ARTICLES

Enforcement of fundamental rights and the standing rules under the Nigerian Constitution: A need for a more liberal provision

Elijah Adewale Taiwo

Doctoral candidate, Nelson Mandela Metropolitan University, Port-Elizabeth, South Africa; Lecturer, Faculty of Law, University of Ibadan, Nigeria

SUMMARY

This article explores the scope of standing rules in section 46 of the 1999 Nigerian Constitution. It is observed that the section contains a restrictive and narrow provision on locus standi. The article finds that this narrow provision has the regressive effect of limiting access to court and it invariably constitutes an impediment or constraint on the enforcement of fundamental human rights in the country. Many common law countries, such as England, Australia, Canada, India and South Africa, have jettisoned this anachronistic position on standing for a more liberal and expansive interpretation. In contrast, the Nigerian Constitution still maintains restrictive and outdated rules of standing. This is inconceivable at a time like this when other common law jurisdictions are enthusiastically adopting a liberal approach to the concept.

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* LLB, LLM, MPhil (Obafemi Awolowo), BL (NLS); equitabletaiwo@yahoo.com. I appreciate the assistance of two of my colleagues and my former students, Muyiwa Adigun of Chief Afe Babalola, SAN & Co, Ibadan, Nigeria and 'Femi Olaoye of JB Majiyagbe, SAN & Co, Kano for their efforts in supplying me with recent Nigerian cases on the topic.
1 See A Govindjee 'Lessons for South African social assistance law from India: Part 1 - The ties that bind: The Indian Constitution and reasons for comparing South Africa with India' (2005) 26 Obiter 575-576.         [ Links ]
2 In this context, however, fundamental rights refer to civil and political rights (see secs 33-45, ch IV of the 1999 Nigerian Constitution). Economic, social and cultural rights are still non-justiciable under the Constitution. See secs 13-24, ch II of the Constitution, which set out the Fundamental Objective and Directive Principles of State Policy as non-justiciable. Sec 6(6)(c) of the Constitution renders ch II of the Constitution non-justiciable. It provides: 'The judicial powers vested in accordance with the foregoing provisions of this section shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objective and Directive Principles of State Policy set out in Chapter II of this Constitution.' The African Charter on Human and Peoples' Rights provides for civil and political rights and economic, social and cultural rights as justiciable rights. Nigeria has ratified and incorporated the provisions of this Charter as part of her laws through the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, Cap 10, Laws of the Federation 1990. With this Act, the human rights provisions of the African Charter are part of Nigerian law and can be enforced through any of the rules of procedure of the courts. See Ogugu v State [1996] 6 NWLR (pt 316) 1 30-31, per Mohammed JSC. However, the Supreme Court held in Gani Fawehinmi v General Sani Abacha [2000] 6 NWLR (pt 660) 228 that the provisions of the African Charter cannot override those of the Constitution. In other words, the provisions of sec 6(6)(c) of the Constitution as to the non-justiciability of those rights remain.
3 See sec 6(1) of the 1999 Nigerian Constitution. Nigeria is a federation of 36 states with each state having separate/different courts but a similar/uniform court system. These separate courts' and states' judicial systems, however, meet at the federal level with appeals from these courts going to the Supreme Court via the Court of Appeal.
4 See sec 6(6)(b) of the Constitution. The Constitution vests judicial powers of the federation in the specific courts as well as other courts as may be established by the National Assembly or House of Assembly. The courts include the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja, a High Court of a state, the Shari'a Court of Appeal of the Federal Capital Territory, Abuja, a Shari'a Court of Appeal of a state, the Customary Court of Appeal of the Federal Capital Territory, Abuja, a Customary Court of Appeal of a state. See sec 6(6)(5) of the Constitution.
5 However, judicial power is distinguishable from jurisdiction. Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction to hear and to decide a case. Judicial power is the right to determine actual controversies arising between diverse litigants, duly instituted in a court of proper jurisdiction. See JO Akande Introduction to the Constitution of the Federal Republic of Nigeria, 1999 (2000) 32;         [ Links ] United States v Arrendondo 31 US 691 (1832); Muskrat v United States 219 US 346 361 (1911).
6 My emphasis.
7 See Sofekun v Akinpelu & Others (1981) 1 NCLR 135; Tony Momoh v Senate (1981) 1 NCLR 105.
8 See Shugaba Darman v Minister of Internal Affairs (1981) 1 NCLR 25; see also Abdulhamid v Akar [2006] 13 NWLR (pt 996) 127 149; MMA Akanbi 'Constitutional structure and the position of the judiciary: Fundamental rights' in 1990 judicial lectures: Continuing education for the judiciary (1991) 16 21.         [ Links ]
9 The term locus standi defies precise definition. It is not an easy concept to define since it has been used to refer to different factors that affect a party's right to claim relief from a civil court. It determines the right to sue or seek judicial redress in respect of alleged unlawful action. This requires that a litigant should both be endowed with the necessary capacity to sue and have a legally recognised interest in the relevant action to seek relief. See GE Devenish 'Locus standi revisited: Its historical evolution and present status in terms of section 38 of the South African Constitution' (2005) 38 De Jure 28.         [ Links ] Many authors, scholars and jurists have attempted giving working definitions of the term. Locus standi is defined as 'the right to be heard in court or other proceedings'. See R Bird Osboorn's Concise law dictionary (1983) 209.         [ Links ] In Attorney-General of Kaduna State v Hazzan [1985] 2 NWLR 483 497, the Nigerian Supreme Court, per Oputa JSC, explained that locus standi means 'the legal capacity to challenge an order or act. Standing confers on an applicant the right to be heard as distinct from the right to succeed in the action or proceeding for relief.' See also Inakoju v Adeleke [2007] 4 NWLR (pt 1025) 43 601-602; locus standi denotes the legal right of any person, group of persons, statutory bodies or government, to appear before a court, or a tribunal constituted in such a manner as to secure its independence and impartiality and to have grievances adjudicated upon by the court. MAA Dzekhome The Nigerian law locus standi (1988) 82.         [ Links ] The term locus standi denotes the legal capacity to institute proceedings in a court of law or tribunal to enforce a right recognised by law. It is the right to appear before a court to prosecute or defend an action affecting one's legal right. According to Mubangizi, locus standi 'deals with the right to approach a court of law to seek a remedy for the infringement of a right'. See JC Mubangizi The protection of human rights in South Africa (A legal and practical guide) (2004) 60.         [ Links ]
10 See SA de Smith Judicial review of administrative action (1980) 409.         [ Links ]
11 As above. To be an aggrieved person, the plaintiff must establish his interest in the subject matter in disputes. It is the manifestation of this interest that will confer locus standi or standing on the plaintiff to bring an action and invoke the authority of the court. See MI Jegede 'Problem of locus standi (standing to sue) in the administration of justice' in TO Elias & MI Jegede (eds) Nigerian essays in jurisprudence (1993) 195.         [ Links ]
12 It is necessary to note that standing and justiciability are not the same. The latter addresses the issue as to whether a dispute is amenable to resolution by a court of law, whereas the former deals with the question of whether a litigant has sufficient interest to approach the court for relief. See Devenish (n 9 above) 36.
13 Thus, in A-G Anambra v A-G Federation [2007] 12 NWLR (pt 1047) 93-94, the Supreme Court of Nigeria, per Chuckwuma-Eneh JSC, held as follows: [l]ocus standi or standing or title to sue ... like the issue of jurisdiction is a threshold action and has to be taken at the earliest ... the issue of locus standi is therefore linked with the issue of jurisdiction of a court to entertain a matter. It is a sine qua non to the exercise of jurisdiction because judicial powers are constitutionally limited to cases in which the parties have locus standi.' If the plaintiff has no legal capacity or standing to institute the action, the court would have no jurisdiction to adjudicate on the matter. See Mr W Alofoje v Federal Housing Authority & Others [1996] 6 NWLR (pt 456) 559 567; Gombe v PW (Nig) Ltd [1995] 6 NWLR (pt 402) 402. The issue of locus standi is an indirect questioning of the jurisdiction of the court to adjudicate on a matter and can be raised at any time in the course of trial, even on appeal. See Timothy Adeko Adefulu & 12 Others v Bello Oyesile & 5 Others (1989) 5 NWLR (pt 122) 377 409 418; Oloriode v Oyebi (1984) 1 SCNLR 390.
14 Devenish asserts that this, however, may be artificial and problematic in certain cases since an examination of the case law on locus standi indicates that, in practice, it is not always dealt with as a preliminary point in regard to the justiciability of the dispute, but the entire matter is scrutinised in order to reach a conclusion. See Devenish (n 9 above) 29.
15 It is asserted that a narrow definition of standing will obstruct access, whereas a wide one will facilitate it. See Devenish (n 9 above) 29.
16 In ascertaining whether the plaintiff in an action has locus standi, the pleadings, that is, the statement of claim, must disclose a cause of action vested in the plaintiff and the rights and obligations or interest of the plaintiff which have been violated. See Inakoju v Adeleke [2007] 4 NWLR (pt 1025) 601-602; Adefulu v Oyesile (n 13 above) 410; Thomas v Olufosoye [1986] 1 NWLR (pt 18) 669 686; (1986) 1 ANLR (pt 1) 215; Momoh v Olotu (1970) 1 All NLR 117; Oloriode v Oyebi (n 13 above). The way to determine whether a plaintiff has the necessary standing to sue is to examine and reflect on the statement of claim and the writ of summons. When a party's standing to sue is made an issue of in a case, what has to be decided is whether that party is a proper party to request adjudication over a particular subject matter. See Sir Olateru Olagbegi v Oba Ogunnoye II (Olowo of Owo) & Others [1996] NWLR (pt 448) 332 352; Sobie Ojimba & Others v Peter Ojimba & Others [1996] 4 NWLR (pt 440) 32 39.
17 See Attorney-General Federation v Attorney-General of the 36 States of Nigeria (2001) 9 SCM 45 59.
18 In other words, the suitor must not be a stranger to the issue which constitutes the cause of action. He must have been aggrieved by the act or he must, one way or the other, be affected by the acts that constitute the cause of action. Anything falls short of this, he is deemed to be a stranger to the suit, a mere busy-body and an interloper who will not be granted locus standi. See Emezi v Osuagwu [2005] 12 NWLR (pt 939) 240 362; Thomas v Olufosoye (n 16 above); Attorney-General Kaduna State v Hassan [1985] 2 NWLR (pt 8) 483. See also Senator Abraham Ade Adesanya v President of the Federal Republic of Nigeria (1981) 2 NCLR 358, where Idigbe JSC said: 'The judicial power ... is invested in the court for the purpose of determining cases and controversies before it; the cases or controversies, however, must be justiciable.' See also PA Oluyede Nigerian administrative law (1988) 504-505.
19 Sec 38 of the 1996 South African Constitution, eg, provides for a liberal view on locus standi and it allows a larger category of persons to approach the courts of law on the enforcement of the Bill of Rights guaranteed in the Constitution.
20 See P Vrancken & M Killander 'Human rights litigation' in A Govindjee & P Vrancken (eds) Introduction to human rights law (2009) 251 257; I Currie & J de Waal The Bill of Rights handbook (2005) 80.
21 See Massachusetts v Mellon (1923) 262 US 447 448; Currie & De Waal (n 20 above) 81.
22 Many countries have followed this common law requirement of sufficient interest. Eg, in Patz v Greene & Co (1907) TS 427 433, Solomon J held: 'Where a statute prohibits the doing of a particular act affecting the public, no person has a right of action against another merely because he has done the prohibited act. It is incumbent upon the party complaining to allege and prove that the doing of the acts has caused him some special damage - some peculiar injury beyond that which he may be supposed to sustain in common with the rest of the [community] by an infringement of the law.'
23 Devenish (n 9 above) 30.
24 See T Ngcukaitobi 'The evolution of standing rules in South Africa and their significance in promoting social justice' 2002 (18) South African Journal on Human Rights 590 591.
25 See Mubangizi (n 9 above) 61.
26 See also Ajao v Sonola (1973) 5 SC 119; Okoye v Lagos State Government [1990] 3 NWLR (pt 136) 125; Sken Consult (Nig) Ltd v Ukey (1981) 1 SC 6; Gambioba & Others v Insesi & Others (1961) All NLR 584.
27 However, an action dismissed on the ground of locus standi may not constitute a res judicata in the subsequent trial in the sense that there would have been changes in the parties.
28 See A-G Anambra v A-G Federation [2007] 12 NWLR (pt 1047) 4 93-94; Emezi v Osuagwu [2005] 12 NWLR (pt 939) 340 347; Sobiee Ojimba & 4 Others v Peter Ojimba & 4 Others [1996] 4 NWLR (pt 440) 32 39; Oredoyin v Arowolo (1989) 4 NWLR (pt 114) 172; Obaba v Military Government of Kwara State (1994) 4 NWLR (pt 336) 26; Bronik Motors Ltd v Wema Bank Ltd (1983) 1 SCNLR 303; Adefulu v Oyesile [1989] 5 NWLR (pt 122) 377.
29 See the locus classicus cases in this regard: Senator Adesanya v President of the Federal Republic of Nigeria & Others (n 18 above); Chief (Dr) Irene Thomas & 5 Others v The Most Reverend Timothy Omotayo Olufosoye [1986] 1 NWLR (pt18) 669.
30 (1961) AllNLR 269.
31 (1961) AllNLR 584.
32 Thus, in A-G Adamawa v A-G Federation [2005] 18 NWLR (pt 958) 581 608, the Supreme Court held thus: 'It is not enough for a plaintiff to merely state that an Act is illegal or unconstitutional. He must show how his civil rights and obligations are breached or threatened.' See further Oluokun v Governor of Oyo State (1984) 3 NCLR 680; Attorney-General of Eastern Nigeria v A-G Federation (1964) 2 All NLR 224; Onyia v Governor in Council & Others (1962) 2 All NLR 174; Adegbenro v AGF (1962) 1 All NLR 432; Usman Mohammed v Attorney-General of Kaduna State & Another (1981) 1 NCLR 117.
33 (1982) 3 NCLR 1.
34 Per Nnamani JSC 114; See also A-G Adamawa v A-G Federation [2005] 18 NWLR (pt 958) 581 604.
35 (1981) 2 NCLR 358.
36 However, this case has been criticised and described as an obstacle in the enforcement of rights and a negation of a purposive interpretation of the Constitution. A Nigerian jurist, Ademola Adenekan JCA, described the judgment as a negation of purposive interpretation of the Constitutions as is going on in India and Pakistan. He said: 'I can hear a voice saying; but the Supreme Court in Nigeria or the High Court for that matter can perform those feats that have been credited to the courts in India and Pakistan. My view is that the Supreme Court cannot unless it removes an obstacle which it has placed in its own way. In my respectful opinion, it must overrule its decision in Senator Abraham Adesanya v President of the Federal Republic of Nigeria.' See A Ademola 'Human rights and national development' in MA Ajomo & B Owasanoye Individual rights under the 1989 Constitution (1993) 12 28.
37 n 29 above.
38 Per Oputa JSC (n 29 above) 689-690.
39 [1987] 4 NWLR (pt 67) 797. See also Col Halilu Akilu v Chief Gani Fawehinmi (No 2) [1989] 2 NWLR (pt 102) 122 193.
40 As above. See also G Fawehinmi Murder of Dele Giwa: The right of a private prosecutor (1988) 38-39.
41 Fawehinmi (n 40 above) 40-42. This judgment has been described as representing a new philosophy, that is, that an individual has a role to play in public law. Thus, an individual can vindicate the rights which he is entitled to have protected under public law. See L Atsegbua Administrative law: An introductory text (1997) 123.
42 It is interesting to note that, subsequently after this judgment; the Lagos state government through military edict amended the Criminal Procedure Law (Lagos) and removed the power of the private prosecutor.
43 Janata Dal v HS Chowdhary AIR 1993 SC 892 (para 51); (1992) 4 SCC 305.
44 As above.
45 See Gouriet v Union of Post Office Workers (1978) AC 435.
46 A good example is by obstruction of the highway which also obstructs access to his land.
47 See Boyce v Paddington BC (1930) 1 ch 109; Ekundare v Governor in Council (1961) All NLR 149. See also HRW Wade Administrative law (1990) 690.
48 Thus, in R v Thames Magistrates' Court ex parte Greenbaum (1957) 55 LGR 129, Parker LJ said: 'Anybody can apply for it (certiorari), a member of the public who has been inconvenienced, or a particular or person who has a particular grievance of his own. If the application is made by what for convenience one may call a stranger, the remedy is purely discretionary where, however, it is made by a person who has a particular grievance of his own whether as a party or otherwise, then the remedy lies ex debito justitiae See Durayappah v Fernando (1967) AC 337.
49 Wade (n 47 above) 699-700.
50 Wade (n 47 above) 704.
51 [1981] 2 NCLR 424.
52 432.
53 [1984] 5 NCLR 766.
54 [1982] 3 NCLR 1.
55 88. Similarly, in Tony Momoh v Senate of The National Assembly & Others (1981) 1 NCLR 21, the provisions of sec 31 of the Legislative (Powers and Privileges) Act, Cap 102, LFN & Lagos, 1958, which provide that the court's process could not be served within the chambers or precincts of the legislative house while that house is sitting, were held inconsistent with the provisions of sec 42 of the 1979 Constitution and declared void.
56 (1984) 5 NCLR 557.
57 (1985) 6 NCLR 390.
58 (1981) 1 NCLR 4.
59 15. See also Prince Adeniji-Adele & Others v The Governor of Lagos & Others (1982) 3 NCLR 698.
60 See secs 1(1) & (3) of the 1999 Nigerian Constitution which provide: 'This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria ... If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.'
61 See MA Ajomo 'The development of individual rights in Nigeria's constitutional history' in MA Ajomo & B Owasanoye Individual rights under the 1989 Constitution (1993) 8.
62 See IO Agbede 'The rule of law and the preservation of individual rights' in Ajomo & Owasanoye (n 61 above) 42.
63 Ajomo & Owasanoye (n 61 above) 8.
64 See sec 46(1) of the 1999 Nigerian Constitution.
65 This was made pursuant to the 1979 Constitution by the Chief Justice of Nigeria and came into effect from 1 January 1980. The Rules have been amended and new ones put in place as Fundamental Human Rights (Enforcement Procedure) Rules 2008. See also sec 46(3) of the 1999 Constitution. In terms of the Fundamental Human Rights (Enforcement Procedure) Rules, it is only an issue bothering on ch IV of the Constitution that can be brought under the Rules. Thus, in WAEC v Akinkunmi [2008] 9 NWLR (Pt 1091) 154-155, the Nigerian Supreme Court held thus: 'In ascertaining the justiciability or competence of a suit commenced by way of application under the Fundamental Rights (Enforcement Procedure) Rules, 1979, the court must ensure that the enforcement of the fundamental rights under chapter IV of the Constitution is the main claim and not ancillary claim. Where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be said to be properly invoked, and the action is liable to be struck out on ground of incompetence.'
66 Ajomo & Owasanoye (n 61 above) 8.
67 As above.
68 See sec 31(1) of the 1960 Independence Constitution, sec 32(1) of the 1963 Republican Constitution, sec 42(1) of the 1979 Constitution and sec 46(1) of the 1999 Constitution.
69 See Senate of the National Assembly & Others v Tony Momoh [1983] 4 NCLR 269; Lt Col Combe v Lt Col Madaki [1984] 5 NCLR 435; Alhaji Tukur v Government of Congola State [1989] 4 NWLR (pt 117) 517.
70 See Chief Uzoukwu & Others v Ezeonu II, Igwe of Atani & Others [1991] 6 NWLR (pt 200) 708; See also Ajomo & Owasanoye (n 61 above) 55.
71 Ajomo & Owasanoye (n 61 above) 55.
72 n 70 above.
73 784.
74 Ajomo & Owasanoye (n 61 above) 55.
75 Uzoukwu v Ezeonu II (n 70 above) 784.
76 Ajomo & Owasanoye (n 61 above) 56.
77 As above.
78 n 70 above, 784.
79 Ajomo & Owasanoye (n 61 above) 57.
80 A sufficient interest is not an objective term, it is rather subjective. The question of what constitutes sufficient interest will depend on the circumstances of each case. See Namibian National Students Organisation v Speaker of the National Assembly of SWA 1990 1 SA 617 (SWA) 627B-E.
81 See L Seafield 'The interdependence of all human rights' in AA An-Na'im (ed) Human rights under African constitutions (2003) 295 305.
82 See C Obiagwu & CA Odinkalu 'Combating legacies of colonialism and militarism' in An-Na'im (n 81 above) 211 233.
83 As above.
84 As above. See also T Ogowewo 'The problem with standing to sue in Nigeria' (1995) 39 Journal of African Law 9; T Ogowewo 'Wrecking the law: How article III of the Constitution of the United States led to the discovery of a law of standing to sue in Nigeria' (2000) 26 Brooklyn Journal of International Law 527.
85 Agbede (n 62 above) 42.
86 As above.
87 Agbede (n 62 above) 43.
88 Examples include countries such as Australia and South Africa. See eg sec 38 of the 1996 South African Constitution. See also Ferreira v Levin NO 1996 1 SA 984 (CC), where the South African Constitutional Court was called upon to determine whether the applicants had standing to challenge the validity of sec 417(2)(b) of the Companies Act 61 of 1973 on the ground that it was in conflict with sec 25(3) of the interim Constitution (providing for the right to a fair trial). The Court held that a broad approach should be adopted to the issue of standing in constitutional cases. This, according to the Court, would be consistent with the mandate given to it to uphold the Constitution and would serve to ensure that constitutional rights enjoyed the full measure of the protection to which they were entitled (paras 162-164). It was further held that the constitutional provision on locus standi did not require that a person acting in his or her own interest had to be a person whose constitutional rights had been infringed or threatened. The constitutional challenge could be brought by anyone and the Court would decide what constituted sufficient interest in the circumstances (para 168). A similar position was adopted in Minister of Health and Welfare v Woodcarb (Pty) Ltd 1996 3 SA 155 (N).
89 See SP Gupta v Union of India (1982) 2 SCR 365 520.
90 See Devenish (n 9 above) 50; see also C Loots 'Standing to enforce fundamental rights' (1994) 10 South African journal on Human Rights 50.
91 HK Saharay The Constitution of India: An analytical approach (2002) 339.
92 See Order 53 r 3(5) of the Rules of Supreme Court 1977 (UK); sec 31(3) of the Supreme Court Act 1981 (UK).
93 [1982] AC 617.
94 644.
95 See Lord Denning MR The discipline of law (1979) 117. See also R v COP of the Metropolis, ex parte Blackburn (1968) 2 QB 118.
96 See R v Secretary of State for Foreign and Commonwealth Affairs; ex parte World Development Movement Ltd [1995] WLR 386.
97 See Ngcukaitobi (n 24 above) 599.
98 (1982) 130 DLR (3d) 588.
99 606. See also Finlay v Minister of Finance of Canada (1986) 146 DLR (3d) 704.
100 See Devenish (n 9 above) 46; Ngcukaitobi (n 24 above) 596-597.
101 n 88 above.
102 Paras 162-164 1082.
103 Para 168 1084; also, in Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council & Others 2002 6 SA 66 (T) para 27, the court held that a voluntary association was entitled to bring a dispute on behalf of residents who 'are mostly indigent and are unable to individually pursue their claims because of that fact'. See also Permanent Secretary, Department of Welfare, Eastern Cape & Another v Ngxuza & Others 2001 4 SA 1184 (SCA); Lawyers for Human Rights & Another v Minister of Home Affairs 2004 4 SA 125 (CC) paras 15 & 17; Minister of Health and Welfare v Woodcarb (Pty) Ltd 1996 3 SA 155 (N).
104 See Vrancken & Killander (n 20 above) 257; Devenish (n 9 above) 48.
105 [1976] 1 WLR 550.
106 559.
107 680-681; (1986) 2 SC 325, per Obaseki JSC 352-353.
108 (2000) 1 WRN (Vol 2) 29.
109 n 30 above.
110 Per Ogundare JSC, 50; see Adediran v Interland Transport Ltd (1991) 2 NWLR (Pt 214) 155.
111 See Namibian National Students Organisation v Speaker of the National Assembly of SWA (n 80 above).
112 Ajomo & Owasanoye (n 61 above) 57.
113 See Hon Justice Ovie-Whisky v Chief Olawoyin [1985] 6 NCLR 156; Prince Maradesa v Military Governor of Oyo State [1986] 3 NWLR (pt 27) 125.
114 See Mohammed v Attorney-General, Kaduna State (1981) 1 NCLR 117.
115 See Chief O Emeka Ojukwu v Governor of Lagos State & Others [1985] 2 NWLR (pt10) 806; Arch-Bishop Anthony Olubunmi Okogie v Attorney-general Lagos State [1981] 1 NCLR 218.
116 This Constitution never came into operation due to the aborted transition of power to civilians by the military government of General Ibrahim Babangida.
117 See the Report of the Constituent Assembly, Vol II (1989) 154. See also N Tobi Understanding the 1989 Constitution better (1992) 3-7.
118 Dr JE Henshaw.
119 See Report of the Constituent Assembly (n 117 above) 148.
120 See Ajomo & Owasanoye (n 61 above) 60.
121 Hogg, eg, explains that restrictions on standing are intended to accomplish six main objectives, namely, (i) to avoid opening the floodgates to unnecessary litigation; (ii) to ration scarce resources by applying them to real rather than hypothetical disputes; (iii) to place limits on the exercise of judicial power by precluding rulings that are not needed to resolve disputes; (iv) to avoid the risk of prejudice to persons who would be affected by the decision but are not before the court; (v) to avoid the risk that the case will be inadequately presented by parties who have no real interest in the outcome; and (vi) to avoid the risk that a court will reach an unwise decision of a question that comes before it in a hypothetical or abstract form, lacking the factual context of a real dispute. See P Hogg Constitutional law of Canada (1992) 1263.
122 Nigerian human rights activists have contended that locus standi constitutes an impediment to the enforcement of human rights by the NGOs on behalf of the citizens. See Obiagwu & Odinkalu (n 82 above) 233.
123 The phrase amicus curiae means friend of the court. It is employed to refer to a barrister who represents a party to an action at the request of the court. In the Nigerian context, the term is used to refer to a person with a strong knowledge or views on the subject matter of an action, who the court invites to file briefs (as friend of the court or in order to furnish the court with his knowledge) in the suit concerning matters of broad public interest.
124 Access to justice will obviously be facilitated if amici curiae are permitted to place before the courts (not until when invited) arguments on matters of constitutional importance by representative organisations which are not parties to the action. See also Devenish (n 9 above) 50.
125 It is observed that the present regime in the enforcement of fundamental human rights does not countenance representative action. It, however, behoves human rights activists or NGOs to obtain the consent or instructions of the victims of human rights violations to institute actions in the victim's name. It is submitted that this is sometimes practically impossible where the victim is held incommunicado, and there is nobody who can give the requisite instructions on his or her behalf. See AN Nwazuoke Introduction to human rights law (2006) 186-187.
126 See sec 38 of the South African Constitution.
127 See the Report of the Constituent Assembly (n 117 above) 148.
128 See secs 45(1)(a) & (b) of the Constitution.
129 See sec 45(2) of the Constitution.
130 See sec 33(2) of the Constitution.
131 See secs 35(1)(c) & (f) of the Constitution.
132 See Legal Aid Act 1976, Cap 205, LFN 1990.
133 See UA Hassan Baba 'Report on the Operation of the Legal Aid Council of the Federal Republic of Nigeria' presented to the Annual General Conference of the Nigerian Bar Association, Abuja, 21-25 August 2000 6.
134 See Obiagwu & Odinkalu (n 82 above) 225.
135 It is admitted that the Council does not have enough lawyers to provide a responsive customer service. See Hassan Baba (n 133 above) 13.
136 See Obiagwu & Odinkalu (n 82 above) 230.
137 See n 2 above.
138 See Obiagwu & Odinkalu (n 82 above) 230.
139 See Ojukwu v Governor of Lagos State [1986] 5 NWLR (pt 18) 15.