Need for a Procedural Exclusivity Rule in Nigerian Public and Private Actions
The vexed issue of locus standi has attracted a great deal of discourse and debate over the years, amongst Academics and legal practitioners alike. Despite the abundance of literature on this topic here in Nigeria, it still remains very difficult to say with absolute certainty what the true position of the law is on this subject. Law journals are no longer published as frequently as they were in the past, and Nigerian law libraries remain underfunded; as such, it has become difficult to identify any real authoritative thesis on this subject, other than that of Professor Tunde Ogewowo who over 20 years ago wrote a masterful and brilliant piece on locus standi titled “Wrecking the Law” in the Brooks J INTL L Journal in the year 2000 to be precise.
Generally speaking, there is a distinction between those who seek to establish standing on the basis of their own personal interests (personal standing), and those who do so on the basis that they represent the interests of other identifiable individuals, or that they represent the “public interest” (representative standing). The Nigerian standing rule has a very narrow concept of personal standing (one that focuses on private legal rights), and no concept of representative standing. Hence, persons with a real interest in an issue of local or national importance invariably will be denied standing; even if what is assailed involves obvious illegality. This practice stemmed from the celebrated case of Senator Abraham Adesanya v President of the Federal Republic of Nigeria & Anor. 1981 5 S.C.
The Adesanya case
In this case, Senator Adesanya instituted proceedings in the High Court against the President of the Federal Republic of Nigeria and his appointee to the office of Chairman of the Federal Electoral Commission (FEDECO). He sought a declaration that the appointment was unconstitutional, and an injunction preventing it from taking effect. The Plaintiff had opposed the appointment during the confirmation proceedings in the Senate, maintaining that it was contrary to certain provisions of the 1979 Constitution, and was therefore, invalid. The majority in the Senate, however, proceeded to confirm the appointment. The trial Judge granted the declaration sought by the Plaintiff, and set aside the said appointment.
In the course of this judgement, the Judgement remarked that the Plaintiff was raising a constitutional issue that did not affect him personally. When the Defendant appealed to the Court of Appeal, it was this observation that prompted the Court to raise the locus standi point suo motu. The Court called upon counsel to address it on the relevance of Section 6(6) (b) of the 1979 Constitution in relation to the issue of standing. After making his submission, Counsel for the Plaintiff invoked the provisions of Section 259(3) of the 1979 Constitution, under which the matter could be referred to the Supreme Court for interpretation. Although the reference was made, the Court of Appeal nevertheless, went ahead to determine the meaning of Section 6(6)(b) of the 1979 Constitution, and ruled that the Plaintiff lacked standing. The Supreme Court thereafter, treated the reference as an appeal. The Supreme Court upheld the decision of the Court of Appeal by agreeing that the Plaintiff lacked the relevant standing to sue.
This judgement went on to become the locus classicus on standing to sue in Nigeria, in that it now formed the basis for standing to sue in all aspects of Nigerian litigation by relying on the dictum of Bello JSC (as he then was ) who thought that Section 6(6)(b) of the 1979 Constitution (which is on all fours with Section 6(6)(b) of the present 1999 Constitution) established a rule on standing.
According to Bello JSC ( as he then was), Section 6(6)(b) expresses the scope and content of the judicial powers vested by the Constitution in the courts within the purview of the subsection. Although the powers appear 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……’. In short, 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.
Despite some attempts to make distinctions to this rule on standing in subsequent cases, such as Owodunni v Registered Trustees of the Celestial Church of Christ, Bada & Ors. 6 S.C. (Part III) at 62, this perverse rule on standing has generally stood.
Public Law/ Public Interest Litigation
Some notable Lawyers such as Femi Falana, SAN, have championed activism in the field of public interest litigation by calling upon the courts to invoke a more liberal interpretation of the standing rule with regard to public interest issues; and although this has been met with some limited and relative success, it is more or less restricted in the main to fundamental human right actions. Nevertheless, it has become obvious to most Lawyers, Academics and Judges alike, that the rules that pertain to standing or locus standi in Nigerian litigation in general, need to be revisited.
Unfortunately, the case of Senator Abraham Adesanya (Supra) which was decided in 1981 was a few years too early, otherwise the outcome of this case may well have been different. To begin with, the Abraham Adesanya case may well have been by judicial review, since it was a public law case dressed up as a private law case. This, of course, was allowed at the time because there was no procedural exclusivity rule between public and private law cases even in England, let alone Nigeria. Judicial review based on the ultra vires doctrine (as opposed to our Constitution), is the system through which the High Court exercises supervisory control over all forms of public law issues. This supervisory jurisdiction helps to ensure that public bodies not only perform their duties, but also do not abuse their power nor act arbitrarily, capriciously, unreasonably or unfairly. See Stitch v AGF (1986) 5 NWLR 1007. In this case, it was established that Nigerian courts can review an administrative action if it is illegal, irrational or flawed by procedural impropriety.
Historically, the prerogative writs of certiorari,
prohibition and mandamus were used for this supervisory purpose. Although the basis for this supervisory jurisdiction is the common law, rules of court now lay down the procedure for invoking this jurisdiction. In Lagos State, for example, the procedure is governed by Order 44 of The High Court of Lagos State Civil Procedure Rules 2019. This procedure is a specialised procedure by which the courts may grant one of the prerogative remedies of certiorari, prohibition or mandamus and, alternatively, or in addition, a declaration or injunction. Damages may also be awarded in an application for judicial review, if one of those five remedies is granted, and the court is satisfied that damages would have been available if claimed in an ordinary action. Order 44 (before that Order 43) replaced the old Order 53,q which was based on Order 53 RSC in England. Under the old Order 53 only the prerogative remedies could be obtained. There were various problems with the old Order 53 procedure, most notably being that of “procedural incompatibility”. It was impossible to seek declarations, injunctions or damages (that is, private law remedies) in the same proceedings as those for the prerogative remedies. These private law remedies were obtainable, only in actions begun by writ or originating summons. The prerogative remedies, also had other shortcomings. Primarily, they were laced with all sorts of technical limitations. They also had considerable procedural disadvantages – an absence of an automatic right to discovery, cross-examination and general interlocutory relief. Furthermore, there were problems relating to standing, as different standing rules applied to the different remedies.
The Procedural Exclusivity Rule
It was these problems associated with the old Order 53 which led the Court to adapt private law remedies of injunction and declaration, in the service of public law. The House of Lords which has now been renamed as the UK Supreme Court, has since put an end to all this. There is now a procedural dichotomy between public and private law actions, in the sense that, as a general rule, it would be contrary to public policy and be deemed an abuse of court process, for a Plaintiff in a public law matter to seek redress by ordinary action. This is known as the Procedural Exclusivity Rule, and it was established in the case of O’Reilly v Mackman [1983] 2 AC 237. It is the absence of such a rule here in Nigeria, that is exacerbating our problems with the standing rule and locus standi. It is worth noting that O’Reilly v Mackman (Supra) was decided by the House of Lords in 1983, while the case of Senator Abraham Adesanya (Supra) was in 1981. In a sense this case was ahead of its time, in that it was a public law case dressed up as a private law action. The two years before O’Reilly v Mackman (Supra) were significant, in that as we now know in subsequent years, the remedies obtainable in private law actions were extended to public law actions not only in England but also under the judicial review procedure in our various High Court Civil Procedure Rules. Unfortunately, this extension was not followed up with a procedural exclusivity rule, and as such, public law actions are still brought by our Lawyers couched as private law actions, thereby causing considerable confusion amongst Judges and to the detriment of our legal system in general.
In my opinion, it is this procedural exclusivity rule that activist Lawyers ought to have been pursuing, in their quest for a more liberal interpretation or construction of the standing rule in relation to locus standi. For instance, Order 44 Rule 3(4) of The High Court of Lagos State Civil Procedure Rules 2019 states that a Judge shall not grant leave for judicial review unless he considers that the applicant has sufficient interest in the matter to which the application relates. Order 34 Rule 3(4) is the equivalent provision under the Federal High Court Civil Procedure Rules 2019, and it also makes sufficient interest the relevant threshold. The rule on standing espoused by Bello JSC (as he then was) in Senator Abraham Adesanya (Supra) which arguably stemmed from a misunderstanding of the true intent and purpose of Section 6(6)(b) of the 1979 Constitution, occurred because there was never even today a procedural exclusivity rule between public and private law actions. The jurist’s reasoning may well have been different if we did have such a dichotomy, but, perhaps, more significantly, our legal system like before would have been able to keep abreast of developments in other common law jurisdictions, and not get left behind. In short, legal practitioners would have been able to argue more convincingly and with a lot more conviction that sufficient interest in public law actions does not equate to personal rights or interest in private law actions, and that a more liberal interpretation should be applied.
Conclusion
Although there is now much to be said about the need for a procedural dichotomy rule under Nigerian law, this can perhaps, best be implemented by a practice direction to that effect. Since all the High Courts in the country have made adequate provision for judicial review under their Civil Procedure Rules, a practice direction by the various Chief Judges of the States to the effect that it would be contrary to public policy for a Plaintiff/ Claimant in a public law matter to seek redress by a private law action, is perhaps, the most realistic and practical way of implementing such a rule. This would have the advantage of allowing our Judges to become analytical in applying the more liberal sufficient interest test, in determining whether a litigant has appropriate standing to sue rather than the draconian and impractical personal right test developed in the Abraham Adesanya case, which we now know has the effect of shutting out several interested parties from public interest litigation.
“….the Abraham Adesanya case may well have been by judicial review, since it was a public law case dressed up as a private law case”