By Lawrence Atsegbua

Locus Standi refers to the legal capacity of a person to institute an action in a court of law. It is a preliminary issue and is distinct from the merits of the case. The rules on locus standi are the creation of the common law.

This paper examines the approach of the Supreme Court on the issue of locus standi. The relevant case law on the subject in Nigeria and England are also examined. In the important case of Chief Gani Fawehinmi v. Akilu and Togun, (1987) 4 NWLR, 797, Supreme Court of Nigeria had to resolve questions which would have widespread repercussions on the issue of locus standi in the Nigerian legal system.

The case related to the death of Mr. Dele Giwa, a journalist and Editor in Chief of the magazine Newswatch, who was killed by a parcel bomb at his residence in Ikeja in Lagos State. On the 3rd of November 1986, late Chief Gani Fawehinmi (“the Appellant”), friend and former legal adviser to Mr. Dele Giwa, presented to the Director of Public Prosecutions of Lagos State, a document based upon his own investigations.

In that document, Fawehinmi claimed that two army officers, Col. Akilu (Director of Military Intelligence) and Lt. Col. Kunle Togun (Deputy Director of the State Security Service), were responsible for the death of Mr. Dele Giwa. Pursuant to section 342 of the Criminal Procedure Law of Lagos State.

Fawehinmi, acting as a private prosecutor, requested that the Director of Public Prosecutions exercise the power vested in him to prosecute Col. Akilu and Lt. Col Togun for the murder of Mr. Dele Giwa, or alternatively, to endorse a certificate stating the same on the basis of the information submitted to him.

Such a certificate would have enabled Fawehinmi to bring a private prosecution against Col. Akilu and Lt. Col. Togun for murder. The Director of Public Prosecutions declined to come to a decision with respect Fawehinmi’s request until he had received the official report from the police investigation into the affair.

In response, Fawehinmi filled an application to the High Court of Lagos State for leave to apply for an order of mandamus compelling the Director of Public Prosecutions to decide whether or not he was going to bring proceedings against Col. Akilu and Lt. Col. Togun, and in the event of deciding not to prosecute, requiring him to certify that he had seen the information put forward by Fawehinmi but had decided not to prosecute as public instance.

Attached to Fawehinmi’s application was the proof of Evidence. The application was dismissed on the grounds that:

1.    The Director of Public Prosecutions had not actually refused to fulfill the obligations imposed upon him under Section 342 of the Criminal Procedure Law; and

2.    The evidence submitted was insufficient to compel the Director of Public Prosecutions to perform his duty under the Criminal Procedure Law.

Fawehinmi appealed against this decision but his appeal was dismissed by the Court of Appeal holding that he lacked locus standi to bring the application for mandamus. He then appealed to the Supreme Court which set aside the decisions of the lower courts and granted the application for leave to apply for and order of mandamus against the Director of Public Prosecutions.

The case of Chief Gani Fawehinmi v. Akilu and Togun raised important questions in relation to locus standi and the capacity of the private individuals to initiate proceedings against suspected criminals. Provisions for such actions is to be found in Section 342, of the Criminal Procedure Law, upon, which Fawehinmi based his application to the Director of Public Prosecutions.

Section 342, provides that, “The registrar shall receive an information from a private person if:

(a) It had been endorsed thereon a certificate by a law officer or Crown Counsel to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth…”

The right to bring a private prosecution has existed for many years and has formed part of the law of many countries. In Halbury’s Laws of England, 4th Edition, Vol. 11, para 97, (1976), it is described as: In the absence of statutory provisions to the contrary any person may of his own initiative, and without any preliminary consent, institute Criminal proceedings     with a view to indictment; but there are some statutes     which require that certain criminal proceedings should     be undertaken only by a judge, or by the direction, or with the consent, of the Attorney General, the Director     of Public Prosecutions or some other official person or  body.

Private prosecution is generally undertaken only in the most exceptional circumstances but provides an alternative for those who believe that he competent authorities have wrongfully refused to bring a prosecution. In the earlier case of Adesanya v. the President, 1981) 2 NCLR 358 the capacity of the private individual to bring proceedings in a court of law was discussed in depth.