Should Public Interest Litigations Be Discouraged? By Abdulrsheed Ibrahim

Two seemly public interest litigation cases somersaulted in courts recently when they were respectively dismissed. One of the two cases was instituted by Mr. Adeshina Ogunlana against the Chief Judge of Lagos State challenging the newly introduced Lagos State High Court Civil Procedure Rules 2019 while the other one was filed by one Mr. Tochi Micheal at a Federal High Court in Abuja against the Acting Chief Justice of Nigeria alleging age falsification.

Apart from the dismissal of the two cases one on the ground of being FRIVOLOUS and the other one on the ground of LOCUS STANDI, heavy costs in Millions of Nairas were respectively awarded against the Claimants/Applicants in the cases. The beauty of the judicial system we operate is that the two Claimants/Applicants are at liberty to appeal against the decisions. The appellate courts will surely have the final saying on this issue.

With the heavy costs awarded against the Claimants or Applicants in the above cases, the questions that are being asked by people now is that: Are these heavy costs being awarded meant to scare away or discourage litigants from instituting public interest litigations? Are these heavy costs justified? Mr. Femi Falana, SAN and a prominent human rights activist and public interest litigator has come out to voice out his mind on this development when he said:

“As far as the law stands, no judge has power to order a litigant to pay costs outside the ambit of the rules of the respective High Courts”… “Even in the award of costs, litigants and their counsel are given fair hearing by judges .Why then are fines imposed on litigants or lawyers without allowing them to make representation?”… “I wish to state that no judge is empowered by the constitution, High Court Law or Rules of court to impose fines of N5 million or N10 million on a litigant who has not been tried and convicted for committing a criminal offence in Nigeria”… “We are, therefore, compelled to draw the attention of our judges to the case of Fawehinmi V Akilu (1997) NWLR (Pt. 65) 979 wherein the Supreme Court overruled the case of Abraham Adesanya V. The President (1981) ANLR 1.”… “Since the anachronist’s doctrine has been set aside to pave way for public interest litigation, our judges should desist from striking out or dismissing cases which are filed to challenge impunity of public officers in Nigeria…”

Another lawyer (Kay Enitan) in a Lawyers’ Whatapps Group (LAW AND SOCIETY FORUM ) in response to this particularly on the issue of “Fines Imposed” , had this to say :

“I beg to disagree with learned Silk on his assertion that there is no law or Rules that permit the award of fines. (I believe he meant costs and reads it as such) if N5 or N10 million against a litigant …in Nigeria. Whilst I would not want to delve into the Rules of other State High Courts I will refer to Order 53 (1) and the rest of that order makes provision for award of cost and the principles to be countenanced in awarding costs.Furthermore ,when the costs are to be awarded the party against whom it is sought is given an opportunity to respond after which the judge will exercise his/her discretion as to whether to award cost or not and how much to award.I am aware that in a recent matter after a full contest and award of judgment against the claimant,where cost of N10 million was sought the Defendants’ counsel sought to justify the request for N10 million by stating he charged N5m as professional fee and also stated that items that entitled him to the amount asked and the Claimant’s Counsel in response rather than taking the issue with seriousness responded that that the Defendant’s counsel is an elder to the Claimant and as such should not be asking for costs and matter was filed to arrest a supposed impunity. The court awarded N5m. While I agree that public interest litigation should be encouraged and not be fettered in any manner,each such litigant should be sure of its standing ,the facts to be urged ,the ill to the society which he seeks to prevent must be real and potent not based on rumors or the like .You can not ‘force’ someone to defend a spurious action,incur expenses and fees and not want to pay the due cost when you eventually lose the case.I’ve not read of SERAP being ‘fined’ for bringing public interest litigation so they must be doing something right that all others need to go and understudy.”

I absolutely agree with the learned counsel, Kay Enitan without having much to add as done by some other lawyers on that platform. Public Interest Litigation is a very good thing and we must advise ourselves that when such legal battle is being prepared for those things highlighted by Kay Enitan Esq must be taken very serious. Such litigation is like a Battalion of Army going to the War. If the preparation is ill, the Battalion is bound to suffer a great defeat. Public Interest Litigation is not about playing to the gallery. This is where we have missed greatly the late Chief Gani Fawehinmi (SAN), a rare Public Interest litigator in our midst. In the book LEGAL LUMINARIES, I wrote about the late people’s lawyer that:

“One can say boldly without fear of any contradiction that till date, the shoes left behind by Chief Gani Fawehinmi is yet to have the right candidate to fit into it not only in terms of his significant contributions to the development of law but also in terms of selfless services he rendered to humanity, particularly the oppressed and the less privileged. Gani as he used to be fondly referred to during his life time derived pleasure in championing the cause of the masses.”

Gani was a good example of public interest litigator who once said about himself that: “ I have always kicked against programmes which are inimical to the aspiration of Nigerians.I have instituted more suits than any Nigerians dead or alive. As long as governments continue with their policies and programmes, so long I shall continue to challenge them through the courts because I don’t believe in waging war against one’s fatherland”. Gani did public interest litigations in abundance as I have showed in the LEGAL LUMINARIES:
“Gani took up governments and various authorities in several legal battles in the courts of law to challenge bad policies or whatever he perceived not to be in the interest of masses. When the students and authorities of the University of Maiduguri were at logger head on expulsion of some students, Gani was in court to fight legal battle on behalf of the students and at the end of the day it was resolved by the Supreme Court in Garba Vs. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 that the relationship between students and the university authorities being statutory and not contractual, any offence that bother on crime is beyond the jurisdiction of the university authorities to try . Also at one time or the other when students of various universities such as Universities of Ibadan , Lagos, Nsukka and Benin as well as Obafemi Awolowo University, Ile-Ife had problems with the authorities they found in Gani a befitting friend who was always in court to challenge the expulsion or rustication of the students.”

Late Gani was in court in the case of INEC Vs. Musa (2003) 3 NWLR (Pt.806) 72 where in succeeded in arguing the case for the creation of more political parties. He fought Inspector General of Police up to the Supreme Court on the immunity clause regarding the offices of the President, Vice President, Governor and the Deputy Governor as contained in Section 308 of the Constitution. The court eventually held in Fawehinmi Vs. Inspector General of Police (2002) 7 NWLR (Pt.767) 606 that as far as the investigation of those public officers are concerned they could be investigated but not prosecuted by the police while in office. In Fawehinmi Vs. President, Federal Republic of Nigeria (2007) 14 NWLR (Pt. 1054) 275,Court of Appeal ruled that Gani had the locus standi to challenge Chief Obasanjo for paying Mrs Okonjo Iweala and Ambassador Adeniji in foreign currency while serving as Ministers under him.

The public interest litigation is a thing lawyers must develop interest in with a view to challenge government excesses whenever the situation arises but when doing that we must do our home work properly and thoroughly. It is very unfortunate that most time you see people filling cases that will add no value to our jurisprudence but merely to waste the time and resource of the court or engage in what one of our great late Supreme Court Jurists, Pats Acholonu described as “…some matters … as frivolous or would not advance the growth of jurisprudence. Such banal, dreary and utterly vapid cases ….which counsel took up because they want to use it to advance or increase the number of cases they handle in Supreme court for the purpose of application for SAN…, not for ordinary drab, dull and strictly non-contentious issues where counsels merely wish to make themselves heard”. . Some people institute cases to embarrass other people out of hatred and malice. There was case said to have been recently filed against a particular politician who having shown interest in running for a particular position in the National Assembly on allegation of previous conviction in another country only for the Claimant or Applicant in the suit to turn round to withdraw the suit when it was discovered that Respondent being sued had been cleared in an earlier suit before the same court.

There is no doubt that by the Fundamental Rights (Enforcement Procedure Rules) 2009, the scope of the LOCUS STANDI has been expanded while at the same time the Limitation Statute is no longer applicable to issues bothering on the enforcement of fundamental rights cases. The same thing may not be said of other area of laws where Public Interest Litigation may become necessary but could be checkmated by the issue of Locus Standi and Statute of Limitation being raised for the determination of the court. The issue on award of cost most time in practice is usually raised by the successful party who wants to be compensated for the expenses he has incurred in the cause of litigation. Whenever the court is asked for a cost by a party against the other party ,court will ask for the reaction of the other party before the court goes ahead to exercise its discretion in awarding cost. The practice in those days as reflected in some some old judgments which seems not to be in vogue this time around was that after a ruling or judgment had been delivered, the presiding judge would say “I will now hear the counsel to the parties as to the cost”. If you have read the trial court judgment delivered by the late Honourable Justice J.I.C. Taylor on 12th November 1971 in the celebrated case of ADEBAJO Vs ADEBAJO argued before him by Chief F.R.A Williams and Mr. Kehinde Sofola, the learned Chief Justice of Lagos State after delivering the judgement said:

“I shall hear the parties on costs”

It will not be in the interest of anyone to discourage the filing of Public Interest Litigations in our court of law as the law is already settled that no matter how frivolous a case is, it must be determined by the court in one way or the other.But we must against sound a note of warning that what worth doing worth doing well. If you file a suit that you cannot sustain or lack merit, it will be at your own peril. One of the ways to develop our law is through Public interest litigation to challenge the lawlessness and excesses of government and its officers as done by the like of late Chief Gani Fawehinmi, the Senior Advocate of the Masses in many instances.

We must here make a passionate appeal to our judges to display high level of tolerant and decent comportment require of good judges when public interest litigations come before them rather than being hostile.The attitude of some judicial officers to counsel appearing before them does not portrait a good fraternity between the Bar and the Bench. I once asked on this platform whether the fraternity between the Bar and Bench had gone on flight. In recent time there are things pointing to the fact that the relationship between the Bar and the Bench is not cordial enough. There is this attitude of “THEY and US” particularly from the Bench to the Bar. For instance in the course of amending the Lagos State High Court Civil Procedure Rules 2019 , I don’t think the members of bar were sufficiently carried along talk less of being co-opted into the Committee that amended the Rules. Even when Lagos State Judiciary eventually called for suggestions and recommendations from the bar, am still not sure whether the one submitted by the NBA Lagos was given consideration to reflect in the new Rules. There was even complaint by the branch that the draft of the new Rules was not made available to the NBA Lagos despite the request . In Anambra State , lawyers have threatened to go on court boycott on the introduction of the new Rules which they said they had no input in it particularly on the new regime of the filing fees introduced. Since the Chief Judge of Anambra State has agreed to meet with the lawyers, one prays for a successful deliberation between the Bar and the Bench

In a ceremony organized on 6th June 2019 by the Lagos State Judiciary in honour the retiring Chief Judge at the Foyer of the Lagos State High Court, Igbosere, am not yet sure whether the members of bar in Lagos State were actually invited to the ceremony or not. All these are pointers to the fact that there is the urgent need to positively improve on the relationship between the Bar and the Bench which I believe rests squarely on the leadership of the two arms of the legal profession.

REMARKABLE PRONOUNCEMENT ON ACCESS TO COURT

I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written federal constitution, where rumour-mongering is the pastime of the market places and the construction sites. To deny any member of such a society who is aware or believes, or is led to believe, that there has been an infraction of any of the provisions of our constitution, or that any law passed by our legislature, whether federal or state is unconstitutional, access to a court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organized disenchantment with the judicial process. In the Nigerian context, it is better to allow a party to go to court and to be heard than to refuse him access to our courts. Non-access, to my mind, will stimulate the free-for-all in the media as to which law is constitutional and which is not. In any case, our courts have inherent power to deal with vexatious litigants or frivolous claims. To re-echo the words of learned Hand, ‘If we are to keep our democracy’, there must be one commandment, thou shall not ration justice.

Per FATAYI-WILLIAMS, CJN in Adesanya Vs. President of Nigeria (1979-81) NSCC 146 at Pg. 157

THE SETTLED PRINCIPLE OF LAW

On nature of claim that can be brought under the fundamental rights procedure rules

It is the law, as held by the Supreme court in a long line of cases dealing with actions for enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules that when an application is brought under that rules a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights or the securing of the enforcement thereof should be the main claim and not an accessory claim. That where the main or principal claim is not the enforcement or securing the enforcement of a fundamental rights, the jurisdiction of the court cannot be properly exercised as it will be incompetent….Thus where court found that the main complaint of an applicant under the Fundamental Rights (Enforcement Procedure) Rules was his disposition as the emir or termination of his appointments, the alleged breaches of his fundamental rights to fair hearing, liberty and freedom of movement were merely ancillary to his primary complaint and therefore the adopted procedure declared inappropriate.

See Tukur Vs. Gov. of Taraba State (1997) 6 NWLR (Pt. 510) 549; Egbuono Vs. BRTC (1997) 12 NWLR (Pt. 531) 29; AKINOLA Vs. V.C. UNILORIN (2004) 11 NWLR (Pt. 885) Pgs. 638-639 Paras H, A-D

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