Is The Concept of Locus Standi Still A Hinderance to Public Interest Litigation in Nigeria?
IN THIS PAPER, MR M.O. UBANI, THE FORMER 2ND VP OF NBA EXAMINES THE CURRENT STATE OF THE LAW AND ANSWERS IN THE NEGATIVE.
THIS PAPER WAS PRESENTED AT THE RECENT CONFERENCE OF SECTION OF PUBLIC INTEREST AND DEVELOPMENT LAW (SPIDEL) OF NBA AT ABA, ABIA STATE.
There are several learned materials on the judiciary and human rights and so my pre occupation with this topic is not to dwell on those two issues mainly but to examine the importance of public interest litigation under our judicial system and the hinderances placed on its path by the Courts using the concept of Locus standi to distract the perfect realization of its central objectives. This Conference is the conference of Section on Public Interest and Development Law of the Nigerian Bar Association and so our role here actually is to examine the role of the legal profession in attempting to solving some of the public interest challenges confronting Nigeria as a country. The challenges are enormous. My brief here is to examine the role of the judiciary with regards to human rights and public interest litigation generally.
What is public interest litigation?
Public interest litigation is the use of the law to advance human rights and equality, or raise issues of broad public concern. It helps advance the cause of minority or disadvantaged groups or individuals.
Public interest cases may arise from both public and private law matters. Public law concerns the various rules and regulations that govern the exercise of power by public bodies. Private law concerns those cases in which a public body is not involved, and can be found in areas such as employment law or family law. Public interest litigation is most commonly used to challenge the decisions of public authorities by judicial review. Judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action, or a failure to act, by a public body. Judicial review is concerned with whether the law has been correctly applied, and whether right procedures have been followed.
The value of public interest litigation
Public interest litigation can:
Clarify the law.
- Hold public bodies to account by ensuring that they make appropriate decisions, act fairly and transparently and within the remit of their powers.
- Help develop the law by giving judges the opportunity to interpret legislation.
- Give vulnerable people a voice by highlighting an important issue and providing a platform for advocating for their rights.
- Raise awareness of important issues encouraging public debate and media coverage.
Objectives of Public Interest Litigation:
The important object of Public Interest Litigation is to safeguard the public interest, human rights and protect constitutional and legal rights of disadvantaged and weaker section of the society.
Thus, the dominant object is to ensure observance to the provisions of the constitution and the other laws. It is essentially a co-operative or collaborative effort on the part of the petitioner, the State, public authority and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the weaker sections of the society.
Public Interest Litigation is a device by which public participation in judicial review of administrative action is assured, and it also has the effect of making judicial process little more democratic. It is the medium through which access to justice has been democratized.
The members of the public by filing a Public Interest Litigation are entitled to and seek enforcement of public duty and observance of the constitutional law or legal provisions. Such a litigation can be initiated only for redressal of a public injury, enforcement of a public duty or vindicating interest of public nature and it is necessary that the petition is not filed for a personal gain or private motive or for other extraneous consideration and is filed bona ride in public interest.
THE ROLE OF THE JUDICIARY IN PUBLIC INTEREST LITIGATION.
The judiciary has a major role to play on the basis of the doctrine of checks and balances in checkmating and curbing the excesses of the other two arms of government. Usually the question for consideration by the court is whether the action challenged is UNLAWFUL, being outside the ambit of the power conferred on the relevant state authority, or whether the prescribed mandatory procedures have not been followed in the exercise of power, or that an error of law is involved or that the principles of natural justice have not been followed.
The judiciary usually intervenes in cases where the statutory provisions have arbitrarily and irrationally overlooked the interests of a significantly affected group that would otherwise suffer in silence. They intervene where existing rules and standards are not complied with due to indifference towards a particular group, unjustly denying them any legal entitlements or resulting in unfair and hostile treatment. The court’s provide a platform for projecting social values for those who do not have a formal access or voice in the policy-making processes.
THE CONCEPT OF LOCUS STANDI
The requirement of locus standi as enshrined in section 6 (6) (b) of the 1999 Constitution has posed considerable challenge to the institution of legal actions in courts by public spirited individuals for the protection of public interest as litigants in such actions are invariably confronted with objection that the particular legislative or executive act sought to be impugned has not violated their civil rights and obligation so as to vest in them “sufficient interest” to enable them to sue 1. In Uwazuruonye v. Governor of Imo State 2, the Court of Appeal described the appellant who was pursuing a public interest litigation not involving his civil rights and obligations as “clearly doing a yeoman’s job.” Interestingly, when the matter went on final appeal to the Supreme Court, the same appellant was described by the apex court as a busy body who had assumed “the role of a watchdog” not assigned to him under the constitution “to see that legislation is in order as perceived by him.”3 , similarly in Thomas v. Olufosoye, 4, the apex court held that the appellants had no right to play the role of archivists and build a shrine
“To preserve the sacred provisions of the Constitution of the Anglican Communion”.
Thus, no matter the public importance of the issues raised by the plaintiff in his suit, he would be denied locus standi where he fails to establish a direct relationship with the subject matter of the proceedings. The result is that infractions of statutory provisions and abuse of power by public officers and statutory bodies are shielded from judicial scrutiny on account of lack of locus standi by the claimant who is unable to satisfy the court that the judgment of the court if given in his favour would confer a personal benefit on him.
However, an apparent shift in the application of locus standi in constitutional matters is noticeable in few decided cases where it appears to have been decided that the courts will not on ground of public interest, permit the requirement of locus standi to impede the institution and prosecution of public interest actions challenging the constitutionality of legislative and executive acts that are perceived to be wrongful 5.
It would be argued that the few cases that appear to have liberalised the concept of locus standi have not changed the law on the subject matter substantially until recently when the Supreme altered drastically the status quo. Our courts before The Supreme Court this year still insist that a claimant must disclose his interest in the subject matter of the suit and how the executive or legislative action being sought to be impugned
has violated or threatened such interest in order to justify the invocation of the jurisdiction of the court. See the cases of Oluwatosin Ajaomo Vs The Senate President and Others reported in the various newspapers in 2017, LEDAP Vs The Senate President and Others reported in the various newspapers in 2019.
THE JURIDICAL BASIS FOR LOCUS STANDI
It is the duty of a plaintiff in any suit to disclose in his pleadings that he has
the locus standi to institute the action so as to enable the court to inquire into the merits of his claim. In other words, disclosure of locus standi by the plaintiff in his pleadings is a condition precedent that must be satisfied to enable the trial court to assume jurisdiction to hear and determine the suit filed by the plaintiff. The law has been clearly stated by the Court of Appeal (per Oredola, J.C.A) in Shibknu v. Attorney- General of Zamfara State 6:
It is a bounden duty of a plaintiff to show that he has locus standi in a suit, especially one which has been commenced by way of originating summons. Such a plaintiff has to disclose his special interest or the actual threat or injury that he will suffer from the infringement complained of. The instant suit was commenced by way of an originating summons. The appellants have the duty to establish their respective locus standi to institute the suit by disclosing their special or peculiar interest or the threat or injury that they would suffer from the infringement complained of.
The bounden duty of the plaintiff to disclose his locus standi derives from the fact that the court has no jurisdiction to inquire into any suit that does not involve the determination of any question as to the civil rights and obligations of the plaintiff. The rationale for this principle is that it is only where a suit involves the determination of any question concerning the civil rights and obligations of the plaintiff that a live issue would be raised for the determination of the court. Thus, where a suit does not raise any live issue between the parties before the court, the determination of such suit will be merely academic and no court of law has the jurisdiction to entertain any academic question. It is trite law that courts do not and should not engage in mere academic exercise in the determination of matters before them. Such futile exercise is not the business of a court of law.7 In Akeredolu v. Akinremi 8, the Supreme Court (Nnamani, JSC) held that:
“It has long been established that this court will not render an advisory opinion nor will it deal with a matter which is speculative or academic. The court deals with live issues”
Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) vests the courts established under the section with jurisdiction over 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.
It is clear from a literal interpretation of the above constitutional provision that the jurisdiction of courts can only be invoked where the suit involves the determination of any question relating to the civil rights and obligations of the claimant. Putting it differently, a claimant can only approach the court where he alleges that the action of the defendant which forms the subject matter of his action has violated or is likely to violate his legal rights and that unless the court intervenes, he will suffer some hardship, inconvenience or damage for which the court should provide a remedy.
Clearly therefore, no matter how unconstitutional the act of the executive or legislature might appear to be, the claimant cannot invoke the jurisdiction of the court over the constitutionality or otherwise of that action unless he is able to demonstrate to the satisfaction of the court the personal injury or damage that particular executive or legislative act has caused or is likely to cause him which is over and above what other members of the public will suffer or are likely to suffer by reason of that act. Thus, the burden placed on the plaintiff to enable him invoke the judicial powers of the court can only be discharged where the plaintiff proves his personal interest in the subject matter of the suit. In Bewaji v. Obasanjo, 9 the Court of Appeal (per Omoleye. JCA) in interpreting section 6 (6) (b) of the 1999 Constitution held that:
“Section 6(6)(b) of the 1999 Constitution does not confer locus standi on persons. Under it, the courts have power to adjudicate on a justiciable issue touching on the rights and obligations of a person who brings the complaint to court. The complainant must show that the act of which he complains affects rights and obligatioits peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury. The interpretation of section 6(6)(b) of the 1999 Constitution is that a person who files a suit in court must be a proper person, natural or legal and the action must relate to him specifically and exceptionally without prejudice to a person being rightly in representative capacity”
It is submitted that a plaintiffs locus standi to institute an action in court can only be demonstrated by showing in his statement of claim that his suit is meant to restrain the violation or likely violation of his civil rights and obligations. Therefore, where the plaintiff fails to show that there is a violation or threatened violation of his civil rights and obligations by the act sought to be challenged or that he has suffered or is likely to suffer some injury or damage peculiar to himself for which he is entitled to judicial remedies, he will be denied the legal standing to invoke the judicial powers of the court under section 6(6) (b) of the 1999 Constitution (as amended).10. Thus, in Adenuga v. Odumerun, 11, the Supreme Court (per Uwaifo, JSC) held that:
“Locus standi denotes the legal capacity, based upon sufficient interest in a subject matter, to institute proceedings in a court of law to pursue a certain cause. In order to ascertain whether a plaintiff has locus standi the statement of claim must be seen to disclose a cause of action vested in the plaintiff and also establish the rights and obligations or interests of the plaintiff which have been or are about to be violated, and in respect o f which he ought to be heard upon the reliefs he seeks”
To be sure, the phrase “locus standi” which simply denotes the legal capacity to institute legal proceedings in a court of law is used interchangeably with terms like “standi” or “title to sue”. It means the capacity to institute a legal action in a court of law over a particular subject matter in which the plaintiff has sufficient interest or in which his civil rights and obligations have been adversely affected, 12. It could also be defined as the right to have a dispute submitted to the court by the plaintiff for the protection of his legal rights or interest heard on the merits. Thus, in private law the plaintiff is said to have standing in a matter only if he has a special
legal right or alternately if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. What constitute a legal right, sufficient or special interest or interest adversely affected depends on the facts of each case.13
It would appear that the whole essence of the concept of locus standi is to limit the classes of parties who could approach the courts for judicial remedies by restricting such parties to only those who have disclosed sufficient interest in the subject matter of litigation and/or have suffered or are likely to suffer direct infraction of their legal rights or interest that is traceable to the action or inaction of the parties being sued. Furthermore, the interest being sought to be protected must not be vague, speculative, and intangible or one shared with other members of the society. This point has been well captured in the judgment of the Court of Appeal in 1NEC v. Ogbadibo Local Government Council,14 where the Court (per Ogbuinya, JCA) held that:
“Locus standi, traces its roots to Latin Language which means: “place of standing”. In its expounded legal form, locus standi denotes the legal right or capacity o f a person to institute an action in a court o f law when his right is trampled upon by somebody or authority. The locus classicus on locus standi in the Nigerian jurisprudence is the case of Adesanya v. The President, FRN (1981) 5 SC 112/(1981) 2 NCLR 358. Nigerian citizens derive their locus standi from the constitution, statutes, customary law or voluntary arrangements in organization involving their civil rights and obligations, see Odenye v. Efunuga (1990) 7 NWLR (Pt. 164) 618. Locus standi was evolved to protect the court from being converted into a jamboree by professional litigants or meddlesome interlopers who have no interest in matters, see Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1159) 562″
Clearly, it is the relationship between the plaintiff and the subject matter of the suit that defines his locus standi to sue for judicial reliefs. The suit as constituted and the reliefs claimed therein must be designed for the direct benefit of the plaintiff, rather than serve the interest of a third party who is not before the court. In other words, the plaintiffs suit must be designed to remedy the violation or prevent the violation of plaintiffs civil rights and obligations and not the civil rights and obligations of the public at large. Given that no private person has the legal right to protect public interest, any suit instituted by a private person to protect public
Interest may be out on ground of lack of locus STANDI unless the private person is able to demonstrate that he has suffered injury peculiar to himself.15
It Is submitted that whether the suit as constituted will serve the interest of the plaintiff or not will be determined by reference to averments in the statement of claim or supporting affidavit in the case of a suit commenced by originating summons, 16. The court at the stage of determining plaintiffs locus standi is not concerned with whether or not the action of the plaintiff will succeed but whether the plaintiff is entitled to be heard based on disclosure of sufficient interest in the subject matter of the action as pleaded in the statement of claim and which pleadings are deemed admitted by the defendant. In Disu v. Ajiloioura,17, the Supreme Court held that:
“Although the case had to do with proceedings in lieu of demurrer, it is apposite and relevant to this case. In demurrer proceedings, the defendants are deemed to have admitted the averments in the Statement of Claim. Similarly, in the procedure concept of locus standi, the defendant relies on the Statement of Claim and urges the court to strike out the matter on the ground that the Statement of Claim does not donate locus standi to the plaintiff. In both processes, the averments in the Statement of Claim are the final arbiter, if I may use that expression unguardedly”.
Locus standi is thus concerned with the justiciability of the suit rather than its merits because what renders a suit justiciable is the fact that the suit raises a live issue that concerns the legal interest of the plaintiff and the violation of the legal interest must be one that can be remedied judicially.18 In Adesanya v. President of Nigeria,19Obaseki, JSC in his concurring judgment observed that:
“Locus standi or standing to sue is an aspect of justiciability and as such the problem is surrounded by the same complexities and vagaries inherent in justiciability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the court not on the issues he wishes to have adjudicated”
The plaintiff is thus required to plead sufficient facts in his statement of claim or supporting affidavit in the case of a suit commenced by originating summons to establish his legal right or interest in the subject matter of the suit and how such legal right or interest has been adversely affected or is likely to be violated by the act
or in action of the defendant. The disclosure of sufficient interest in the subject matter of the suit by the plaintiff is thus a pre-condition for the intervention of the court and without it, the jurisdiction of the court cannot be invoked.20
It follows from the foregoing that the requirement of locus standi is inextricably linked with the jurisdiction of the court to entertain an action to the extent that no court can inquire into a suit where the plaintiff has not disclosed his standing to sue. In A-G., Anambra State v. A-G., Federation,21Chukwuma Eneh, (J.S.C.)held that:
“The issue o f locus standi is therefore linked with the issue o f jurisdiction o f a court to entertain a matter. It is sine qua non in a matter as the instant one, because judicial powers are constitutionally limited to cases in which the parties have it. See section 6(6)(b) of the Constitution”
Similarly in Daniel v. INEC 22, the Supreme Court (per Rhodes-Vivour, JSC) restated the principle thus:
“Locus standi denotes the legal capacity to institute proceedings in court. It is a threshold issue that goes to the root of the suit. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the court. Consequently, if the plaintiff does not have locus standi to institute the suit, the court would have no jurisdiction to entertain the suit.
THE APPLICATION OF THE CONCEPT IN CONSTITUTIONAL MATTERS
With specific reference to a suit founded on alleged breach of the constitution or other legislation or which involves matters of public interest or is in the realm of public law, the plaintiff in order to establish his locus standi, must demonstrate that he has suffered or is likely to suffer some injury peculiar to himself by reason of the alleged or threatened breach of the constitution or other legislation. Thus, it is not enough that a constitutional or statutory provision has been violated; a plaintiff challenging the alleged constitutional or statutory violation must show that he has suffered some injury peculiar to himself which is over and above that suffered by the general public at large. It is the general injury suffered or likely to be suffered by the plaintiff which is over and above that suffered by other members of the public that
operates to give the plaintiff the legal standing to challenge the alleged unconstitutionality. In A-G, Akzva Ibom State v. Essien, 24 stated the law lucidly thus:
‘It is long established and recognized principle of the law that a private individual has no locus standi or standing to sue and seek a declaratory or injunctive relief with respect to a matter o f public import unless the private right of the individual is infringed where the individual has suffered or sustained special damages peculiar to himself from the infringement of the public right”
In Olawoyin v. Attorney-General Northern Region, 25, the appellant sought to declare void, some aspects of the provisions of the Children and Young Persons Law, 1958 enacted by former Northern Region of Nigeria, on the ground that the provisions contravened the fundamental rights provisions of the Nigerian (Constitution) Order- in-Council, 1954. The Federal Supreme Court in dismissing the appeal applied the “interest” and “injury” tests and rejected the submission of the learned counsel for the appellant that any person is entitled to sue regarding the said issue. The Court accordingly held that a party who challenges the constitutional validity of a statute by invoking the declaratory powers of the court must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.
The court further held that it will be wrong to hold that a party establishes an interest by the mere enactment of a law with which he may in the future come in conflict. Unsworth, F. J. who delivered the lead judgment of the Federal Supreme Court then laid down the applicable principles at pages 9-10 of the Law Reports as follows:
“It will be noted that a declaration can only be made in favour of an interested party and a person asking for a declaration must therefore first show that he has an interest in the subject matter. . . There was no suggestion that the appellant was in imminent danger of coming into conflict with the law or that there had been any real or direct interference with his normal business or other activities. In my view the appellant failed to show that he had sufficient interest to sustain a claim. It seems to me that to hold that there was an interest here would amount to saying that a private individual obtains an interest by the mere enactment of a law with which he may in the future come in conflict; and I would not support such a proposition”
In Olawoyin v. Attorney-General Northern Region, 26, the Federal Supreme Court cited with approval the statement of law contained in the judgement of the US Supreme Court in the case of Massachusetts v. Mellon 27, the court observed that:
“The party who invokes the power must be able to show not only that the Statute is invalid, but that he has sustained, or is immediately in danger of sustaining, some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally”.
In the latter case of Gamioba & ors. v. Esezi 11, 28, Federal Supreme Court of Nigeria in dealing with the question of locus standi of the plaintiff to challenge the constitutionality of a certain Trust Instrument under Section 4 of the Western Region Law No. 45 of 1958 where the plaintiff did not plead any peculiar injury that he had suffered, held (per Brett, F.J.,) that:
“It is always necessary, where the plaintiff claims a declaration that a law is invalid, that the court should be satisfied that the plaintiff’s legal rights have been, or are in imminent danger of being invaded in consequence of the law. .. and it will be enough to say here that since the validity of a law is a matter o f concern to the public at large the court has a duty to form its own judgment as to the plaintiff locus standi, and should not assume it merely because the defendant admits it or does not dispute it. The plaintiff’s locus standi in the present case has not yet been disclosed, and if he has none, his claim must be dismissed on that ground, and it will be unnecessary to decide the question involved in the declaration he claims”
In the celebrated case of Adesanya v. President of the Federal Republic of Nigeria, 29, the Supreme Court dealt with the question of locus standi of the appellant, a member of the Senate of the Federal Republic of Nigeria, to challenge a legislative act of the Senate which he had opposed on the floor of Senate and failed and concluded (per Bello J.S.C., as he then was) that:
…upon the construction of the sub-section, it is only when the civil rights and obligations o f the person, who invokes the jurisdiction o f the court, are in issue for determination, that the judicial powers of the court may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.
The above firm principles established in leading decisions of the apex court on the question of locus standi were later re-stated by the Apex Court in Owodunmi v Registered Trustees of Celestial Church of Christ, 30, where Ogundare (JSC) upon a calm review of the case law on the question, particularly in the realm of public law concluded that:
“The Adesanya case which is in the realm o f public law, seems to lay it down that to invoke the judicial power of the court, a litigant must show sufficient interest or threat of injury he will suffer. I think the interest or injury test applied by the Federal Supreme Court in Olawoyin v. Attorney- General of Western Nigeria (Supra) should remain the yardstick in determining the question of the locus standi of a complainant and this is to be determined in the light of the facts or special circumstances of each case”.
Thus, it is safe to conclude that the litmus test for determining locus standi in the realm of public law is the ‘interest’ which the plaintiff alleges that he has in the subject matter of the suit or the ‘injury’ that he has or is likely to suffer as result of the act of the defendant. It is submitted therefore that the ‘interest’ or ‘injury’ test is the basic determinant of locus standi in the realm of public law. In A-G, Lagos State v. Eko Hotels Ltd.,*31Niki Tobi, (J. S. C.,) defined the term “interest” for the purpose of locus standi when he observed that:
“The interest of the plaintiff must be real and tangible in law. It must be cut- and-dry and without the least equivocation. It must not be a caricature of an interest, not a make-believe interest, not one of personal or self aggrandisement but one which is clearly and unequivocally donated to the plaintiff in the light of facts of the case and the law”
It is not sufficient for a plaintiff to claim interest in the subject matter of his suit by merely asserting that the alleged unconstitutional act may violate his civil rights and obligations in the near future. This is because as the Federal Supreme Court held in Olawoyin v. A-G., Northern Region 32,
“To hold that there was an interest here would amount to saying that a private individual obtains an interest by the mere enactment of a law with which he may in the future come in conflict; and I will not support such a proposition”.
To be sure, a plaintiff is required to prove both ‘interest’ and ‘injury’ in order to establish his legal standing to sue. In our respectful view, it is not enough for a plaintiff to establish sufficient interest in the subject matter of the suit without proving how that interest has been or is likely to be violated by the act of the defendant. In other words, the suit must be designed to prevent a violation or likely violation of that interest thus implying that where the act of the defendant has not violated
is likely to violate that interest, no legal standing to sue can be accorded to the plaintiff. This position is supported by the decision of the Supreme Court in Odeneye v. EJunuga,33 where it was held (per, Bello JSC)
that the ‘interest” or ‘injury test” simply means that “a party must show clearly that he has a right to protect and that his coming to court is to seek remedy so that the right will not be violated.
It is accordingly submitted that the mere fact that a legislative or executive act is perceived to be wrong or unconstitutional cannot confer legal standing on the plaintiff to sue unless the plaintiff is able to show that he has sufficient interest in the alleged unconstitutional executive or legislative act and that same has violated or is likely to violate his civil rights and obligations. This principle derives from the rule that it is only the violation or threatened violation of the civil rights and obligations of the plaintiff by the legislative or executive act sought to be challenged that crystallizes into a dispute between the parties that is fit for judicial adjudication. This point has been well made by the Court of Appeal in Keyamo v. Lagos State House of Assembly 34,
The Appellant can only take benefit of section 6(6)(b) of the 1999 Constitution if and only if his civil rights and obligations are violated or threatened. . . The mere fact that an act of the executive or legislature is unconstitutional without any allegation of infraction of or its adverse effects on one’s civil rights and obligations poses no question to be settled between the parties in court.
Applying the “interest” or “injury” test, it was held by the Court of Appeal in Shibkau v. Attorney-General of Zamfara State35, that the appellants lacked the locus standi to challenge the constitutionality, adoption or implementation of the Shariah Courts (Administration of Justice and Certain Consequential Changes) Law, 1999 and the Shari7ah Penal Code Law, 2000 both of Zamfara State since the appellants failed to disclose how the enactment and implementation of the said laws had violated their civil rights and obligations. The court (per Oredola, J.C.A.) declared the law thus:
Generally under public law, an ordinary individual or a citizen without more, will not have locus standi as a plaintiff just like that. This is more so, because such litigations involve public rights and duties which belonged and owed to all members of the public with the plaintiff inclusive. It further pertains to the power of the government and in this case of a State government as conferred by section 4(7) of the 1999 Constitution to make laws for peace, order and good government of the State or any part thereof. It is only where the individual or plaintiff has suffered special damage or
Injury which is far and above the one suffered generally by other members of the public that he can sue personally. Thus, general interest which is common to all and sundry cannot be litigated upon by an individual who lacks standing to do so.
Furthermore, in A-G., Adamawa State v. A-G., Federation & ors. 36the apex court in dismissing the plaintiffs claim for non-disclosure of sufficient interest in the subject matter of the suit or of breach of his civil rights and obligations observed (per Kutigi JSC, as he then was) that:
It is not enough for a plaintiff to merely state that an Act is illegal or unconstitutional without showing how his civil rights and obligations are breached or threatened (see for example, Attorney-General, Bendel State v. Attorney-General of Federation (1981) 12 NSCC 314, (1982) 3 NCLR 1; Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Lakanmi v. Adene (2003) 10 NWLR (Pt. 828) 353.
Thus, there is no locus standi to institute an action in a court of law where the reliefs sought by the claimant if granted will not confer any tangible benefit on the claimant.37 In order words, it is only where the legal rights of the plaintiff are threatened or the plaintiff will be adversely affected by the legislative or executive action sought to be impugned by the suit, that the determination of that suit could confer tangible benefit on the plaintiff and thereby clothe him with the legal standing to commence the action, 38.
It is further submitted that the mere fact that the plaintiff is a legal practitioner is not sufficient to confer him with locus standi to institute any suit to challenge the constitutionality of a legislative or executive act. This point arose directly in Uwazuruonye v. Governor of Imo State,39where the appellant, a legal practitioner, instituted the suit at the trial court to challenge the constitutionality of section 14 of the Customary Court Edict No. 7 of 1984 and section 17 (1) of the Magistrates’ Court Law (Amendment) Edict 1990 both of Imo State. The appellant alleged in paragraph 6 of the affidavit in support of originating summons that “as a lawyer I owe it as a duty to see that the provisions of the 1979 Constitution and other laws of Imo State and the Federal Republic of Nigeria are obeyed”.
The Court of Appeal raised the issue of appellant’s locus standi suomotu and proceeded to dismiss the appeal for non-disclosure of locus standi by the appellant. On final appeal to the Supreme Court, it was held dismissing the appeal:
“I am of the considered view that for the fact that the Appellant is a Practicing Legal Practitioner engaged in active practice without more
does not confer on the appellant any cause of action recognized by law, let alone a reasonable cause o f action neither does it confer on him any locus standi to institute the action”.
It is further submitted that the fact that a suit raises a matter of public interest, is not sufficient to vest the plaintiff with locus standi to institute the action. Similarly, the fact that the plaintiff wants to assume the role of a watchdog to see that every statute is validly made in accordance with the provisions of the constitution cannot confer locus standi on him as long as there is no breach or threatened breach of his civil rights and obligations. The implication of the absence of any proof of the breach or threatened breach of the civil rights and obligations of the Plaintiff by the action of the defendant is that the suit will not raise any live issue, dispute or lis between the plaintiff and the defendant so as to justify the exercise of judicial poof the court under section 6(6)(b) of the 1999 Constitution. This fact alone renders such suit purely academic and it is trite law that a person who has no live dispute or genuine grievance against another has no business approaching the court of law for judicial relief.
Indeed in Uwazuruonye v. Governor Imo State40, the apex court (per Muhammad, J. S. C.) cautioned that:
… [a] court of law is not a laboratory for the conduct of experiments regarding grieve or rights that are yet to engulf or enure, as it were to the plaintiff. Access to court avails only that person whose right has been violated and not a busy bodied litigant who seeks for solutions to problems that are yet to occur. Time is too precious for it to be wasted in the venture the appellant desires to involve the court. Courts have always firmly declined such invitations aimed at tackling academic or hypothetical questions.
Clearly, the doors of our courts of law are inaccessible to interlopers whose suits do.
THE CRITERIA FOR PUBLIC INTEREST LITIGANTS TO INSIST THAT LAWS MUST BE OBEYED AND RIGHTS OF CITIZENS NOT TAKEN FOR GRANTED EVEN IF THE PETITIONER CANNOT ESTABLISH ANY SUFFICIENT OR DIRECT INTEREST ON THE VIOLATIONS BY THE DEFENDANT.
In the famous case of Centre for Oil Pollution Watch v NNPC, 53, The Appellant, a non government organization sued the Respondent at Federal High Court, Lagos claiming restoration and remediation of the impaired and/or contaminated environment in Acha Autonomous Community of Isikwuato LGA of Abia of Nigeria, particularly the Ineh and Aku streams which environment was contaminated by the oil spill caused by the Respondent’s negligence. The Respondent denied the allegation of negligence and pleaded that any damage to the pipelines and the spillage and subsequent contamination of the streams/rivers were caused by acts of sabotage or interference by unscrupulous persons within the affected community.
The respondent later filed an application requesting the trial court to set down for hearing the point of law raised in its statement of defence, which challenged the LOCUS STANDI of the Appellant to institute the action. They sought an order striking out the suit in limine. Both the trial and appellate court relied on their old and conservative test and held that the Appellant lacked locus STANDI to institute the suit. The appellants were dissatisfied with the ruling and appealed to the SUPREME COURT.
In determining the appeal, the Supreme Court invited five amici curiae to address it on “Extending the Scope of Locus standi in relation to issues on environmental degradation: the case of NGO’s. The Supreme Court considered the provisions of Article 24 of African Charter on Peoples and Human Rights(Ratification and Enforcement) Act and Sections 20 and 33(1) of the constitution and Section 17 (4) of the Oil Pupelines Act AND UNANIMOUSLY ALLOWED THE APPEAL.
One of the most startling revelation in the above was the Supreme Court explanation that at no time was Section 6(6)(b) of 1999 constitution prescribed the locus STANDI of a person wanting to invoke the judicial powers of the court. What the section did according to them was to prescribe THE EXTENT OF THE JUDICIAL POWERS OF THE COURT. They affirmed that the Supreme Court in Adesanya v President, FRN did not decide that section 6(6)(b) of the 1979 constitution(similar to Section 6(6)(b) of 1999 constitution) contained a requirement of standing.
The second most important revelation in that case was the Supreme Court pronouncement that Chapter Two of the 1999 constitution which is the Fundamental Objectives and Directive Principles of State Policy was not totally unjusticiable by virtue of Section 6(6) (c) as another section of the same section which makes any section in that chapter Two justiciable shall be justiciable.
The third principle and most important principle established in that locus classic-us case is the relevant considerations in determining locus standi of a plaintiff. The court is enjoined to consider two things or factors, that is
a. Locus standi should be broadly determined with due regard to the corporate interest being sought to be protected bearing in mind who the plaintiff is or plaintiffs are, and
b. Ready access to the court is one of the attributes of civilized legal system. It is dangerous to limit the opportunity for one to canvass his case by rigid adherence to the ubiquitous principle inherent in locus standi which is whether a person has the stand in a case. The society is becoming highly dynamic and certain stands of yester-years may no longer stand in the present state of social and political development. …The courts, in recent times applied more liberal tests, and the trend is away from the restrictive and technical approach to questions of locus standi. The approach these days is one finding out whether the plaintiff has a genuine grievance.
c. Britain, USA, Canada and other commonwealth countries like India, Australia are taken a more liberal approach to the issue of locus standi over public interest litigation having regards to facts and circumstances and Nigeria cannot to be an exception.
d. In the instant case the appellants merely sought reliefs of an enforcement of an existing legislation in the interest of all those who are affected which included their members who were affected by the oil spillage. Thus sufficient interest was shown by the appellant in the subject matter to clothe them with the necessary standing to sue. Per Eko, JSC released the bombshell and I quote
“Once in his pleadings his genuine interest, as the present appellant has, it is disclosed that the defendant is transgressing the law or is about to transgress it by his objectionable conduct, which injures or impairs human lives and/or endangers the environment the PLAINTIFF, BE HE AN INDIVIDUAL OR AN NGO SHOULD BE ACCORDED THE STANDING TO ENFORCE THE LAW AND THEREBY SAVE LIVES AND THE ENVIRONMENT”.
Finally the Supreme Court held that it would be a grave lacuna in the system of public law if a pressure group or even a single publi-spirited tax payer were prevented by outdated technical rules of locus standi from bringing a matter to the attention of the court to vindicate the rule of law and get an unlawful conduct stopped. Government agencies and institutions are responsible to a court of justice for THE LAWFULNESS OF WHAT THEY DO, AND OF THAT THE COURT IS THE ONLY JUDGE. In effect, there is considerable force in the view that it is by liberalizing the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law.
Every person, including non governmental organizations, public-spirited individuals or associations, have sufficient interest in ensuring that public authorities or corporations submit to the rule of law and that no public authority has power to, arbitrarily or with impunity, break the law or general statute. THE RIGHT OF THE CITIZEN OR LAWFUL ASSOCIATIONS TO SEE THAT THE RULE OF LAW IS ENFORCED VESTS IN HIM OR THE ASSOCIATION SUFFICIENT STANDING TO REQUEST THE COURT TO CALL TO ORDER A PUBLIC AUTHORITY ALLEGEDLY VIOLATING THE LAW.
LIBERALIZED APPROACHES BY OUR COURTS SO FAR ON FUNDAMENTAL RIGHTS ISSUES .
Before this latest Supreme Court landmark decisions some judges have managed to save applications led on behalf of human right victims through judicial activism. In Captain SA Asemota v Col SL Yesufu and Another, the wife of a detained army officer had sued in her own name to enforce the fundamental right of her husband to personal liberty. The learned trial judge, Somolu J (as he then was), amended the application suo moto by substituting the husband’s name for hers in order to bring it in conformity with the FREP Rules.
In Richard Oma Ahonarogo v Governor of Lagos State, the appli- cant, a legal practitioner, led an application for the enforcement of the right to life of the 14 year-old Augustine Eke who was convicted of armed robbery by the Firearms and Robbery Tribunal in Lagos State. The main ground of the application was that the convict could not be sentenced to death as he was a minor by virtue of section 368 of the Criminal Procedure Law of Lagos State. The preliminary objection of the respondent challenging the locus standi of the applicant and the jurisdiction of the court was dismissed by Onalaja J (as he then was). It was the judge’s view that the applicant, as a legal practitioner, had the locus standi to enforce his client’s fundamental right to life.
In Ozekhome v The President, 40 the 2nd to 24th applicants were detained under the State Security (Detention of Persons) Decree 2 of 1984. The locus standi of the rest applicant in the action was challenged by the respondent. In dismissing the preliminary
objection, Segun J (as he then was) said:
“The 2nd to 24th plaintiff/respondents are in jail and they have sufficient interests to come out. To get out, they need the services of the 1st plaintiff/ respondent – a legal practitioner. This lawyer has statutory rights to perform certain duties as a legal practitioner to his clients. These statutory rights are clearly spelt out in section 2 of the Legal Practitioners Act 1975 (see also Rules 7,4,14C and 29 of the Rules of Professional Conduct in the Legal Profession made pursuant to the Legal Practitioners Act, 1975). The combined effect of the law and the Rules show that the 1st plaintiff/respondent has sufficient interest in the matter. He has been briefed and he is now taking steps to ensure success of the litigation. I hold that he is an interested party on the face of the summons”
A strict adherence to the doctrine of locus standi cannot be justified under article 29(2) of the African Charter, which imposes a duty on every individual to serve their community by placing their physical and intellectual abilities at its service.41 Article 27(2) further provides that the rights and freedom of each individual shall be exercised ‘with due regard to the rights of others, collective security, morality and common interests’.
The activist views of the learned judges in the above three cases are indeed commendable. Rather than invoking the literal rules of interpretation which inexorably would have led to the striking out of these cases, their interventions have enthroned substantive justice above technical justice. These cases are also significant in the sense that they clearly indicate that not all the judges can be said to be guilty of the sweeping charge of narrow-mindedness and retrogression in interpreting the provisions of the FREP Rules.
In Inspector General of Police v All Nigerian Peoples Party, the plaintiffs sought a declaration that the provisions of the Public Order Act (Cap 382) Laws of the Federation of Nigeria 1990 which require police permit or any other authority for the holding of: rallies or processions in any part of Nigeria is illegal and unconstitutional as they contravene section 40 of the 1999 Constitution and article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) LFN 1990. The High Court held, inter alia, that the Public Order Act does not only impose limitation on the right to assemble freely and associate with others, which right is guaranteed under section 40 of the 1999 constitution, it leaves unfettered the discretion on the whims of certain officials, including the police. The Public Order Act so far as it affects the right of citizens to assemble freely and associate with others, the sum of which is the right to hold rallies or processions or demonstration is an aberration to a democratic society, it is inconsistent with the provisions of the 1999 Constitution. The result is that it is void to the extent of its inconsistency with the provisions of the 1999 Constitution. In particular section1(2),(3)(4)(5) and (6), 2, 3 and 4 are inconsistent with the fundamental rights provisions in the1999 Constitution and to the extent of their inconsistency they are void – I hereby so declare.The Appeal Court, as per Mohammad Aboki JSC also upheld the judgment of the lower court and ruled in favour of the respondents.
The judiciary remains the only arm and authority with the right and power to interpret and ensure due adherence to the laws of the land. Where the rights of a citizen is violated or about to be violated, the safe place to run to for protection and safety is to the courts. Where agencies of government or public authorities by their conduct violates or injure the rights of the majority of the citizens, any one who feels violated or about to be violated should seek the timous intervention of the court for redress. The Supreme Court of Nigeria has now finally settled the principle that the issue of proof that an individual has suffered an injury far and above the other citizens is no longer necessary. The court held that if there is good ground for supposing that government department or public authority is transgressing the law, or is about to transgress it, in any way which offends or injures thousands of the citizens, THEN ANYONE OR THOSE OFFENDED OR INJURED CAN DRAW IT TO THE ATTENTION OF THE COURTS OF LAW AND SEEK TO HAVE THE LAW ENFORCED AND THE COURTS IN THEIR DISCRETION CAN GRANT WHATEVER REMEDY IS APPROPRIATE.
The public interest litigants are enjoined to brace up as the public institutions are daily acting with impunity and in flagrant abuse of power and in complete disdain to rule of law and order. The public interest litigants must be dogged and unrelenting in approaching the court for redress and it is hoped that by this recent SHIFT of the Nigerian judiciary towards liberalism and opening of doors to aggrieved petitioners, JUSTICE SHALL SURELY BE SERVED IN ALL CASES SO THAT we all can have a country we shall be proud of. THE JUDICIARY IS ENJOINED TO MAINTAIN AND SUSTAIN THE PRESENT LIBERAL APPROACH TO MATTERS OF PUBLIC LITIGATION. it is in our collective interest.
I rest my case.
1 Dr. Z. Adangor, PhD (Aberdeen), BL., MClArb; Associate Professor, Department of Public Law, Faculty of Law, Rivers State University, Port Harcourt.
2  1NWLR (Pt. 906)19 @ 35-6.
3 Uwazuruonye v. Governor of Imo State  8 NWLR (Pt. 1355) 28 @ 54, 57.
4  1 NWLR (Pt. 18) 669, 690.
5 Governor of Ekiti State v. Fakiyesi  All FWLR (Pt. 501) 828; Gani Fawehinmi v. President of the Federal Republic of Nigeria  14 NWLR (Pt. 1054) 275; Gani Fawehinmi v. Akilu  4 NWLR (Pt. 67) 797.
6  10 N.W.L.R. (PT 1202) 312 @ 341
7 A. G Federation v. Fafunwa-Onikoyi 18 NWLR (Pt.l010)51 @ 85; Badejo v. Federal Ministry of Education [199616 NWLR (Pt.464)15 @ 40-41; Bamgboye v. Unilorin (1999) LPELR-737 (SC) 1 @ 37-38; Adewunmi v. A-G., Ekiti State  2 NWLR (Pt. 751) 474; Onochie v. Odogwu (2006) LPELR -2689 (SC) 1 @ 40-41.
8 (1986]2 NWLR (Pt.25) 710 @ 725.
9  9 NWLR (Pt. 1093) 540 @ 573, 576; Asheikh v. Yale (2010) LPELR-3811 (CA) 1 @ 12-13; Shaaban v. Sambo (2010) LPELR-3032 (SC) 1 @ 11-12; Agbai v. Ukpabi (2013) LPELR-21263 (CA) 1 @ 22-23; Musenkidu v. Liadia (2010) LPELR 4565 (CA) 1 @ 12-13.
10 Yar ‘adua v. Yandoma  4 NWLR (Pt. 1448) 123 @ 173-174.
11 (2 00 3)4 S. C (P ar ti) 1 at 10
12 Adesanya v. President of the Federal Republic of Nigeria (1981) 2 NCLR 358 @ 372, 380; In re Ijelu (1992) LPELR-1464 (SC) 1 @ 14-15
13 Nuhu v. Bwacha (2016) LPELR-40810 (CA); Adesanya v. President, Federal Republic of Nigeria (1981) 5 SC 69; (1981) All NLR 1; Akinfolarin v. Akinnola (1994) 4 SCNJ (Pt. 1) 30, 61; Omodunni v. Regd. Trustees (2000) 6 SCNJ 399, 417.
14 (2014) LPELR-22640 (CA) 1 @ 24-25.
15 In re Ijelu (1992) LPELR-1464 (SC) 1 @ 14-15.
16 Disu v. Ajilomuna (2007) 7 SC (Pt. 11) 1;
17 (2006) LPELR-955 (SC) 1 @ 37-38.
18 In re Ijelu v. L. S. D. P. C.  1 NWLR (Pt. 266) 414; Ufomba v. INEC (2017) LPELR-42079 (SC) 1 @ 26; A-G Federation v. A-G., Abia State (2001) LPELR- 24862 (SC) 1 @ 113-114; Obu v. SPDC Ltd (2013) LPELR- 2124 (CA) 1 @ 15.
19 (1981) 5 SC 1 @ 174.
20 Bakare v. Ajose-Adeogun (2014) LPELR-25024 (SC) 1 @ 33-34.
21 [2007J12 NWLR (Pt.l047)4 @ 94.
22 (2015) LPELR-24566 (SC) 1 @ 47.
23 A-G., Akwalbom State v. Essien  7 NWLR (Pt. 872) 288 @ 320; Unoka v. Agilli  11 NWLR (Pt. 1044) 122 @ 146; Adesanya v. President of Nigeria  ANLR 1 @ 42; UBN Pic v.  16 NWLR (Pt.845) 183 @ 205.
24 A-G., Akwalbom State v. Essien (n22) @ 321 (per Ekpe, J.C.A.).
25 (1961) 2 SCNLR 5.
26 0lawonyi (n24) 10.
27 (1923) 262 U.S. 447 @ 488.
28  ANLR 608 @613.
29  ANLR 1@ 42.
30 10 NWLR (PT.675)315 @ 345.
31  18 NWLR (PT. 1010) 378 @ 450, paras. H.
32 Olawoyin (n24) 10.
33 7 NWLR (PT.164) 618 @ 640.
34  12 NWLR (PT. 680) 196 @ 216.
35 Shibkau v. A-G., Zamfara State (n5).
36 (2005) LPELR- 602 (SC).
37 0loriode v. Oyebi  1 SCNLR 390 @ 400, 405.
38 Umeh v. Ejike (2013) lpelr-23506 (CA) 1 @ 52-55.
39 (2013) 8 NWLR (PT. 1355) 28 @ 52.
40 Uwazuruonye (n38) 58.
41 (1986) 1 NWLR (Pt. 18) 669 at 690.
42 Adesanya (n28).
43 0dunukure v. Ofomata  18 NWLR (Pt. 1225) 404.
44  14 NWLR (Pt. 1054) 275.
45 Fawehinmi (n43) 334.
46 Fawehinmi (n43).
47  All FWLR (Pt. 501) 828.
48 Governor Ekiti State (n46) 882-4.
49 Governor Ekiti State (n46) 891.
50 Tejumade Clement v. Iwuanyanwu  3 NWLR (Pt. 107) 39 @ 54; SPDC Nigeria Ltd v. Ezeukwu (2010) LPELR-4911 (CA) 1 @ 27.
51 Yardua v. Yandoma (2014) LPELR-24217 (SC) 1 @ 75; Dingyadi v. INEC (2011) LPELR-950 (SC) 1 @ 56-57.
52  4 NWLR (Pt. 67) 797.
53 5NWLR Part 1666, P 518.
Mr. Monday Onyekachi Ubani, Esq.
LLB (Nsukka), LLM (Unilag)
Principal Partner, Ubani & C
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