Nworka v. Ononeze-Madu [2019] 7 NWLR (Pt. 1672) 422

The Story

Two lawyers, Chidi Nworka and Ndionyemma Nwankwo, sued Hon. Justice Mrs. Ann Ononeze-Madu, the 1st Respondent herein, (who was then a serving Magistrate in Imo State Judiciary) The Governor and Attorney-General of the State were also sued alongside. The suit was filed by the lawyers for the purpose of stopping the appointment of Mrs. Ononeze-Madu as a Judge. The reasons furnished for the court action were that the 1st Respondent was involved in some fraudulent activities (relating to attempt to obtain by false pretence a promotion to the position of Chief Magistrate in Imo State) and that she had issued an open threat to one of the lawyers (Mr. Nworka) to deal “ruthlessly” with him once appointed a Judge.

The 1st Respondent filed a preliminary objection to the suit contending that Mr. Nworka lacked the locus standi to sue. That is, that the lawyer does not have the right to institute the court action. It was also contended that the lawyer does not have a cause of action, that is, any concrete reason for filing the case. A cause of action is the entire set of circumstances giving rise to an enforceable claim.

The Court sustained the preliminary objection, declined jurisdiction to entertain the suit and consequently struck it out. Mr. Nworka, as Appellant, appealed to the Court of Appeal. His appeal was dismissed. He further appealed to the Supreme Court which also had no difficulty in dismissing the appeal and upholding the decisions of the lower courts.

Lessons from the Supreme Court

1. On the lawyer’s lack of right to sue

The Supreme Court held that the Appellant lacked the right to sue, attempting to stop the appointment of Mrs. Ononeze-Madu as a Judge. One would ordinarily wonder why the Court would hold so in the light of the claims by the lawyer that the 1st Respondent was involved in some fraudulent activities (relating to attempt to obtain by false pretence a promotion to the position of Chief Magistrate in Imo State) and that she had issued an open threat to the Appellant to deal “ruthlessly” with him once appointed a Judge.

The Supreme Court took the position that if the Appellant had applied for a fiat to prosecute the 1st Respondent for the alleged fraud she had committed but was not granted the fiat, it is then that it would be appropriate to complain. In other words, no legal steps were taken by the Appellant to establish the allegation of fraud beyond his merely saying so. Aka’ahs, JSC explained:

“No one is condemning the stance of the Appellant in seeking to prevent persons with questionable character from being elevated to the Bench. If the Appellant had applied for a fiat to prosecute the 1st Respondent for the alleged fraud she had committed but was not granted the fiat, it is then that it would be appropriate to invoke the decision in Fawehinmi v. Akilu supra to secure the fiat. In that case, the appellant has the locus standi for as the Supreme Court reasoned, “the powers of arrest and prosecution conferred by various sections of the Criminal Procedure and the Criminal Code has magic effect of conferring locus standi on any person who cares to prosecute an offender if he saw him committing the offence or reasonably suspects him of having committed the offence.”

The apex Court in the instant insisted that the Appellant lacked the right to sue. The Court was not prepared to open the floodgate of litigation and absurdities. Baje, JSC boldly clarified:

“The issue here is not that corrupt, fraudulent and ignoble elements should be allowed to sneak into the judiciary. Definitely the response is a capital No. The circumstances of this suit call for circumspection to avoid unwittingly encouraging a very dangerous trend. It is not the intention of the law of locus standi to allow every citizens rise up in protest against the proposed appointment or elevation of judicial officers for no justifiable reasons. Perhaps, all persons convicted or aggrieved parties whose cases have been thrown-out would be “cloth with garments of locus standi” to challenge persons who had previously acted over their matters in judicial capacities from advancing to the next levels. Perhaps, prosecution Counsel in the Ministries of Justice across the country may have “lorry loads” protests and petitions to stop their appointment to the bench beyond subsequent promotion to higher cadres over previous criminal convictions they had secured for the State. The law and principle of locus standi is intended to provide effective sieves or filters against such absurdities. This is a situation in which the act complained of has not in any way or manner affected civil right and/or obligations of the Appellant over and above that of ordinary Nigerians or Imo citizens or other legal practitioners in Owerri, Orlu and other judicial divisions in Imo State. Thus, the Court ought to, and had justifiably denied the exercise of judicial power to a person who seeks it merely for unmeritorious or less than decent or honourable purposes.”

2. On the issue of absence of cause of action

The Supreme Court held that the Appellant failed to disclose any reasonable cause of action. It was the claim of the Appellant that his suit was purely preventive in nature in that he was trying to save the entire Imo State and the justice system from persons such as the Appellant. The Appellant also sought protection from the alleged threat by the 1st Respondent to deal with him ruthlessly when appointed a Judge. So, the lawyer was apprehensive and was trying to avert an unwanted future occurrence. The Supreme Court found no merits in all the speculations. Baje, JSC took time to explain:

“A careful look at the Writ of Summons and Statement of Claim filed by the Appellant in this suit reveals no discernible cause of action. The Appellant’s contention that his suit is “preventive in nature” (argued at page 16 of the Appellant’s Brief) shows the suit is self-serving, vindictive and unreasonable. The Appellant has found cause of action on speculative inferences such as her (alleged 1st Respondent’s) corrupt tendencies, her being proposed for appointment as a judge, her vow to use or apply that office to the detriment of Appellant, and her being recommended by the N.J.C. [National Judicial Council] which is the final hurdle that left no one in doubt that her appointment was imminent. This is potentially risk for the administration of justice system in the country, and should not be encouraged.”

Our Take

It is not as if there are no bad eggs in the Judiciary who have constantly failed to live above board, and to exhibit high level composure and charisma expected of a Judge or Magistrate. Today, we see some Judges and Magistrates who openly employ unprintable language in addressing counsel and even litigants. That is bad for the system.

Nevertheless, the Supreme Court was right in holding that the Appellant in the instant case failed to disclose any cause of action, the suit being squarely based on speculations.

It is clear that the Supreme Court has handed down an absolute rule that no individual can complain by filing a case against the appointment of any person as a Judge. This is so even though it appears that the Appellant was mainly said to lack the right to sue because there was nothing concrete to sustain the action as there was no justifiable reason (as stated by Baje, JSC). We recall however that the Court further held that, “This is a situation in which the act complained of has not in any way or manner affected civil right and/or obligations of the Appellant over and above that of ordinary Nigerians or Imo citizens or other legal practitioners in Owerri, Orlu and other judicial divisions in Imo State.” In other words, the Appellant has not shown sufficient interest. One criterion for sufficiency of interest is whether the party seeking the redress or remedy will suffer some injury or hardship arising from the litigation. See Pam v. Mohammed [2008] 16 NWLR (Pt. 1112) 1 at 66.

Therefore, what should a person do if he reasonably suspects that the appointment of a person as a Judge is bad for the system? The person can petition the National Judicial Council (NJC) with concrete facts. In the case of lawyer, (s)he may also approach the Nigerian Bar Association (NBA) to mobilise an objection to such appointment since the Constitution of NJC includes NBA in the process of appointment of Judges. If fraud or any other crime is the basis, the lawyer may apply for fiat to prosecute the person in question in a bid to judicially establish the offence committed. In all these, the person must be willing to bear punitive costs if the allegations turn out to be highly unsubstantiated and merely embarrassing.

Above all, in the absence of any concrete reason and facts, if the basis of dissatisfaction is merely an apprehension, no matter the degree, the best option is to wait and see. Aka’ahs, JSC puts it thus:

“The Appellant has made his stand about the suitability of the Respondent’s appointment as a Judge of the Imo State High Court known. He should rest his case there and watch out to see how she performs as a Judicial Officer. If she does not live up to her Oath of office there will still be an opportunity to ensure that she does not hold the exalted office.”

Full Judgment.