‘’You lack jurisdiction to sue Fowler, Kano Fed. High Court tells plaintiff
Justice Lewis Allagoa of the Federal High Court, this morning in Kano dismissed a suit challenging the tenure of Tunde Fowler, Executive Chairman, Federal Inland Revenue Service, FIRS.
Justice Allagoa struck out the suit when he upheld the Preliminary Objection filed by Paul Erokoro, Senior Advocate of Nigeria, SAN counsel to Fowler, that Stanley Okwara, the plaintiff, has no locus standi to file the suit.
The judge came to this conclusion today after he reviewed, for over an hour, all the legal authorities cited by Jideobi, Ghazalli and Erokoro.
Justice Allagoa said he “cannot see how the rights of the plaintiff (Stanley Okwara has been rightly or wrongly affected” by the non-appointment of the Executive Chairman, FIRS after August 15. “In this case”, said the judge, “the plaintiff said he is an unemployed legal practitioner. How specifically that affects his rights to file this suit is not disclosed”.
The judge agreed with Paul Erokoro that Okwara has no cause of action and that it was fatal to his suit that he didn’t file a pre-action notice to the court, as required by the Federal Inland Revenue Establishment Act 2007. Said Justice Allagoa: “I agree with the first defendant that the plaintiff ought to have served the defendant with a pre-action notice. Learned SAN asked the court to strike out the suit. I so hold”.
The judge also upheld Erokoro’s submission that the suit should be struck out as there is no “justiciable cause of action. ’Ï upheld the Preliminary Objection of the first defendant and his plea that the plaintiff has no justiciable cause of action. The suit is hereby struck out”.
Almost immediately, Ike Odume, who represented Fowler in court sprang to his feet to salute the forthrightness of the court. Said Odume:” Me Lord, we thank you for being forthright in this matter. Thank you for doing justice. It cannot be less. I have been following this court from Enugu. I know you will always do justice. Thank you.
“My Lord, we will be asking for costs. We have come all the way from Abuja, three times because of this matter. We will be asking for costs.
Justice Allagoa however overruled Odume: “Don’t kill a fly with a sledgehammer. Parties should bear their costs” he held.
Johnmarry Jideobi, counsel to Okwara was not in court. Barrister A. Issa represented him.
About a forthnight ago, Fowler’s counsel led by Erokoro, a SAN supported by Odume and counsel to the Attorney General of the Federation—the second defendant in the suit T. A. Ghazalli, in a
preliminary objection, asked the Federal High Court judge to strike out Okwara’s suit.
Erokoro and Ghazalli told the court that Okwara has no locus to file the suit in the first place and that the suit should be strike out as the court has no jurisdiction to entertain it. Both maintained that the proper place for the suit is the National Industrial Court. Okwara is just wasting the time of the federal high court.
But Okwara told the court that as a legal practitioner, he has fundamental human right to file the suit and he has a duty under the Legal Privileges Act to uphold the Rule of Law. That what he is doing in this instance, he told the court.
Stanley Okwara, asked a Kano Federal High Court in suit No FHC/KN/CS/141/2019, to order Fowler to vacate his office, which, he claimed expired on August 18, 2019.
Okwara claimed that Fowler was appointed on the 20th August, 2015, has not ceased to hold office as the Chairman of FIRS after the 20th August, 2019.
Citing the provisions of Sections 3(2) (a), Section 4(a) and Section 11 (a)” of the FIRS Establishment Act 2007 and the decision of the Supreme Court in Ogbuinyinya & Ors. vs. Obi Okudo & Ors. (1979) All N.L.R. 105, Okwara claimed Fowler has no business to continue to hold office.
He wants the court to order Fowler to refund all payments to the Treasury or personal injury suffered by him at all above that of the general public on Fowler’s tenure.
But Erokoro shredded Jideobi’s claims.
In a notice of Preliminary Objection dated 30th September and filed on the same day, Paul Erokoro, SAN noted that the Okwara has not disclosed a special interest.
Given Okwara’s failure to establish his locus standi to commence the suit and for failing to abide by Section 55 of the FIRS Establishment Act by filing a pre-action notice on the FURS Chairman, for failing to present any reasonable cause of action, Erokoro asked the court to strike out the suit.
“When a plaintiff has not disclosed his standing to sue as in the instant case the question of whether other issues in the case deserve to be decided does not arise”. Erokoro told Justice Allagoa, that the adjudicatory machinery of the court cannot be activated as such powers can only be invoked by a litigant whose action is for the “determination of the civil rights and obligations of that person. That is the letter and the spirit of Sections 6 (6) b of the Constitution of the Federal Republic of Nigeria”.
Citing Senator Abraham Adesanya Vs the President of Nigeria, (1986) 5 SC 112, Erokoro said the Okwara need to have actual and real interest in the suit before he can sue.
In this case” Erokoro told the court on Monday, “the plaintiff’s alleged cause of action is that he is an unemployed legal practitioner. He alleges that the tenure of office of the Fist defendant (Fowler) has expired. How the purported expiration of the tenure of the first defendant affect him is not disclosed. The case of Ogbuiniya and Ors Vs Obi Okudo & Ors (1979) ALL NWLR 105 heavily relied on by the plaintiff is distinguishable from the instant case.
In that case, the plaintiff’s case were affected because a judge gave a judgment against the plaintiff at a time he had ceased to be a judge of that court.
Other authorities cited by Erokoro to puncture Okwarra’s claim that he has a locus to institute the suit include: Re-Ijelu Vs LSPDC (1192) NWLR (Pt 266) 414 at 422-432, Olorode V Oyebi (1981) in 1 SCNLR 390 at 400, 1984 5 SC P 1 at 16, Sunday Adegbite Taiwo V Serak Adegboro & Ors (2011) LPELR 3155 ( SC) at page 15 B and Nyesom V Peterside (2016 LPELR -40036 (SC); Barbus & Co Nig Ltd V Okafor-Udeji (2018) 11 NWLR (PT1630) 298 at 311-321, H-A and Emechebe V CETO Int Nig Ltd (2018 11 NWLR (pt 1631 520 at 537-538, CA Barry Chukwu, a lawyer with the FIRS an in affidavit dated 30th September also told the court that “On 21st August, 2015, the President forwarded Fowler’s name for appointment as the substantive Executive Chairman of the FIRS, for confirmation by the Senate. “Following a meeting by the Senate of the Federal Republic of Nigeria on the 9th December, 2015 Fowler was confirmed as the substantive Executive Chairman of the FIRS. “The following day, 10th December 2019, the Senate President, Dr. Bukola Saraki, informed President Muhammadu Buhari of Fowler’s suitability for confirmation as substantive Executive Chairman of the FIRS,”
Based on this, Fowler’s appointment as Executive Chairman did not take effect on 20 August, 2015 when he was appointed as the acting FIRS Chairman. He cited Saraki’s letter to the President to support his position.” Your Excellency may, therefore, wish to formally appoint the confirmed nominee as Executive Chairman of the Federal Inland Revenue Service”, Saraki’s letter of 15th December 2015 said.
When the court heard the case, Jideobi initially asked Justice Allagoa to throw out all the processes filed by the by the office of the Attorney General of the Federation as is not filed within time. He cited legal authorities to buttress this.
Ghazalli countered citing the October 1 holiday as a reason. He was served on the 26 he maintained. Justice Allagoa allowed the counsel to the Attorney General to orally move his motion to file out of time. He stood the court down for about 7 minutes to enable the counsel’s serve the other.
Jideobi told the court that Section 18 (1) of the Interpretations Act, places a duty on him, as a legal practitioner to uphold the Rule of Law. Further. He maintained that a Supreme Court ruling gives precedence to the African Charter of Human Rights provisions over all local statutes.