Locus Standi

Locus Standi is a threshold issue in litigations that affects access to justice, jurisdiction, judicial powers and remediation of civil wrongs in the field of constitutional and administrative law. The Supreme Court’s decision in Abraham Adesanya v President, Federal Republic of Nigeria stands as the watershed for the modern approach for the application of locus standi in Nigeria.

The term ‘locus standi’ denotes the legal capacity to institute proceedings in a court of law and is used interchangeably with terms like ‘standing’ or ‘title to sue’. Essentially, locus standi is the way in which the courts determine who may be an applicant for judicial review or remedies. If a particular applicant is found to have standing to sue, then they will be permitted to have their request heard (although determining that an applicant has locus standi will not necessarily mean that they will be successful in their final application). On the other hand, if the applicant is not found to have standing to bring the action, the court will not hear their complaint.

Locus standi as applied in Nigeria has its root in common law as developed in England. Thus, under the common law, a person could only approach a court of law if he or she has sufficient, direct and personal interest in the matter. A plaintiff must in general show that he or she has some special interest or has sustained some special damage greater than that sustained by an ordinary member of the public. The common law position on locus standi has, however, been criticized as rather restrictive.

Locus Standi in Nigeria

Essentially the courts’ approach followed the common law until the coming into force of the 1979 Constitution and its provisions, especially sections 6(6), 33 and 42(1) (now sections 6(6) 36 and 46(1) of the1999 Constitution). According to the decisions of the Nigerian courts, 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.

For a person to have locus standi, he must have sufficient interest and be able to show that his civil rights and obligations have been or are in danger of being infringed. In effect, the person instituting an action before the court must have legal capacity otherwise the court is robbed of the necessary jurisdiction to entertain the matter.

In Onyia v Governor in Council thus, the plaintiff instituted a declaratory action to declare that the Governor acted contrary to law in amending the instrument establishing Asaba Urban District Council. The defendant’s preliminary objection on point of law that the plaintiff had no particular or special interest in the matter or that the act of defendant complained of is one that entitled him to sue… in a private capacity, to enforce a public right, were accepted by the court, and consequently, the action was dismissed.

Locus Standi and Justiciability

The Abraham Adesanya v President, Federal Republic of Nigeria decision of the Supreme Court is the locus classicus on the modern approach of the courts on locus standi. In that case, Abraham Adesanya, then a serving Senator in the National Assembly, instituted an action against the President of the Federal Republic of Nigeria challenging the appointment of Justice Ovie-Whiskey as the Chairperson of the Federal Electoral Commission (FEDECO). At appeal, the President of the Court of Appeal raised the question of whether or not Senator Adesanya had standing to have instituted the action, and therefore invited counsels to address the Court on the issue. In its ruling, the Court of Appeal held that Senator Adesanya had no locus standi to have challenged the appointment. Aggrieved by this decision, he appealed to the Supreme Court. The apex court dismissed the appeal and affirmed the judgment of the Court of Appeal on locus standi. The Court held further that Senator Adesanya, having participated in the deliberations of the Senate in connection with the subject matter over which his views in Senate were not accepted by majority of his fellow Senators before instituting the suit, had no locus standi to challenge the constitutionality of the appointment in the court.

Fatayi-Williams CJN read the leading judgment that explained the approach applicable in determining locus standi in Nigeria thus:

“…the law is now well settled that the plaintiff will have locus standi in the matter only if he has a special legal right or alternatively, if he has sufficient or special interest in the performance of the duty sought to be enforced, or where his interest is adversely affected. What constitutes a legal right, sufficient or special interest, or interest adversely affected, will, of course, depend on the facts of each case. Whether an interest is worthy of protection is a matter of judicial discretion which may vary according to the remedy asked for.”

However, it was Bello JSC whose judgment injected a liberal dose of justiciability requirement of section 6(6)(b) of the Constitution into locus standi when he stated as follows:

“It is a common ground in all the jurisdictions of the common law countries that the claimant must have some justifiable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. In most cases the area of dispute, and some time, of conflicting decisions has been whether or not on particular facts and situation the claimant has sufficient interest or injury to accord him a hearing. In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case”:

The section material to the issue is section 6 (6) (b), which reads:

"The judicial powers vested in accordance with the foregoing provisions of this section (b) shall extend to all matters between person, 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;"

It may be observed that this sub-section expresses the scope and content of the judicial powers vested by the Constitution in the Courts within the purview of the sub-section. Although the powers appear to be wide, they are limited in scope and content to only matters, actions and proceedings "for the determination of any question as to the civil rights and obligations of that person". Thus, upon construction of the sub-section, it is only when the civil rights and obligations of the person, who invokes the jurisdiction of the court, are in issue for determination that the judicial powers of the courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.

The celebrated decision in Fawehinmi v Akilu however, opposed the decision in the Adesanya case, calling the scope of locus standi in the latter case, a narrow approach. The case of Fawehinmi v Akilu adopted a liberalised approach. See the dictum of Obaseki JSC where the learned justice in delivering the leading judgement stated that whilst agreeing with the sufficient interest test, the use of S. 6(6)(b) of the constitution narrows the scope of locus standi in the sense that only civil matters or obligations can then be enforced at court. The court then proceeded to state that the narrow confines to which S. 6(6)(b) restricts the class of persons entitled to locus standi in civil matters have been broadened by the Criminal Code, the Criminal Procedure law and the Constitution itself. Thus, the powers of arrest and prosecution conferred by the various sections of the Criminal Code and the Criminal Procedure Law on any person has the magic effect of giving locus standi to any person who cares to prosecute an offender if and only if, he saw him committing the offence or reasonably suspects him of having committed the offence.

The approach and test of the Adesanya case has not only won out but has become the mantra for the determination of locus standi of applicant/plaintiff in a legion of cases decided by the Supreme Court, followed by the Court of Appeal and the lower courts, especially in matters on administrative law. In the recent case of Taiwo v Adegbooro the test for determining whether a person has locus standi was reduced to a formula: (a) the action must be justiciable; and (b) there must be a dispute between the parties.

Sufficient interest Test

The ‘sufficient interest’ test has been applied in several cases, in recent times by the Court of Appeal. In Centre for Oil Pollution Watch v NNPC relying on the Supreme Court’s decision in Pam v Mohammed exposited on the requirement of sufficient interest as the law, in these words:

“It is the law that to have locus standi to sue, the plaintiff must show sufficient interest in the suit or matter. One criterion of sufficient interest is whether the party could have been joined as a party in the suit. Another criterion is whether the party seeking redress or remedy will suffer some injury or hardship arising from the litigation. If the Judge is satisfied that he will so suffer, then he must be heard, as he is entitled to be heard. A party who is in imminent danger of any conduct of the adverse party has the locus standi to commence action.”

Nigeria has thus, like most Commonwealth systems, adopted the test of ‘sufficient interest’ in interpreting locus standi, especially for non-constitutional law, litigation, and even in constitutional law cases, the applicant/plaintiff must plead sufficient constitutional interest to sustain and meet locus standi requirement.

Locus Standi and Public interest litigation

The doors of locus standi are unfortunately closed up in the light of public interest litigation or litigation on behalf of a group of persons based on the Sufficient Interest test. This is a wormhole which must be remedied by the Courts if we are to achieve progress or development.

On the whole, our Courts must be prepared to liberalize the traditional locus standi requirement in public interest or action popularis litigation, by adopting an approach that involves their acceptance, particularly in those areas where a large number of people are equally affected by governmental irregularity, flagrant abuse of power, or callous indifference to the plight of the generality of the citizenry, but where no particular person is singled out or no single person can meet the burden of injury or interest required under the traditional locus standi requirement.

Especially, where the subject matter is otherwise appropriate for judicial resolution, and the application is timely, for in such instances, to deny standing would be to render important areas of governmental activity immune from censure or judicial oversight/review for no better reason than that they affect a large number of people, and the Attorney General is vested with the constitutional duty of instituting actions to protect public interest (as it is a well-known fact to Nigerians, including judges, that the Attorney General, Federal or State, will never institute a public interest litigation against the government that it serves).

A citizen or a non-governmental organization should therefore be entitled at a liberalized discretion of the court to bring an action alleging invalid governmental action or public activity, except is can be shown from a consideration of the statutory framework that the range of persons with standing was intended to be narrower than this.

Locus Standi in relation to Jurisdiction

The relationship between locus standi and jurisdiction was discussed by the Supreme Court in Ajayi v Adebiyi where it was observed that locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the court before which an action is brought. Thus where there is no locu standi to file an action, the court cannot properly assume jurisdiction to entertain the action, it is a condition precedent to the determination of a case on the merit. Thus locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal or Supreme Court by any party without leave of court or by the court itself suo motu.

Conclusion and Recommendations

As a threshold issue that has direct bearing on the right of access to the court, the approach to the application of locus standi by the apex court need to shift from that in the Adesanya v President, Federal Republic of Nigeria approach that has been avowedly acknowledged to be restrictive by the Justices of the apex in Fawehinmi v Akilu. The Supreme Court should clarify its approach by either reconciling its decisions in the two cases or adopting the liberalized approach in the latter case and overrule the former. In the same vein, the apex court must disentangle section 6(6)(b) from locus standi and expunge justiciability out of locus standi.

The sufficient interest test need to be upgraded to meet the demands of constitutional and administrative law, especially in public interest litigation if locus standi is not to become an instrument of keeping governmental maladministration and corruption out of public scrutiny and oversight.

On the whole the following recommendations are proffered to enhance the clarity of the courts approach in the application of locus standi in Nigeria:

1. The Supreme Court must resolve the seeming conflicting approach adopted by it in the two cases of Adesanya v President, Federal Republic of Nigeria and Fawehinmi v Akilu, and if need be, overrule its approach in the former.
2. The Supreme Court need to clarify the underlying principle of locus standi in relation to section 6(6)(b) and justiciability.
3. Clearly there is the urgent need to clarify and liberalize the locus standi in public litigation/actio popularis matters to achieve the ends of administrative law to achieve rule of law, accountability and development.
4. The sufficient interest test need to be upgraded to meet the demands of constitutional and administrative law.