THE APPROACH OF THE SUPREME COURT TO LOCUS STANDI IN NIGERIA

Locus Standi refers to the legal capacity of a person to institute an action in a court of law. It is a preliminary issue and is distinct from the merits of the case. The rules on locus standi are the creation of the common law. This paper examines the approach of the Supreme Court on the issue of locus standi. The relevant case law on the subject in Nigeria and England are also examined. In the important case of Chief Gani Fawehinmi v. Akilu and Togun, (1987) 4 NWLR, 797, Supreme Court of Nigeria had to resolve questions which would have widespread repercussions on the issue of locus standi in the Nigerian legal system.

 The case related to the death of Mr. Dele Giwa, a journalist and Editor in Chief of the magazine Newswatch, who was killed by a parcel bomb at his residence in Ikeja in Lagos State. On the 3rd of November 1986, late Chief Gani Fawehinmi (“the Appellant”), friend and former legal adviser to Mr. Dele Giwa, presented to the Director of Public Prosecutions of Lagos State, a document based upon his own investigations. In that document, Fawehinmi claimed that two army officers, Col. Akilu (Director of Military Intelligence) and Lt. Col. Kunle Togun (Deputy Director of the State Security Service), were responsible for the death of Mr. Dele Giwa. Pursuant to section 342 of the Criminal Procedure Law of Lagos State. Fawehinmi, acting as a private prosecutor, requested that the Director of Public Prosecutions exercise the power vested in him to prosecute Col. Akilu and Lt. Col Togun for the murder of Mr. Dele Giwa, or alternatively, to endorse a certificate stating the same on the basis of the information submitted to him. Such a certificate would have enabled Fawehinmi to bring a private prosecution against Col. Akilu and Lt. Col. Togun for murder. The Director of Public Prosecutions declined to come to a decision with respect Fawehinmi’s request until he had received the official report from the police investigation into the affair. In response, Fawehinmi filled an application to the High Court of Lagos State for leave to apply for an order of mandamus compelling the Director of Public Prosecutions to decide whether or not he was going to bring proceedings against Col. Akilu and Lt. Col. Togun, and in the event of deciding not to prosecute, requiring him to certify that he had seen the information put forward by Fawehinmi but had decided not to prosecute as public instance. Attached to Fawehinmi’s application was the proof of Evidence. The application was dismissed on the grounds that:

1.    The Director of Public Prosecutions had not actually refused to fulfill the obligations imposed upon him under Section 342 of the Criminal Procedure Law; and

2.    The evidence submitted was insufficient to compel the Director of Public Prosecutions to perform his duty under the Criminal Procedure Law.

Fawehinmi appealed against this decision but his appeal was dismissed by the Court of Appeal holding that he lacked locus standi to bring the application for mandamus. He then appealed to the Supreme Court which set aside the decisions of the lower courts and granted the application for leave to apply for and order of mandamus against the Director of Public Prosecutions.

The case of Chief Gani Fawehinmi v. Akilu and Togun raised important questions in relation to locus standi and the capacity of the private individuals to initiate proceedings against suspected criminals. Provisions for such actions is to be found in Section 342, of the Criminal Procedure Law, upon, which Fawehinmi based his application to the Director of Public Prosecutions. Section 342, provides that, “The registrar shall receive an information from a private person if: (a) It had been endorsed thereon a certificate by a law officer or Crown Counsel to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth…”

The right to bring a private prosecution has existed for many years and has formed part of the law of many countries. In Halbury’s Laws of England, 4th Edition, Vol. 11, para 97, (1976), it is described as: In the absence of statutory provisions to the contrary any person may of his own initiative, and without any preliminary consent, institute Criminal proceedings with a view to indictment; but there are some statutes     which require that certain criminal proceedings should be undertaken only by a judge, or by the direction, or with the consent, of the Attorney General, the Director of Public Prosecutions or some other official person or  body. Private prosecution is generally undertaken only in the most exceptional circumstances but provides an alternative for those who believe that he competent authorities have wrongfully refused to bring a prosecution.

In the earlier case of Adesanya v. the President, 1981) 2 NCLR 358 the capacity of the private individual to bring proceedings in a court of law was discussed in depth. In that case, Senator Adesanya instituted proceedings against the President of Nigeria and Justice Ovie-Whiskey, 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, but made a reference to the Supreme Court under Section 259(3) of the Constitution, requested a decision on a substantive question of law relating to the interpretation and application of Section 6(6) of the Constitution. The Supreme Court held. Inter alia, that Senator Adesany did not have locus standi under the provisions of the 1979 Constitution. The issues before the Supreme Court were highlighted in the judgment of Fatayi-Williams CJN, where he stated that the questions which arose were: “…[if] a legislative enactment appears to be ultra vires the Constitution or an act infringes any of its provisions dealing with Fundamental Rights, who has locus standi to challenge its constitutionality? Does any member of the public have the right to sue? Or should locus standi be confined to those persons whose vested legal rights are directly interfered with by the measure… or to persons whose interests are liable to be specially affected by its operation…?” Fatayi-Williams CJN was of the view that Senator Adesanya lacked locus standi on the grounds that he had participated in the debate in the Senate which resulted in the confirmation of the appointment of Justice Ovie-Whiskey. Indeed, Fatayi-Williams proceeded to state that had Mr. Adesanya not been a senator, it was probable that he would have had locus standi to bring proceedings. A judgment such as that in Adesanya v. the President would be untenable today, but nevertheless had its effect on many actions before the principles enunciated in it were set aside. An example of the repercussions of that decision can be seen in the case of Chief Thomas v. Rev. Olufosoye (1986) 1 NWLR, pt. 18, p.669,  in which the Supreme Court followed the dicta of the Adesanya case,  finding. Inter alia, that: (a)    in determining the issue of locus standi, the courts had to be aware of the scope of their powers of review as provided in Section 6(6) of the Constitution where it was stated to “extend to all matters between persons or between government or authority and 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. (b)    The issue of locus standi could not be regarded independently from the provisions of Section 6(6) of the Constitution. (c)    That “the requirement of locus standi, is mandatory where the judicial power is constitutionally limited to the determination of a “case” or controversy or a “matter” which is defined by reference to criteria which include the legal capacity of the parties to the litigation. The Constitutional provisions on locus standi are contained in sections 6(6)(b), 46(1) and 272(1) of the 1999 Constitution as amended. Section 46(1) provides that “any person who alleges that any of the provision of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to the high court in that state for redress. This section relates to fundamental rights contained in chapter IV of the Constitution. Also in section 272(1), a state High Court has jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. The Supreme Court adopted a restrictive approach to locus standi in both the Adesanya  and the Olufosoye cases, and it is in the light of this approach that the decision in Chief Gani Fawehinmi v. Akilu and Togun has to be considered. It is useful at this stage to look at the jurisprudence surrounding the issue of locus standi, with special regard to English law. The rules on locus standi in England preceding Order 53 of the Rules of the Supreme Court which now governs the issue, displayed a considerable diversity both within each particular judicial remedy and between them, as is demonstrated by the simpler requirements when seeking certiorari or prohibition as compared to mandamus. Where an individual seeking mandamus had to show that a legal interest had been infringed, a person seeking certiorari simply had to show sufficient interest or be a person aggrieved. The rules which applied to the remedies of injunction and declaration required that the plaintiff show that the interference with the public right was also an interference with a private right. Alternatively, if no private rights had been interfered with, the plaintiff had to show special damage. If the individual failed to fulfill either of these two requirements, he had to make a request to the Attorney General. Although there is no written Constitution nor a provision similar to Section 6(6) of the 1999 Constitution of Nigeria, the courts in England have tended to adopt a liberal attitude towards locus standi as is demonstrated by the statement of Lord Denning M.R. in Attorney-General Ex Rel. McWhirter v. Independent broadcasting Authority (1973) 2 WLR 344 at 375, “… I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way that offends or injures thousands of Her Majesty’s subjects, then in the last resort any of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced…” 

The liberal attitude to be found in the English courts towards locus standi is tempered by the discretionary nature of the remedies involved, and the exercise of the discretion by the judiciary, ensuring that those whose claims are undeserved are not successful. The issue of locu standi in England is now governed by Section 31(3) of the Supreme Court Act 1981, and Order 53, rule 3(5) of the Rules of the Supreme Court. Order 53, rule 3(5) provides that: “No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.” The House of Lord was called upon to interpret this provision in the case of R v. Inland Revenue Commissioners, Ex. P. National Federation of self-Employed and Small Businesses Ltd,[1982] AC 617. The action involved casual labour employed by Fleet Street newspapers. Such labourers were in the habit of adopting fictitious names to avoid paying income tax. The Inland Revenue Commission (the “I.R.C.”) concluded an agreement with relevant trade unions, labourers and employers, that, if tax returns for the previous two years were filed, payment of all taxes owed for the period prior to this would not be enforced. The National Federation challenged this agreement, maintaining that the IRC had acted ultra vires its authority in concluding such a bargain. The National Federation sought a declaration to that effect and an order of mandamus compelling the IRC to collect taxes owed prior to the two-limit agreed by the IRC.

 The IRC challenged the National Federation, claiming that it lacked locus standi to bring the action. In their opinions, their Lordships made extremely useful observations on the issue of locus standi. In finding that the National Federation lacked locus standi, the House of Lords highlighted the distinction between the standing of a person to bring a case, and the merits of his case as well as demonstrated that these two factors could not always be assessed independently of each other. As Lord Wilberforce declared: “There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application; then it would be quite correct at the threshold to refuse him leave to apply… But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers and duties, and the breach of those said to have been committed.”

The National Federation’s inability to prove any illegality in the amnesty granted by the IRC resulted in their failure to establish locus standi. Nevertheless, in the same case, Lord Diplock emphasized that: “It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public 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 conduct stopped…” It is worth noting that the judgment in this case also raises the question of whether the issue of locus standi should be assessed as a preliminary issue. Nevertheless, the position is unlikely to change in the near future because of the explicit provisions in Section 31(3) of the Supreme Court Act 1981 which requires that the issue of locus standi should be resolved at the leave stage.

However, it can be seen from the speeches delivered in the cases of Attorney-General Ex rel. McWhirter v. Independent Broadcasting Authority and R v. Inland Revenue Commissioners, Ex p. National Federation of Self-Employed and Small Businesses Ltd that, generally, a liberal attitude is adopted in the English courts towards locus standi. Such a movement away from the view that individuals should only be able to vindicate their private legal rights is to be welcomed and is long overdue.

A similar movement towards a more liberal attitude towards locus standi can be seen in the judgment of the Nigerian Supreme Court, in Chief Gani Fawehinmi v. Akilu and Togun in which the Court went beyond the narrow confines of Section 6(6)(b) of the 1979 Constitution by finding that:

 (1)  The law of Nigeria has given every person a right to prevent the commission if a criminal offence, and where an offence is committed to lay a criminal charge against anyone who he sees committing the offence or who he reasonable suspects as having committed the offence in order to uproot crime from Nigerian society.

(2)  The limits imposed by Section 6(6)(b) of the 1979 Constitution restricting the class of persons having locus standi in civil matters have been broadened by the Criminal Code, the Criminal Procedure Code and the other provisions of the Constitution. As Eso J.S.C. stated: “The issue of locus standi has always been held as one of the utmost importance, by this court for in effect, too, is one that delimits the jurisdiction of the court… The courts in this country, especially this court, being a court of last resort has duty to safeguard fundamental rights.”

The Supreme Court had clearly moved away from the extremely restrictive attitudes formerly adopted by the Nigerian Courts to locus standi. Such a trend towards a more liberal attitude, adopted both in Nigeria and in England, is the most appropriate for the issue of locus standi. The judgments represent a new philosophy i.e. that an individual has a role to play in public law. An individual can vindicate the rights which he is entitled to have protected under public law, and the traditional concept of locus standi is losing acceptance. However in Adeyinka Abosede Badejo(Suing by her next friend Dr Babafemi 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 under the Fundamental Rights (Enforcement Procedure) Rules 1979. 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. With respect to his Lordship, the issue of legal standing is not dependent on the question of superiority of rights. It is not a question of whether the right of the appellant should prevail over that of the country, state or people. It is a question of whether the fundamental rights of the appellant had been infringed. Every individual should have standing subject to the discretion of the courts. The liberal view expressed in Chief Gani Fawehinmi’s case is a better view. We believe that if this liberal view is adopted we are now nearer to the achievement of action popularis (citizen action).

BY PROFESSOR LAWRENCE ATSEGBUA DEAN, FACULTY OF LAW, UNIVERSITY OF BENIN.

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