Who can claim locus before the Courts?

By Caroline Ladidi Anze-Bishop NEC Rep Bukuru Branch.

“A person who makes a claim which in actual fact belongs to someone else has no locus standi before the Court.” vide UNOKA vs. AGILI (2008) All FWLR (PT. 423) PG. 1349 @ PG. 1364, PARA. H. NWANKWO & ORS. vs. ORIZU & ORS.(2019)LPELR-46613(CA)

ISSUE: LOCUS STANDI-Who has the locus standi to institute an action challenging the creation of an autonomous community

PRINCIPLE:
“Indeed, I am of the considered view that the Appellants did not read the many cases cited by the lower Court in its ruling, otherwise, they would have seen that the conclusion of the lower Court that they lack the locus standi to have instituted the instant case and maintain the same cannot be faulted on the basis of the arguments/submissions in their brief of argument. The lower Court, dwelling on the issue of locus standi in its ruling, stated thus:

“The Applicant in this motion raised two issues;
a) Whether the Claimants (sic) anybody claiming through them not being members of Ndiakunwata Iheme Autonomous Community can protest or challenge the creation of Ndiakunwata Iheme Autonomous Community.

b) Whether the challenge to the recognition of the 1st Defendant as the Eze of Ndiakunwata Iheme Autonomous Community is statute barred.

The Claimant(sic)/Respondents on their part proposed 3 issues for settlement.
i) Whether the Claimants/Respondents have legal capacity or locus standi to institute this action.
ii) Whether this action instituted by the Claimants is statute barred.
iii) Whether the 1st Defendant/Applicant by filing this statement of defence and other Court process has waived his right to bring this application.
Although issues one and two of both parties appear similar, I will adopt the Respondents issues in determining the issues raised in this application.

ISSUE 1
The question of Locus Standi is often taken to be a threshold issue in our civil jurisprudence and its definition or explanation has been largely dealt with by our superior Courts.
When the locus standi of a party is questioned in any proceeding the Court is being called upon to determine if there is sufficient interest in the party to warrant or give him authority to bring the action.

It is a principle of law meant to check busybodies or interlopers from meddling in judicial proceedings. See the case of Thomas Vs. Olufosoye (1986) NWLR (Part 18) 669. Per Karibi Whyte, JSC – “Locus standi will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected”.
It is well settled that where there is locus standi; there is a justiciable dispute.

Where there is no locus standi a person is said to be a stranger to the proceeding and therefore cannot be entertained or permitted to initiate the actions. Locus Standi is to be differentiated from a cause of action. Even when there is a cause of action; it must invest on a party for the party to have locus standi. Locus Standi may be determined from the nature of the action, the facts as disclosed on the statement of claim and the relief sought by a party.

In some other cases the authority to bring an action or persons who can bring an action is stated in the statute. In the later (sic) case, it becomes easier to determine the issue of locus standi along the parameters stated by the law. In this regard; the primary responsibility of the Court is to ascertain the intention of the legislative so as to give effect to it.
ln determining whether a party has locus standi, the Court is confined to the writ of summons and statement of claim and no more.

In the case before me, both parties are agreed that Section 24 of the lmo State of Nigeria Traditional Rulers and Autonomous Communities Law, 2003 as amended is the relevant Legislation.

It provides as follows:-
“Any person or group of persons who objects to the creation of a new autonomous community must be members and come within the said autonomous community and may protest against the creation in writing with two original copies one of which should be sent to the Governor through the Commissioner or Adviser on Chieftaincy Affairs and the other to the Imo State House of Assembly”. While the Applicant counsel places heavy reliance on the above provision of the Law, the Respondents have argued that the provision is not applicable to this case.

In interpreting this provision (i.e.) Section 24 of Imo State of Nigeria Traditional Rulers and Autonomous Communities Law, I shall adopt the canon of statutory interpretation which enjoins me to give the language of the statute its plain and ordinary meaning unless this will lead to any absurdity or be in conflict with the constitution.

A perusal of the provision (Section 24 of Law No.2 Supra) shows the use of the word must in prescribing the group of persons or persons who can object to the creation of an autonomous community. The same provision uses the word may to denote the manner of protest if the person so wish (sic).

The above situation leaves no one in doubt as to what the law requires or who has the authority to protest the creation of an autonomous community.
A crucial question that arises is whether the creation of Ndiakunwata Iheme Autonomous Community is being questioned in these proceedings. The answer can be gleaned from the statement of claim before me particularly the reliefs thereof.

The Claimant/Respondents have made no pretences about their identity. They say they are from Ndiakunwata Uno and not Ndiakunwata Iheme. I refer to paragraphs 1 which I reproduce hereunder
“The Claimants are indigene/natives of Akunwata Uno Arondizuogu, Ideato North Local Government
Area of Imo State”.

The Claimants clearly acknowledged the existence of Ndiakunwata Iheme which they described as a distinct community near Okigwe in their paragraph 33 of the statement of defence (sic: claim).

Applying Section 24 of Imo State Law No. 6 of 2006 to the above facts and deductions, I hereby resolve the issue 1 of the Respondents in favour of the Applicants and hold that the Claimants who are by their own admission from Ndiakunwata Uno are not vested with any authority to initiate an action challenging or protesting the creation of Ndiakunwata Iheme Autonomous Community, under the Imo State Law No. 6 of 2006. The contention that the suit or relief challenging the recognition of the 1st Defendant is statute barred as hinged on Section 28 of Imo State Traditional Rulers,

Autonomous Communities and Allied Matters Law No. 6 of 2006 which states as follows:

“Where any interested party within the autonomous community feels that in the exercise of such recognition of an Eze the rules of natural justice have been contravened, that party may have within 21 days of the recognition, the right to apply to the High Court for a review of the recognition and the Court may…”

The above sections of the Law No. 6 have been dealt with by the Supreme Court in Okeahialam Vs. Nwamara (2003) FWLR (Pt.176) 635 and Okere Vs. Amadi (2005) ALL FWLR (Pt. 269) at 1925. Surprisingly, the two counsel who has put in appreciable industry in this application failed to advert to the authorities.

In the cases referred above the Court had to consider the similar provisions which is contained in Section 25 of the Traditional Rulers and Autonomous Communities Law of Imo State (No. II of 1981) and came to the conclusion that the limitation of 21 days shall apply when a party comes by judicial review. I am of the humble view that the 21 days limitation is not an absolute provision but can only be applicable where complaint is based on a breach of Natural Justice and the party seeking a review of the recognition. The limitation shall not apply to a matter commenced by writ of summons as in this case. I therefore hold that Section 28 as referred above is not applicable to this case.

The issue III proposed by the Respondent (sic) is as to whether the Applicant can bring this application after filing his defence and joining issue with the Claimant/Respondent (sic).

In conclusion, I had found earlier that the Respondents cannot under the law No. 6 of 2006 challenge the creation of Ndiakunwata Iheme Autonomous Community which is their principal claim. This action is incompetent and hereby dismissed for lack of locus standi in the Claimants.”

The issue of locus standi cannot be said to be recondite or incomprehensible to anyone of ordinary understanding or knowledge against the backdrop of the numerous cases decided on the said issue from many years back till present day. I am of the considered view that though it is clear that the Courts had for many years adopted a rather restrictive attitude to the issue of locus standi and have in recent times relaxed or expended the application of the said issue in litigation, the position of the law has never been that all manner of people can institute actions in respect of all manner of causes of action as it would appear to be the stance of the Appellants relying on Section 6(6)(b) of the 1999 Constitution as amended.

The current position of the law in my considered view has not obliterated the dichotomy between locus standi in the realm of public law or public right litigation and locus standi in the realm of private law or private right litigation and the different tests applicable to them respectively. This much in my considered view is clear from the case of OWODUNNI V. REGISTERED TRUSTEES OF CCC (2000) 10 NWLR (PT. 675) 325 SC. The said case was decided by the Supreme Court as far back as 30/6/2000.

Therein, Ogundare, JSC, delivering the leading judgment of the Court stated thus: “The term locus standi (or standing) denotes the legal capacity to institute proceedings in a Court of law.

Standing to sue is not dependent on the success or merit of a case, it is a condition precedent to a determination on the merits. It follows therefore, that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits; his case must be struck out as being incompetent.

At common law, the position is that, in the realm of public right, for a person to invoke judicial power to determine the constitutionality of legislative or executive action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself, and which interest or injury is over and above that of the general public. In other words, the plaintiff or claimant must show that he has some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. The question whether there is such a justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case- See generally the various judgments delivered by their Lordships of this Court in Senator Adesanya v. President of the Federal Republic of Nigeria & Anor. (supra). I shall say more on this case later in this judgment.

In Oloriode v. Oyebi (1984) 1 SCNLR 390 at P. 400, Irikefe, JSC, (as he then was) declared:

“A party prosecuting an action would have locus standi where the reliefs claimed would confer some benefit on such a party.” This is clearly the position in private law. A case in point is Amusa Momoh v. Jimoh Olotu (supra) where, in a chieftaincy matter the plaintiff had pleaded, without more, in paragraph 1 of his statement of claim that he was a member of the ruling house affected by the dispute. Sir Ademola, CJN, delivering the judgment of this Court declared: “In regard to paragraph 1 of the statement of claim and the point raised that the plaintiff has no locus standi in the matter, the learned trial Judge ruled that as this paragraph has not been denied, the plaintiff cannot be said to have no interest. Now, what is the averment in paragraph 1? The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family? Has he not got to state that he has an interest in the chieftaincy? Surely not every member of a chieftaincy family as such has interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his Statement of Claim how his interest in the chieftaincy title arose. It is difficult to say on the pleadings filed that the plaintiff has any locus in the matter.” The position appears to be that in private law, the question of locus standi is merged in the issue of cause of action. For instance, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of the contract as he will simply not have a locus standi to sue the defendant on the contract. It is on this basis one can explain the decision in Momoh v. Olotu. What cause of action has a member of a ruling house who has no interest in a chieftaincy title against the successful candidate? None that I can imagine. It is on the basis of the reasoning in Momoh v. Olotu that one can readily explain the decisions in Odeneye v. Efunuga (supra) and cases cited therein and that is that “a party must show clearly that he has a right to protect and that his coming to Court is to seek remedy so that the right will not be violated” per Belgore, JSC, in Odeneye v. Efunuga at page 639. Belgore, JSC, added at page 640 and I agree with him. “The respondent in this matter on appeal not only claims that he is entitled to be nominated for the vacant stool of Alakenne (which in all respects is enough to confer locus standi) but he went further that his name really came up as one of those nominated which to my mind more that satisfied his right to sue. I find no merit in this issue of locus standi as canvassed by the appellant. Surely the respondent is not a mere busy-body.” Olawoyin v. Attorney-General of Nigeria (supra) is a case in the realm of public law. Unsworth FJ, delivering the judgment of the Court laid down the following test: “Now did the appellant in the High Court show that he had a sufficient interest to enable him to apply for a declaratory judgment in accordance with the principles laid down in the case of the Guaranty Trust Co. of New York v. Hannay. The Appellant did not in his claim allege any interest but his counsel said that the evidence would be that the appellant had children whom he wished to educate politically. There was no suggestion that the appellant was in imminent danger of coming into conflict with the law or that there had been any real or direct interference with his normal business of other activities. In my view the appellant failed to show that he had a sufficient interest to sustain a claim. It seems to me that to hold that there was an interest here would amount to saying that a private individual obtains an interest by the mere enactment of a law with which he may in the future come in conflict; and I would not support such a proposition.”

As O. failed to allege or establish any such interest, his case was held to be rightly dismissed. The Court applied the “interest” “injury” test in denying O of locus standi in the case. The same test was applied by the court in Gamioba & Ors. v. Esezi II & Ors. (1961) ANLR 608, 613 where Brett FJ, as he then was, said: “There is a further test to be applied in a case such as this one. It is always necessary, where the plaintiff claims a declaration that a law is invalid, that the Court should be satisfied that the plaintiff’s legal rights have been or are in imminent danger of being invaded in consequence of the law. We dealt with this point at length in Olawoyin v. Attorney-General, Northern Region, (FSC 290/1960), (1961) All NLR 269, and it will be enough to say here that since the validity of a law is a matter of concern to the public at large the Court has a duty to form its own judgment as to the plaintiff’s locus standi, and should not assume it merely because the defendant admits it or does not dispute it. The plaintiff’s locus standi in the present case has not yet been disclosed, and if he has none, his claim must be dismissed on that ground, and it will be unnecessary to decide the question involved in the declaration he claims. For this reason also it is not yet clear that the questions set out in counsel’s application arises.”
A word or two on Adesanya v. President of the Federal Republic of Nigeria (supra). It appears that the general belief is that this Court laid it down in that case that the law on locus standi is now derived from Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1979 (re-enacted in Section 6(6) (b) of the 1999 Constitution) which provided:
I am not sure that this general belief represents the correct position. Of the seven Justices that sat on that case only 2 (Bello and Nnamani JJSC) expressed views to that effect. Bello, JSC, (as he then was), put the law on locus standi or standing in the realm of public law in these words:
“Finally, I would like to make the following observations: A careful perusal of the problem would reveal that there is no jurisdiction within the common law countries where a general licence or a blank cheque- if I may use that expression without any string or restriction, is given to private individual to question the validity of legislative or executive action in a Court of law. It is a common ground in all the jurisdictions of the common law countries that the claimant must have some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. In most cases the area of dispute, and sometime, of conflicting decisions has been whether or not on particular facts and situation the claimant has sufficient interest or injury to accord him a hearing. In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case: Bengal Immunity Co. v. State of Bihar (1955) 2 SCR 602; Forthingham v. Mellon (1925) 262 US 447 for India and America respectively. Even in the Canadian case of Torson v. Attorney-General of Canada (1974) 1 NR 2254, and the Australian case of Mckinlay v. Commonwealth (1975) 135 CLR cited by Chief Fawehinmi, in which liberal views on standing were expressed, the issue of sufficiency of interest was the foundation upon which the decisions in both cases were reached.” I think this passage correctly sums up the law and is in accord with Olawoyin v. Attorney-General of Northern Nigeria (supra). Bello, JSC, did not, however, stop there. He went on to consider the provision of our Constitution and after quoting Section 6(6)(b) of the Constitution (1979 Constitution) went on to observe:
“It may be observed that this sub-section expressed the scope and content of the judicial powers vested by the Constitution in the Courts within the purview of the sub-section. Although the powers appear to be wide, they are limited in scope and content to only matters, actions and proceedings for the determination of any question as to the civil rights and obligations of that person’. It seems to me that upon the construction of the sub-section, it is only when the civil rights and obligations of the person, who invokes the jurisdiction of the Court, are in issue for determination that the judicial powers of the Courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.”
Idigbe, JSC, also quoted Section 6(6) (b) of the Constitution and went on to say: “The expression ‘judicial power’ in the above quotation is the power of the Court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision’ (See Justice Miller: The Constitution (P. 314). Judicial Power is therefore invested in the Court for the purpose of determining cases and controversies before it; the cases or controversies, however, must be ‘justiciable’. That being so, it is necessary to know in what circumstances a Court can, in the exercise of its judicial power pronounce on the constitutional validity of an ‘Act’ (i.e. legislation) of the Legislature or, an ‘act’ (i.e. action) of the National Assembly. In attempting to answer this question, I would gratefully adopt the views of
Marshall CJ, in Marbury v. Madison (1803) 1 Cranch 137, which, in a summary, are that the right of the Court to declare unconstitutional an act of Congress can only be exercised by it when a proper case between opposing parties has been submitted to it for judicial
determination,…….” On what is a “proper case” that would justify the invocation of the judicial power of the Court, the learned Justice of the Supreme Court observed:
“The type of case or controversy which will justify the exercise by the Court of its judicial power must be justiciable and based on bona fide assertion of right by the litigants (or one of them) before it………………………… I take the view that the circumstances in which the judicial power under Section 6(6) (b) of the 1979 Constitution can be exercised by the Court for the purpose of pronouncing on the constitutional validity of an act for the National Assembly or, more particularly, any legislation must be limited to those occasions in which it has become necessary for it (i.e. the Court) in the determination of a justiciable controversy or case based on bona fide assertion of rights by the adverse litigants (or anyone of them) before it to make such a pronouncement. The Court does not, in my view possess a general veto power over legislation by, or acts of, the National Assembly; its powers properly construed, are supervisory, and the supervisory power, in circumstances to which I have referred above.” It will be observed that Idigbe, JSC, did not say that it was Section 6(6) (b) that gave locus standi but rather that it was this sub-section that prescribed the judicial power of the Court in the separation of powers scheme of the Constitution. Obaseki, JSC, was emphatic in his rejection of the notion that Section 6(6) (b) is concerned with locus standi. The learned Justice of the Supreme Court after quoting the sub-section, said:
“This provision by itself, in my opinion and respectful view, does not create the need to disclose the locus standi or standing of the plaintiff in any action before the Court and imposes no restriction on access to the Courts. It is the cause of action that one has to examine to
ascertain whether there is disclosed locus standi or standing to sue.”
Nnamani, JSC, appeared to share Bello, JSC’s view when he said:
“Section 6(6)(b) to my mind encompasses the full extent of the judicial powers vested in the Courts by the Constitution. Under it, the Courts have power to adjudicate on a justiciable issue touching on the rights and obligations of the person who brings the complaint to Court. The litigant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury. It seems to me that the Court must operate within the parameter of the judicial power vested in them by Section 6(6) (b) of the Constitution and that they can only take cognisance of justiciable actions properly brought before them in which there is dispute, controversy, and above all, in which the parties have sufficient ainterest. The Courts cannot widen the extent of this power which has been so expressly defined by the Constitution.” Uwais, JSC, also agreed with Bello, JSC, but only to some extent. For he said: “It is for the foregoing reasons and those given by my learned brother, Bello, JSC, (which I had the privilege of reading in draft) that I feel that the interpretation to be given to Section 6 subsection (6)(b) of the Constitution will depend on the facts or special circumstance of each case. So that no hard and fast rule can really be set-up. But the watchword should always be the ‘civil rights and obligations’ of the plaintiff concerned.” I have highlighted above the views expressed by five of their Lordships that determined the Senator Adesanya’s case. I am only left with two. Sowemimo, JSC, (as he then was), declined to express a view on Section 6 subsection (6) (b) of the Constitution. He said: “On interpretation placed on Section 6(6)(b) I prefer to reserve my comments until a direct issue really arises for a determination.” Fatayi-Williams, CJN, who expressed his preference for what the Romans called actio popularis when he said: “To my mind, it should be possible for any person who is convinced that there is an infraction of the provisions of Sections 1 and 4 of the Constitution which I have enumerated above to be able to go to Court and asks for the appropriate declaration and consequential relief if relief is required,. In my view, any person, whether he is a citizen of Nigeria or not, who is resident in Nigeria or who is subject to the laws in force in Nigeria, has an obligation to see to it that he is governed by a law which is consistent with the provisions of the Nigeria Constitution.
Indeed, it is his civil right to see that this is so. This is because any law that is inconsistent with the provisions of that Constitution is, to the extent of that inconsistency, null and void by virtue of the provisions of Section 1 and 4 to which I have referred earlier.” Still found against the Senator on the ground that the latter: