Application Of The Doctrine Of ‘Locus Standi’ To The Defeat Of Public Interest Litigation In Nigeria: A Cause For The Worsening Situations Of Nigeria

By Hameed Ajibola Jimoh Esq.

Currently in some parts of Nigeria (if not all parts), very unfortunately, chaos and unrest have ensued making things to fall apart as the center can no more hold and the adults and the young in the market square run helter-skelter for their dear lives! Many issues have no doubt degenerated the current mob on the public and private properties by some hoodlums (who took the opportunity of the peaceful protests by some Nigerians against some ills in the Nigerian societies through the #ENDSARS Movement to cause such destructions), and there are some persons who blame lawyers for doing little or nothing on the entire issues. I wish to make this note to point out that the application of the doctrine of ‘locus standi’ by our Nigerian courts to suits filed by human rights and public interests/socio-economic rights activists really worsened the Nigerian situations as they are at the moment (though, the courts cannot be blamed in a way having regard to the absence of a statute by the legislative arms of government (at both the Federal and the State levels) allowing and or giving unequivocal right to enforce and or sue for public interest matters/suits/complaints), hence, this paper to call for the need for the government and the legislators to pass Bill into law allowing any interested person to have the legal capacity to institute an action(s) in court to protect and or enforce public interest in the Nigerian courts of law and for an amendment to the Chapter II of the Constitution making same enforceable.

Iyanda v. Laniba II (2003)-LPELR, also cited as Iyanda v. Laniba II (2003)NWLR (pt.801) pg.267@288 paras C-E, the Court of Appeal of Nigeria defined ‘locus standi’ as follows ‘The nature of locus standi of a plaintiff (respondent in this appeal) is a threshold question and what constitutes locus standi of plaintiff was expantiated upon by the Supreme Court in the case of Josiah Kayode Owodunni v. Registered Trustees of Celestial Church of Christ & 3 Ors. (Joined by order of court dated December 1st, 1989 as defendants to counter-claim) (2000) 10 NWLR (Pt. 675) page 315; On denotation of “locus standi”- The term “locus standi” (or standing) denotes the legal capacity to institute proceedings in a court of law. Per Onalaja, J.C.A.’  Also, in the case of AGBOOLA v. AGBODEMU & Ors. (2008) LPELR-8461(CA), the Court further defined what constitutes a ‘locus standi’ thus “The issue of locus standi or standing to sue is indeed primeval and fundamental in any action in court. The law is trite that in our civil jurisprudence, a defendant can impeach the locus standi of a plaintiff under Section 6 (6) (b) of the 1999 Constitution. Once the locus standi of a party is challenged by the defendant, the issue must first be resolved before any other consideration of the matter. The issue can be raised at anytime in the course of trial or on appeal because it is an indirect challenge to the jurisdiction of the court. In law, 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 specified cause. It is a constitutional requirement to enable a person to maintain an action and it is limited to the prosecution of matters relating to the civil rights and obligations of the plaintiff. Put another way, the term entails the legal capacity for instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever, including the provision of any existing law. Oyewumi V Osunbade (2001) FWLR (Pt. 82) 1919; Elendu V Ekwoaba (1995) 3 NWLR (Pt. 386) 704. In the consideration of the challenge to locus standi, the references are necessarily the writ of summons and the averments in the statement of claim. It must be reiterated that when the standing of a plaintiff to institute an action is challenged, the court looks only at the writ of summons and statement of claim. It is the averments in the statement of claim that are paramount. The court shall then consider whether there is a justiciable issue before the court. Ladejobi V Oguntayo (2001) FWLR (Pt. 45) 780; Thomas V Olufosoye (1988) 2 SC 325; Elendu V Ekwoaba (Supra).” Per SANKEY, J.C.A. (Pp.30-31,paras.A-A).

Therefore, the issue of ‘locus standi’ has really restrained many activists and or lawyers (including my humble self as a human and socio-economic rights activist) who desire to render public interest matters to improve the Nigerian civil societies and ensure a balance in the conditions of such societies and their people from suing to compel public interest in our Nigerian courts! I have seen some discouraging situations too where the court would award punitive costs which run into some millions of naira against some individuals who have sued in public interests! This attempt would no doubt limit any subsequent attempt from or by any lawyer or activist in suing to enforce public interest matters!

Furthermore, it is my humble submission that since the doctrine of locus standi was a doctrine that was transplanted into Nigeria as a result of adoption of the English principles that have become applicable to Nigeria, the absence of a statute by the legislative arms of government (at both the Federal and the State levels) allowing and or giving unequivocal right to enforce and or sue for public interest matters/suits/complaints) and at best, the court restraining itself from punitive award of costs in public interest suit based on lack of locus standi are likely to continue to contribute to worsen Nigeria’s situations, hence, this paper to call for the need for the government and the legislators to pass Bill into law allowing any interested person to have the legal capacity to institute an action(s) in court to protect and or enforce public interest in the Nigerian courts of law.

Furthermore, and having observed critically that all what the youths protesting for in the #ENDSARS protest (which has been allegedly hijacked by some criminal elements who hid under the facts of exercising their fundamental right to freedom of expression by their unlawful protest, whom the government must ensure that necessary investigations and prosecution of their criminalities are not swept under the carpet so that they can face the wrath of the laws of the land) are what are contained in the Chapter II of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution, which have been held to be non-justiciable or unenforceable by Nigerian courts. This, in my humble view, with due respect, was one of the hypocrisies of the Military handover time done to all of us as Nigerians in a democractically elected government and the Courts are prohibited from making any judicial effort on the said Chapter II of the Constitution! For instance, the Supreme Court of Nigeria had decided on the unenforceability of the said Chapter II of the Constitution thus in the case of: ENGR. CHARLES UGWU & ANOR. V. SENATOR IFEANYI ARARUME & ANOR. (2007) LPELR-3329(SC) “An enactment is justiciable if only it can be properly pursued before court of law or tribunal for a decision. But where a court or tribunal cannot enforce such enactment then it becomes non-justiciable that is non-enforceable. This means that the executive does not have to comply with the enactment unless and until the legislature enacts specific laws for its enforcement. In Nigerian constitutional law, there are typical examples of such enactments particularly those contained in Chapter II of the Constitution of the Federal Republic of Nigeria, 1999, placed under the caption, ‘Fundamental Objectives and Directive Principles of State Policy’. These are not justiciable, generally, they run subsidiary to the fundamental rights contained in Chapter IV of the 1999 Constitution. See Okogie v. Attorney-General of Lagos State (1981) 1 NCLR 218.” Per Muhammad JSC. Also see the case of: UNIVERSITY OF ILORIN v. ADESINA (2008) LPELR-5072(CA), where the Court of Nigeria held thus “Section 6 (6) (a) and (b) of the Constitution for instance categorically and mandatorily provides as follows:- “(6) The judicial powers vested In accordance with the foregoing provisions of this section – (a) Shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law. (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.To the best of my knowledge, the constitution of Federal Republic of Nigeria 1999 only divests the courts of their adjudicatory powers on any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy as set out in Chapter II of the Constitution; and shall not extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law. See Section 6 (6) (c) and (d) of the 1999 Constitution.” Per AGUBE, J.C.A. (Pp.65-66, Paras.E-D).’. Therefore, if not for any ill-motive on the part of the law makers, with due respect to them, why does it become very difficult for them to amend the provisions of the Constitution in the said Chapter II of the Constitution to make these provisions which cover: economic objectives, political objectives, educational objectives, etc., as therein contained in Chapter II of the Constitution to be justiciable or enforceable against the government?! I view respectfully that this unenforceable nature of these provisions/objectives must have given rise to the alleged high level of corruption of all categories in Nigeria! Therefore, I humbly believe that many Nigerian problems or many problems of Nigerians as national issues would be resolved if Chapter II of the Constitution can be made enforceable against the government and I therefore  call on the legislators to consider amending the Chapter II of the Constitution to address and or resolve all agitations of Nigerians without delay, having regard to the amendment power in this respect conferred by section 9(2) and (4) of the Constitution!

Finally, it is my humble recommendation that there should be a law allowing any concerned member of the public to sue in public interest in the appropriate Nigerian courts and that Courts should be restrained from any punitive award of costs or damages against such Applicant (as any such award of cost would amount to threat and or intimidation aimed at discouraging such public interest litigation and the applicant subsequently and any other person intending to litigate in public interest). I also humbly recommend that the Chapter II of the Constitution should be amended by the legislature to make same justiciable or enforceable. These in my humble view, would reduce situations where complaints would have to be compiled awaiting a time such as the #ENDSARS period to unleash their grievances leading to loss of lives and properties, the situation which is very unfortunately, violent and undemocratic! I therefore call on the government to investigate these illegal acts and to bring anyone (public of private) found culpable to face the wrath of the law!

Long live the Federal Republic of Nigeria! God bless Nigeria and Nigerians!

Email: hameed_ajibola@yahoo.com