WHAT IS PUBLIC INTEREST LITIGATION?

Black Law Dictionary 7th Edition page 944 defines litigation as: “The process of carrying on a law suit.” Public Interest is defined in the same dictionary as: “(1) The general welfare of the public that warrant recognition and protection. (2) Some things in which the public as a whole put in stake; esp., an interest that justifies governmental regulation.”

Public Interest Litigation according to Wilfred Mamah, refers to the practice of precipitating social change through court decisions that reform legal rules, enforce existing laws and articulate public norms. It has its prime objective the promotion of the public good. In developing democracies, Public Interest Litigation helps new constitutional principles and guarantees, take root as well as increase public awareness and embolden those with legal claims to come forward. Despite the many successes recorded in Nigeria through PIL, this kind of lawyering continues to fall victim to the famous tragedy of the commons in which seemingly rational individualistic decision, ultimately destroys the collective good.

According to Joseph Chu’ma Otteh, “Public Interest Litigation is about using the law to empower people, to knock down oppressive barriers to Justice to reclaim and restore the right of Social Justice for the majority of the people. To attack oppression and denial that disenfranchise our people, and about winning back human dignity of the people, it is about caring for the rights of the other, besides ones self. It is about getting Lawyers and Judges committed to this struggle, and using the law more for the benefit of collective, not just individual or private interest.”

THE IMPORTANCE OF PUBLIC INTEREST LITIGATION

According to Norrison I, Quakers Esq. litigations generally and particularly public interest or strategic impact litigations, are relevant as they provide the tool or machinery for individuals or group of persons to approach or have access to the judiciary to seek redress for human rights violations or constitutional infractions. Although litigation is not the only means for one of the most important tools of achieving change in the society. Litigation provides a catalyst for change in so that its application can reach beyond the individual case in such a way that its outcome affects a large number of people. Public Interest Litigation is thus, a veritable tool for revolutionary change especially if applied judiciously.

Public interest litigation has its own share of critics. Some of these critics are of the view that litigation cannot be itself, reform social institutions. The second related concern according to Femi Falana is that: “Over – reliance on courts diverts efforts from potentially more productive political strategies and dis-empowers the groups that lawyers are seeking to assist. The result is too much law and too little justice.”

Falana concluded by stating that the above arguments, although powerful in their analysis of the limits of litigation, have generally failed to acknowledge its contributions and the complex ways in which legal proceedings can support political mobilization.

Another thing is that law suits can be used to destabilize entrenched institutional structures and subject them to greater accountability. A law suit that receives widespread attention may raise public consciousness and stimulate movement activity by revealing the vulnerability of structural arrangements that once seemed impervious to change

The likes of Chief Gani Fawehinmi SAN, Femi Falana SAN, Olisa Agbakoba SAN, Adegboruwa SAN, Olumide Babalola has contributed to the development of public interest litigation in Nigeria in numerous landmark cases which we are going to look at.

In I.G.P VS A.N.P.P(2008) 12 WRN 65

Falana (as counsel) challenged the constitutionality of the Public Order Act which makes it mandatory for a political party to obtain a permit for a public rally or meeting before the same can be allowed to hold, by the police authorities.

In another suit against the Federal Government, he (Falana) contended that the deplorable state of the Lagos-Ibadan express way and the Benin-Shagamu express way was a violation of his right to life and the dignity of his human person guaranteed under the constitution of the Federal Republic of Nigeria. One of the reliefs which he claimed in the suit was for an order on the Police and the department of Custom and Excise to dismantle the numerous police and customs and excise check points respectively on the said roads, on the on the ground that they are nothing short of toll collecting points for those governmental organizations.

One thing is that, Femi Falana by this suit has drawn the attention of the government and the public at large, to the need to carry out urgent rehabilitation of the said roads and the need to check the government agencies that have converted them to toll collection points, from helpless motorists. Even though public interest litigation is of paramount importance, it ought to be borne in mind that it has its limitation as a means to ensure fundamental transformation necessary in a country like Nigeria, especially when used in isolation from other means. Civil rights activists and lawyers who are at the forefront of public interest litigation must partner with the press in order to achieve their desired objectives.

Another lawyer who is rigorously into public interest litigation is Olisa Agbakoba SAN,we are going to look at his own contributions to this concept in the following cases.

In Director, SSS v. Agbakoba (1999) 3 NWLR (pt.595)314.

The Court of Appeal in this case, held that the state could not withdraw a citizen’s passport as that would amount to denying the citizen the means of exercising his right of exit and entry into Nigeria as guaranteed by the Constitution.

In Peter Nemi v. Attorney General of Lagos state (1997)SC 303/1990

The issue of the constitutionality of prolonged incarceration, in dehumanizing conditions, of death row prisoners and the rights of prisoners to humane treatment was brought before the court. The Court of Appeal held that prisoners have enforceable rights as citizens and suggested that prolonged incarceration of convicted prisoners could constitute breach of their right to dignified and humane treatment.

In Onuoha Kalu v. The State (1998)13NWLR(part 583) 531

Olisa Agbakoba’s Law firm litigated the constitutionality of the death penalty. Though the Supreme Court agreed with most of OAL submissions, it held that the death penalty is constitutional since the Constitution of Nigeria explicitly permits it. The Court, however, stated that the National Assembly can take steps to expunge the death penalty. Additionally, the Court left open the question of whether remaining on death row for a significant amount of time might amount to a procedural rights violation, but hinted that such prolonged detention is improper—a question OAL will pursue further.

In ensuring separation of powers and judicial independence has guaranteed by the constitution, the learned silk instituted two cases to that effect.

The aim is to advance the concept of separation of powers, guaranteed by the Constitution. The ultimate objective is to safeguard the independence of the judiciary which will ensure effective administration of justice and adequate protection of civil liberties in Nigeria.

The Cases are:

1.Olisa Agbakoba v AG Federation (Judicial Funding -Federal). Here, the Court is to interpret Sections 81(1),(2),(3) and Section 84 of the Constitution and determine the constitutionality or otherwise of the present practice where the President includes in the Appropriation Bill, the amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation. Therefore the object of the Suit is to make the judiciary financially independent from the Executive. Judgment delivered and NASS has appealed.

Olisa Agbakoba v AG Ekiti State (Judicial Funding -Ekiti). This is the Ekiti State version of the Judicial Funding Case .
OA v FBN & Priscilla Ogwemoh v FBN
These are Cases about Margin Loan Facilities granted by banks to individuals. The banks failed to monitor adequately Capital Market fluctuations to ensure that shares purchased with the loans were sold when their values depreciated to the agreed level, called “Trigger Points”.

However, there is a factor militating against Public Interest Litigation in Nigeria and that is the non justiceability of the rights set out in chapter II of the constitution of the Federal Republic of Nigeria encapsulated in the fundamental objectives and directive principles of state policy.

Chief Gani Fawehinmi contribution to this concept is numerous amongst it is the case of Fawehimi V. Akilu (1982) 18 N.S.C.C. (Pt. 11) 1265 at 1301.

It is worthy of note that the Supreme Court made a welcome departure from its stance in the Abraham Adesanya’s case, in Fawehimi V. Akilu case, the irrepressible Chief Gani Fawehimi went to the High Court to ask for an order of mandamus to inter alia compel the D.P.P. of Lagos State to come to a decision on whether or not he would prosecute the suspect in the Dele Giwa’s murder. The High Court struck out his case on the ground that he lacked the locus standi to institute it. That decision was upheld by the Court of Appeal. On further appeal to the Supreme Court , the apex court held that he had locus standi on the ground that when the life of a man is concerned,we are supposed to be our brother’s keeper.

Now, section 6 of the Constitution provides as follows: “The Judicial powers vested in accordance with foregoing provisions of the section, (c) shall not except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person as to whether any law or judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in chapter II of this Constitution”.

By the provision of S. 6(c) of the Constitution set out above, the Constitution took away with the left hand, all the basic right which it gave to Nigerians with the right hand under the provisions contained in chapter II of the same Constitution. In Okojie & Ors V. Attorney General of Lagos State (1981)2 NCLR 350, the application challenged the policy of the Lagos State Government to abolish private schools within the state claiming that it was in violation of the right to education guaranteed under S. 16 (chapter II) of the 1979 Constitution which is impari-material with S. 18 (chapter 11) of the 1999 Constitution. The Court held that by Section 6 of the 1979 Constitution (which is impari-material with S. 6 of the 1999 Constitution), the provisions of chapter II of the Constitution were not enforceable and that it was not in power of the court to make any pronouncement on them.

We will be looking at the impediments to the growth of and development of public interest litigation in Nigeria and the way forward in the concluding part.

Toheeb Mustapha Babalola is a pupil of law, student of faculty of law,Bayero University kano , founder of LEX UPDATES and he is interested in advocacy, academic writing, legal writing, activism, and plethora of positivism. To reach him, email:[email protected], or contact/whatsapp:08106244073