After perusing the meaning, importance, the contributions of some certain legal luminaries to the development and growth of PIL in Nigeria in the first part of this article.

The concluding part of this article will be focused on the impediments to the growth of PIL, the way forward or recommendations that will expand the frontiers of Public Interest Litigation in Nigeria.
One of the most troublesome impediments to the growth and development of public interest litigation in Nigeria, is the threshold issue of Locus Standi in all suits instituted in our courts. whether the Constitution has used and expression in the wider or narrower sense, in my view, this court should whenever possible and in response to the demands of justice lean towards the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the object and purpose of the Constitution. It is important to keep the above observation in mind as we consider locus standi as another impediment to the growth and development of public interest litigation in Nigeri
Locus Standi is one of the most troublesome impediments to the growth and development of public interest litigation in Nigeria.

By the present state of the law in Nigeria and in other jurisdictions, the determination of Locus Standi focus on two major and telling words, one is ‘sufficient’. The other is ‘interest’. They both make up the ‘sufficient interest’ concept. The term, sufficient interest, is broad and generic. It is also vague and nebulous. It lacks a precise and apt legal meaning.

It could only be determined in the light of the facts and circumstances of the particular case. The question of what constitutes sufficient interest is one of mixed law and fact, that is to say, it is not a question of law only or a question of fact only but both. In arriving at a decision one way or the other, the court will be guided by the overall interest of the parties in the litigation process in the absence of a specific enabling statute.

In addition, a plaintiff or litigant who says he has locus standi must show that such special interest he lays claim to, has been adversely affected by the act or omission, which he seeks to challenge. See Re Ijelu & Ors. v. L.S.D.P.C. (1992) 9 N.W.L.R. (Pt. 226) 414, in K. Line Inc. v. K.R. Int. (Nig.) Ltd. (1993) 5 N.W.L.R. (Pt. 292) 159 at 176,

Aderemi J.C.A. (as he then was) in Ilorin v. Benson (2000) 9 N.W.L.R. (Part 673) 570 at 578. described special or sufficient interest in the following terms:

“One test of sufficient interest in a matter is whether the plaintiff who instituted the action could have been joined as a party to the suit if some other party commenced the action. Another test is whether the plaintiff seeking the redress or remedy will suffer some injury or hardship arising from the litigation if some other person instituted it”.

In an action to assert a public right or to enforce a performance of a public duty it is only the Attorney-General of the Federation or that of a state, who in law has locus standi.

This has received judicial blessings in the case of A.G FEDERATION V. A-G IMO STATE AND ORS. Suit No. S.C.88/1982; (1982) 13 N.S.C.C. 567 at 578. where the court stated that:

“For the avoidance of doubt, it may be necessary to distinguish the power of the Attorney-General to bring any proceedings before the supreme court in accordance with the provisions of Section 20 of the Supreme Court Act with respect to the exercise of the original jurisdiction of the Court under subsection 1 Section 212 of the Constitution from the powers of the Attorney-General under General Public Law to secure the enforcement of public right.”

In addition to the provisions of the Petitions of Right Act, Cap. 149 Vol. V. Laws of the Federation of Nigeria and Lagos, 1958 and the Petitions of Right Laws of the several States which empower the Attorney-General to prosecute claims by their respective Governments against any private person, by virtue of the public law of a state, its Attorney-General has the power to institute in any Court of competent jurisdiction any civil proceedings, with or without a realtor, involving the rights and interest of the public which he deems necessary for the enforcement of the laws of the state, the preservation of order and the prevention of public wrongs.

Mention may also be made of the Attorney-General for New South Wales v. The Brewery Employees Union (1908) 6 C.L.R. 469 at pp. 550 – 551 where O’Conner, J. said:-

“It is a principle well established in British law that when corporation or public authority clothed with statutory powers exceeds them by some act which tends in its nature to interfere with public rights and so to injure the public, the Attorney-General from the community, with or without a realtor, according to circumstances to protect the public interests, although there may be no evidence of actual injury to the public.”

The case of KEYAMO V. HOUSE OF ASSEMBLY, LAGOS STATE (2000) 12 N.W.C.R. (A-680) 196 has again brought to the limelight, the hurdle of locus standi which any person of persons involved in PIL in Nigerian must cross before he can institute and or maintain a law suit.

In that suit , a Lagos Lawyer and human rights activist instituted a suit (vide an originating summons) challenging the constitutionality of the setting up of a panel by the Lagos House of Assembly, to probe the Governor over allegations pertaining to crime of forgery. The Court of Appeal upheld the ruling of the Lagos High Court to the effect that the plaintiff lacked the locus standi to institute the action.

The said Court, Coram Galadima J.C.A, held as follows:

“I have carefully perused and considered the entire originating process issued by the appellant in the lower Court. Not only has he woefully failed to disclose his legal authority to demand for the declarations sought but also failed to show what injury or injuries he will or would suffer. Can the fact that the appellant claimed to be over 18 years of age, a Nigerian Citizen, a legal practitioner and a registered voter, qualified to vote and be voted for, without more, be clothed with requisite locus standi to bring this action?

In paragraph 6 of his statement the appellant claims thus:- “That the plaintiff presently has many clients who intended to contest for the position of Governor and members of state House of Assembly at the next elections and have approached the plaintiff for proper advice as to the powers and functions of these offices”. It would appear that the appellant is not only fighting for his own personal interest but also of his “clients” who intend to contest for the position of Governor and members of Legislative House of the state at the next elections. Of all the reliefs being claimed by the appellanct, none of them relate to him personally or his faceless clients whose future political interest he now seeks to protect. This approach is speculative and untenable in law. It is a mere academic exercise. Merely being a registered voter (even without proof of same) is not sufficient to sustain the prayers of the appellant. The appellant has simply not disclosed his interest in this suit. See the recent decision of this Court in Babatunde Adenuga v. Odumeru (unreported) Suit No. CA./L/270/99 judgment delivered on 24/1/2000.”

There is a pressing need to shift from the narrow stance of the Apex Court in the Abraham Adesanya’s case to a more liberal approach on issues of Locus Standi in cases pertaining to Public Interest Litigation.

This would be in line with the notable pronouncement of Tobi J.C.A. (as he then was) in the case of Busari V. Oseni (1992) 4 N.W.L.R (Part 237) 557 at 589 wherein he stated as follows:

Concept of Locus Standi “In my view, the frontiers of the concept of locus standi should not be static and conservatively so at all times and for all times. The frontiers should expand to accommodate the dynamics and sophistication of the legal system and the litigation process respectively. In other words, the concept must move with the time to take care of unique and challengeing circumstances in the litigation process. If the concept of locus standi is static and conservative while the litigating society and the character and constents of litigation are moving in the spirit of a dynamic changing society, the concept will suffer untold hardship and reverses. That will be bad both for the litigating public and the concept itself.”

– Per Tobi JCA. In busari v. Oseni suit no. Ca/l/284/288; (1992) 4 n.w.l..

In 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 decision was reversed. Kayode Eso had the following to say at page 1301 of the judgment:

“In the instant appeal before this court I think with respect, that the lead judgment of my learned brother Obaseki J.S.C. is an advancement on the position hitherto held by this court on “locus standi”. I think, again with respect, that it is a departure from the former narrow attitude of this Court in the Abraham Adesanya’s case and subsequent decisions, for strictly speaking for my Lord (Nnamaeka-Agu)(as he then was) who no doubt was bound by those decisions at that time was right in his interpretation of the stand of this Court, and so, strictly on those authorities of this Court, along, his judgment with respect, could not be faulted when he said; “in this country the result of all the cases is that the common law concept that only a person who has locus and can sue is the only person who has suffered or is in imminent danger of suffering an injury-damage, or detriment to himself. This is the result of all the cases including Adesanya’s case (supra) Thomas v. Olufosoye (1986) I N.W.L.R. 699: A-G Kaduna v. Hassan (1985) 2 N.W.L.R. 433 and Gambia v. Esezi (1961) All N.L.R. 584” My humble view, and this Court should accept it as such, is that the present decision of my learned brother, Obaseki, J.S.C. in this appeal has gone beyond the Abraham Adesanya’s case. I am in complete agreement with the new trend, and with respect, my agreement with the judgment is that it has gone beyond the Abraham-Adesanya case.”

To my mind, it is only the new trend in the Chief Gani Fawehimi’s case (supra) that can save our jurisprudence from the shackles of its colonial heritage as far as the concept of locus standi in Nigeria is concerned.

RECOMENDATIONS FOR THE ADVANCEMENT OF PUBLIC INTEREST LITIGATION IN NIGERIA.

There is need to create institutions which are dedicated to this work and encourage lawyers who are involved in public interest litigation.
There is need for proper selections such as selecting the right lawyer, the appropriate cases, the proper forum, the right
Public lectures like FAWEHINMISM which is not only aimed at celebrating fawehinmi but also aimed at propagating public interest litigation should be organized often.

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