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The Supreme Court’s approach to locus standi (4)

By Lawrence Atsegbua

The National Federation challenged this agreement, maintaining that the IRC had acted ultra vires its authority in concluding such a bargain. The National Federation sought a declaration to that effect and an order of mandamus compelling the IRC to collect taxes owed prior to the two-limit agreed by the IRC. The IRC challenged the National Federation, claiming that it lacked locus standi to bring the action.

In their opinions, their Lordships made extremely useful observations on the issue of locus standi. In finding that the National Federation lacked locus standi, the House of Lords highlighted the distinction between the standing of a person to bring a case, and the merits of his case as well as demonstrated that these two factors could not always be assessed independently of each other. As Lord Wilberforce declared:

“There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application; then it would be quite correct at the threshold to refuse him leave to apply… But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers and duties, and the breach of those said to have been committed.”

The National Federation’s inability to prove any illegality in the amnesty granted by the IRC resulted in their failure to establish locus standi. Nevertheless, in the same case, Lord Diplock emphasized that:

“It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped…”

It is worth noting that the judgment in this case also raises the question of whether the issue of locus standi should be assessed as a preliminary issue. Nevertheless, the position is unlikely to change in the near future because of the explicit provisions in Section 31(3) of the Supreme Court Act 1981 which requires that the issue of locus standi should be resolved at the leave stage.

However, it can be seen from the speeches delivered in the cases of Attorney-General Ex rel. McWhirter v. Independent Broadcasting Authority and R v. Inland Revenue Commissioners, Ex p. National Federation of Self-Employed and Small Businesses Ltd that, generally, a liberal attitude is adopted in the English courts towards locus standi. Such a movement away from the view that individuals should only be able to vindicate their private legal rights is to be welcomed and is long overdue.

A similar movement towards a more liberal attitude towards locus standi can be seen in the judgment of the Nigerian Supreme Court, in Chief Gani Fawehinmi v. Akilu and Togun in which the Court went beyond the narrow confines of Section 6(6)(b) of the 1979 Constitution by finding that:

(1)    The law of Nigeria has given every person a right to prevent the commission if a criminal offence, and where an offence is committed to lay a criminal charge against anyone who he sees committing the offence or who he reasonable suspects as having committed the offence in order to uproot crime from Nigerian society.

(2)    The limits imposed by Section 6(6)(b) of the 1979 Constitution restricting the class of persons having locus standi in civil matters have been broadened by the Criminal Code, the Criminal Procedure Code and the other provisions of the Constitution.

As Eso J.S.C. stated:

“The issue of locus standi has always been held as one of the utmost importance, by this court for in effect, too, is one that delimits the jurisdiction of the court… The courts in this country, especially this court, being a court of last resort has duty to safeguard fundamental rights.”

The Supreme Court had clearly moved away from the extremely restrictive attitudes formerly adopted by the Nigerian Courts to locus standi. Such a trend towards a more liberal attitude, adopted both in Nigeria and in England, is the most appropriate for the issue of locus standi. The judgments represent a new philosophy i.e. that an individual has a role to play in public law.

An individual can vindicate the rights which he is entitled to have protected under public law, and the traditional concept of locus standi is losing acceptance. However in Adeyinka Abosede Badejo(Suing by her next friend Dr Babafemi Badejo) v. Minister of Education, [1996] 8 NWLR, pt. 464, p.15, the Supreme Court appears to have resurrected the strict and out dated view on locus standi. The appellant in this case sat for the National Common Entrance Examination and scored 293. She was not invited for interview because she scored below the cut off mark for Ogun State which is her

State of origin. The cut off was 296. Students with lower scores were invited for interview because there cut off marks were lower. She was aggrieved with this discriminatory policy and sued seeking to enforce her fundamental right under the Fundamental Rights (Enforcement Procedure) Rules 1979. The trial court dismissed the appellant’s claim on the basis that she lacked locus standi.

On appeal to the Court of Appeal, it was held that the appellant had locus standi as her interest was affected. On a further appeal by the respondent to the Supreme Court, the court held that the appellant did not have the legal standing to institute the action. Kutigi JSC who read the lead judgment held that the appellant lacked legal standing. He stated that the fundamental right of the appellant should not stand above the country, state, or the people. With respect to his Lordship, the issue of legal standing is not dependent on the question of superiority of rights.

It is not a question of whether the right of the appellant should prevail over that of the country, state or people. It is a question of whether the fundamental rights of the appellant had been infringed.

Every individual should have standing subject to the discretion of the courts. The liberal view expressed in Chief Gani Fawehinmi’s case is a better view. We believe that if this liberal view is adopted we are now nearer to the achievement of action popularis (citizen action).


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