A Need For Rethink – TheNigerialawyer

In 2012 a suit filed by the prominent human rights activist, Mr
Femi Falana (SAN) challenging the powers of federal legislators to
award jumbo salaries and allowances to themselves was struck out by
the Federal High Court on the ground that the learned silk lacked
the locus standi to maintain the suit. Relying on the authority of
Adesanya V The President (1981) All NLR pg 1, the
Chief Judge of the Federal High Court, Justice Ibrahim Auta held
that Mr Falana did not prove that he had suffered any greater
injury than other Nigerian citizens as a result of the action of
the lawmakers. We have a lot of recent decisions of courts awarding
cost against lawyers on the basis of filing suits without having
locus standi.

What is locus standi in the first place? It
simply means a standing to sue. As Godwin N. Okeke rightly put it,
it implies that to apply to the court for the enforcement of right,
or to challenge the actions of the government, or to have a court
declare a law unconstitutional or even to litigate in the interest
of the public, the litigant must establish sufficient interest
otherwise the suit will be struck out. In A.G. Kaduna State
Vs Hassan (supra) at 524 G Oputa, JSC stated that:

“The legal concept of standing or locus standi is predicated
on the assumption that no court is obliged to provide a remedy for
a claim in which the applicant has a remote, hypothetical or no
interest.”

The interpretation of locus standi before the Nigerian courts is
strict and this has resulted in denying access to justice to many
Nigerians who are poor or have no knowledge of their rights as the
courts position on standing prevents NGOs or other individuals from
applying to the courts on their behalf or litigating in the
interest of the public.

Adesanya’s case seems to have been the genesis of the problem as
most decisions that were delivered after that case relied on it to
strike out cases on the basis of locus standi. What happened in
that case was that Senator Adesanya instituted proceedings against
the President of Nigeria, challenging the appointment of
Ovie-Whiskey as chairman of the Federal Electoral Commission by the
President. Senator Adesanya had made clear his disagreement with
the appointment during the confirmation process in the Senate,
maintaining that it was contrary to the provisions of the Nigerian
Constitution. Having failed to prevent the appointment in the
Senate, senator Adesanya brought proceedings in the Lagos High
Court, seeking a declaration that the appointment was
unconstitutional and requested an injunction to prevent it from
taking effect. Senator Adesanya was successful, but during an
appeal against the High Court’s decision, the issue of his locus
standi was raised. The Court of Appeal held that Senator Adesanya
did not have the right to challenge the President’s exercise of
authority. The Supreme Court held, inter alia, that Senator
Adesanya did not have locus standi.

Similar position was followed in Chief Thomas v. Rev.
Olufosoye (1986) 1 NWLR, pt. 18, p.669. Here the
Plaintiffs challenge he appointment of the Defendant as a Bishop
because it was made contrary to the provisions of their
constitution. The court struck out the matter on the basis of locus
standi.

In Badejo v. Minister of Education, [1996] 8 NWLR, pt.
464, p.15, the Supreme Court appears to have resurrected
the strict and out dated view on locus standi. The appellant in
this case sat for the National Common Entrance Examination and
scored 293. She was not invited for interview because she scored
below the cut off mark for Ogun State which is her State of origin.
The cut off was 296. Students with lower scores were invited for
interview because there cut off marks were lower. She was aggrieved
with this discriminatory policy and sued seeking to enforce her
fundamental right. The trial court dismissed the appellant’s claim
on the basis that she lacked locus standi. On appeal to the Court
of Appeal, it was held that the appellant had locus standi as her
interest was affected. On a further appeal by the respondent to the
Supreme Court, the court held that the appellant did not have the
legal standing to institute the action. Kutigi JSC who read the
lead judgment held that the appellant lacked legal standing. He
stated that the fundamental right of the appellant should not stand
above the country, state, or the people.

In Njoku v. Dr. Goodluck Jonathan & Ors (2015)
LPELR-24496(CA), the appellant challenged the competence
of Dr. Goodluck Jonathan’s eligibility to contest 2015 General
Elections since he took over from Umaru Musa Yar’adua 1n 2009 and
also won in 2011. Despite establishing that he was member of PDP,
he had the intention of contesting the office of the president, the
matter was struck out for want of locus standi. The court disagreed
with the Appellant that the rigidity or demands of locus standi set
out in Adesanya’s case has been relaxed in constitutional
matters.

Our law reports are full of cases of this injustice.

THERE IS A LITTLE PROGRESS ON LIBERAL LOCUS
STANDI

Despite the unfortunate decisions above and many others not
mentioned here, there is at least a little progress. We have
replete of Nigerian cases from Nineteen Eighties where courts were
liberal in handling issues of locus standi. Among such cases is
Williams V. Dawodu (1988) 4 NWLR (Pt. 87) page 189
at 218 where Akpata, JCA stated thus:

“There is now the recent case of Chief Gani Fawehinmi v.
Col. Halilu Akilu & Anor. In Re Oduneye (1987) 2 NWLR (Pt. 67)
page 797 which shows that the Courts have become increasingly
willing to extend the ambit of locus standi for public good. The
Courts have broken new grounds. The significance of this judicial
revolution is that whereas in the past the court showed little or
no reluctance in any given case in construing the import of
“sufficient interest” against the individual and tended to be more
Executive than the Executive, now the term “sufficient interest” is
construed more favourably in order to give an applicant a
hearing.”

Also, in SPD Co. Ltd. & 5 Ors. V. E.N. Nwaka
& Anor. (2001) 10 NWLR (Pt.720) page 64 at pages
82-83. The court was emphatic on the need to be courageous
to delimit the scope of locus standi. Pats-Acholonu, J.C.A. held as
follows:

“It needs the courage, wisdom and proper understanding of
our social-economic environment for an activist Judge to widen the
scope of the law on locus standi. Some Judge and advocates have
shown some trepidation in handling this matter. I believe we have
to take the bull by the horn and do justice to a matter before the
court without bending overly backwards because a matter is on
borderline in respect of whether the initiator of an action has the
standing order to do so. I think that where the cause is laudable
and will bring peace, justice and orderliness that will reflect the
spirit of the Constitution then we should not shirk our
responsibility in this area to help in advancing the cause of
Social, Economic and Cultural matters as they affect this
society.

The development of the law of locus standi has been retarded
extensively due to fear of floodgate of persons meddling into
matters not even remotely connected with them. In my opinion, let
them meddle and let the Court remove the wheat from the chaff. I
believe that it is the right of any citizen to see that law is
enforced where there is an infraction of that right or a threat of
its being violated in matters affecting the public law and in some
cases of private law such as where widows, orphans are deprived,
and a section of the society will be adversely affected by doing
nothing.”

In the case of Ladejobi V Oguntayo (2004) 18 NWLR (Pt.
904) 153 @ 158-159 stressed as follows:

“It is important to bear in mind that ready access to the
court is one of the attributes of a civilized legal system and it
will amount to setting the clock back at this stage for any court
to dismiss or strike an action based on the pleading without
carefully analyzing the averments and ensuring that there is nexus.
Besides, I make bold to say it is dangerous to limit the
opportunity for one to canvass his case by rigid adherence to the
ubiquitous principle of 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 our social and political development…. The court should
exercise utmost caution in throwing out a case because of the issue
of locus standi.”

In Fawehinmi V President F.R.N. (2007) 14 NWLR (Pt.
1054) 275 the Plaintiff (A Senior Advocate of Nigeria, one
time presidential candidate and a politician) approached the court
challenging the payment of ministers in dollars by president
Obasanjo (as he then was) contrary to the provisions of the Certain
Political Public and Judicial Office Holders (Salaries and
Allowances) Act. The court, relying on the Adesanya’s case, struck
out the matter for want of locus standi but the decision was
reversed on appeal. The Court, per Aboki, J.C.A. in pages 344 –
343, paras. D – C held thus:

I am of the opinion that in the Nigerian context and
particularly under the Constitution of the Federal Republic of
Nigeria, 1999, it would be wrong to slam the door of the courts
against complaints on executive excesses and unconstitutionality
under the guise of lack of locus standi. Where this is done, the
objective of the 1999 Constitution beautifully phrased as freedom,
equity and justice may not be attained. The Constitution or any
other Law can only be tested in Courts; it is access to the courts
for such test that will give satisfaction to the people for whom
the Constitution or the Law is made…

The most recent case on the point under discuss is
Centre for Oil Pollution Watch V. NNPC [2019] 5 NWLR (PT.
1666) 518. The Appellant, in enforcing its mandate, sued
the Respondent at the Federal High Court, Lagos for the alleged
neglect of its pipelines in Acha Autonomous Community in Isukwuato
Local Government Area, Abia State consequently causing a oil
spillage in the said community and among other things denying the
inhabitants of the community portable water from its only source,
the Ineh and AkuStreams/Rivers. Upon application, the trial Court
struck out and dismissed the suit for want of locus standi. When he
matter reached the Supeme Court, Counsel for the Appellant, Prof.
Joseph Mbadugha together with the following amici curiae – Aiwaju
Adegboyega Awomolo, SAN, Lucious Nwosu, SAN and A. B. Mahmoud, SAN
were of the view that the Appellant has the requisite locus standi
to sue, having shown and demonstrated the required interest to
entitle it to sue. They argued that any person with genuine and
public-spirited intention should be permitted to approach the court
with respect to public interest matters such as the one in the
instant case. They urged the Court to expand the frontier and relax
the concept of locus standi as applicable to environmental
litigation.

On the other hand, Learned Counsel for the Respondent, Victor
Ogude Esq., and the amici curiae whose opinions concurred with his
– Chief Wole Olanipekun, SAN and Dayo Apata, (Solicitor-General of
the Federation representing Abubakar Malami, SAN (the Attorney
General of the Federation and Minister of Justice) sought to
persuade the Court that the Appellant is a mere busybody or
troublemaker (with an abstract corporate soul), usurping the rights
of the affected citizens to complain. They also argued that
extending the scope of locus standi to accommodate an NGO such as
the Appellant in respect of environmental degradation matters would
have the effect of usurping the powers conferred on agencies and
offices like the Attorney-General’s office established by various
State and Federal Laws to protect the environment on behalf of the
people. They relied on several statutes which they submitted, have
taken care of the Appellant’s grouse. It was also contended that
allowing the Appellant standing to sue would open the floodgates to
frivolous litigation which will overwhelm the courts’ dockets.

In giving its Judgment, the Supreme Court after considering a
host of foreign judgments from common wealth jurisdictions on the
matter, lived to its billing as it held that the Appellant has the
right to institute the action thereby expanding the scope of locus
standi on environmental matters in Nigeria. The Court further held
that there is nothing in the Constitution that says the
Attorney-General is the only proper person clothed with
standing/power to enforce the performance of a public duty or
institute public interest litigation such as the instant suit.

It is imperative to commend the few Courts above for their
boldness in blazing the trail of this new path as these are the
sort of legal advancement society direly needs for her development.
Hopefully and with time, courts will maintain this position.

TheNigerialawyer Editorial

The Honourable Minister of Police Affairs, Muhammad Dingyadi has
assured youths, of Government commitment to quality education and
security which will engender a peaceful environment particularly at
the Colleges of Education. He made this statement while receiving
the Executive members of the National Association of Nigerian
Colleges of Education in his office on Monday, 7/10/19.

The Minister commended the zeal to learn and the peace in
colleges of Education, due to the able leadership of the President.
He said teacher education is significant because teachers produce
all class of professions in the country.

While promising to honour their invitation on the forth coming
seminar, he assured them he is still part of the Association even
though he is called to serve as a Minister of the Federal
Republic.

Speaking earlier, Comrade Mammud Abubakar, President of the
Association along with his team congratulated the Honourable
Minister of Police Affairs on his appointment.  He said the
Association is happy that the Hon. Minister is at a vantage
position in government to help students of Colleges of Education
particularly in the area of security since he was once their Board
Chairman.

While corroborating the fact that the Nigeria Colleges of
Education is the most progressive of all institutions in the
country, he informed the Minister that there are 157 Colleges of
Education nationwide mainly in rural areas which require security
going by the current security challenges in the country.

He concluded by wishing the inviting the Hon. Minister to speak
at a seminar later in the year
Odutayo Oluseyi

AD Press &Public Relations Unit