By Lawrence Atsegbua

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

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