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| PRITCHARDS O. OSARIEMEN (LLB UNIBEN) |
Introduction
The right of the complainant to institute court proceedings, locus standi, is one of several consideration of the appropriateness or inappropriateness of the subject matter of litigation for judicial consideration. Any question of justiciability is addressed by the court before it proceeds to a consideration of the merits of any claim. Thus, locus standi is a condition precedent to any hearing of an alleged cause of action. The term locus standi denotes legal capacity to institute proceedings in a court of law and is used interchangeably with terms like “standing” or “title to sue”.1 It had also been defined as the right of a party to appear and be heard on the question before any court or tribunal.1 It is the “the right or competence to institute proceedings in a court for redress or assertion of a right enforceable at law”.1 It has also been stated that a party prosecuting an action would have locus standi, where the reliefs claimed would confers some benefits on such party.1
In this work, the writer undertakes to analyze the practice of locus standi in Nigeria, and the need for judicial and legislative intervention with a view to reducing its harshness.
The doctrine of locus standi over the years had been a major concern in the consideration of the merits of plethora of cases in Nigeria. At this, one would wonder whether Nigerian courts that preach against the sacrifice of justice on the altar of technicality are only paying lip services.
LOCUS STANDI AND THE CONSTITUTION
The Constitution of the Federal Republic of Nigeria appears to offer to Nigerians more access to the courts to protects fundamental rights.1 The doctrine of locus standi in Nigeria suggest that before a person can approach the court for a redress, such one must have sufficient interest, suffer an injury or had his right infringed. In Olowoyin v. Attorney General,1 a father challenged the constitutionality of a statute which prohibited political activities by juveniles. He argued that he wished to educate his children about politics but could not do so under the statute. The lower court dismissed the suit on the ground that no right of the plaintiff was alleged to have been infringed. 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.1
The above decision of the court could be faulted when juxtaposed with the provision of the Constitution at that material time. Precisely, section 42(1)1 provides that any person who alleges that any of the provisions of this Chapter has been; is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.
In reality, the mere existence of an unconstitutional statute presents an imminent injury. A statute prohibiting an act has an intimidating effect. Persons unsure whether the statute legitimately governs their behavior may unduly restrict their actions to avoid a possible violation of the statute with its attendant criminal penalties.
Professor Mowoe1 argues that uncertainty as to the true state of rights potentially infringed should be sufficient for standing. A person should not have to wait until a right has been abridged to challenged legislation.1 The Constitution1 protects Nigerians from that exposure by allowing a judicial challenge to any statute by anyone who may be subject to it. Plaintiffs would need only show an intention to engage in the prohibited behavior to satisfy this standing threshold. At this it could be submitted that Olawoyin’s case decided in 1961, has been overruled by section 42(1) of 1979 Constitution.1
Another notable case that was impaled on a torture stake of locus standi was the case of Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & Others.1 The appellant instituted action against the respondents to challenge the appointment of the 2nd respondent by 1st respondent as chairman of the Federal Electoral Commission on the ground that the 2nd respondent was the Chief Judge of the Bendel State at the time of his appointment. The court of first instance granted the appellant’s relief that the appointment is unconstitutional, null and void. The Court of Appeal set aside the verdict of the Lagos High Court on the ground that appellant did not show how his personal interest had been affected. The Supreme Court upheld the judgment of the Court of Appeal.
The Court of Appeal and the Supreme Court, with due respect were in error by not giving liberal interpretation to the provisions of the 1979 Constitution vis-à-vis the issue of locus standi. It is a dangerous precedent in our legal system to regard the principle of locus standi in the case of Momoh v. Oletu1 as a general principle of law without putting qualification on it. Senator Abraham Adesanya is a citizen of Nigeria and by the preamble of the 1979 Constitution1 he and other Nigerians have entered into a social contract to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in Nigeria on the principles of freedom, equality and justice and for the purpose of consolidating unity of Nigerians.
The judges and every Nigerians entered into this social contract as Senator Adesanya had done with all other people that everything that is done in Nigeria will be based on justice. This principle of social contract transcends that of personal interest on the ground that social contract is binding on all Nigerians including the judges. Under the principle of privity of contract, persons who are privy or parties to a contract can enforce the terms of such contract.1 If any citizen appears in court and his complaint in court is that the provisions of the Constitution is being violated by any person or government, the principle of social contract will confer on him locus standi to maintain the action.
Nigerians enter into the social contract to ensure that there is no anarchy in the land and that the business of the government will be conducted in accordance with the laid down procedures. In Thomas v. Olufosoye,1 the appellants are all communicants of the Anglican Communion within the dioceses of Lagos. They brought action to challenge the translation of respondent as the Bishop of Lagos on the ground that all the procedures that must be followed under the Constitution of the Church before he could be appointed as a Bishop were not followed. Their claim was dismissed by the two courts below on the ground that they did not show how their interest had been affected by the appointment of the respondent. The Supreme Court dismissed the appeal on the same ground. With due respect, the decision of the Supreme Court in Thomas v. Olufosoye (supra) is not a good law. The Constitution of the church is the contract between the church and its members. The members are under legal obligation to observe and keep strictly to the Constitution. The church is maintained by the fund or money that is contributed by the members of the church. Any member that is aggrieved that the procedures that are laid down in the Constitution of the church are not followed in the administration of the church can seek redress in court on the ground that the Constitution is binding on him and all other members of the church and that he has been contributing financially to the growth of the church. The person who is seeking the appointment is bound by the Constitution of the church and since the constitution of the church is the social contract between the church and its members, it will confer locus standi on any member of the church to challenge the breach of its provisions.
The principle of locus standi in the case of Momoh v. Oletu1 should be modified to meet the challenges of modern society. The facts in the case of Senator Adesanya and Thomas v. Olufosoye1 can be distinguished from the case of Momoh v. Oletu1 on the ground that in chieftaincy matter, there is no Constitution that binds the members of the family together except native law and custom which can change or be altered by legislation with the trend of the modern development.
It could also be noted that in a suit filed by the prominent human right activist, Mr. Femi Falana on August 2010 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 plaintiff lacks the locus standi to maintain the suit.
In the substantive suit Mr. Femi Falana sought a declaratory relief to the effect that the members of the National Assembly are not entitled to receive any payment outside the salaries and allowances determined and fixed for them by the Revenue Mobilization and Fiscal Allocation Commission pursuant to section 70 of the Constitution. In support of the originating summons Mr. Falana accused the legislators of usurpating the Constitutional powers of the Revenue Mobilization and Fiscal Allocation Commission by taking advantage of passing Appropriation Bills into law to make themselves the highest paid lawmakers in the world. While relying on the case of Fawehinmi v. the President1, Mr. Falana also submitted that his legal standing to promote good governance has been constitutionally guaranteed. In opposing the suit, the Attorney General of the Federation and the National Assembly through their counsel challenged the locus standi of Mr. Falana to question the salaries and allowances of the Federal Lawmakers. The defendants’ lawyers described Mr. Falana as busybody who has not shown that his personal interest has been affected by the Jumbo pay of the Legislators. They therefore urged the trial court to dismiss the suit case on the authority of Abraham Adesanya v. The President1.
In his judgment, the Chief Judge of the Federal High Court, Justice Ibrahim Auta held that Mr. Falana lacked the locus standi to institute the case as he did not prove that he had suffered any greater injury than other Nigerians citizens as a result of the actions of the lawmakers.1
With due respect to the learned trial judge, his decision is another clear case of denial of vigilant Nigerians of access to justice. The singular fact that the plaintiff is a faithful tax payer of Nigeria coupled with the facts that he is a party to the social contract as contemplated in the preamble to our Constitution and his quest to be his brother’s keeper, are sufficient reasons for him to challenge such an express manipulation of parliamentary powers for the service of self.
Eminent jurists also expressed their concern that the Federal Government might not be able to maintain action in court against the Zamfara State Government when that State introduced the Sharia Law into her legal system on the ground of lack of locus standi. The short answer to this is that under the Constitution, the Federal Government has the responsibility to maintain law and order throughout the country and if there is breakdown of law and order in any State of the Federation, the Federal Government will be called upon to restore law and order, therefore, it has locus standi to maintain action against any state that does anything that can lead to the breakdown of law and order.
LOCUS STANDI AND THE CONCEPT OF PUBLIC INTEREST LITIGATION
Public interest litigation is a legal action instituted in a court of law for the enforcement of interest in which the public or a class of community has a pecuniary interest. The rationale behind this legal concept is mainly to institute actions to curb state powers and to restrain the government from trampling on the political and civil rights of its citizens and it can also be used to compel government to undertake certain actions that will be in the overall interest of the general populace.
In public interest litigation, it does not really matter whether the action in question was instituted by a singular individual or as a class action or even where the remedy sought may not benefit the applicant directly.
The concept of public interest litigation is interwoven with locus standi and thus it will be very difficult to engage in an intellectual discuss on public interest litigation without also discussing the issue of locus standi. As we have in Nigeria and in other jurisdictions, the issue of locus standi does not depend on the success or merit of the case but on whether the plaintiff has sufficient interest in the subject matter of the dispute.
The Fundamental Right Enforcement Rules1 tacitly provides for public interest litigation for persons or class of persons whose right has been infringed. The preamble to the Fundamental Right Enforcement Procedures Rules expressly provides: “No human right case may be dismissed or struck out on want of locus standi.” Further, the Enforcement Rules1 defines the following concept as follows:
“Applicant” means a party who files an application or on whose behalf an application is filed under the rules.
“Application” an applicantion brought pursuant to these rules by or on behalf of any person to enforce or secure the enforcement of his fundamental rights.
“Public interest” includes the interest of Nigerian society or any segment of it in promoting human right and advancing human right law.
The implication of the above interpretations is that it has basically expanded the concept of locus standi in order to promote public interest litigations in the field of human rights in Nigeria. Founded on this, vigilant individuals though not directly affected by the actions and inactions of government or its agencies and other private bodies, as long as it infringed on the rights of Nigerians as guaranteed in the Constitution, can maintain an action in court for the interest of Nigerians.
LOCUS STANDI AND THE CRIMINAL LAW
Prosecution of offenders under a written law in any court vested with criminal jurisdiction in Nigeria is the responsibility of certain authorities and persons who are statutorily empowered to act in that regard. This is because generally speaking, crime is an offence against the State and hence, it is the state’s responsibility to ensure that a transgressor does not go unpunished so as to serve as deterrent to others. In the same vein, a victim or a relation of a victim is not empowered to prosecute the offender except in certain circumstances.
The events leading to the Gani Fawehinmi suit on the Dele Giwa saga may no longer be fresh in our memories.1 On the 19th of October, 1986, Dele Giwa, a Journalist and Editor of Newswatch magazine was killed in his residence at Ikeja, Lagos by a parcel bomb. On the 3rd of November, the appellant, a friend and legal adviser submitted to the respondent, a 39 pages document of details of investigation he conducted with information, accusing two army officers of the murder of Dele Giwa. Pursuant to section 341(2) of the Criminal procedure law of Lagos State, the appellant requested the respondent to exercise his discretion whether or not he would prosecute them and if he declined, to endorse the certificate to that effect so as to enable the appellant prosecute them personally. The respondent stated that he could not come to such decision till he had received a report of police investigation. The action was brought for leave to apply for a writ of mandamus to compel the respondent to decide whether or not to prosecute the two to decide whether or not to prosecute the two accused persons and if not to endorse the information accordingly. This was rejected by the High Court of Appeal because of lack of standing. On appeal to the Supreme Court, which set aside the earlier judgments, it was held inter alia that the appellant as a person, a Nigerian, a friend and legal adviser to Dele Giwa has a personal and private right under the criminal procedure law to see that a crime is not committed and if committed to lay a criminal charge for the offence against anyone committing the offence or whom he reasonably suspects of having committed the offence. The laws of Nigeria has given every citizen a right to prevent the commission of a criminal offence, and where an offence is committed, to lay a criminal charge against anyone seen committing it, so as to uproot crime from our society. The Criminal Code and the Criminal Procedure Law of Lagos State and similar laws all over Nigeria, have made everyone his brother’s keeper in relation to prevention and punishment of crime. The narrow confines to which section 6(6)(b) of 1979 Constitution restricts the class of persons entitled to locus standi, in civil matters was held to have been broadened by the Criminal Code, the Criminal Procedure Law. According to Obaseki, JSC (who read the lead judgment) criminal law is addressed to everyone as the rules that they are bound to obey on pain of punishment to ensure order in society, and maintain the peaceful existence of the society. The peace of the society is the responsibility of everyone and as far as protection against crime is concerned, everyone is the brother’s keeper.1 Eso JSC in agreeing with this, stated that the decision must be seen as going beyond that of Senator Adesanya v. President of Nigeria1. Since the court is the guardian of the Constitution, it has the Constitutional legal and sociological responsibility to interpret it in the light of the socio-economic and cultural background of the people for whose background it is fashioned. Only a broad interpretation can serve this end. We are our brother’s keeper more in Nigeria where the concept of family and extended family transcend barriers and is different from the English position.1
At this it could be reasoned that if their lordships in this case, as in the words of Obaseki JSC, that the peace of the society is the responsibility of all persons in the country and that every person in the society is each other’s keeper, then the violation of the Constitution should not be an exception, because, the Constitution of the Federal Republic of Nigeria was made for the purpose of promoting peace, good government, freedom, equality and justice. We cannot only be our brother’s keeper in relation to the prevention of the commission of crime but also we need to be our brother’s keeper in the prevention of the violation of our brother’s rights as guaranteed in the Constitution.
The legal and sociological responsibility of the courts to interpret our laws in the light of the socio-economic and cultural background of the people for whose background it is fashioned, should not only be applied in criminal matters but also in Constitutional matters, providing a leeway for Nigerians to be their brother’s keeper in the protection of their fundamental rights.
LEGISLATIVE CREATION OF LOCUS STANDI
In order to lessen the constraints of the requirement of locus standi, the United States Congress enacted the Civil Right Act of 1871. Part of the Act says that every person, who under colour of any statute, ordinance, regulation, custom or usage of any State or territory, subjects, or causes to be subjected any citizen of the United States or other persons within the jurisdiction thereof, to the deprivation of any rights, privileges or immunities secured by the Constitution and laws shall be liable to the person injured in an action at law, suit in equity or other proper proceeding for redress.
This is an instance of the legislature deliberately creating a locus standi because the liability of any person who under colour of law, deprives any citizen of any of the rights guaranteed is not dependent on an action filed only by the person whose right has been violated.1
The Fatal Accidents Act1 also takes care of the constraints of locus standi in the event of any violation of the right to life guaranteed in the Constitution1, which provides that every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.
Surely, someone already deprived of his life cannot be alive to file a suit in the High Court vindicating his right to life, guaranteed by the section, who else will have a standing to ask for redress in the court? If the phraseology in the section shall be followed strictly, surely no other person can seek redress. The Fatal Accidents Act 18461, Tort Law of Bendel State 19761, and other relevant laws in the country have now rescued the situation. Section 3 of the Tort Law of Bendel State provides:
“Whenever the death of a person shall be caused by the fault of any other person and the fault is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured…”
Section 4 further provides:
“Every such action as is maintainable by virtue of this part shall be for the benefit of the wife or wives, husband, parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the executor or administrator of the person deceased…”
This means that the next of kin or relation can maintain an action against any person who must have deprived the bread winner of his life. The argument of locus standi will then not arise.1
These statutory provisions show that locus standi can be legislatively created. Because of the injustice that the application of locus standi has created the National Assembly should enact a law to modify the common law concept of locus standi.
CONCLUSION
There is an impulse in Nigeria to decide difficult questions of substantive law obliquely in the course of opinions purporting to do nothing more than determine what the court labels locus standi. Much of what passes for locus standi analysis is more correctly subtleties used by the court to close the courthouse door to litigations it does not want to hear. A determination that a plaintiff lacks standing serves as a surrogate for disposition on the merits.1
At present in Nigeria, there is high level of illiteracy, so that many do not know their right let alone knowing the procedure with a view to invoking such right. If we were to be our brother’s keeper as advocated by the justices of the Supreme Court in Akilu’s case, then individuals who are vigilant as regard to the law, though not “personally affected” should be allowed to seek redress of injury done to his brother.1
Based on the social contract theory, having a “Constitution to ourselves” as stated in the preamble of our Constitution makes all Nigerians parties to the contract not only to be bound by the provisions of the Constitution but also the locus standi to maintain an action against anybody, institution or the government who by their actions or inactions infract its provisions.
Nigerian courts would do well to approach the doctrine of locus standi from constitutional perspective which this writer believes will allow greater access to its judicial system. In Nigeria, access to the court is constitutionally guaranteed.1
AUTHOR:
PRITCHARD OSARIEMEN ESQ.
PRITOSALU@GMAIL.COM
08137113009
