COMPARATIVE ANALYSIS OF JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN NIGERIA

ABSTRACT

The debate about whether economic and social rights can be or should be adjudicated and enforced by courts or other bodies in Nigeria has been on-going since the 1960s when the rights in the Universal Declaration of Human Rights (UDHR) were divided into two separate covenants. One contained economic, social and cultural rights; while civil and political rights were set out in the other. In the light of this, can it cogently be argued that the International Covenant on Economic, Social and Cultural Rights (ICESCR) articulates real rights, or does it merely set forth hortatory goals, programmatic objectives or utopian ideals? Is it ‘soft law?’ Is it helpful to see human rights in the form of “generations” – the so called first, second and third generations? How can rights (or obligations) that depend on the availability of scarce or unpredictable resources in fact be rights (or obligations) in any meaningful sense? How does one calculate the ‘maximum extent of available resources?’ Can economic and social rights ever be fully achieved? How can they best be enforced? These are some of the questions that arise whenever one brings up the vexed issue of justiciability of economic and social rights in Nigeria and their place in human rights discourse. Though Nigeria has been a party to the International Covenant on Economic, Social and Cultural Rights since 1986, she is yet to adopt justiciable constitutional guarantee for the promotion of economic and social rights. Nigeria, like India followed the bifurcated approach of justiciability to the International Covenant by placing classical rights and liberties in Chapter IV of the

1999 Constitution  of Nigeria (as amended), while economic and social rights are recognized under Chapter II of the Constitution as Fundamental Objectives and Directive Principles of State Policy. Since economic and social rights are classified under the Fundamental Objectives and Directive Principles of State Policy, they are thus regarded as mere ideas towards which the states are expected to aim, since their enforcement are subject to the availability of resources. As a result of this, it is argued in Nigeria’s constitutional jurisprudence that Chapter II of the Constitution is non-justiciable and Nigerians cannot sue  to  protect  these  rights  in  any  court  in  the  country  by  virtue  of  section  6(6)(c)  of  the  1999

Constitution. This paper in its first section deals with the general introduction. This is followed by an over view of the different generations of human rights; as well as the development of economic and social rights through international instruments. The work in its third section graphically addresses the general debates over the justiciability of economic and social rights and the state of socio-economic rights in Nigeria and in the section following gives a comparative analysis of the state of economic and social rights in some jurisdictions. In its last section, it argues the case for their progressive realization and asserts unequivocally, that adjudication is desirable in Nigeria and that adjudication is already taking place (to varying degrees) in many courts throughout the world.

CHAPTER ONE GENERAL INTRODUCTION

1.1.     Background of the Study

The debate about the justiciability of economic and social rights in Nigeria is an old and well-worn one. The appraisal of the arguments against making socio- economic rights justiciable and the analysis of jurisprudence determine that concerns about the justiciability of economic and social rights are generally ill-conceived and run contrary to experience.1  Indeed, critics of justiciability have relied on overly simplistic division of the rights in the Universal Declaration of Human Rights into two separate covenants. One contained economic, social and cultural rights, while civil and political rights were set out in the other. Though both set of rights were affirmed to be indivisible and interdependent, commentators have often distinguished between the two categories of rights by asserting that economic and social rights are not justiciable.2  Worse still, economic and social rights are classified under Chapter II of the 1999 Constitution of Nigeria (as amended), as Fundamental Objectives and Directive Principles of State Policy and as such, these rights have been rendered non-justiciable by section 6(6) (c) of the 1999 Constitution. Also, critics of justiciability have relied on  incorrect assumptions about the nature of the relationship  between  the   judiciary  and  the   legislative  or  executive  branches  of government, when economic and social rights are adjudicated.

To the contrary, the ways in which civil and political rights and socio-economic

rights are inter-twined and interact with one another make it impossible to declare the

1. K .T. Fyanka, “The Justiciability of Social Rights: Myth or Reality?” Human Rights Review, An International

Human Rights Journal, vol. I, No. 1, (2010), pp. 433 – 464 at p. 462.

latter category non-justiciable without undermining protections of both categories of rights.3 These rights, otherwise called second generation rights are bedeviled often by the absence of legal framework to implement the provisions in the international covenants and national constitutions.4 Apart from the legal framework, there appears the negating influence by the international formulators of those rights where the extent of enjoyment of those rights, is dependent on resource availability.5 Little wonder therefore, that many national constitutions have the provision made almost nebulous as to grant them the

backing of a  legal redress much as often as enjoyed by the  first  generation rights, comprising civil and political rights. The attempt is to make economic, social and cultural rights a lame provision in many national constitutions of government, much as political party manifestoes.

However, evidence demonstrates that in recent years, an increasing number of countries have included economic and social rights in their constitutions. In addition, some domestic courts and regional bodies routinely adjudicate and rule upon socio- economic rights claims. For example, economic and social rights are litigated directly and indirectly before regional bodies, including the African Commission of Human Rights, the inter-American Court of Human Rights, European Committee of Social Rights, the European Court  of  Human  Rights,  the  African  Court  of  Human  Rights  and  other

international bodies.

3. Ibid.

4. Fyanka, loc. cit., p. 463.

1.2.     Statement of the Problem

Three important factors impede effective promotion and protection of economic and social rights in most domestic jurisdictions, in particular, common law jurisdictions such as Nigeria.6  The first, arising from the classification of rights in international law into 3 generations, is the wide conception that economic and social rights, unlike civil and political rights are not justiciable. Closely following this reasoning is yet a wider conception that the provisions of ‘Fundamental Objectives  and  Directive  Principles  of  State  Policy’  contained  in  Chapter  II  of  the  1999

Constitution of Nigeria are economic and social rights provisions and therefore, are by section

6(6)(c) of the said Constitution, non-justiciable.7  The third factor is the provision of the very international treaty that  codified economic and  social rights (the International Covenant on Economic, Social and Cultural Rights) to the effect that economic and social rights should be realized or implemented progressively.

The justification for this is said to be that economic and social rights require financial and material resources and that international law or the municipal legislature would not impose obligations with financial implication on the executive government. Each government should therefore fashion out how it would realize the economic and social rights based on resources available to it.8  It is worthy of note here that not all economic and social rights require resources

for instance: labour rights, rights to free economic activity, and so on.9

6. E. C. Obiagwu, Promoting Economic, Social and Cultural Rights Using Domestic Legal Mechanisms, (Enugu: Fourth Dimension Publishing Co. Ltd., 2003), p. 163.

7. Ibid.

The United Nations through its Commission on Human Rights (now Human Rights Council) voted in favour of non-justiciability of economic and social rights.10  The Nigerian Constitution Drafting Committee had also advanced the argument that if the objectives and directive principles were made enforceable, it would lead to constant confrontation between the executive and the legislature on the one hand, and the judiciary on the other hand. To make the judiciary the arbiters over such matters is only a short step towards building up against them the charge of usurping the functions of the executive and the legislature.11  It has similarly been contended that it will be tantamount to asking Judges to make political value judgments if they have to decide whether governmental actions and omissions are in line with the objectives and the directives.12    It is argued that if the courts are granted power to determine the priorities of government in all circumstances, that would amount to determining the plan of action for the executive.13    Justiciability, it is also contended, will lead to multiplicity of actions which the

courts lack the capacity to cope with.14 This dissertation shall give an in-depth exposition on all

these problems that have been enumerated above.

1.3.     Research Questions

In the course of this academic inquiry, certain imperative research questions come to mind amongst which are:

10. K. M. Danladi, “An Overview of Protection and Enforcement of Economic, Social and Cultural Rights Under International Regional Legal Regimes Convention”, An International Human Rights Journal, vol. I., No. 1, (2010), pp. 323-432 at p. 340.

11. Report of the Constitution Drafting Committee containing the Draft Constitution vol. 1, (Lagos: Federal Ministry of Information, 1976), p. vii.

12 . O. N. Ogbu, “The Significance And Essence of the Fundamental Objectives And Directive

Principles of State Policy”, Unizik Law Journal, vol. 5, No. 1, (2005), pp. 276-296 at p. 278.

a)  Does  the  International  Covenant  on  Economic,  Social  and  Cultural  Rights  (ICESCR) articulate real rights, or does it merely set forth hortatory goals, programmatic objectives or utopian ideals?

b)  Can economic, social and cultural rights ever be fully achieved?

c)  How can they best be enforced?

d)  Are economic, social and cultural rights soft laws?

e)  Should human rights be classified into generations?

f)   Are all human rights universal, interdependent, inter-related and indivisible?

g)  Will justiciability of economic and social rights lead to multiplicity of actions which the courts lack the capacity to cope with?

h)  Will justiciability of economic and social rights be tantamount to asking judges to make political value judgements?

i)   Why are economic and social issues called ‘rights?’

j)   What are the challenges to the enforcement of economic and social rights?

k)  Where should we place human rights in the development discourse?

l)   How does one calculate the ‘maximum extent of available resources?’

m) Should there be progressive realization of economic, social and cultural rights?

1.4.     Objective of the Study

The objective of this study is to show that despite the controversies surrounding the question of justiciability of economic and social rights in Nigeria, progressive realization of these rights is practicable and that adjudication is seriously urged in Nigeria, as this is already taking place in various jurisdictions of the world.

1.5.     Methodology

A doctrinal approach is adopted.  This involves both library and desk research.  To this end, the study relied on primary source materials like observations by learned commentators. A detailed and comprehensive review of secondary source materials like case laws, statutes, conventions, treaties, textbooks, journals, articles, periodicals, conference papers, legal news, law reviews, the internet and other legal literature has been made.  The collation and analysis of foreign and local decided cases form part of the methods adopted in this work.  Also, the methodology adopted in this  dissertation  is  descriptive,  analytical,  critical  and  comparative.    It  is  descriptive  and analytical because the work described and analyzed the present state of socio-economic rights in Nigeria, as well as some other selected jurisdictions.  To ensure that the analysis undertaken in this research work goes a step beyond the descriptive level, a critical approach has been adopted. In order to bring out best practices and also to lay down the general theoretical and philosophical background of this study, effort has been made to compare the position of the law in Nigeria with those of other  jurisdictions like South Africa, Ghana,  Zambia, United Kingdom, India  and Argentina.  Thus, the relevant and basic laws and institutional practices of the countries under review will be analyzed in this dissertation. Existing scholarly writings and jurisprudence will be used in giving this comparative analysis.

1.6.     Organization of the Study

This dissertation revolves around the vexed issue of the justiciability of economic and social rights in Nigeria. It is divided into 5 chapters with clearly designated headings and sub-headings. Chapter one is the general introduction. Chapter two borders on the generations of human rights, as well as the development of economic and social rights through international instruments. Chapter three addresses the general debates over the justiciability of economic and social rights

and the state of socio-economic rights in Nigeria. Chapter four is a comparative analysis of other jurisdictions. The paper is concluded with a summary of the findings followed by recommendations on what can be done to ensure the progressive realization of these rights in Nigeria.

1.7.     Definition of Terms

1.7.1.  Economic and Social Rights

They are those rights that protect the necessities of life or that provide for the foundations of an adequate quality of life.15 The necessities of life encompasses at a minimum, rights to adequate nutrition, housing, health and education.16  All of these rights provide foundations upon which human development can occur and human freedom flourish.17

Economic and social rights may also be defined as claims against the State to have certain basic social and economic needs of life satisfied.18  These social claims have also been defined by Sen as basic entitlements.19    Sen argues that people are entitled in the prevailing system of institutional rights, to adequate means for survival. Entitlements are the totality of

things a person can have by virtue of her rights, which in turn depends on the legitimized process of acquiring goods under the relevant system.20  The concept of basic human needs involves drawing a list of foundational human needs of both physiological as well as social import. In addition, such basic social rights should be conceptualized in terms of an entitlement both to be

equal as humans and to be equal as members of society. Indeed, there is extensive literature that

15 . Fyanka, loc. cit.,note 1, p. 435.

16 . International Covenant on Economic, Social and Cultural Rights (ICESCR) entered into force on 3 January 1976, G.A. Res. 2200 A (XXI), U.N. Doc. A/6316 (1966), 933 UNTS 3.

17 . Ibid.

18 . L. M. Keller, The Indivisibility of Economic and Political Rights, A Review of Development as Freedom, (New

York: Knopf  Publishing Co. Ltd., 1999), p. 366.

19 . A. Sen, Development as Freedom, (New York: Random House Publishing Co. Ltd., 1999), at p. 435.

20 . Ibid.

views these rights as part and parcel of universal human entitlement.21 According to Vance, “let me define what we mean by Human Rights”. There is the right to the fulfillment of such vital needs as food, shelter, health care and education. We recognize that the fulfillment of this right will depend, in part, upon the stage of a nation’s economic development. But we also know that this right can be violated by a Government’s action or inaction for example, through corrupt official processes which divert resources to the elite at the expense of the needy, or through indifference to the plight of the poor.22

Inspite of this noble objective, there is on-going debate about the justiciability, that is,

adjudication and enforcement of economic and social rights. Proponents exist on both sides of the debate. To understand the nature of this discourse, we shall hereunder analyze the concept of justiciability.

1.7.2.  Justiciability

This has been defined as “the quality or state of being appropriate or suitable for review by a court”.23    Arambulo remarks that the term ‘justiciability’, is generally understood to refer to a right’s faculty to be subjected to the scrutiny of a court of law or another (quasi-judicial) entity.

A right  is said to be justiciable when a judge  can consider this right  in a concrete set of circumstances and when this consideration can result in the further determination of this right’s

significance.24

21 . M. H. Good, “Freedom From Want: The Failure of United States courts to Protect Subsistence Rights”, (1984), 6

Hum. Rts. Q. p. 335.

22 . C. R. Vance, “Human Rights Policy, a major 1977 Statement on Human Rights Policy” by the Carter

Administration’s Secretary of State, (1977) transcript available in the Office of Media Services, Bureau of Public Affairs Department of State quoted in Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (2nd edn., Washington DC: University Press, 1980), p. 5.

23 . Ibid.

24 . K. Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural

Rights (Oxford: William Collins Sons & Co. Ltd., 1999), p. 55.

Scott and Macklem submits, by the term, ‘justiciability’, we mean in broad outline, “the extent to which a matter is suitable for judicial determination…this refers to the ability to judicially determine whether or not a person’s right has been violated or whether the state has failed to meet a constitutionally recognized obligation to respect, protect or fulfill a person’s right”.25  Scott and Macklem remark further that, justiciability is a deceptive term because its legalistic tone can covey the impression that what is or is not justiciable inheres in the judicial function and that it is written in stone.   Infact, the reverse is true: not only is justiciability variable from context to context, but its context varies over time, justiciability is a contingent and fluid notion dependent on various assumptions concerning the role of the judiciary in a given place at a given time as well as on its changing character and evolving capability.26 According to another  authority,  “concepts  of  justiciability  have  been  developed  to  identify  appropriate occasions for judicial action… The central concepts are often elaborated into more specific categories of justiciability namely: advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions and administrative questions”.27 This paper will progress with the review of the doctrines of justiciability that are generally applied by the courts.

1.8.     Doctrines of Justiciability

1.8.1.  The Doctrine of Political Question

The claim that a political question is ‘non-justiciable’ leads to the result by which the court does not see itself as authorized to intervene in the issue brought before it. In essence, since the

25 . S. C. Macklem, “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South-African

Constitution”, University of Pennsylvania Law Review, vol. 142, No. 1, (1993), p. 17.

26 . Ibid.

27 . C. A. Wright, et al., Federal Practice and Procedure No. 3529 (2nd edn., London: Oriel Computer Services Ltd.,

1984), pp. 278-279.

political nature of the question renders it non-justiciable, the court is inexorably led to refuse to adjudicate on it, for in its view it lacks jurisdiction.28

The political question doctrine has been used in Nigeria over a long period of time, as will be illustrated by a plethora of judicial authorities. In 1983, in Onuoha v. Okafor,29  the Supreme Court laid down two principles by which to determine political questions, based on the principles  developed  by  the  US  Supreme  Court.30   The  court  in  that  case  interpreted  the provisions of the 1979 Constitution of the Federal Republic of Nigeria modeled after the United States Constitution. The Supreme Court in this case defined the political question doctrine in Nigeria as consisting of two principles: (i) one is that the lack of a satisfactory criterion for judicial  determination  of  a  political  question  is  one  of  the  dominant  considerations  in determining whether a question falls within the category of political questions. (ii) the other is the appropriateness of attributing finality to the action of the political department and political parties under the Nigerian Constitution and system of government.

However, before the 1979 Constitution was adopted, Nigerian courts applied a political question doctrine although not recognizing or classifying it as such. For example, in the First Republic, the Supreme Court held in Attorney General Eastern Nigeria v. Attorney General of the Federation31 that the determination of the margin of error in a census is a political matter.

The judicial powers under the 1979 and 1999 Constitution are defined by section 6 (6) (b)

as extending to “all matters between persons or between government or authority and any person

28 . S. Navot, Political Questions In The Court: Is “Judicial Self-Restraint” A Better Alternative than a “Non- Justiciable”  Approach?,  VII World Congress of the International Association of Constitutional Law  Rethinking the Boundaries of Constitutional Law Workshop: Judicial Review of Political Sensitive Question, p. 22 .

29 . (1983) NSCC 494.

30 . The Court relied on Baker v. Carr (1962) 369 US 186 217.

31 . (1964) All NLR 218.

in Nigeria and to all actions and proceedings relating thereto, for the determination of any question  as  to  the  civil  rights  and  obligations  of  that  person”.  This  provision  seems  to contemplate unlimited or full judicial review by the courts. How then did the Nigerian courts interprete it? Nigerian constitutional interpretation in the Second Republic between 1979 and

1983 can be classified into two different periods.32 The first period saw the Nigerian courts assert

that it is their duty within the constitutional scheme to say what the law is.33 In the second period, represented by the case of Onuoha,34 the original attitude changed and the courts retreated to the view that they had a limited judicial review role. In the first period, the Nigerian Supreme Court asserted that under section 6 (6) (b), judicial powers extended to all matters. For example, if by this endowment the judiciary encroached on the legislative domain, it was permitted to do so irrespective of the fact that the incursion breached the concept of separation of powers and even if the matter was political. This was the decision of the court per Fatayi – Williams CJN in the case of Alegbe v. Oloyo.35    It is this attitude that led the Supreme Court to resist the political question doctrine in Attorney-General of Bendel State v. Attorney-General of the Federation,36 where the Supreme Court held that it had jurisdiction to determine how the legislature exercised its law making powers.

The Nigerian courts have applied the political question doctrine in a host of decided cases as shall be discussed in this paper. In the case of Balarabe Musa v. Auta Hamzat37   the Court of

Appeal held that the impeachment of the Kaduna State Governor pursuant to section 170 of the

32 . E. Nwauche, Is the End Near for The Political Question Doctrine in Nigeria?, (2007) vol. 10 Pulp, p. 1.

33 . Ibid.

34 . Above note 29.

35 . (1983) NSCC 315.

36 . (1982) 10 SC 1.

1979 Constitution is a political question and that, in addition, a constitutional provision ousting judicial review of impeachment was binding on the court. Accordingly, the courts would not engage in any type of review.

In Asogwa v. Chukwu,38  the speaker of the Enugu State House of Assembly had been removed by a two-thirds majority, which, it was alleged, was not properly constituted as a suspended member of the House voted for the removal. Whether the member was suspended or not became the bone of contention. The Court of Appeal held that the status of the suspended member was an internal affair of the legislature and presumed that he had been recalled to the House since he had voted. Accordingly, it refused to review the decision.

In Ekpenkhio v. Egbadon39    Ogundare JCA stated that the right to a fair hearing of an impeached speaker of the Edo State House of Assembly was not relevant, since by statute law and  the  Constitution, the  impeachment was  not  justiciable since  it  bordered on a  political question issue.

In Attorney-General of the Federation v. Attorney-General of Abia State,40 as a response to a preliminary objection that the determination of the seaward boundary of a littoral state within the Federal Republic of Nigeria raised a political question and should be resolved by legislative and executive action, Uwais CJN (for the rest of the Court) stated that a combination of sections 232 (1) and 6 (1) of the 1999 Constitution show that the Supreme Court ‘has the jurisdiction to interprete all provisions of the Constitution whether on appeal or in exercise of its original jurisdiction’. Clearly, the Supreme Court had changed course.

38 . (2004) FWLR (Pt. 189) 1204.

39 . [1993] 7 NWLR (Pt. 308) 717.

40 . (2001) FWLR (Pt. 64) 202.

In Abaribe v. The Speaker Abia State House of Assembly,41 section 188 (10) of the 1999

Constitution dealing with the impeachment of a Deputy Governor of a State was in issue. The Court  of  Appeal  held  that  the  provisions of  section  188  (10)  were  absolute  and  that  the impeachment provisions were a political matter which the Constitution wisely left to the legislature since it enables the people to remove who they elected.

In Attorney-General of the Federation v. Attorney-General of Imo state42 and Attorney – General Ondo State v. Attorney- General of the Federation,43 where compilation of the register of voters was in issue, the Supreme Court declined jurisdiction on grounds that the matters

bordered on a political question and did not present a legal dispute.

In the recent case of Alhaji Sani Aminu Dutsima  v.  PDP and Anor.44 the plaintiff, Alhaji Sani Aminu brought this action against the Peoples’ Democratic Party (PDP) and its National Chairman, Dr. Okwesilieze Nwodo before the Abuja High Court after the PDP had refused to implement the zoning arrangement as contained in Article 7.2 (c) of the Party’s Constitution. He contended amongst others, that the National Chairman of the Party had championed the violation of the Party’s Constitution, in order to pave way for President Jonathan who is a Southerner to contest for the president of the country on the platform of the Party contrary to the provision of Article 7.2 (c) of the Party’s Constitution on zoning. In his ruling, delivered on 2 December

2010, Justice Lawal Hassan Gunmi, held that although Article 7.2 (c) of the PDP Constitution

2009 (as amended) recognized the principles of zoning and rotation of party and elective offices,

41 . (2000) FWLR (Pt. 9) 1558.

42 . (1982) 12 SC 147.

43 .  (1983) 2 SCNLR 269.

44 . (Unreported) Suit No: FCT/HC/CV/2425/10, a judgement delivered on 2 December 2010 available at

http://allafrica.com/stories/20102300 (last accessed 21 April 2012).

but the power to nominate and sponsor candidates to an election is vested in a political party and the exercise of this right is the domestic affair of the party. The court in dismissing the case further held that the provision of the Party’s Constitution sought to be enforced in court dwelt on a political question that was non-justiciable.

It appears our courts are resting on the issue of the doctrine of political question. This is because the researcher having waded through the law reports was unable to find any recent decision on the matter.

The doctrine of political question has also been applied by courts in other jurisdictions. In the United States in the case of Baker v. Carr,45 the court in determining whether a dispute constitutes a non-justiciable political question, relied on these tests namely,

(a) a textually demonstrable constitutional commitment of the issue to a co-ordinate political department; or (b) a lack of judicially discoverable and manageable standards for resolving it; or (c) the impossibility of deciding without an initial policy determination of a kind clearly for non- justiciable discretion (d) the impossibility of a court undertaking independent resolution without expressing lack of the respect due to co-ordinate branches of government or (e) an unusual need for unquestioning adherence to a political decision already made; or (f) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

English  law  demonstrates the  principle of the  lack  of jurisdiction for  the  courts to adjudicate  issues relating  to  Parliamentary proceedings; that  courts have  no  jurisdiction to preside over the decisions of the Parliament. Thus, in the case of Bradlaugh v. Gosset 46  the English Court held that statutes regulating Parliamentary proceedings are not subject to judicial

supervision.

45 . (1962) 369 US 186 217.

46 . (1884) 12 QB 271.

According  to  Zemach,  “The  Parliament  and  its  members  have  exclusive  authority  to interprete the internal rules of the Parliament at  its own discretion, and the courts will not interfere even if the MPs ignore their own guidelines for internal proceedings. The Parliament’s right to make the final decision on all matter is one of its absolute privileges”.47

Furthermore, in the case of Nixon v. United States48  the court held that responsibility for

determining the requirements of an impeachment trial was ‘textually demonstrably committed’ to the Senate, not the judiciary. The decision in Gilligan v. Morgan49 on the doctrine of political question is instructive. The case arose from an incident in which members of the Ohio National Guard killed a number of civilians at Kent State University. Members of the Kent State Student Government sought an injunction ordering changes in the Guard’s supervision and organization. However, the court invoked the political question doctrine. Indeed, the court found all of the Baker  v.  Carr  criteria  to  be  satisfied.  Although  it  emphasized  the  absence  of  judicially manageable standards. It noted that it is difficult to conceive of an area of governmental activity in which the courts have less competence.

We shall hereunder give an in-depth exposition on the doctrine of standing otherwise known as locus standi.

1.8.2.  The Doctrine of Standing

This is otherwise known as “Locus Standi”. Standing focuses on whether a plaintiff is the right person to bring an action before the court.  This is what makes standing jurisdictional, that is, the inquiry is not about the existence of a wrong, but whether the court can respond at the request of the plaintiff. Locus Standi is an issue which goes to jurisdiction and could be raised at any stage

47 . Y. S. Zemach, Political Questions in the Courts, (Detroit :Wayne State University Press, 1976), p. 45.

48 . (1993) 506 US 224, 229, 236.

49 . (1973) 413 US  I.

even for the first time at the Supreme Court.50  The standing doctrine has three components namely: whether the plaintiff alleges an ‘Injury in fact’, whether that alleged injury ‘fairly can be traced to the challenged action’, and finally, whether a favourable ruling would probably end the injury.51 In the case of Friends of the Earth  v. Laidlaw Environmental Services52 the court held that the doctrine of standing rests on three requirements. These are that a plaintiff must show that (1) he has suffered an ‘injury in fact’ that is

(a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged action of the defendant; and

(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favourable decision.

In determining the issue of locus standi, judicial powers are involved and the matters in which the judicial powers can be exercised are by the provisions of section 6(6) (b) of the 1999

Constitution expressly stated to extend to all matters between persons or between government or authority and any person in Nigeria for the determination of any question as to the civil rights and obligations of that  person. Consequently, it  was held  in Thomas v.  Olufosoye53  that  a plaintiff, who has not raised any question as to his civil rights and obligations, has no locus standi, since he has not disclosed any right alleged to have been infringed and calling for

redress.54

50 . Oredoyin v. Arowolo [1989] 4 NWLR (Pt. 114) 172.

51 . Valley Forge Christian Coll. v. Arms. United for Separation of Church and State, (1982) 454

US 464, 472.

52 . (2000) 528 US 167, 180 – 181.

53 . [1986] 2 SC 325.

54 . See E. O. Ezike, “Liabilities for Environmental Pollution Damage in Nigeria”, (2010) vol. 28 JPPL, pp. 65 – 88 at p. 80.

The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the court and not on the issues he wishes to have adjudicated.55  The locus clasicus in Nigeria on the law of locus standi is the case of Adesanya v. The President.56 In this case, Senator Abraham Adesanya who was a lawyer and prominent politician had sought a

declaration  and  injunction  that  the  appointment  of  Justice  Victor  Ovie  –  whiskey  as  the Chairman of the Federal Electoral Commission (FEDECO) in 1980 by Alhaji Shehu Shagari (the then President of Nigeria) was unconstitutional. Under section 141 of the 1979 Constitution, the President was empowered to appoint the Chairman of FEDECO, after consultation with the Council of State and subject to the confirmation of the Senate. The appointment was made on 3

June 1980 by the presidency and it was confirmed on 17 July 1980 by the Senate. Expressing his reservation over the appointment and confirmation by the Senate, Adesanya proceeded to the Lagos High Court, where the declaration he  sought was granted, but  the  injunctions were refused.  The  trial  judge  had  held  that  the  appointee  was  not  qualified,  which  made  the President’s action of appointing Victor Ovie-Whiskey unconstitutional. The President appealed to the then Federal Court of Appeal where the appellate court raised suo moto the issue of Adesanya’s locus standi and invited the submissions from the parties on it. The then Attorney- General for the Federation, Chief Richard Akinjide who represented the respondent, submitted that the appellant had no personal interest in the matter and so had no locus standi to bring the action, where the relief sought by him would confer no tangible benefit on him. But Adesanya’s lawyer, Chief Gani Fawehinmi, contended that he had locus standi to bring the action. After these submissions, the appellant’s lawyer invoked the provisions of section 259 (3) of the 1979

Constitution and the question of Adesanya’s locus standi was accordingly referred to the Supreme

Court.

55 . Per Obaseki JSC, Ibid., at p.350.

56 . (1981) SC 112 at p. 120.

The leading judgement was delivered by the Chief Justice of Nigeria, Justice Atanda Fatayi- Williams. The Supreme Court unanimously held that Adesanya had no locus standi to bring the action because he had not shown that the appointment and subsequent confirmation by the Senate of Justice Ovie – Whiskey as FEDECO boss had affected his civil rights and obligations.

The position of the law during the Second Republic, therefore, was that an applicant challenging infractions of the Constitution, must show that he had a right that had been infringed by such infractions, or if the alleged infraction affected the applicant in common with the general public, that he had suffered injury over and above that suffered by the public at large. Adesanya’s case had shown that in interpreting the 1979 Constitution, there were restrictions on a person’s ability to challenge infractions of the Constitution.

In the case of Festus Keyamo v. House of Assembly, Lagos state,57 a Lagos based 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 State House of Assembly, to probe the Governor over allegations pertaining to the 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 Supreme Court, however, in Akilu v. Fawehinmi58  ruled that with respect to seeking to enforce the criminal laws of the land, everybody is “the other’s keeper” and in that garb, has standing to sue.

It is worthy of note that the Supreme Court made a welcome departure from its stance in the Abraham Adesanya’s case59  in Fawehinmi v. Akilu.60 We are of the view that it is only the new trend in the Chief Gani Fawehinmi’s case that can save our jurisprudence from the shackles

of its colonial heritage as far as the concept of locus standi in Nigeria is concerned.

57 . (2000) 12 NWCR p. 196.

58 . [1989] 2 NWLR (Pt. 102) 122 at p. 193.

59 . Above note 56.

60 . Above note 58.

In Re Ijelu & ors. v. L. S. D. P. C,61 the court held that 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.

This was also the decision of the court in the case of K. Line Inc. v. K. R. Int. (Nig.) Ltd62 where the court held that for a plaintiff to have locus standi, he must show some special interest which he lays claim to.

In the case of Fawehinmi v. President Federal Republic of Nigeria,63 it was held that it

would be wrong to slam the door of the courts against complaints on executive excesses and unconditionality under the guise of lack of locus standi.64

In PPA v. Saraki,65 the Court of Appeal on the issue of determination of locus standi in

an election petition held as follows: “A Court is bound by the averments in an election petition and must limit itself to them in determining whether a petitioner has locus standi to bring the petition”.66

In the case of Ugwunze v. Adeleke67 which was an appeal against the judgement of the High

Court which granted the respondents’ claim for a declaration of statutory right of occupancy. The Court of Appeal in a unanimous decision allowed the appeal. The Court on the issue of how locus standi is determined held that:

The first way to determine whether a plaintiff has the necessary

capacity to institute an action is to examine the statement of

61 . [1992] 9 NWLR (Pt. 226) 414.

62 . [1993] 5 NWLR (Pt. 292) 159 at p. 176.

63 . [2007] 14 NWLR (Pt. 1054) 275 at p. 342 paras. D – E.

64 . See E. O. Ezike, “Remediating Environmental Pollution Damages in Nigeria: Need to Adopt the Principle of

Absolute   Liability”, (2011) vol. 3, No. 1. NJPNREL, pp. 1 – 30 at p. 28.

65 . [2007] 17 NWLR (Pt. 1064) 453.

66 . Ibid., at p. 493 para. G.

67 . [2008] 2 NWLR (Pt. 1070) 148.

claim,  to  see  if  it  has  any  enforceable  connection  with  the subject-matter. There must be a nexus between the plaintiff and the disclosed cause of action concerning his rights or obligations, which have been breached or threatened to be violated.68

In Iteogu v. LPDC,69 the Supreme Court per Chukwuma-Eneh JSC held to the effect that

where a community retains the professional services of a legal practitioner to act on its behalf via a power of attorney, a member of the said community who has disclosed sufficient interest pursuant to the terms of the said power of attorney has locus standi to file a claim against the donee legal practitioner for breach of fiduciary duties.

In the case of Enilolobo v. INEC & 2 Ors.,70 the Court per Fasanmi JCA on the

issue of when a candidate in an election will have locus standi to present election petition held that once a petitioner pleads such as the appellant in the instant appeal that he was a candidate at an election and also pleaded his score, he has the locus standi to present the election petition.

In Sunday Adegbite Taiwo v. Serah Adegboro & Anor.,71 the Supreme Court held

as follows: “the rule relating to locus standi developed primarily to protect the courts from being used as a playground by professional litigants, meddlesome interlopers and busy bodies who really have no real state or interest in the subject matter of a suit”.

In Carew v. Oguntokun,72 the Supreme Court per Mukhtar JSC stated thus:

68 . Ibid. at p. 172 paras. C – D.

69 . (2009) 12 SC (Pt. 1) 1 at p. 24 lines 15 – 25.

70 . (2010) 49 WRN 155 at p. 177 line 40.

71 . [2011] 11 NWLR (Pt. 1259) 562 at p. 579 paras. F – G. See also Ajayi v. Adebiyi  [ 2012] 11 NWLR (Pt.1310) 137

SC at p.182 paras. C-D.

72 . [2011] 5 NWLR (Pt. 1240) 376 at p. 400 paras. C – E. See also Ladejobi v. Oguntayo [2004] 18 NWLR (Pt. 904)

149 at 150 referred to in the judgement.

“… in determining whether a plaintiff has a legal interest or locus standi to institute an action, the locus standi of the party must be viewed against his competence or right to institute an action in a court of law to seek redress, reliefs or assertion of a right that can be enforced by law”.

In Onuekwusi v. Registered Trustees of the Christ Methodist Zion Church,73 the

Supreme Court per Muhammad JSC stated as follows: “a court will lose jurisdiction if a party has no locus standi”.

Also, in the case of Saulawa v. Kabir,74  the Court per Okoro JCA stated as

follows: “In ascertaining whether or not a plaintiff in an action has locus standi, the pleadings or the statement of claim or petition must disclose a cause of action vested in the plaintiff or petitioner and the rights and obligations of the plaintiff or petitioner which had been violated”.

Furthermore, in the case of Nze Jeremiah Osigwelem v. INEC & 2Ors.,75 which

was an appeal against the judgement of the Election Petition Tribunal dismissing the appellant’s petition on the ground that the appellant lacked the locus standi to bring the petition and  for  failure to  prove the petition. The Court of Appeal in a unanimous decision dismissed the appeal.

On whom locus standi vests to institute election petition, the Court per Owoade

JCA stated as follows:

It is not in dispute that the petitioner was the candidate of ANPP in the election being questioned and therefore prima facie has the locus standi under the Electoral Act to present this petition.

73 . [2011] 6 NWLR (Pt. 1243) 341 at p. 361 para. G. See also the case of  F.U.T. Yola v. A.S.U.U [2013] 1 NWLR (Pt. 1335) 249 CA at pp. 275-276 paras. H-C.

74 . [2011] 2 NWLR (Pt. 1234) 417 at p. 441 para. E.

75 . [2011] 9 NWLR (Pt. 1253) 425 at p. 447 – 448 paras. D – E.

However, can he maintain the petition, if he does not stand to benefit from the reliefs claimed? While under cross-examination at the hearing of this petition, the petitioner admitted that he was not the candidate that had the majority of lawful votes in the said election.  He was  forthright  by admitting also that  he neither came second nor third nor fourth in the election but his interest is that justice should be done. While the Tribunal appreciates and indeed applauds his altruistic disposition, the position of the law which is binding on this Tribunal and which it is enjoined to apply is that it is only the person who will benefit directly from the relief being claimed  and  with particular reference to this petition,  it  is  the person  who  will  have the benefit  of being declared the winner should this petition succeed that has locus standi or the legal capacity to institute and maintain this petition and not the present petitioner whose only interest in presenting the petition is that justice be done. In deciding issue No. 1, one cannot but agree with the conclusion of the lower Tribunal that the  petitioner/appellant  does  not  have  the  locus  standi  to maintain the petition.

However, it  is  important to note at this  juncture that the Fundamental Rights Enforcement

Procedure Rules 2009 in paragraph 3 (e) of the Preamble to the Rules provides as follows:

The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates, or group as well as any non-governmental organizations, may

institute human rights application on behalf of any potential applicant in human rights litigation.

The Rule went ahead to enumerate that applicant may include any of the following: (i)        anyone acting in his own interest

(ii)       anyone acting on behalf of another person

(iii)      anyone acting as a member of, or in the interest of a group or class of persons; (iv)      anyone acting in the public interest, and;

(v)       association acting in the interest of its members or other individuals or groups.

In  other  words,  the  Fundamental  Rights  Enforcement  Procedure  Rules  2009,  has relegated to the background, the requirement of locus standi in human rights proceedings. This current trend must be applauded as it would definitely reduce gross human rights violations in Nigeria to the barest minimum.

We shall then proceed to examine briefly the attitude of courts in other jurisdictions. In most other jurisdictions, there is a distinction between the test of locus standi in private law cases and public law cases. In private law cases, the court looks at the course of action to see if the plaintiff   has   locus standi, while in public law cases, the test is the existence of sufficient interest. Sufficient interest is normally given a liberal interpretation.

In England, following the liberal interpretation of sufficient interest, in the case of R. v. Felixstowe J. J. Exparte Leigh,76  a Journalist successfully sought a declaration that the policy adopted by the chair of the Justices of not revealing the names of sitting Magistrates for security

reasons was unlawful.

76 . (1987) QB. 583.

Also, in the case of R. v. Secretary of State for Foreign and Common Wealth Affairs exparte Rees-Mogg77 a citizen because of his sincere concern for constitutional issues challenged the ratification of a treaty and the court held that he had locus standi to institute the action.

Under the Gambian legal system, any citizen of the Gambia has locus standi to go to court to challenge an unconstitutional act. That was the decision of the Supreme Court of the Gambia in the case of United Democratic Party (UDP) & Ors. v. The Attorney- General of the Gambia.78

Also in Ghana, any citizen of Ghana can bring an action for a declaration that an action is unconstitutional. This was the decision of the court in Tuffuor v. Attorney General.79 Thus, one does not have to show how the act affects him personally, once it involves the violation of a constitutional provision, any person or organization can challenge the act.

₦5,000.00 – DOWNLOAD FULL PROJECT DOWNLOAD FULL PROJECT Added to cart

---

---

---

---

Related Project Topics :