Justice Lewis Allagoa of the Federal High Court Kano, on Monday, struck out an application asking the court to order the Chairman, Federal Inland Revenue Service (FIRS), Tunde Fowler, to vacate his office on account of claims that his tenure has expired.
Mr Allagoa made the order in Kano following a request by Johnmarry Jideobi, counsel to the plaintiff, Stanley Okwara. Mr Fowler’s lawyer, Paul Erokoro (SAN), who was supported by FIRS Director of Legal Services, Ike 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 court to strike out Okwara’s suit
Citing copious legal authorities, Messrs Erokoro and Ghazalli told the court that Mr Okwara has no locus standi to file the suit and that it should be struck out as the court has no jurisdiction to entertain it.
The appropriate court to entertain the suit, argued the defendants’ lawyers, is the National Industrial Court. They submitted that Mr Okwara is wasting the time of the Federal High Court by filing the suit before it.
But Mr Okwara maintained that as a legal practitioner, he has the right to file the suit and he has a duty under the Legal Privileges Act to uphold the rule of law.
Mr Okwara, an Abuja-based lawyer, in the suit (No FHC/KN/CS/141/2019), had asked a Federal High Court sitting in Kano to order Mr Fowler to vacate his office, which he claimed expired on August 18, 2019.
The plaintiff had claimed that Mr Fowler was appointed on August 20, 2015, arguing that his tenure as FIRS Chairman lapsed after the 20th August, 2019.
He cited 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, which he said made Fowler’s continued stay in office illegal unless he is reappointed by President Muhammadu Buhari. He also asked the court to order Fowler to return to the Treasury Single Account (TSA) all salaries. Emoluments and other monetary benefits he has enjoyed since the perceived cessation of his tenure.
But Mr Erokoro countered the claims of the plaintiff’s lawyer.
In a notice of preliminary objection dated September 30 and filed on the same day, Mr Erokoro noted that Mr Okwara failed to disclose any special interest.
Given Mr 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 FIRS Chairman, for failing to present any reasonable cause of action, Mr 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,” he argued.
Mr Erokoro also told the court 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, Mr Erokoro said Mr Okwara needs to have actual and real interest in the suit before he can sue.
“In this case,” Mr Erokoro told the court, “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 Mr Erokoro to puncture Mr 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, C-A
Barry Chukwu, a lawyer with the FIRS, in an affidavit dated September 30, also told the court that the president forwarded Mr Fowler’s name for appointment as the substantive Executive Chairman of the FIRS on August 21, 2015 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 said.
In support of his position, he quoted from a letter by Mr Saraki.
“Your Excellency may, therefore, wish to formally appoint the confirmed nominee as Executive Chairman of the Federal Inland Revenue Service,” Saraki’s letter, dated 15 December 2015, read in part.
Monday’s court proceedings lasted for over three hours, with Mr Jideobi initially asking Justice Allagoa to throw out all the processes filed by the by the office of the Attorney-General of the Federation as they were not filed within time.
Mr Ghazalli countered him, citing the Independence Day public holiday as a reason. Mr 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 seven minutes to enable the counsel serve the other.
When Messrs Erokoro and Ghazalli were done, Mr 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. He further maintained that a Supreme Court ruling gives precedence to the African Charter of Human Rights provisions over all local statutes. To this Justice Allagoa queried: “Änd also the constitution?
Mr Allagoa fixed Friday, October 11, 2019 for a ruling on preliminary objection.