Allowances etc.) Act No. of 2002."
The case of Senator Adesanya v. The President of
Federal Republic of Nigeria (supra) has been
acknowledged as a milestone decision on locus
standi.
It is clear from the ruling that the learned trial
Judge had placed reliance on the case of Adesanya
v. President (supra) and other subsequent decisions
in striking out the plaintiff's case on the ground of
lack of locus standi.
In that case, the appellant was challenging the
constitutionality of an appointment made by the
President of the Federal Republic of Nigeria. The
action was dismissed by the Supreme Court on
ground that Senator Abraham Adesanya, having
participated in the deliberations of the Senate in
connection with the subject matter over which his
views in the Senate were not accepted by majority
of his co-Senators before instituting an action, had
59

no locus standi to challenge the unconstitutionality
of the appellant (the same subject matter) in court
of law having exercised his right at the floor of the
Senate.
Fatai Williams, CJN (of blessed memory) stated at
page 378 thus:-
"He participated in the debate leading to the
confirmation of the appointment of the second
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.
Sowemimo, JSC (of blessed memory) also said at
page 380:
There is no provision 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 believed is
governed by rules approved by the Legislators
themselves. In this particular appeal, the appellant
as a 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."
Under public law, an ordinary individual will
generally not have locus standi as a plaintiff. This is
because such litigations concern public rights and
duties which belong to, or are owed to all members
of the public, including the plaintiff. It is only where
he has suffered special damage over and above the
60

one suffered by the public generally that he can
sue personally. See: Gamioba & Others v. Esezi &
Others (1961) 2 SCNLR 237, (1961) All NLR 584 at
585, (1961) 2 SCNLR 237; Owodunni v. Registered
Trustees of Celestial Church of Christ (supra) page
73.
In an action to assert or protect a public right or to
enforce the performance of a public duty, it is only
the Attorney-General of the Federation, that has
the requisite locus standi to sue.
A private person can only bring such an action if he
is granted a fiat by the Attorney-General to do so
in his name. This is referred to as a "relator
action".
In our present reality, the Attorney-General of the
Federation is also the Minister of Justice and a
member of the Executive Cabinet. He may not be
disposed to instituting an action against the
Government in which he is part of, it may
tantamount to the Federal Government suing itself.
Definitely he will not perform such a duty.
Importantly too, there is no provision in the 1999
Constitution for the State to sue itself.
Since this Country attained Independence from the
British Colonial Administration almost forty seven
years ago, I know of no reported case of any
superior court in Nigeria where the Attorney-
General of the Federation has instituted an action
against the Federal Government, or an Attorney-
General of a State suing his State Government on
61

account of a violation of the provisions of the
Constitution or a legislation contrary to the
provisions of the Constitution. I may however be
wrong in this historical assessment.
The question now is who will approach the court to
challenge the Government where it violates or fails
to enforce any provisions of the Constitution or the
Laws where an Attorney-General will not. In this
country, where we have a written Constitution
which establishes a constitutional structure
involving a tripartite allocation of power to the
Judiciary, Executive and Legislature as the
co-ordinate organs of Government, Judicial function
must primarily, aim at preserving legal order by
confining the legislative and executive within their
powers in the interest of the public and since the
dominant objective of the rule of law is to ensure
the observance of the law, it can best be achieved
by permitting any person to put the judicial
machinery in motion in Nigeria whereby any citizen
could bring an action in respect of a public derelict.
Thus, the requirement of locus standi becomes
unnecessary in constitutional issues as it will
merely impede judicial functions.
This opinion is supported by Fatai Williams, CJN in
Adesanya's case at page 373 where he stated:-
"I take significant cognizance of the fact that
Nigeria is a developing country with a multi-ethnic
society and a written Federal Constitution, where
rumour mongering is the pastime of the market
62

places and construction sites. To deny any member
of such society who is aware or believes, or is led to
believe, that there has been an infraction of any of
the provisions of our Constitution, or that any Law
passed by any of our Legislative Houses, whether
Federal or State, is unconstitutional, access to a
court of law to air his grievance on the flimsy
excuse of lack of sufficient interest is to provide a
ready recipe for organized disenchantment with the
judicial process ....
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 to
words of learned hand, if we are to keep our
Democracy, there must be one Commandment -
Thou shall not ration Justice."
Bearing in mind that the Constitution is supreme
and its provision and any Law made by the National
Assembly pursuant to them should not be
breached, Fatai Williams, CJN held at page 376
that:
"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
consequently relief, if relief is required. In my view,
63

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."
It has been deposed on behalf of the appellant in
paragraph 6 of the affidavit in support of the
originating summons and in paragraph 5 of the
further affidavit in support of the originating
summons thus:-
"That the plaintiff is the Chairman of the National
Conscience Party (NCP), former presidential
candidate, a tax payer who is bound by the
provisions of the Constitution of the Federal
Republic of Nigeria, 1999."
In paragraph 5 of the further affidavit in support of
the originating summons it has also been deposed
on behalf of the appellant thus:-
"That I was informed by the plaintiff, Chief Gani
Fawehinmi, SAN in our Chambers on Thursday
22nd April, 2004 at about 6p.m. and I verily
believe him that on the 10th day of September,
2001 when he was sworn in as a Senior Advocate
of Nigeria, (SAN) he swore to an Oath before the
Chief Justice of Nigeria and other Justices of the
Supreme Court there present on the occasion of
64

the conferment of the rank of Senior Advocate of
Nigeria on him. A copy of the Oath is attached
herewith and marked exhibit Gani 1."
Exhibit Gani 1 has earlier been reproduced in this
judgment.
The plaintiff/appellant is a political elite in Nigeria
and represents the conscience of the people and by
the averments in paragraph 6 of the affidavit in
support of the originating summons and paragraph
5 of the further affidavit, he qualifies as a person
who has sufficient interest to bring an action in
court in respect of an infraction of the provisions of
"Certain Political, Public and Judicial Office Holders
(Salaries and Allowances etc) Act No.6 of 2002,
promulgated on 13th December, 2002 and deemed
to have come into force on 29th May, 1999.
I have earlier said in this judgment that the
learned trial Judge relied on the case of Adesanya
to strike out the plaintiff/appellant's claim on the
basis of lack of locus standi.
Fortunately, the Apex Court has now departed from
the former narrow approach in the Adesanya's case
and the subsequent decisions.
In Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) page
797, the Supreme Court in its considered
judgment, per Eso, JSC, considered the locus standi
of the appellant and held at page 847 that:
"In this instant appeal before this court, I think,
with respect that the lead judgment of my learned
65

other Obaseki, JSC is an advancement on the
position hitherto held by this Court on "locus
standi". I think again with respect, that it is a
departure from the former narrow attitude of this
court in the Abraham Adesanya case and
subsequent decisions, for strictly speaking, my Lord
Nnaemeka-Agu, JCA (as he then was) who no doubt
was bound by those decisions at that time was tight
in his interpretation of the stand of this court, and
so, strictly on those authorities of this court, along,
his judgment with respect, could not be faulted
when he said:-
"In this country, the result of all the cases is that
the common law concept that a person who has a
locus and can sue is only one who has a legal right,
or whose legal right has been adversely affected or
who has suffered, or is in imminent danger of
suffering an injury- damage, or detriment personal
to himself. This is the result of all decided cases,
including Adesanya's case (supra); Thomas v.
Olufosoye (1986) 1 NWLR (Pt. 18) 669 and
Gamioba II v. Esezi (1961) All NLR 584.'
My humble view and this Court should accept it as
such, is that the present decision of my learned
brother, Obaseki, JSC in this appeal has gone
beyond the Abraham Adesanya's case. I am in
complete agreement with the new trend and with
respect, my agreement with the judgment is my
belief that it has gone beyond the Abraham
Adesanya's case."
Adapting to the new reality on the approach to the
issue of locus standi, this Court in Williams v.
66

Dawodu (1988) 4 NWLR (Pt. 87) page 189 at 218,
Akpata, JCA (of blessed memory) stated that:
"There is now the recent case of Chief Gani
Fawehinmi v. Col. Halilu Akilu & Anor. In Re
Oduneye (1987) 2 NWLR (Pt. 67) page 797 which
shows that the Courts have become increasingly
willing to extend the ambit of locus standi for public
good. The Courts have broken new grounds. The
significance of this judicial revolution is that
whereas in the past the court showed little or no
reluctance in any given case in construing the
import of "sufficient interest" against the individual
and tended to be more Executive than the
Executive, now the term "sufficient interest" is
construed more favourably in order to give an
applicant a hearing."
This court had an occasion to consider the
expanded horizon of locus standi in order to
encourage the public interest in litigations in the
case of Shell Petroleum Development Co. Ltd. & 5
Ors. v. E.N. Nwaka & Anor. (2001) 10 NWLR
(Pt.720) page 64 at pages 82-83. Pats-Acholonu,
JCA (as he then was and of blessed memory) held
as follows:-
"It needs the courage, wisdom and proper
understanding of our social-economic environment
for an activist Judge to widen the scope of the law
on Locus Standi.
Some Judge and advocates have shown some
trepidation in handling this matter. I believe we
have to take the bull by the horn and do justice to
a matter before the court without bending overly
67

ackwards because a matter is on borderline in
respect of whether the initiator of an action has the
standing order to do so. I think that where the
cause is laudable and will bring peace, justice and
orderliness that will reflect the spirit of the
Constitution then we should not shirk our
responsibility in this area to help in advancing the
cause of Social, Economic and Cultural matters as
they affect this society. The development of the law
of locus standi has been retarded extensively due
to fear of floodgate of persons meddling into
matters not even remotely connected with them. In
my opinion, let them meddle and let the Court
remove the wheat from the chaff. I believe that it is
the right of any citizen to see that law is enforced
where there is an infraction of that right or a threat
of its being violated in matters affecting the public
law and in some cases of private law such as where
widows, orphans are deprived, and a section of the
society will be adversely affected by doing nothing."
In the present matter, the grievance of the
plaintiff/appellant that led him to institute this
action can be found in paragraphs 5, 7, 8,9,10, and
11 of the affidavit in support of the originating
summons.
The Revenue Mobilization Allocation and Fiscal
Commission is established pursuant to section 153
of the Constitution of the Federal Republic of
Nigeria, 1999 which states:
"153(1) There shall be established for the
Federation the following bodies namely-
68

(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h) ...
(i) ...
(j) ...
(k) ...
(l) ...
(m) ...
(n) Revenue Mobilization, Allocation and Fiscal
Commission."
The powers of the Revenue Mobilization Allocation
and Fiscal Commission have been spelt out in the
Third Schedule, Part 1 N Item 32 thus:
"32. The Commission shall have power to-
(a) ...
(b) ...
(c) ...
(d) determine the remuneration appropriate for
political office holders, including the President,
Vice-President, Government, Deputy-Governors,
Ministers, Commissioners, Special Advisers,
Legislators and the holders of the offices mentioned
in sections 84 and 124 of this constitution, and
(e) ...
A community reading of Section 153(1)(n) and part
1 N item 32(d) of the Third Schedule to the
constitution will reveal that only the Revenue
69

Mobilization, Allocation and Fiscal Commission has
the power to determine the remuneration
appropriate for political office holders including
ministers. It therefore follows that the
determination of remuneration for Ministers of the
Federal Government of Nigeria by any person or
authority other than the Revenue Mobilization,
Allocation and Fiscal Commission is
unconstitutional, illegal, null and void.
By an Act which came into force on 29th may, 1999
the National Assembly of the Federal Republic of
Nigeria promulgated the Certain Political, Public
and Judicial Office Holders (Salaries and Allowances
etc.) Act, 2002 and it provided:
"Section 2(1) - A person who is -
(a) elected or appointed to an office in the
Executive Arm of the Federal Government or the
Federal Capital Territory, Abuja as specified in the
First Column of Parts I and IV of the Schedule to
this Act shall be entitled to salary, allowances and
fringe benefits set out in the Second Column of Part
I(a) and (b) Part IV(a) and (b); and
(b) ...
(2) Holders of the offices mentioned under I(a) and
(b) of this Act shall receive their allowances and
fringe benefits and severance benefits as provided
for under the Schedule to this Act."
Part 1A of the Schedule to the Act, titled Annual
Basic Salary for Certain Political and Public Officers
in the Executive (Federal) reads:
"Secretary to the Government of the
70

Federation/Minister N794,085.00,
Minister of State N783,032.00"
It is therefore illegal for a Minister or a Minister of
State in the Federal Executive to receive a salary
above what has been stipulated under the Certain
Political, Public and Judicial Office Holders (Salary
and Allowances etc.) Act No.6 of 2002. It is also
unlawful for any person or authority to pay a
Minister or Minister of State a salary below what
has been stipulated under the said Act.
It is pertinent to state that the facts deposed to in
paragraphs 9, 10 and 11 of the affidavit in support
of the originating summons at page 6 of the record
of appeal which are allegations of gross violation of
the said Act were not controverted by the
respondents before the trial court.
The position of the law is that where affidavit
evidence has not been challenged or controverted
by way of counter-affidavit facts deposed to in such
affidavit are deemed admitted. See: Mohammed
Hassan Rimi v. INEC & Anor (2004) 15 NWLR (Pt.
895) page 121 at 131; Alhaji Mohammed Sanusi
Daggash v. Hajiya Fati Ibrahim Bulama & Ors.
(2004) 14 NWLR (Pt.892) page 144 at 223.
In the case of The Honda Place Ltd. v. Globe Motors
Holding Ltd. 23 NSCQR page 74 at 84-89, (2005)
14NWLR (Pt.945) 273 at 293, per Katsina-Alu, JSC:
"The Law is that where the facts in an affidavit
remain unchallenged and uncontroverted, the court
is bound to accept those facts as established as
71

those facts were deemed to have been admitted.
See Nwabuoku v. Ottih (1961) 2 SCNLR 233.
No counter-affidavit was filed by the respondent
with the result that the facts deposed to in support
of the application were neither challenged nor
disputed by the respondent.
What this means is this. Those facts remain
unchallenged and uncontroverted. The inevitable
consequence is that those facts deposed to in the
affidavit led by the applicant must be deemed to
have been admitted by the respondent and must
also be taken as true by the court unless they are
obviously false to the knowledge of the court. See
Alagbe v. Abimbola (1978) 2 SC 39 at 40."
The averments contained in the affidavits in
support of the originating summons are therefore
deemed admitted by the respondents.
It is a notorious fact that at times this country
employs expatriates with expert knowledge but the
3rd and 4th defendants are not expatriates but a
daughter and a son of the soil who can even on
patriotic grounds offer their services free of charge
in the interest of their fatherland. They should
have declined the offer of such a high salary in
foreign currency which they know or ought to know
is a violation of the provisions of the Constitution
and the Laws of this country. Ignorance of the law
is no excuse.
In paragraph 5 of the affidavit in support of the
72

originating summons, the plaintiff/appellant claims
that he is a tax payer who is bound by the
provisions of the Constitution of the Federal
Republic of Nigeria, 1999. This was also not
controverted by defendants/respondents in their
counter-affidavit.
It will definitely be a source of concern to any tax
payer who watches the funds he contributed or is
contributing towards the running of the affairs of
the state being wasted when such funds could have
been channelled into providing jobs, creating
wealth and providing security to the citizens. If
such an individual has no sufficient interest of
coming to court to enforce the law and to ensure
that his tax money is utilized prudently, who else
would have sufficient interest in such matter other
than him.
In the ruling, which is the subject matter of this
appeal, the statement of the learned trial Judge on
page 52 of the record of appeal is pertinent and it
is hereby reproduced thus:
"The plaintiff might have raised very important
issue that might need determining but he would
have had locus if he was challenging infraction of
provision of the Constitution and not specific or
particular Law. He might have had locus standi if he
had shown how the non-compliance with the
Certain Political, Public and Judicial Office Holders
(Salary and Allowances etc.) Act No.6 of 2002
73

affected his civil right or cause him Injury.
In the absence of any of the above, the plaintiff
would have no locus to bring this action and I so
found.
The case is accordingly struck out."
I am of the opinion that in the Nigerian context and
particularly under the Constitution of the Federal
Republic of Nigeria, 1999, it would be wrong to
slam the door of the courts against complaints on
executive excesses and unconstitutionality under
the guise of lack of locus standi. Where this is
done, the objective of the 1999 Constitution
beautifully phrased as freedom, equity and justice
may not be attained.
The Constitution or any other Law can only be
tested in Courts; it is access to the courts for such
test that will give satisfaction to the people for
whom the Constitution or the Law is made.
This view is supported by the English case of Inland
Revenue Commissioners v. National Federation of
Self-employed and Small Businesses Ltd. (1981) 2
WLR 722 at 740 where the House of Lords, Per Lord
Diplock held as follows:
"It would, in my view, be a grave lacuna in our
system of public law if a pressure group, like the
Federation or even a single public-spirited
taxpayer, were prevented by outdated technical
rules of locus standi from bringing the matter to
the attention of the Court to vindicate the rule of
law and get the unlawful conduct stopped."
See also A.G. Bendel v. A.G. Federation (1982) 3
74

NCLR 1 at 97. The provisions of the Certain Political
Public and Judicial Office Holders (Salaries and
Allowances) Act No.6 of 2002 made pursuant to
section 1-3(1)(n) and Part 1 N item 32(d) of the
Third Schedule to the Constitution of the Federal
Republic of Nigeria, 1999 possesses constitutional
flavour and must be accorded, Constitutional
dignity. See Zakari v. Inspector-General of Police
(2000) 8 NWLR (Pt. 670) page 666 at 679.
I am of the opinion that in view of the fact that the
Certain Political, Public and Judicial Office Holders
(Salaries and Allowances etc.) Act, 2002 has
constitutional flavour, the trial court should have
given a liberal interpretation to the issue of locus
standi, so that not only the appellant, but every
Nigerian should have access to approach the Court
for an interpretation of the Act.
It will be appropriate at this point to proffer that for
this country to remain governed under the rule of
law and in view of the controversies the problem of
locus standi has generated especially in
constitutional matters, it is suggested that any
future constitutional amendment should provide for
access to court by any Nigerian in order to
preserve, protect and defend the Constitution.
In the final analysis, I hereby hold that the decision
of the learned trial Judge in striking out the
plaintiff's claim for lack of locus standi was made in
error and it is hereby set aside.
75

I am of the opinion that this is a proper case where
this Court will invoke its powers under Section 16
of the Court of Appeal Act and grant the reliefs
sought by the plaintiff/appellant in his Originating
summons. Thus, it is hereby declared as follows:
"1. That the 3rd and 4th defendants (Ministers of
the Federal Republic of Nigeria) who are Public
Officers are not entitled to earn salaries above
those prescribed by the Certain Political, Public and
Judicial Office Holders (Salaries and Allowances
etc.) Act No.6 of 2002 made on 13th December,
2002 but which is deemed to have come into force
on the 29th of May, 1999.
2. That no public officer under the "Certain
Political, Public and Judicial Office Holders (Salaries
and Allowances, etc.) Act No.6 of 2002 made on
13th December, 2002 but which is deemed to have
come into force on the 29th of May 1999, is
entitled to receive his or her salary in any other
currency other than the Naira.
3. That the yearly salary of $247,000 (about N36
Million) being paid to the 3rd defendant Dr. (Mrs.)
Ngozi Okonjo Iweala, the Federal Minister of
Finance is a flagrant violation of Certain Political,
Public and Judicial Office Holders (Salaries and
Allowances, etc.) Act No.6 of 2002 which prescribes
a yearly salary of N794,085.00 for every Minister
of the Federal Republic of Nigeria.
76

4. That the yearly salary of $120,000 (about N17
Million) being paid to the 4th defendant
Ambassador Olufemi Adeniji, Federal Minister for
External Affairs is a flagrant violation of Certain
Political, Public and Judicial Office Holders (Salaries
and Allowances, etc.) Act No.6 of 2002 which
prescribes a yearly salary of N794,085.00 for every
Minister of the Federal Republic of Nigeria.
5. That the 3rd and 4th defendants are compelled
to refund to the Federal Government of Nigeria any
amount in excess of the prescribed salary in
Certain Political, Public and Judicial Office Holders
(Salaries and Allowances, etc.) Act No.6 of 2002.
6. That the authorization by the 1st defendant (The
President of the Federal Republic of Nigeria) of the
salaries being paid to the 3rd and 4th defendants in
violation of the Certain Political, Public and Judicial
Office Holders (Salaries and Allowances, etc.) Act
No. 6 of 2002 amounts to an abuse of power which
is contrary to:
a. Section 15(5) of the constitution of the Federal
Republic of Nigeria; and
b. Section 153 of the Constitution of the Federal
Republic of Nigeria which empowers the 2nd
defendant to determine the remuneration
appropriate for political office holders, including the
President, Vice-President, Governors, Deputy
Governors, Ministers, Commissioners Special
77

Advisers, Legislators and the holders of the offices
mentioned in Sections 84 and 124 of the
Constitution and in pursuance of which an Act
titled: Certain Political, Public and Judicial office
Holders (Salaries and Allowances, etc.) Act No.6 of
2002 was promulgated."
This appeal succeeds, there will be no order as to
costs.
R. D. MUHAMMAD, J.C.A.: I have had a preview
of the judgment just delivered by my learned
brother Aboki, JCA. He has thoroughly dealt with all
the issues canvassed in his appeal. I am in
complete agreement with his reasoning and
conclusions. The issue of locus standi, in a country
like ours, should be construed liberally, so that
people should not be denied access to the courts.
Since the matter was commenced by an originating
summons. I also agree that this is a proper case to
invoke S.16 of the Court of Appeal Act and
determine the matter.
The appeal succeeds. I abide by all the orders made
in the leading judgment.
UWA, J.C.A.: I had the privilege of reading in
advance the judgment just delivered by my learned
brother Abdu Aboki, J.C.A.
My learned brother dealt with the issues
extensively and I agree with his reasoning and
conclusion setting aside the order of the lower
court striking out the claim for lack of locus standi
78

to institute the action.
I also allow the appeal and agree with the order
awarding no costs.
79
Appeal allowed.
Appearances
Clement Onwuenwunor (with him,
Gerald Ogokeh)
For Appellant
Alfred Uwaka
For
Respondents