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The Supreme Court’s approach to locus standi (3)

By Lawrence Atsegbua

…which include the legal capacity of the parties to the litigation. The Constitutional provisions on locus standi are contained in sections 6(6)(b), 46(1) and 272(1) of the 1999 Constitution as amended.

Section 46(1) provides that “any person who alleges that any of the provision of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to the high court in that state for redress. This section relates to fundamental rights contained in chapter IV of the Constitution. Also in section 272(1), a state High Court has jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

The Supreme Court adopted a restrictive approach to locus standi in both the Adesanya  and the Olufosoye cases, and it is in the light of this approach that the decision in Chief Gani Fawehinmi v. Akilu and Togun has to be considered. It is useful at this stage to look at the jurisprudence surrounding the issue of locus standi, with special regard to English law.

The rules on locus standi in England preceding Order 53 of the Rules of the Supreme Court which now governs the issue, displayed a considerable diversity both within each particular judicial remedy and between them, as is demonstrated by the simpler requirements when seeking certiorari or prohibition as compared to mandamus. Where an individual seeking mandamus had to show that a legal interest had been infringed, a person seeking certiorari simply had to show sufficient interest or be a person aggrieved.

The rules which applied to the remedies of injunction and declaration required that the plaintiff show that the interference with the public right was also an interference with a private right. Alternatively, if no private rights had been interfered with, the plaintiff had to show special damage. If the individual failed to fulfill either of these two requirements, he had to make a request to the Attorney General.

Although there is no written Constitution nor a provision similar to Section 6(6) of the 1999 Constitution of Nigeria, the courts in England have tended to adopt a liberal attitude towards locus standi as is demonstrated by the statement of Lord Denning M.R. in Attorney-General Ex Rel. McWhirter v. Independent broadcasting Authority (1973) 2 WLR 344 at 375,

“… I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way that offends or injures thousands of Her Majesty’s subjects, then in the last resort any of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced…”

The liberal attitude to be found in the English courts towards locus standi is tempered by the discretionary nature of the remedies involved, and the exercise of the discretion by the judiciary, ensuring that those whose claims are undeserved are not successful. The issue of locu standi in England is now governed by Section 31(3) of the Supreme Court Act 1981, and Order 53, rule 3(5) of the Rules of the Supreme Court. Order 53, rule 3(5) provides that:

“No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”

The House of Lord was called upon to interpret this provision in the case of R v. Inland Revenue Commissioners, Ex. P. National Federation of self-Employed and Small Businesses Ltd,[1982] AC 617. The action involved casual labour employed by Fleet Street newspapers. Such labourers were in the habit of adopting fictitious names to avoid paying income tax.

The Inland Revenue Commission (the “I.R.C.”) concluded an agreement with relevant trade unions, labourers and employers, that, if tax returns for the previous two years were filed, payment of all taxes owed for the period prior to this would not be enforced.


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