By Kasiemobi Oranugo

By way of proper foundation, there are rights available to private citizens which institutions of government are not in a position to exercise unless they could show that it was in the public interest to do so.

It is pertinent and of highest importance to note that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. Consequently, a publication not being directed to an individual or to the office held by that individual but to an institution/arm of government, any threat of civil action for defamation must inevitably be tantamount to wasting of tax payers’ money (as Burt Rutan once rightly stated that “tragically, policymakers have thrown horrendous amounts of taxpayer money needed for other purposes at solving an unsubstantiated emergency….”) and having an inhibiting effect on freedom of speech. In the case of IZEJIOBI v. EBGEBU (2016) LPELR-40507(CA), the Court of Appeal, per Oho, J.C.A. enthused as follows:

“It must be borne in mind that an action for defamation is a purely personal action. The claimant must be the person who has been directly and personally defamed. The statement must refer to the claimant, i.e., identify him or her, either directly or indirectly.”

LOCUS STANDI OF THE HONOURABLE MEMBERS

What constitutes locus standi of party was expantiated upon by the Supreme Court in the case of Josiah Kayode Owodunni v. Registered Trustees of Celestial Church of Christ & 3 Ors. (Joined by order of court dated December 1st, 1989 as defendants to counter-claim) (2000) 10 NWLR (Pt. 675) page 315; On denotation of “locus standi”- The term “locus standi” (or standing) denotes the legal capacity to institute proceedings in a court of law. Per Onalaja, J.C.A.

The importance of a party having the requisite locus standi is further underlined by section 6(6)(b) of the 1999 Constitution, as amended. It provides that the judicial powers vested in the courts established under the Constitution 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 section places emphasis on the civil rights and obligations of a claimant.

The term ‘locus standi’ cannot stand independently from the provision of section 6(6(b). As had been said, ‘the right to action in court is also a constitutional right exercisable by a person who has complaints touching his civil rights and obligations against another person, government or authority.’ See Eyesan v. Sanusi (1981) 4 SC 115 at 137. Per Obaseki JSC.

Also, where no question as to the civil rights and obligations of a claimant is raised in the statement of claim for determination, the statement of claim will be struck out and the action dismissed. Having locus standi is in Nigeria, a constitutional requirement in order to enable a person to maintain an action and it is limited to the prosecution of matters relating to the civil right and obligation of the claimant/party, being that claimant is a person or persons, a group of persons, a statutory body, a government, an authority or any other juristic person. See Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377 at 418 to 419.

In Senator Adesanya v. President of the Federal Republic of Nigeria & Anor. (1981) 5 SC 112 at page 162, (2001) FWLR (Pt. 46) 859 at page 901 the interpretation and scope of locus standi featured very much in the Supreme Court. According to Bello JSC (as he then was), his lordship who later became the CJN opined thus: ‘It seems to me that upon the construction of the subsection, it is only when the civil rights and obligations of the person, who invokes the jurisdiction of the court, are in issue for determination that judicial powers of the courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.’ If this is not shown, then the person complaining has no locus standi to bring an action to challenge the act’. In the same case, Nnamani JSC stated thus at page 914 of FWLR: ‘Section 6(6)(b) to my mind encompasses the full extent of the judicial power vested in the courts by the Constitution. Under it, the courts have power to adjudicate on a justiciable issue touching on the rights and obligations of the person who brings the complaint to court. The litigant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat to such infringement or injury. It seems to me that the courts must operate within the perimeter of the judicial powers vested in them by section 6(6)(b) of the Constitution and that they can only take cognizance of justiciable actions properly brought before them in which there is a dispute, controversy and above all, in which the parties have sufficient interest.’

In Private law litigation, whether a person has locus standi or not is dependent on the cause of action. The rights in issue are generally, rights of the individual involved in the particular transaction which led to the remedy being claimed. To my mind, the competent person to sue for breach of contract or for a tort committed is the person whose private right has been injured. The House of Representatives, the office of the Speaker of House of Representatives are public institutions created by the Constitution, they are not individual, thou an occupier of the Office of the Speaker is a human being while the office is an abstract entity so that the occupier cannot sue personally for an action in libel committed against his office. This means that the Speaker cannot sue in his name for a wrong done against the office. By the same token, a Speaker of the House has no right of action for libel committed against the House of Representatives. It is the statement of claim alone that determines whether or not a party has locus standi. If the Speaker, Honourable Gbajabiamila was mentioned by name by the Minister of Niger Delta Affairs, he as Honouable Gbajabiamila – an individual juristic person, has sufficient interest to protect his personal reputation in whatever position from being tarnished. He should come to court in his personal name. See B.P.E. v. N.U.E.E. (2003) 13 NWLR (Pt. 837) 382. At all times they have the right to complain to assert or protect a public right or to enforce the performance of a public duty. However, in prosecuting such a complaint, their office and particularly the office of the Attorney-General of the Federation have the locus standi to sue to protect such a right. The House of Representatives or the Speaker do not have a public duty or right or standing to sue anyone in the tort of defamation. Plainly being public office holders, they have no private interest to protect from injury or further damage nor can they claim reparation in damages for such injury as a result of any defamation committed against the public office. It is crystal clear that one is not quarrelling with the justiciability of the matter per se if the House of Representatives or the Speaker were suing in their personal names, particularly if the Chairman of the committee was personally suing in his name. An action in defamation is both a private and personal action. In the case OMEGA BANK PLC V GOVERNMENT OF EKITI STATE (2007) ALL FWLR (Pt. 386) 658 at 692 – 693; Paras E – H (CA), the Court of Appeal gave its judicial interpretation on the reason why right of action is not granted to government/public officers to maintain in libel against members of the public as follows:

“Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 guarantees freedom of expression. Criticism of the government/public bodies and officers such as the respondents in the instant case, is part of the freedom of expression granted and guaranteed by the Constitution. It will be against the public interest for government/public officers to use the tax paid by the people to institute actions against them in libel. If right of action is granted to the government /public officers to maintain an action in libel. the constitutionally guaranteed freedom of expression will be curtailed. In the instant case, the 1st respondent, a tier of government, and the 2nd and 3rd respondents (Governor and Speaker of Ekiti State) lack the capacity or the locus standi to maintain an action in libel against the appellants. [P. 683, paras. E – G] “It is my opinion from a moral and public policy pespective, in view of the personal nature of libel actions, public offices have no right to sue or be sued for libel. The three respondents consist of a tier of government and public offices respectively. The action was instituted in the names of the bodies or offices and not in the names of the persons holding the offices. The person mentioned in the alleged offending publications is Governor Fayose. It is only Fayose in person who has the locus standi to sue. Nothing was said about the 1st respondent and the 3rd respondent in the publication. The offices of the 2nd and 3rd respondents were not mentioned in the publication. Both at common law and under the Constitution of the Federal Republic of Nigeria the respondents have no right and ought not have a right of action in libel.It will be against the public interest for government/public offices to use the tax paid by the people to institute actions against them in libel. If rights of action is granted to the government/public offices to maintain an action in libel, the constitutionally guaranteed freedom of expression will be curtailed. The justifiability of libel actions at the instance of public offices and public institutions and the desirability of allowing public institutions/bodies to use tax payers money to fund libel actions against the very same tax payers were issues which were determined in the case of Derbyshire County Council v Time Newspapers Ltd & Ors (1992) 3 ALL ER 65. In Derbyshire’s case, an organ of government namely; Derbyshire County Council (a local authority) had sought to sue the publishers of Times Nespapers, its editor and two journalists (who are tax payers) for libel. It was held by the Court of Appeal in England that the council cannot maintain an action in libel for the obvious reason that libel being a personal action is not available to government bodies. The court held thus at page 82D – E and page 90 G – H: ‘I would allow this appeal and in answer to the first question raised by the preliminary point of law declare that the council cannot maintain an action for libel for any words which reflect upon it as the County Council Derbyshire in relation to its governmental and administrative functions in Derbyshire, including its statutory responsibility for the investment and control of the superannuation fund’. ‘… to allow a local government authority to sue for libel would impose an added and substantial restriction upon freedom of expression which, having regard to the ability of individuals within a local authority to sue for libel and to the ability of a local government authority to sue for malicious falsehood, or to invoke the criminal law of libel, cannot be regarded as necessary in our democratic society’. The above decision of the Court of Apeal was upheld by the House of Lords in England in the case of Derbyshire County Council v. Times Newspapers (1993) AC 534. It would be a sad day indeed when public funds meant for the general public good is spent to prosecute civil society, including groups and citizens who dare to express real or imagined criticism of authorities set up by the Constitution to engage in public service of the greatest good for the greatest number. The Govenor and Speaker of the Ekiti State were juristic persons with personal names who ran and were elected to public office in their personal names. To protect their reputation in their public office, they must sue in their personal name. This is an issue of locus standi in the realm of private law as opposed to public law. The respondents cannot maintain a cause of action in the tort of defamation using the names conferred on them by public office.” Per Ogunwumiju, J.C.A.

By extension, initiating a criminal complaint of perjury against the Minister might also end up being a waste of tax payers’ money. Besides, that action might not see the light of the day because Counsel to the Minister of Niger Delta Affairs will obviously hide under the principle of “denial of fairing and suppression of evidence” pursuant to the series of “is ok” from the Chairman of Committee in not allowing the Minister to completely respond by throwing more light to the questions and other fresh issues that came up during the hearing. The principle of fair hearing is all about fairness which is the determining factor for the application of natural justice. On whether suppression of evidence is a serious allegation and a violation of the principle of fair hearing, the intermediate court in the case of GHOHOR v. STATE (2013) LPELR-20293(CA), held as follows:

“In Abdu Mohammed V. The State (1991) 7 SCNJ 114 at 129 – 130, the apex court deprecated the practice of suppression of evidence by, the prosecution, in no uncertain words, inter alia: “Suppression of evidence in any trial, civil or criminal is a violation of the principle of fair hearing entrenched in our Constitution. It is a serious allegation which must not be taken lightly. Suppression of evidence is a denial of justice. Once it is established that evidence in a trial has been suppressed, such a trial should be set aside” per Olatawura, JSC. So also in Akpabio V. The State (1994) 7 – 8 SCNJ (Pt. III) 429 at 454,…..” Per YAKUBU, J.C.A (Pp 39-40, Paras F-D)

Nevertheless, assuming but conceding that the two cases of civil defamation (or assuming criminal defamation is added too) and criminal complaint for perjury sees the light of the day, will the prosecuting team be diligent enough to continue to prosecute the matter upon the effluxion of the 9th Assembly. No doubt, the House of Representatives is a public trust placed in the hands of the House members of which they must prove themselves worthy of this public trust. But atimes, ‘when your house is on fire, you don’t run after rats’. Nigerians are expecting to see the outcome of the first probe and what actions should be taken. Inconclusively abandoning it to pursue other watery legal cause of action, will further confirm the unworthiness of this 9th Assembly. Furthermore, if your legal team are still convinced on taking such legal action despite the litany of “is ok” from the Chairman of the Committee, then I think you as the Speaker of the House need to personally, privately and nicodemously search the soul of your colleagues in the House to know and confirm how clean it is because a defence of justification can also avail the Minister, which will further support the lampooning of the National Assembly members by former President Olusegun Obasanjo, that your colleagues are largely an assemblage of looters and thieves.

May God sanitize and deliver our dear country.

Kasiemobi Oranugo, Esq., (08065613658)