LEGAL IDEAS FORUM

AN EXPOSE ON THE EXTANT LOCUS STANDI IN PUBLIC INTEREST LITIGATION; THE NEED FOR THE NIGERIAN COURTS TO COMFORM TO INTERNATIONAL BEST PRACTICE

Locus standi is the legal capacity to institute a proceeding in the court of law. It is the right standing in law or sometimes regarded as the title to sue. It is the right to be heard by a court. Section 46(1) of the constitution is the bedrock of locus standi in Nigeria. It provides thus;

“Any person who alleges that any of the provisions of this chapter has been, is being, or likely to be contravened in any state in relation to him may apply to a high court in that state for redress”

Therefore this right is activated where a party to a case shows that he has a sufficient interest in the suit . It therefore acts as a sieve tube used to sift the chaffs from the grains of a legal matter. The chaffs referred to are the frivolous petitions or litigations, while the grains refer to the litigations in which the litigants maintain substantial interest to the extent that refusing to hear him would   be defeating the cause of justice.
However, this is not the case in public interest litigations. Public interest litigations also known as Actio popularis has been described as litigations in which  ‘’ a high court allows volunteers like lawyers, activists, NGOs or citizen petitioners to bring a cause on behalf of some victimized group without sufficient means or access to legal services. In the same vein, a citizen action or action popularis is based on the premise that the main aim or objective of public law is to keep public bodies within their power, based on the assumption that citizens generally should be enabled to vindicate the public interest, without showing individual  harm over and above that of the community. 
This situation arose squarely because the Attorney General and Chief law officer who should be the one to sue to address the wrong when the government pursue an unpopular policy or where the government violates the constitutional provisions is an appointee of government  and therefore part of the government  who would not work against his benefactors. On this issue , Aboki JSC observed in Fawehinmi v. President thus :

“…in our present reality , the Attorney General of the federation is also the minister of justice and a member of the executive cabinet. He may not be disposed to instituting an action against the government in which he is part of, it may be tantamount to the Federal government suing itself. Definitely he will not perform such duty…”

He further asked ‘…Who will approach the court to challenge the government where it violates or fails to enforce any provisions of the constitution or the laws where the Attorney General will not ?’ The attitude of the courts have been to subject such litigations to a “litmus test” under the provisions of  section 6(6)(b) of the constitution which reads :
the judicial powers vested in accordance with the forgoing provisions of this section ;
 (b) 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.
As a result of this provision, for over a long period of time, Nigerian courts had taken restrictive common law approach  to locus standi in public interest litigation. The first Nigerian case that tested the public interest litigation  of a plaintiff and clearly highlighted the attitude of courts to locus standi in this context is  the case of Olawyin v. Attorney General of Northern Nigeria (1961). In that case, the applicant challenged the constitutionality of the provisions of the Children And Young Persons Law 1958 of the Northern Region of Nigeria for public interest . However the court dismissed the action on the ground that only a person whose right has been affected by a law may sustain a claim for violation of his rights  and that the rights must have been in direct and imminent danger.
Twenty years after the aforementioned judgment, this restrictive attitude of Nigerian courts remained unbridled which was evident in Senator Adesanya v. President of the Federal Republic of Nigeria, a case considered as Loccus Classicus on restrictive Locus standi in Nigeria. In this case, the appellant filled an action challenging the constitutionality of the appointment of a serving judge as  the substantive head of the National  Electoral Body(FEDECO) by the president of the federation . The court held that  an individual plaintiff could not initiate public interest litigation , except he is personally and directly affected by the act complained of , or his rights have been violated. This restricted attitude of  the court remained the position of the law in a plenitude of decided cases.
However,  there was a total and outright departure from this restrictive position of the law in the celebrated case of Chief Gani Fawehnmi v. Col. Halilu Akilu & Anors . In that case , the supreme court liberally interpreted and widened the scope of locus standi in public interest litigations and held in favor of the appellant’s application for mandamus to compel the director of public prosecutions to exercise his discretion to prosecute an alleged crime or in default permit a private prosecution of it. This was a paradigm shift from what locus standi in public prosecution used to be ab initio in the Nigeria jurisdiction. Just as in the restrictive approach, there are a gluts of decided cases where this liberal approach was adopted in order     not to defeat the course of justice.  
But it is quite unfortunate that in Fawehinmi v. Akilu & Anor, the Supreme court negligently with profound respect  failed to overrule its earlier decision in Adesanya v. President of FRN and as a  result, both cases are legal precedents on locus standi in public interest litigations, which courts in Nigeria are free to choose  which one to apply and  which one not to apply in cases before it . Thus in Fawehinmi v. President FRN, the appellant, a legal practitioner and Senior Advocate of Nigeria (SAN),  filed an originating summons before the federal high court challenging inter alia, the action of the president as a violation of the 1999 constitution and as an abuse of office. In his supporting affidavit, he claimed to be a tax payer and as a  Senior Advocate of Nigeria, he had sworn on oath to uphold the constitution. The trial court dismissed his claim on the ground that he lacked the necessary locus standi but when he tested the decision in the court of appeal, his action succeeded. The court held that upon the uncontroverted affidavit evidence of the appellant being a taxpayer and one who swore on oath to defend the constitution, he had the locus standi. 
Moreover, in a more recent case of Femi Falana v. National Assembly, the Nigerian court again stopped the applicant from challenging the actions of government through the strict and outdated interpretation  on locus standi. 
From the forgoing, it is crystal clear that Nigerian courts still apply the two-way traffic approach to the issue of locus standi on public interest litigations. Law is dynamic, it is meant to change as the society changes and as such it is high time Nigerian courts adopted only the liberal approach just like other common law countries such as Kenya, India, United Kingdom and South-Africa who once interpreted the concept strictly but now interpret it literally This is even more compelling  where the subject  matter is otherwise appropriate for judicial resolution   and the application is timely, for in such instances , to deny locus standi would be to render important areas of governmental activity immune from censure or judicial oversight/overview for no better reason than that they affect a large number of people. 
This position was given validation by lord Diplock in the English locus classicus , IRC Case   as follows :

“It would, in my view, be a great lacuna in our system of public law if a pressure group, like the federation or even a single-spirited  taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful action stopped” .       

It is therefore my humble submission that Nigerian courts should wake up to the present reality and conform to international best practice. Nigeria courts must absorb and embrace the liberal approach to locus standi to public interest litigation which shall bring forth seedlings of good governance, Rule of Law, legal and social justice , democracy and separation of powers rather than the outdated, technical rules of locus standi which orchestrate abuse of office and governmental rascality.
 About the author                                           ARINZE M. MICHAEL is a law student of University of Calabar, a seasoned scholar and has numerous publications to his name. 
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