Enforcement of fundamental rights and the standing rules under the Nigerian Constitution: A need for a more liberal provision

 Elijah Adewale Taiwo
 LLB, LLM, MPhil (Obafemi Awolowo), BL (NLS)
 Doctoral candidate, Nelson Mandela Metropolitan University, Port-Elizabeth, South Africa; Lecturer, Faculty of Law, University of Ibadan, Nigeria
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 Edition: AHRLJ Volume 9 No 2 2009
  Pages: 546 - 575
 Citation: (2009) 2 AHRLJ 546-575
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I appreciate the assistance of two of my colleagues and my former students, Muyiwa Adigun of Chief Afe Babalola, SAN & Co, Ibadan, Nigeria and ’Femi Olaoye of JB Majiyagbe, SAN & Co, Kano for their efforts in supplying me with recent Nigerian cases on the topic.

Summary

This article explores the scope of standing rules in section 46 of the 1999 Nigerian Constitution. It is observed that the section contains a restrictive and narrow provision on locus standi. The article finds that this narrow provision has the regressive effect of limiting access to court and it invariably constitutes an impediment or constraint on the enforcement of fundamental human rights in the country. Many common law countries, such as England, Australia, Canada, India and South Africa, have jettisoned this anachronistic position on standing for a more liberal and expansive interpretation. In contrast, the Nigerian Constitution still maintains restrictive and outdated rules of standing. This is inconceivable at a time like this when other common law jurisdictions are enthusiastically adopting a liberal approach to the concept.

1.  Introduction

With the adoption of the Universal Declaration of Human Rights (Universal Declaration) in 1948 and the signing of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966, there has been a consistent global emphasis on human rights. The rights provided for in the International Bill of Rights have equally been reflected in regional human rights treaties and in national constitutions. [1]  The 1999 Nigerian Constitution, for instance, provides for fundamental rights which everyone in the country is to enjoy. [2]  To guarantee and promote the enjoyment of these rights, the Constitution vests in the courts the power of enforcement and protection. In terms of section 6 of the Constitution, the judicial power of the country is vested in the courts of law established for the federation and the states. [3]  The judicial power extends [4]

The judicial power vested in the courts covers every type of action except those specifically excluded by the Constitution itself. [5]  In furtherance of this judicial power and in the enforcement of fundamental rights, section 46(1) of the Constitution provides that [6]

This section reinstates the common law concept of locus standi and incorporates it into Nigerian constitutional jurisprudence. The combined provisions of sections 6 and 46 of the Constitution give judicial power to courts of law for the determination of civil rights and obligations of any person in relation to another person, authority or government. [7]  Also, by the provisions of these sections, a person has access to court to challenge a violation or imminent violation of his or her rights. [8]

However, procedural rules as well as substantive law may, at times, impose some constraints which may have the effect of limiting a person’s access to court. One such constraint is the concept of locus standi. [9] 

The doctrine of locus standi is designed to adjust conflicts between two aspects of public interest, namely, the desirability of encouraging individual citizens to participate actively in the enforcement of law and the undesirability of encouraging a professional litigant and a meddlesome interloper to invoke the jurisdiction of the courts in matters that may not concern him. [10]  This concept, which is fundamental in the judicial process in any country, differentiates between ‘stranger’ and ‘aggrieved person’. [11]  Standing is of inordinate importance as far as access to justice is concerned. It determines the justiciability of an action. [12]  It also has a great impact on the jurisdiction of the court. [13]  Locus standi has traditionally been regarded as a preliminary or ‘threshold’ issue and is usually dealt with in limine, before the merits are dealt with. [14]

Locus standi has been an intractable concept for ages and has posed serious problems both to litigants and the courts. In Nigeria, the concept has generated a considerable volume of interesting litigation in the past, and this is likely to continue in the future in view of the narrow and restrictive interpretation accorded the concept under Nigerian law. [15]  Determining the standing of a suitor is generally not an easy task. However, following decided cases, Nigerian courts have been able to lay down two tests to help in this regard. [16]  One of the tests is that the action must be justiciable, while the second one is that there must be a dispute between the parties. [17]  That is, the plaintiff must be able to establish a sufficient interest in the subject matter of a suit before he or she could be accorded standing; otherwise, he would be treated as a stranger and, as such, denied the right to maintain the action in court. [18]

In this article an attempt is made to examine the scope of section 46(1) of the 1999 Nigerian Constitution, which confers standing on citizens for the enforcement of their fundamental rights. Unlike some other constitutions, section 46 provides for a limited category of persons that can approach the courts for enforcement of fundamental rights. [19]  A restrictive interpretation of locus standi is capable of frustrating the enforcement of fundamental rights, while a liberal interpretation of the concept encourages public interest litigation and also facilitates the development of law in any country. The article therefore aims at advocating a more expansive interpretation of the concept of standing to ensure the effective enforcement of fundamental rights in Nigeria.

2.  Locus standi under common law

At common law, a person who approaches a court for relief is required to have an interest in the subject matter of the litigation in the sense of being personally adversely affected by the alleged wrong. [20]  The plaintiff or the applicant must allege that his or her rights have been infringed. It is not enough for the plaintiff to allege that the defendant has infringed the rights of someone else, or that the defendant is acting contrary to the law and that it is in the public interest that the court grants relief. [21]  Thus, under the common law position, a person could only approach a court of law if he or she has sufficient, direct and personal interest in the matter. [22]  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. [23]  The essence of locus standi at common law is to keep away meddlesome busybodies who have no interest whatsoever in the case before the court. [24]  However, the common law position on locus standi has been criticised as rather restrictive. [25]

The identity of parties to an action is very important to the sustenance of an action. It is a conditions precedent that goes to the root of the case. Locus standi is fundamental and it has a lot to do with the competency and jurisdiction of the court to entertain an action. Failure to disclose locus standi is fatal; it is comparable to a failure to disclose a reasonable cause of action. [26]  Thus, the requirement of locus standi is mandatory; the consequence of a failure to disclose locus standi is that the plaintiff’s claim will be dismissed. [27]  The issue of locus standi, like the issue of jurisdiction, can be raised at any time in the trial, even for the first time on appeal. [28]

3.  Locus standi under Nigerian law

Locus standi is one of the English common law concepts which were incorporated into Nigerian law during the colonial rule of the country. Nigerian courts still take the restrictive common law approach to standing. [29]  Decided cases have followed this position and courts have consistently held that an applicant must have ‘sufficient interest’ in a matter before he or she could be accorded standing to sue. At the outset, it is necessary to mention that locus standi is particularly problematic and Nigerian courts have been inconsistent in their approach on the issue. While the majority of cases, especially from the apex court, have emphasised the requirement of the plaintiff showing sufficient interest, there are, however, other cases which maintain that in the interpretation of laws, the plaintiff need not establish personal interest. Most of the cases in this direction are the decisions of the lower courts and they do not constitute a binding precedent compared to Supreme Court and Court of Appeal decisions on the issue.

The first significant case on locus standi in Nigeria is the case of Olawoyin v Attorney-General of Northern Region of Nigeria. [30]  In this case, the appellant applied to the High Court for redress, alleging that the provisions of the Children and Young Persons’ Law, 1958, of Northern Nigeria, which prohibited political activities by juveniles and prescribed penalties for juveniles and others who may be parties to the offences therein specified, were unconstitutional. He maintained that he was a father of children whom he wished to educate politically, and that there was therefore a danger of his right being infringed if the law were enforced, even though no action of any kind had been taken against him under it. The Northern Nigerian High Court dismissed the action and held that, since no rights of the appellant were alleged to have been infringed, a declaration can not be made in vacuo. The Court held further that only a person whose rights had been affected by a statute may challenge its constitutional validity and that the person’s rights must be directly or immediately threatened. The judgment was affirmed by the Federal Supreme Court.

Similarly, in Gamioba v Ezezi, [31]  the plaintiff sought to challenge a certain trust instrument as ultra vires and inconsistent with the Nigerian Constitution. Brett FJ, who delivered the judgment of the court citing Olawoyin v Attorney-General, Northern Nigeria held that, since the validity of a law is a matter of concern to the public at large, the court had a duty to form its own judgment as to the plaintiff’s locus standi, and should not assume it merely because the defendant admitted it or did not dispute it. The court held that any person who invokes the judicial power of the court to declare a law or enactment invalid must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement and not merely that he suffers in some indefinite way in common with people generally. [32]

Also, in Attorney-General of Bendel State v Attorney-General of the Federation and 22 Others, [33]  the Supreme Court held: [34]

The case of Senator Adesanya v President of the Federal Republic of Nigeria and Others [35]  is widely accepted as a locus classicus on locus standi in Nigeria. 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). The appointment had passed through the process of confirmation by the National Assembly. In the confirmation process, Senator Adesanya objected to the appointment, claiming that it violated certain provisions of the 1979 Constitution, but he was not successful as the Senate confirmed the appointment. He thereafter approached a Lagos High Court seeking a declaration and injunction. In its judgment, the court declared the appointment unconstitutional and held that Justice Ovie-Whiskey was not competent under the Constitution to be appointed a member and Chairperson of FEDECO at the time the appointment was made.

There was an appeal against this decision to the Court of Appeal. At the hearing of the 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 he therefore invited both counsel to address the Court on the issue. In its ruling, the Court held that Senator Adesanya had no locus standi to have challenged the appointment. Aggrieved by this decision, he appealed to the Supreme Court. The Supreme 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 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.

The Court conceded the importance and desirability of encouraging citizens to come to court to have the Constitution interpreted. It, however, held that it was a common ground in all the jurisdictions of 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. It emphasised that meddlesome interlopers, professional litigants and the likes should not be encouraged to sue in matters that do not directly concern them. The Court was of the view that to allow that is to open the floodgate to frivolous and vexatious proceedings and that such latitude is capable of creating an undesirable state of affairs. [36] 

The principle established in Adesanya’s case was followed in Irene Thomas and 5 Others v The Most Reverend Timothy Omotayo Olufosoye. [37]  In that case, the plaintiffs, who were communicants of the Anglican Communion within the Diocese of Lagos, challenged the appointment of Reverend Joseph Abiodun Adetiloye as the new Bishop of Lagos and asked the court to declare the appointment void. The facts pleaded in the plaintiffs’ statement of claim did not, however, disclose that they had an interest in contesting the office of the Bishop of the Diocese. On the contrary, the plaintiffs contested that the process of the appointment of Rev JA Adetiloye contravened some provisions of the Constitution of the Church of Nigeria (Anglican) Communion. The defence, by notice of motion, argued that the plaintiffs had no locus standi to institute the action and that the statement of claim disclosed no reasonable cause of action. The trial court accepted the objection and dismissed the suit. The plaintiffs’ appeal to the Court of Appeal was equally dismissed. A further appeal to the Supreme Court was also not successful.

The Supreme Court held that the plaintiffs had no locus standi as they did not disclose any legal right or any question as to their civil rights and obligations. According to the court: [38]

However, the Supreme Court took a more relaxed approach on the issue of locus standi in its remarkable judgment in Chief Gani Fawehinmi v Col Halilu Akilu and Another. [39]  The decision in this case is rather a bold one in which the Supreme Court adopted a wide and liberal approach to standing, especially during the dark era of military rule in the country. The facts of this case are as follows: In October 1986, Mr Dele Giwa, a journalist and editor-in-chief of a weekly magazine, Newswatch, was killed by a parcel bomb in his Ikeja residence. The appellant, Chief Gani Fawehinmi, a friend and a legal adviser to late Dele Giwa, submitted to the Director of Public Prosecutions (DPP), Lagos, a 39-page document containing all the details of the private investigation he had conducted together with information indicting two army officers, Colonel Halilu Akilu, the Director of Military Intelligence, and Lieutenant-Colonel AK Togun, Deputy Director of the State Security Services, of the murder of Dele Giwa.

The appellant requested the DPP to exercise his discretion under section 342 of the Criminal Procedure Law of Lagos state to decide whether or not to prosecute the said army officers and if he declined to prosecute, to endorse a certificate to that effect on the information submitted to enable him as a private prosecutor to prosecute. In November 1986 the appellant met with the DPP, who explained that he could not come to a decision whether or not to prosecute the said army officers until he received the report of the police investigation. Consequent upon this, the appellant filed an application in the High Court of Lagos for leave to apply for an order of mandamus to compel the respondent to decide whether or not to prosecute the two officers and if he decided not to prosecute, to endorse the information for private prosecution. The Lagos State High Court, per Ademola C Johnson CJ, heard the application for leave and dismissed it on the grounds that the DPP had not refused to perform his duty under section 342 of the Criminal Procedure Law, and that the DPP could not be forced to do so upon the limited materials before him. The Court of Appeal equally dismissed the appeal on the ground that the appellant had no locus standi in the death of Dele Giwa to bring the application he brought. It held further that the learned trial Chief Judge was right in refusing appellant’s leave sought in the case.

The appellant subsequently appealed to the Supreme Court. In a considered judgment, the Supreme Court allowed the appeal and set aside the lower courts’ judgments and granted the order of mandamus. The Court held inter alia that the appellant, as a person, a Nigerian, a friend and a legal adviser to Dele Giwa, had a personal and private right under the Criminal Procedure Law to see that a crime was not committed and, if committed, to lay a criminal charge for the offence against anyone committing the offence or in his view whom he reasonable suspected to have committed the offence. The Court held further that the Criminal Code and the Criminal Procedure Law (Lagos) did not by their provisions confine the complainant in respect of the offence of murder to a particular person or class of persons. Any person who has sufficient information in his possession to establish the crime and identify the accused person is entitled to lay the charge. Accordingly the Court, per Obaseki JSC, held as follows: [40]

Kayode Eso JSC made his own contribution on locus standi in these words: [41]

The liberal approach which the Court adopted in the Fawehinmi case constitutes an exception rather than a general rule on locus standi in Nigeria. This appears to be a policy decision bordering on crime prevention as opposed to civil matters in which courts have been maintaining a very restrictive view. Apart from the provision of the Criminal Procedure Law (Lagos), which permitted a private prosecutor, [42]  a further reason for this liberal approach could be deduced from the judgment of Obaseki JSC, where he held that the peace of society is the responsibility of all persons in the country and that, as far as protection against crime is concerned, every person in society is each other’s keeper. Since we are all brothers in the society, we are our brother’s keeper. The Court’s liberal approach in this case was therefore based on the above reasoning.

4.  Public interest litigation and constitutional interpretation

Public interest litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have a pecuniary interest or some interest by which their legal rights or liabilities are affected. [43]  The fundamental principle of English law is that private rights can be asserted by individuals, but public rights can only be asserted by the Attorney-General as representing the public. [44]  It is the Attorney-General who could vindicate a public right. [45]  Notwithstanding, however, any person whose legal rights are under threat from public authority has locus standi to seek remedies in court. Under Nigerian law, if a public right is under threat, a private person may seek remedies in two cases: first, if some private right of his is interfered with at the same time with public interest; [46]  secondly, if he suffers special damages peculiar to himself from the interference with the public right. [47]

However, in Britain there has been a relaxation on the principle that it is only the Attorney-General who could sue on behalf of the public. Now, every citizen has standing to invite the court to prevent some abuse of power and, in doing so, he may be regarded as a public benefactor rather than a meddlesome busybody or interloper. [48]  This relaxation is based on the principle that public authorities have many duties of a general character, enforceable by no one unless by the ordinary citizen. The Attorney-General may appear not to concern himself with them and if the private citizen could not do so, then there would be a serious gap in the system of public law. [49]  It is argued that there would be a grave lacuna in the public law system if a certain body or pressure group or even a single public-spirited tax payer is 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 to get the unlawful conduct stopped. [50]

Nigerian courts have equally adopted a liberal approach to locus standi, especially in cases that concern the validity of legislation vis-à-vis the Constitution. There is a plethora of cases in this regard. In Chief Isiagba v Alagbe and Others, [51]  a Bendel State High Court gave a wider meaning to locus standi. In that case, the plaintiff sought in the Benin High Court a declaration that the defendants were members of the Bendel State House of Assembly from different constituencies from those who lost their seats in the Assembly Service Commission established by a law enacted by the Assembly in the exercise of its powers under section 94(5) of the 1979 Constitution. 

The issue of locus standi was raised by a way of preliminary objection. The court, per Omosun J, held that any Nigerian taxpayer had sufficient interest in the observance of the provisions of the Constitution and consequently had locus standi. The court held: [52]

Similarly, in Alhaji Adefalu and Others v The Governor of Kwara State and Others, [53]  the Kwara State High Court adopted a liberal approach on locus standi. In that case, the plaintiffs sought a declaration that the Local Government (Establishment) (Amendment) Law, 1981, was illegal, null and void and of no effect. The learned trial judge, Obayan J,  granted the application. Also, in Attorney-General of Bendel State v Attorney-General of the Federation and Others, [54]  Obaseki JSC observed as follows: [55]

In Akinpelu and 2 Others v Attorney-General, Oyo State, [56]  the plaintiffs for themselves and on behalf of other persons and residents of Akinyele local government area sued the Attorney-General of Oyo State, challenging the validity of a bill to further amend the Local Government Law of Oyo State 1978. Oloko J held that in a case such as this where the plaintiffs were challenging the validity or constitutionality of any enactment in court, they were relieved of showing special interest or locus standi. Also, in Ejeh v Attonery-General of Imo State, [57]  it was held that any person who is convinced that there is an infraction of the provisions of the Constitution can to go to court and ask for appropriate relief if relief is required. The court held that when the cause of action is intended to keep the law and the constitution of the country serene and inviolate, it is wrong for the defendant to challenge the locus standi or capacity of the plaintiff to sue.

Further, in Hon Godwin S Jideonwo and Others v Governor of Bendel State and Others, [58]  the Governor of Bendel State on the platform of the Unity Party of Nigeria (UPN) signed into law a bill dissolving and suspending the existing Local Government Councils in the state. The plaintiffs, representing both the Nigeria Peoples’ Party (NPP) and National Party of Nigeria (NPN) members in the State House of Assembly, challenged the dissolution as unconstitutional. On the issue of locus standi raised by the defendants, Ovie-Whisky CJ held as follows: [59]

It is important to mention that these cases were not directly involving the enforcement of fundamental rights, but rather dealt with the validity of some other laws within the constitutional context. The position of the court in this regard could not have been different since the Constitution itself proclaims its superiority and declares any law in conflict with it as null and void to the extent of its inconsistency. [60]

5.  Locus standi and enforcement of fundamental rights

It is asserted that fundamental rights are not to be enjoyed in semantics only or in their mere inclusion in the pages of the Constitution. [61]  Rights are meaningless unless there is also provision for access to an independent judiciary for their enforcement. Agbede posits that ‘a right is no right if it cannot be vindicated by a prompt appeal to the court’. [62]  It is for this reason that the Constitution confers a special jurisdiction on the High Court with respect to the enforcement of these rights. [63]  The Constitution provides that any person who alleges that any provision of the chapter on the fundamental rights has been, is being, or is likely to be contravened to seek redress in any High Court, State or Federal. [64]

The procedure for obtaining redress for a contravention or likely contravention of these rights is spelt out by the Fundamental Rights (Enforcement Procedure) Rules. [65]  The Rules make provision for a speedier hearing of human rights cases than other civil cases by the courts. Under these Rules, court cases for the enforcement of human rights go through a two stage process like the process for enforcing prerogative writs. The first stage is an ex parte application for leave or permission to bring the proceedings, while the second stage for the substantive application is through motion on notice. In terms of the Rules, an aggrieved person is required to apply ex parte to any High Court for leave to apply for an order and, if granted, this should be followed by motion on notice or originating summons asking for a substantive order. The court thereafter has the power to make an appropriate order or relief. [66]  The task of the courts in the adjudication of disputes and controversies concerning entrenched human rights is enormous. It is therefore asserted that the degree of liberty obtainable in any society depends ultimately on the attitude of the courts. [67]

There has been a remarkable development since the Independence Constitution of 1960 in relation to the conferment of special jurisdiction to the courts for the preservation of fundamental rights. [68]  Following much disputed controversies on the scope and ambit of the jurisdiction of the State High Court and Federal High Court, it is now settled that an infringement of fundamental rights is a matter within the concurrent jurisdiction of both the State High Court and the Federal High Court. [69]

Section 46(1) of the 1999 Constitution provides that ‘[a]ny person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that state for redress’. The scope of this section calls for examination herein. The section provides for three closely-knit but distinct sectors or limbs for the enforcement of fundamental rights by an aggrieved person. These are (a) when the fundamental right ‘has been’ contravened; (b) when the fundamental right ‘is being’ contravened; and (c) when the fundamental right ‘is likely’ to be contravened. [70]

In the first category, it is submitted that the words ‘has been’ (in the past participle) mean that, as far as the aggrieved person is concerned, the act of contravention is completed and therefore he or she has an enforceable grievance. [71]  In Chief Uzoukwu and Others v Ezeonu II, Igwe of Atani and Others, [72]  the Nigerian Court of Appeal, while dealing with the equivalent provisions in section 42(1) of the 1979 Constitution, held: [73]

Of all three sectors, this is the easiest to prove. This is because the act of contravention, being completed, is tangible, and the plaintiff will have less difficulty proving the allegation than in the case of the other two limbs. [74]

In the second category, the words ‘is being’ are in the present tense. According to the court, [75]

It is submitted, however, that it is difficult to draw the factual line in this sector. However, it will be more in line with the intention of the drafters to say that what is anticipated is less of a completed act but more of an uncompleted act. [76]

The third limb, the words ‘is likely’ convey an anticipatory situation. The provision is futuristic contextually and in content. The plaintiff has cause to think that from the initial conduct of the defendant, his fundamental rights could be in danger of being contravened and he could not therefore afford to wait until he becomes a victim of the conduct of the defendant. [77]  The Court of Appeal interpreted this third sector in Chief Uzoukwu and Others v Ezeonu II, Igwe of Atani and Others as follows: [78]

This is the most difficult to prove of all the three limbs. The evidence in the court could be mostly speculative and a plaintiff or applicant has a fairly difficult duty to prove to the satisfaction of the court that his fundamental right is likely to be contravened. [79]

The pertinent issue in the article is: Does the provision of section 46(1) of the Constitution confer locus standi on any other person or category of persons other than a person whose fundamental right ‘has been’, ‘is being’ or ‘is likely’ to be contravened? Put differently, apart from this category of person or persons, has any other person locus standi to bring an action for the enforcement of fundamental rights under section 46(1) of the Constitution?

As explained in the earlier part of the article, it is an established position of law in Nigeria that before a person can invoke the jurisdiction of courts of law, he or she must have ‘sufficient interest’ in the matter. [80]  The law generally requires a litigant to personally have a direct and material interest in the relief sought. This restrictive approach has had the effect of curtailing the rights of people who might otherwise be entitled to bring an application to court. [81]  The concept of locus standi has been severally criticised as constituting an artificial barrier between the litigant and the court. It is described as a major constraint on the legal protection and enforcement of human rights in Nigeria in the sense that it limits access to courts. [82]  Before a person can maintain a suit, he or she must disclose his or her personal interest in the matter. [83]  Obiagwu and Odinkalu assert: [84]

Agbede submits that ‘the court has created an artificial barrier between the litigant and the court by the notion of locus standi’. [85]  He questioned its rationale thus: [86]

He therefore suggests that the concept of locus standi should not apply when a statute is being challenged for its unconstitutionality. [87]

However, in most common law jurisdictions, a liberal position on locus standi has been adopted. [88]  In this regard, the history of the Indian Constitution is relevant for its liberal and innovative approach to locus standi. From 1976, the Indian Supreme Court began to pursue a demonstrably more progressive and innovative approach to the question of standing, abandoning the traditional restrictive rule inherited from English jurisprudence. This applies in particular to those persons or class of persons who, as a result of historical and social disadvantage or disability, were incapable of complying with the traditional requirements. [89]  This was a pioneering development in which Bhagwati CJ played a decisive, imaginative and perceptive role. [90]

According to Saharay: [91]

Even in England, where the Nigerian common law position on locus standi originated, courts have abandoned the restrictive approach and embraced a liberal interpretation of the concept. In England, new rules were introduced in 1977 for applications for review against public bodies. In terms of these rules, application for judicial review has to undergo two stages. First, an applicant had to seek leave to apply for judicial review. If leave is granted, the application would be heard. Before the court could allow an applicant leave to apply for judicial review, it has to be satisfied that he or she has locus standi to challenge the exercise of public power. The court will find that an applicant has standing if it is satisfied that the applicant has a ‘sufficient interest’ in the matter. [92]

Interpreting the words ‘sufficient interest’ in the Rules in Inland Revenue Commissioners v National Federation of Self-employed and Small Business (Ltd), [93]  the court held that an applicant for judicial review did not need to have a direct legal or financial interest. However, a mere busybody would not have sufficient interest. According to Lord Wilberforce, [94]

Writing on standing rules under English law, Lord Denning stated: [95]

An important factor to be taken into account when considering the issue of standing is the merits of the challenge. The applicant may not necessarily have a personal interest in the dispute. [96]  Other significant factors the court will consider are the importance of vindicating the rule of law, the importance of the issues raised, the likely absence of any other responsible challenger and the nature of the breach of duty against which the relief is sought. [97]

Another country that emulates this liberal approach is Canada. In Minister of Justice of Canada v Borowski, [98]  it was held: [99]

Thus, the Canadian courts will grant standing to a plaintiff who establishes that (i) the action raises a serious legal question; (ii) the plaintiff has a genuine interest in the resolution of the question; and (iii) there is no other reasonable and effective manner in which the question may be brought before the court. [100]

Section 38 of the Constitution of the Republic of South Africa, 1996, represents such a liberal and modern approach on locus standi. The section provides for the category of persons that has the right or standing to challenge a breach of rights in chapter 2 of the Constitution. It provides:

The above provision is very wide compared to the common law restrictive position which only allows a person to approach a court of law if he or she has sufficient, direct and personal interest in the matter. As expected, courts have given this provision the wide and liberal interpretation it deserves.

In Ferreira v Levin NO, [101]  the South African Constitutional Court held that a broad approach should be adopted on the issue of standing in constitutional cases. According to the Court, this would be consistent with the mandate given to it to uphold the Constitution and would serve to ensure that the constitutional rights enjoyed the full measure of the protection to which they were entitled. The Court further held that the constitutional provision on locus standi did not require that a person acting in his or her own interest had to be a person whose constitutional rights had been infringed or threatened. [102]  The Court stated further that the constitutional challenge could be brought by anyone and the Court would decide what constituted sufficient interest in the circumstances. [103] 

The cumulative effect of section 38 of the South African Constitution is that any person or organisation is empowered to enforce rights encapsulated in the Bill of Rights, irrespective of whether that person or organisation is prejudicially affected by circumstances that allegedly give rise to an infringement of such rights. [104]  This constitutes a significant reform and a meaningful adaptation of the common law position on standing.

Advocating a liberal approach on standing in R v Greater London Council, ex parte Blackburn, [105]  Lord Denning held as follows: [106]

This liberal approach, the learned counsel for the appellants in Olufosoye’s case, Mr HA Lardner, SAN, commended very strongly to the court, but the court rejected his submission. In rejecting the submission, the court, per Obaseki JSC, who delivered the lead judgment, said: [107]

The restrictive approach on locus standi was further affirmed by the Supreme Court in Josiah K Owodunni and Others v Registered Trustees of Celestial Church of Christ, Nigeria Diocese. [108]  The Court affirmed the position in Olawoyin, [109]  and held: [110]

As the law stands now in Nigeria, in order to have standing to commence an action (including the enforcement of fundamental rights), the plaintiff must have a sufficient interest in the matter. The term ‘sufficient interest’ is broad and generic. It is not an objective term; it is rather subjective. [111]  The term is vague and nebulous, and lacks a precise and apt legal meaning. It has to be determined in relation to the facts and circumstances of each case. [112]  Over the years, however, Nigerian courts have examined the ambit of the expression ‘sufficient interest’. [113]  Sufficient interest is described as an interest which is peculiar to the plaintiff and not an interest which he shares in common with members of the general public. [114]  If a person will be affected or aggrieved or is likely to be affected or aggrieved by the outcome of a court proceeding, he would be held as having a sufficient interest and he will be accorded locus standi. [115]

6.  The roles of the judiciary, politicians and civil society in ensuring a flexible interpretation of standing rules

On the enforcement of fundamental rights, the Nigerian Constitution still adopts a narrow approach which invariably limits the category of person that can approach the court on the issue. The phrase ‘in relation to him’ as appears in section 46 of the 1999 Constitution is said to be too restrictive. This phrase equally appeared in section 42(1) of the 1979 Constitution. The limiting effect of this phrase has since been discovered and the phrase was recommended for review in preparation for the 1989 Constitution. [116]  Thus, towards giving the country a new Constitution in 1989, a Constituent Assembly was inaugurated by the then President of the Country, General Ibrahim Babangida, on 11 May 1988. The Assembly was saddled with the responsibility of amending the 1979 Constitution and preparing a more acceptable Constitution for the country. Its Committee 6 on Fundamental Rights dealing with clause 44(1) of the Review Constitution (same with section 46(1) of the 1999 Constitution) recommended the following amendment: [117]

In presenting the Report of the Committee to the Assembly, the Chairperson of the Committee [118]  said: [119]

However, the Constituent Assembly did not see its way clear in adopting the amendment recommended by Committee 6 and so dropped it. [120]

Though a restrictive interpretation of standing rules is not without its advantages, however, the global trend now is towards a broad and expansive interpretation of standing. [121]  A liberalised locus standi position has the important advantage of facilitating greater access to justice. It also encourages and promotes the practice in which interested individuals and organisations can approach the court for enforcement of fundamental rights on behalf of the less privileged and disadvantaged in society. [122]  Although the courts have inherent power to invite amici curiae [123]  in a matter of constitutional importance and public interest, however, it is submitted that a liberalised view of standing will further promote its use under Nigerian law. [124]

The present position on standing in Nigeria is anachronistically restrictive. There is a need for a drastic revision of this position to facilitate meaningful and pro-active enforcement of fundamental rights in the country. Thus, in the interest of the realisation of the importance of human rights, this narrow position has to change. The reason why this change is of seminal importance is that Nigeria is a developing state in which a large number of citizens are illiterate and living in abject poverty. Many people in the country whose fundamental rights are violated may not be in a position to approach the court for relief. For instance, they may be emotionally and intellectually unsophisticated or indigent and, in effect, they may be unable to enforce their fundamental rights. A regime of liberal standing will indeed permit any person, human rights activists or non-governmental organisations (NGOs) to approach the court on behalf of all those persons. [125]

Unlike the South African constitutional provisions on locus standi, the scope of section 46(1) of the Nigerian Constitution is narrow. Under the South African Constitution, the categories of persons that can approach the court include persons acting in their own interest, persons acting on behalf of another person, persons acting as a member of a group or class of persons, persons acting in the public interest and associations acting in the interest of their members. [126]  The provision allowing persons to act in the public interest under this Constitution is wide and this will facilitate the adequate enforcement of fundamental rights. This wide provision is recommended for Nigeria. An amendment of section 46 of the Constitution may be required to accommodate this liberal approach. One hopes that the current National Assembly Sub-Committee on Justice will take up the call for a liberal provision on locus standi as recommended by Dr James Henshaw’s Committee 6 of the 1988 Nigerian Constituent Assembly. [127]  Fortunately enough, moves are now on in the National Assembly for the review or amendment of the 1999 Nigerian Constitution and this will afford the opportunity for such a liberal provision. The Nigerian Bar Association and the Attorney-General of the Federation may have to play a leading role in this respect. However, before such amendment is carried out, the bulk of the work rests on the judiciary to accommodate a liberal position on locus standi through a purposive and expansive interpretation of section 46 of the Constitution.

7.  Constraints on the enforcement of human rights

Not all the rights provided for under the Nigerian Constitution are absolute. Rights are inconceivable without some limitations. Thus, any right or freedom has its limitations and the beneficiaries also, at times, have special responsibilities. One major deficiency in the Bill of Rights in chapter 4 of the Constitution is that the chapter contains several claw-backs or grounds for derogation. Section 45 of the 1999 Nigerian Constitution provides circumstances under which the state could restrict the rights to private and family life, freedom of thought, conscience and religion, expression and the press, peaceful assembly, association and movement. These rights may be derogated by ‘any law that is reasonably justifiable in a democratic society for the interest of defence, public safety, public order, morality, or public health; or for the purpose of protecting rights and freedom of other persons’. [128]

Also, the right to life and personal liberty can be lawfully restricted in a period of emergency or war. [129]  The right to life can be limited for reasons of defence of persons and properties; in order to effect a lawful arrest or to prevent the escape of a person lawfully detained or for suppression of a riot, insurrection or mutiny. [130]  The right to personal liberty may similarly be limited for the purpose of securing an individual’s extradition or alien repatriation, or for effecting a person’s arrest on suspicion of having committed a capital offence. [131]

In terms of section 46(4) of the Constitution, the National Assembly is required to make law to provide for financial assistance to any indigent citizen whose fundamental rights are violated, with a view to enabling him or her to engage the services of a legal practitioner. However, no such law has been made and no effective legal aid programme exists in Nigeria. The existing legal aid scheme is deficient and limited in scope. Initially, the Legal Aid Act provided legal assistance in respect of capital offences and serious criminal cases. [132]  It has, however, been amended to cover ‘cases involving the infringement of fundamental human rights under the Constitution’. [133]  Nonetheless, the Legal Aid Council is mandated by law to provide legal representation to indigent persons. The definition of ‘indigent’ under the Act is unrealistic in that it excludes many Nigerians below the poverty line who are genuinely unable to afford legal services. [134]  It is submitted that the Legal Aid Act does not adequately fulfil the intention of section 46(4) of the Constitution. Also, the Council is grossly under-funded and lacks the required personnel complement to fulfil the demands placed upon it under the Act and the Constitution. [135]

Apart from standing rules, other constraints on the protection and enforcement of fundamental rights in Nigeria include deficiencies in the substantive provisions of the Bill of Rights and other laws as well as inadequate procedural rules for the enforcement of rights. [136]  The non-justiciability of economic, social and cultural rights in chapter II of the 1999 Nigerian Constitution is one example of such deficiencies. [137]  The provisions of these rights are important in the enjoyment of civil and political rights. In a country with a predominantly poor population such as Nigeria, these rights are fundamental to the well-being of the average person and for the effective enjoyment of other rights in the Constitution. [138]  Other constraints include the complexity, technicalities and high expense involved in bringing action for the enforcement of rights. Other procedural requirements, such as pre-action notices, limitation periods and ouster clauses, have the effect of limiting access to court for the enforcement of rights. Court congestion and a delay in trial, which now characterise the Nigerian judicial system, also constitute formidable constraints on the enforcement of rights in the country. Other enduring impediments to the enforcement of human rights in Nigeria are executive lawlessness and a failure to obey court orders. In some instances, judicial summonses and court orders have been ignored with impunity. [139]  For the proper enforcement of fundamental rights in Nigeria, we recommend that there should be concerted efforts targeted at removing the constraints and obstacles identified above. In addition, a culture of constitutionality and respect for the rule of law is also essential. 

8.  Conclusion

This article explores the scope of standing rules in section 46 of the 1999 Nigerian Constitution. It is observed that the section contains a restrictive and narrow provision on locus standi. The article found that this narrow provision has the effect of limiting access to court and it invariably constitutes an impediment or constraint on the enforcement of fundamental human rights in the country. Many common law countries, such as England, Australia, Canada, India and South Africa, have jettisoned this anachronistic position on standing for a more liberal and expansive interpretation. On the contrary, the Nigerian Constitution still maintains restrictive and outdated rules of standing. This, however, is inconceivable at a time like this when other common law jurisdictions are enthusiastically adopting a liberal approach to the concept.

Since the paramount object of any law (including the Constitution) is to promote fairness and social justice, the article therefore advocates a more flexible interpretation of standing rules in Nigeria. The Nigerian judiciary has a significant role to play in this regard. While it is accepted that the constitutional provisions are limited in this regard and needing review, it is, nevertheless, submitted that the Nigerian judiciary should, through judicial activism, relax the restrictive rules of standing by giving section 46 of the Constitution a more expansive and purposive interpretation. This liberal interpretation will accommodate a larger category of persons in the enforcement of fundamental rights.