Lawyers have expressed legal opinions on the outcome of a suit challenging the Senate's rejection of Ibrahim Magu as chairman of the Economic and Financial Crimes Commission, EFCC on Thursday.
The lawyers, one of them, senior advocate of Nigeria, Femi Falana, also condemned the action of the Senate for celebrating only a segment of the judgment and ignoring other parts.
An Abuja Division of the Federal High Court gave the ruling to a suit filed by a private lawyer, Oluwatosin Ojaomo.
Mr. Ojaoma had in his suit demanded the determination of two issues by the court: namely whether the Senate had powers to reject a validly nominated candidate for the position of EFCC chairman, by the presidency.
He also asked the court to determine if the Senate was not bound by the provisions of the EFCC act 2 (3) to confirm any candidate nominated by the presidency for the said position.
On the one hand, the court held that against the arguments proffered by the applicants, the Senate's position was not a rubber stamp meant only to affirm any decision of the presidency, but that the senate indeed had powers to either affirm or reject a candidate from the presidency.
However, the court in its other opinion on the matter noted that fundamental to its determination of the suit is the need to first ascertain if the applicant had the “locus standi” to file the application in the first instance.
Locus standing is the right to bring an action or to appear in a court.
Media reports emphasized the court pronouncement dealing with the power of the Senate to reject the confirmation of a presidential nominee.
But lawyers including Mr. Falana and Jiti Ogunye said the other part of the judgment which bordered on “locus standi” was held higher by the court than its opinion on the Senate’s position about Magu.
“The case of the plaintiff was struck out by the Federal High Court for want of locus standi. It is a trite law that once a case is dismissed or struck out by a court for any reason whatsoever, it cannot be relied upon to assert any right or exercise any power. Accordingly, the view expressed by the learned trial judge on the power of the Senate to confirm or reject a person nominated for the post of the chairman of the EFCC by the President pursuant to section 2 of the EFCC act, is of no legal value as the case had been struck out by his Lordship in the same ruling,” Mr. Falana said.
He added that contrary to the notion celebrated by the Senate, the applicant did not ask the court to remove Mr. Magu and therefore “no such order was made by the court”.
In a similar opinion, Mr. Ogunye said the court primarily held that the applicant lacked locus standi and as such the suit and every opinion expressed regarding it, were struck out by the judge.
“The decision of the Federal High Court Abuja, given by His Lordship, Jon. J.T Tsoho in Suit No. FHC/ABJ/ CS / 59/17 (Olutosin Ojajomo v The Senate President, National Assembly of Nigeria & Anor) essentially struck out the claim of the Plaintiff, initiated by Originating Summons. The Court primarily held that the Claimant, a legal practitioner, did not show by affidavit evidence that he had the locus standi (standing or capacity) to sue for the reliefs he was seeking in the Suit. Thus, the Honourable Court struck out the Suit,” Mr. Ogunye said.
He added that the action of the Senate to commend the judgment, based only on the part that a suit them, (Senate) was mischievous.
“It is our considered opinion, that the slant being given to the ruling by the Senator who spoke on the outcome of the suit is diversionary and misleading. It amounted to clutching to a straw. Why would the Senate pick the part of the ruling that affirms their right to reject a nominee under the EFCC Establishment Act, and de-recognize the primary part that struck out the suit, before that part was determined, if not for reason of mischief?”
Also speaking on the matter, an Abuja based lawyer, Emanuel Ejeh, said neither the upheld version by the Senate and the entire decision of the court could be considered a judgment capable of removing Mr. Magu.
“Having struck out the action, the matter is dead. The opinion of the Court serves no purpose. Now, in the event, the matter gets to the Appellate Court, and the learned Justices of the Court of Appeal to decide that the applicant has the locus standi to sue, then that opinion becomes a Declaratory Judgement.
“The character of such a judgment is that it is basically not executory. It is only a statement as to the rights of the parties therein with no bite; as there is no order as to what any of the parties should do or should not do,” Mr. Ejeh said.
Before affirming the Senate's rejection of Mr. Magu, the court had this to say about the locus standi of the applicant.
“The issue of utmost importance in this suit is the issue of locus standi of the plaintiff to institute the suit. The term locus standi simply put means the standing or title to sue. That is to say, the plaintiff’s capacity to sue or the competence of the plaintiff to institute an action before the court.
”The issue of locus standi is threshold matter and must be first dealt with,” said Mr. Tsoho who cited a previous court decision to back his position.
“See Prince Adetona’s case (Supra). It is also trite law that the nature of the claim and/or the cause of action determines the locus standi of the party bringing the action,” Mr. Tsoho added and cited three other court cases to support his stand on the locus standi of the applicant.
“Haven regards to the questions for determination and the reliefs sought in the originating summons by the plaintiff in the suit, his locus standi in my humble opinion is doubtful. The affidavit deposition which gives background information of the plaintiff has not disclosed sufficient stake or peculiar interest of the plaintiff above others that entitles him to institute the action. On this premise, the suit is liable to be struck out for lack of premise.
“The point must be made that it is trite law generally that where a plaintiff claim is unchallenged and uncontroverted the court will accept the available evidence and act on it. There is however an exception to this: where the court finds that the plaintiff’s action is not maintainable, despite being unchallenged. This I humbly hold to be the position of the instant suit, I regard as doubtful the plaintiff’s capacity or competence to maintain the action. Consequently, this suit is struck out."