Desuetude Of Locus Standi And The Right Of A Deceased Person Whose Death Emanated From The Contravention Of His Fundament Rights, Under The Fundamental Right (Enforcement Procedure) Rules 2009

By Omoha Otuosorochi Junior

You cannot talk about instituting an action in the court of law or tribunal without talking about the legal right you have to maintain such an action, the law is clear and certain, that once you institute an action which you lack the locus standi, that such an action will always be struck out from the court’s dockets. But since the intervention of FREP Rules, 2009; the law has taken new phase, which entails, without locus standi, you can still maintain an action for the enforcement of the fundamental rights of others.

Then flowing from the above, Locus Standi in its simple term is the right of a litigant to appear and be heard in court. Locus Standi was defined as the right of a party to appear and be heard on any particular matter before a Court of Law or Tribunal. See the case of Gombe V. PW (Nigeria) Ltd (1996) 7 SCNJ 19 @ 32.

Per Irikefe JCA (as he then was) in the case of Kaduna v. Hassan (1985) 2NWLR (pt.8) 458, also defined locus standi as “the right or competence to institute proceedings in a court of law for redress or assertion of a right enforceable at law.” In Our humble view, it will be correct to state that Locus standi is like a master key with which the court’s door is opened to a litigant; no locus standi, no access to court. The need for locus standi was developed to mitigate the interference of persons who have no interest or stake in the subject matter of a suit. It aims at shielding the legal system from superfluous litigations. Locus Standi can be likened to a colander which aims at sifting chaffs from the main substance

Furthermore, the term Locus Standi entails the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from anybody or person whatsoever including the provisions of any law. See the case of A-Oguntimehin v. Trade Bank Plc (2017) ALL FWLR (pt. 889) 499.

Prudence if not Commonsense would allow one to agree that without locus standi, a litigant cannot have access to court and if a party does not have locus standi, the court has no jurisdiction to hear him. Locus Standi was described as a right with which a plaintiff is clothed, if he has a justifiable cause to claim for injury he suffered, or of which he fears he may suffer. See the case of Coller- Ineyoagha v. The Bayelsa State House of Assembly & ors (2005) LPELR – CA/PH/77/2003

It will be pertinent to state that Locus Standi has given Courts the room and the relaxed mind to concentrate on matters of importance that are  brought before them. As it helps to manage the flood of cases brought before a Court. It also preempts a counsel from engaging in fruitless legal actions that would be otherwise struck out. And lastly, it puts a litigant on his toes in order to ensure that he has interest in a matter before approaching the Court so as to forestall institution of suits where only academic questions are posed to the Courts.

According to M.M. Stanley –Idum (Mrs) & J. A. Agaba, Ph. d Civil Litigation, 3rd Edition; where they opined that, when it is stated that one lacks locus standi, what the defendant is saying of essence is that notwithstanding the merits or otherwise of the complaints made by the claimant, the claimant has no right to approach the court, to ask for the determination which the claimant seeks, either because the alleged right breached or threatened to be breached does not belong to the claimant or that the claimant has not shown how the breach affected or is likely to affect him. The main essence of locus standi here is to avoid meddlesome interlopers from clogging the dockets of the temple of justice with cases that do not affect them. (Underlines are mine for emphasis)

In Nigeria, there are statutory enactments as well as case laws governing Locus Standi. The 1999 Constitution of the Federal Republic of Nigeria (as amended) provides in Section 6 (6) (b) as follows: ” shall extend to all matters between persons, or between government or authority and to any person 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”

The same constitution also provided for locus standi under Section 46 (1) C.F.R.N. as follows: “Any Person who alleges that the provision of this chapter has been is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.””

Then reasoning from the above, it is overtly written and established that for one to institute a legal action, that he must have a place of stand in the matter, otherwise known as Locus standi.

Also, the Supreme Court has also adopted this step in the Locus Classicus, Abraham Adesanya v. President of Nigeria (1981) 5 SC 122, where the Plaintiff brought an action challenging the validity of an appointment made by the President in the exercise of his constitutional powers. The Supreme Court struck out the suit on the ground that the Plaintiff had no Locus Standi; being unable to show any right or obligation, personal or peculiar to him, which has been breached.

The decision of the Supreme court in the recent case of Ajayi v. Adebiyi (2012) LPELR-7811 (SC) at Page 42-43, Para D-C also helped in explaining this point, where the court stated that for a person to show that he has locus standi, he must be able to show that his civil right has been or is under imminent attack and that to determine locus standi, the action must be justifiable and there must be the existence of a dispute between the parties. But it will be pertinent to add, that what was at contest in this recent matter, is not locus standi, per se, but here the court went further to establish that it does not stop in having locus standi, that for one to institute an action, that the person should also show that he has justifiable cause of action.

This is because if the frontiers of locus standi are limitless, the Courts will be inundated with public interest litigation that would prevent the Court from actually doing the work of settling specific legal disputes between persons as mandated by the Constitution. See the case of Edun v. Governor of Delta State of Nigeria & Ors (2019) LPELR-CA/B/378/2016

LOCUS STANDI AFTER THE ENACTMENT OF FREP RULES 2009

It will be correct to state that since the inception of the Fundamental Right (Enforcement  Procedure) Rules, 2009 (hereinafter refer to as FREP 2009), the demand for Locus standi as one of the prerequisite tools in instituting an action for the enforcement of fundamental right became lessen.

Fundamental Right (Enforcement Procedure) Rules 2009 was enacted by the then Chief Justice of Nigeria, the Honourable Justice Idris Legbo Kutigi, in exercise of the power conferred on him by section 46(3) of the 1999 constitution as amended. According to M.M. Stanley-Idum (Mrs) & J.A. Agaba, Ph.D. Agaba Civil Litigation 3^rd Edition,the Rules contain the procedure to be followed in the enforcement of Fundamental rights in the courts of law in Nigeria.

It is important to note that part of the overriding objectives for which the Fundamental Rights (Enforcement Procedure) Rules, 2009 were enacted by the Chief Justice of Nigeria at the time was for the purpose of advancing the applicant’s rights and freedoms and that one of the ways of doing this was for the Court to encourage and welcome public interest litigations in human rights field, making sure that no human rights case may be dismissed or struck out for want of locus standi. See the case of OGBE v. OKONKWO & ORS (2018) LPELR-CA/E/431/2014

However, the frontiers of public interest litigation have been expanded by the specific provision of Preamble 3(e) of the Fundamental Rights ( Enforcement Procedure) Rules of 2009 which provides as follows: (e) 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 groups as well as any non-governmental organizations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the 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. The Freedom of Information Act also made ample provision for this under Section 25(1 )(c) as follows: “Where a public institution denies an application for information, or a part thereof on the basis of a provision of this Act, the Court shall order the institution to disclose the information or part thereof to the applicant- (c) where the Court makes a finding that the interest of the public in having the record being made available is greater and more vital than the interest being served if the application is denied, in whatever circumstance.”

The law now is that an applicant can approach the court to enforce a right that does not directly belong to him. After the enactment of the FREP Rules 2009, the Key to the court has being broken, now the court’s door is open and litigants can now approach the court to enforce fundamental rights even when they lack Locus Standi.

Even before the enactment, the Supreme Court has always done well in considering other factors of life before reaching any decision in the case of locus standi and enforcement of fundamental right, like in the case of Fawehimi v. Akilu (1987) 4 NWLR (pt. 67) 797, where the Appellant was a personal friend and legal adviser to the late Dele Giwa, who was killed via a Parcel Bomb some time in 1986. The Appellant wrote to the DPP of Lagos State under Section 342 of the Criminal Procedure Act (CPA) requesting the latter to prosecute two army officers implicated in the murder or give the appellant fiat to prosecute them. The DPP did nothing, whereupon the applicant filed an application to obtain the prerogative writ of mandamus to compel the DPP to perform his statutory duty.The DPP raised an Objection challenging the locus standi of the Appellant. The trial court dismissed the Appellant’s application for leave, holding that the DPP had not refused to perform his duty. Dissatisfied with the decision of the trial court, the appellant appealed to court of appeal and his appeal at court of appeal was dismissed with the court holding that the Appellant had no locus standi. The appellant appealed further to the Supreme Court where his appeal was allowed and the Supreme Court held inter alia:

“It is my view that in these matters which are so interlined with the criminal law, our interpretation of section 6 (6) (b) of the Constitution must be approached with a true liberal spirit in the interest of society at large. In the circumstances of this case, can it be seriously argued that the appellant is not on a higher pedestal than any person to whom the law has given locus standi in the wider interest of the society? From the Affidavit filed, the deceased was in his lifetime, his friend and client. He had, from the papers in this case two days to his death, retained his professional services in relation to certain matter.”  See also the case of Mike Ozekhome  & ors. V. The President 1 NPILR 345 at 359

Then it will be invariably held that the FREP Rules 2009 in its breadth and length provides and supports public interest litigation and It should also be noted that there are great advantages associated with public interest litigation and these include; that it invariably allows victims to have access to the remedies whether or not directly affected, public interest litigation also helps in making the government of the day accountable and this provides a platform for change to be effected. It’s our humble view, that if it were now, the decision of the court in the case of Adesanya (Supra) would have being different.

In SERAP V. Federal Government of Nigeria (unreported) Suit No: ECW/CCJ/APP/08/08 cited by Falana, Femi, op.cit., p.38, The ECOWAS court dismissed a preliminary objection by the defendant to the locus standi of the plaintiff, an NGO, in seeking a relief which sought to compel the Defendant to justify the diversion of over N10 Billion from the Universal Basic Education Fund by some Government Officials.

In conclusion, it’s a welcome development that under the FREP Rules 2009, the hard rule of a litigant having a place of stand in a right enforcement matter before instituting such matter has been ameliorated and now, anybody can institute a fundamental right  matter, with or without locus standi in the case.

ENFORCEMENT OF THE FUNDAMENTAL RIGHT OF A DECEASED PERSON

It will be common question, to ask, what becomes of the fundamental right of a deceased person when his death emanate from the contravention of his rights? Does his right die with him? Or do the dependants have the right to enforce such right?

In answering the above questions, the Fundamental Rights (Enforcement Procedure) Rules, 2009 in its interpretative sections defined an “Applicant”  as; “A party who files an application or on whose behalf an application is filed under the Rules.” The import of this definition therefore is that an application can be filed on behalf of another. Therefore, under the FREP Rules, 2009, an applicant includes a person who sues on behalf of another person and it will be correct to opine that this also includes on behalf of a deceased person.

A deceased person in this context is someone who is no longer alive.

It would be recalled that before the enactment of the 2009 FREP Rules the term; “any person” under Section 42(1) of the 1979 Constitution and Section 46 (1) of the 1999 Constitution was interpreted by the Court to mean the actual person whose fundamental right had been or was being or likely to have been violated. See the case of OLUSOLA OYEGBEMI vs. ATTN-GEN OF FED. (1982) 3 NCLR 895; ALHAJI SHUGABA ABDULRAHMAN DARMAN vs. MIN. FOR INTERNAL AFFAIRS (1981) 2 NCLR, 459 and a host of other decisions of Court.

It is however important to note that under the present scheme of things, the concept of Locus Standi has been particularly broadened in order to promote and encourage public interest litigation especially in Human Right related matters. See the preamble to the 2009 FREP Rules and the observation of the apex Court in the case of FAWEHINMI vs. AKILU (1987) 4 NWLR (pt. 67) 797 where the noble Lord, OBASEKI, JSC had this to say on the subject: “Since we are all brothers in the society, we are our brother’s keepers. If we pause a little and cast our minds to the happenings in the world, the rationale for this rule will become apparent.”

From FREP Rules 2009, it will be correct to state that the restrictive interpretation that was placed on Locus standi, has been lifted and people now have free access to the court to assert their rights or the rights of their next neighbor and now the fundamental right of a deceased person can also be enforced by the next of kin, friends, relations or even the general public.

In the case of Nosiru Bello v. AG, OYO state (1986) 5NWLR (pt 45) 828 , a convicted armed robber was sentenced to death. He appealed against the sentence, but was executed while the appeal was pending. His dependants filed an action, claiming damages for unlawful and unconstitutional killing of their breadwinner. The Supreme Court upheld their claims because the plaintiffs had an interest in the continuance of the deceased’s life and suffered damages upon the unlawful termination of same and were claiming for injury done to them.

The law is now cleared as it was vividly stated by Falana, Femi that the Fundamental rights of a deceased can be enforceable by any concerned individual or organization under the 2009 FREP rules.

In line with the above exposition, the court enunciated this point well in the case of Shobayo V. C.O.P, Lagos State in suit No.ID/760M/2008, wherein the Applicant prayed inter alia for a declaration that the arrest, detention, torture, and killing of her deceased husband by some Police officers/men is “unlawful, unconstitutional and contrary to Section 33, 34, 35 and 41 of the 1999 Constitution”, and in his judgment delivered on 15/1/2010, Oyewole, J. (as he then was) held :

“Insisting that only the citizen subject of an infringement can approach the court when such right is violated would create an absurdity. This would imply the lion-realization of a fundamental right expressly created by the Constitution. This is more so in relation to the right to life when already contravened, for in this case, the citizen victim of the deprivation would have been dead. Restricting redress for violation of fundamental right to life is antithetical to the letters of the Constitution and to avoid this anomaly, the next of kin of such deceased citizen must be permitted to enforce the right so allegedly deprived. The depositions before the Court indicate that the Applicant was the wife and next of kin of the deceased, who reportedly died in custody of the Respondent. Denying her the right to maintain the action would create a situation never contemplated by the framers of the Constitution, as an unenforceable right would thus have been created. The Applicant without contradiction was the wife of the deceased, a relationship not t  oo distant to fathom. That she will be affected by the deprivation of life of her husband goes without saying. The wife of a deceased whose right was supposedly violated would naturally be affected by the violation and comes within the purview of persons affected by the infraction who, could pursuant to Section 46(1) of the Constitution, approach the Court for redress.”Right to Life no longer dies with the deceased person whose life was unlawfully taken by another; instead the family members or relations can now approach court for redress, the question now is not locus standi, but what wrong.

The above position was also upheld as of recent in the celebrated case of Orjieh V. The Nigerian Army & Ors (2019) LPELR-46925(CA),where the Applicant prayed the Federal High Court for a declaration inter alia that the fatal shooting and killing of her husband by a Soldier, was a gross violation of the deceased fundamental rights to life and dignity of his human person “contrary to Sections 33 (1) and 34(1) (a) of the 1999 Constitution and Articles 4 and 5 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, LFN 2004, and therefore, unconstitutional and illegal”. In his Judgment delivered on 20/2/2013. M. B. Idris, J, glaringly pointed out that-:

“…The Applicant’s husband was shot in the head and his brains blown out onto the floor. That was very harsh, cruel, dehumanizing, and inhuman. It is all the more pathetic that the Applicant’s husband was killed for a business transaction that he knew nothing about: He had not been the person, who transacted the business with the 6th Respondent. He was not even present when the purported business had been undertaken. He died an Innocent man, unblemished, for nothing. In the instant case, the Applicant’s husband’s rights were breached with wanton impunity. Clearly, the 7th Respondent acted with the belief that his action cannot be questioned by anyone. Indeed, till date, none of the Respondents took any action and none of them has apologized to the Applicant: – -. The shooting of the deceased, who was unarmed while pursuing his daily activities, was unjustified by any of the exceptions and, therefore, constitute a substantial violation of the Constitution. The right to life imposes on an individual the obligation not to deprive another intentionally of his right to life except in the event of self-defence, suppressing a riot or mutiny or to prevent a lawful arrest…”

He entered Judgment in favour of the Applicant, and awarded her N300m as general and/or exemplary damages/compensation for the breach of her deceased husband’s Fundamental Right to life and dignity of his person.

Conclusion

It will be partly correct to say that locus standi has prevented meddlesome interlopers from clogging the court’s docket with frivolous cases but I won’t fail to state here, that prior to the inception of the FREP rules, 2009, Locus standi as a principle of law has really denied many persons the enforcement of the fundamental right of their deceased relatives/ love ones whose rights to life have been contravened. But thanks to our erudite justices, who have deemed it right to correct such abnormality, through their good decisions and the enactment of the FREP Rules, 2009.

This Article is written by Omoha Otuosorochi Junior, a 400 level law student in Ebonyi state University, Abakaliki, Ebonyi State.

An Intern @ St. Sen solicitors of No 8 old Enugu Road Kpirikpiri Abakaliki Ebonyi State.

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