Supreme Court’s Distinction Without a Difference
Whereas in one breath, the Supreme Court held that a citizen is free to challenge a violation of the Constitution, it stated nonetheless that when it comes to specific actions of the executive, the plaintiff has to show how he is specifically affected above and beyond other members of the society. The Court took back with one hand what it had granted with the other. Logically, foundation should be the prime consideration, which in this case, is the Constitution. How can a citizen be entitled to challenge the violation of the foundation and then at the same time be powerless to upturn and pull down the superstructure erected upon the said faulty foundation? You can challenge the violation of the law but you are barred from contesting actions taken pursuant to such violation! It just does not add up, to create two standards of locus standi, in the same action.
In this case, Chief Gani Fawehinmi, SAN, contended that payments made to certain Ministers are in gross violation of the Constitution and other extant statutes and thus sought a reversal of such payments in full compliance with the Constitution. The Supreme Court met Gani halfway in agreeing with him that he had the locus standi to challenge any violation of the Constitution but it went further to deny him locus standi to contest the specific act of payments to Ministers, being executive actions taken pursuant to existing laws. Let us hear the Court.
On Locus standi of Nigerian citizen to institute action for protection of Constitution:
“The law has moved beyond the restrictive application of the rules of locus standi to a more flexible and purposeful dispensation in which a Nigeria citizen should have access to court for the protection of the Nigerian Constitution from any attack or violation. If an Act made by the National Assembly or any Law made by the State legislature is unconstitutionally assaulted or is in itself unconstitutional, every Nigerian should have access to court to vindicate the rule of law and arrest any breach of the law and the Constitution. But when the claim is directed towards an executive action over any subject matter, the plaintiff’s locus standi will inure if he shows direct and personal effect of the action complained of on his right as a Nigerian.
To be unconstitutional means to be in conflict with the letters and intent of the Nigerian Constitution. Since the Constitution is the grundnorm, any assault on it can be challenged in court by any citizen of Nigeria. But when it comes to issues of steps or decisions of the Executive such as payments of salaries, one needs to show sufficiently his interest or right that is in danger. A challenge of the Constitution which is the general law governing all Nigerians is quite different from a challenge of a specific law governing a special class of people. The specific law may take its life from the general law, such as the Constitution. In such a situation, the plaintiff needs to show his interest and how it is affected or infringed upon. In the instant case, the plaintiff being a lawyer and a senior advocate did not confer on him the duty or obligation of challenging the decision to pay any type of salary to the appellant by the Government that hired her. It could not confer any standing on him to prosecute the claim.”
Per ADAH, J.S.C. at page 41, paras. B-E:
“The position of the lower court that the claim of the plaintiff had constitutional flavour does not sync with the questions and the reliefs raised in the originating summons. The plaintiff was not challenging the constitutionality of the provisions of the Certain Political, Public and Judicial Office Holders (Salaries and Allowances) Act No. 6 of 2002 made pursuant to section 153 (1) (n) and Part 1 N, item 32 (d) of the Third Schedule to the Constitution of Nigeria 1999. What the originating summons was out to do, is to challenge the alleged breach of that law by the respondents. This therefore, does not place this action within the purview of the charge to every citizen to defend the Constitution of Nigeria. The contention of the plaintiff is that the respondents paid more money as salaries to the 3rd and 4th defendants and that the money paid out was unlawful. This duty can only be carried out by one who is injured by the said act of the respondents.”
In the affidavit in support of his originating summons, Gani stated that he was a taxpayer, a politician, a publisher, statesman, philanthropist, employer of labour, an activist of repute and a Senior Advocate of Nigeria who took an oath to defend and uphold the Constitution. Which other Nigerian will be better placed than Gani to take up this action in court? The money being paid to the affected Ministers was from the common pool to which Gani and other Nigerians paid their taxes and the Constitution that was said to have been violated through the said payments is what Gani swore to defend and uphold. How else can a litigant show sufficient interest to challenge the wrongful use of his tax than the evidence of payment of the tax itself?
How else will a citizen defend and uphold the Constitution other than through an action in court to interprete and declare the provisions of the said Constitution? With all due respect to My Lords, the reasoning does not flow. From the government’s account, it has been reported that citizens like Gani who pay their taxes faithfully are in the minority. Similarly, there are less than 1000 Senior Advocates of Nigeria amongst the many advocates called to the Nigerian Bar. In essence, Gani eminently qualifies to challenge executive actions that tend to misuse his tax or render the Constitution that he swore to uphold a mockery.
Per UMAR, J.S.C.:
“From the facts of the case, Chief Gani Fawehinmi, SAN originated the action. His originating processes indicated he is a Nigerian; he was the Chairman of National Conscience Party. He was a former presidential Candidate. He was a taxpayer. A Senior Advocate of Nigeria etc. The question is: will the above be sufficient to grant him the locus standi to bring this action? These and other questions are bound to agitate the mind of any objective enquirer and it’s for this reason that the court has to exercise some caution before giving a stamp of legality to this type of interest lest one flings open the door to busy-bodies who might want to exploit the slightest opportunity to embarrass innocent citizens of this country. From the record of proceedings I read, the fact he is a taxpayer without facts of being such is fatal to his claim.”
The real questions indeed are these: can a Senior Advocate of Nigeria be a busybody? Can a man who has defended democracy, the rule of law and the Constitution be said to be a flippant litigant with a frivolous suit? The Supreme Court stated that the defendants never contested the facts stated in Gani’s affidavit as to his status, which means the facts of his tax records were not in dispute. In so many cases before this one, the apex Court held that where a defendant challenges the locus standi of a plaintiff preliminarily, he is deemed to have admitted the facts stated in the claim, upon the strength of which the defendant wants the plaintiff’s case to succeed or fail.
The Court of Appeal had described Gani as the Conscience of the Nation, given his track record in public interest litigation and it ordered the affected Ministers to refund all the money paid to them in violation of the law. I honestly believe that this is what the Supreme Court was running away from in spilling some poison upon the judicial meal that was well prepared for litigants on locus standi. The Court would still have achieved that objective without throwing legal spanners in the successes recorded in public interest litigations which are meant to hold leaders accountable to the people.
In the sister case of President, FRN v Fawehinmi, which arose from the same facts, the Supreme Court held that the case itself could not survive Gani, being a personal action and it struck out the originating summons on that ground alone, which gave the affected Ministers a soft landing. The more troubling issue is whether any Nigerian, who offers or agrees to serve his fatherland should be treated differently from other Ministers of the Federation, notwithstanding his status or location. The Constitution itself prohibits any discriminatory action in section 42, to the extent that no Minister should be selected for preferential favours of payment in foreign currencies over and above other Ministers.
A more disturbing aspect of the case is the stand of the Supreme Court on what constitutes public interest litigation.
On Meaning of “public interest litigation”:
“The term “public interest litigation” refers to an action or a suit instituted to protect or promote the interests of the general public, instead of pursuing a personal or private interest. In respect of public interest litigation, the court can be liberal on the issue or question of the claimant’s/plaintiff’s locus standi. In the instant case, there was no deposition to suggest that the action was public interest litigation. The depositions in the affidavit in support of the 1st respondent’s lawsuit at the trial court tilted to the protection of only his personal interests as the Chairman of the National Conscience Party, former presidential candidate and as a Senior Advocate of Nigeria who swore to an oath before the Chief Justice of Nigeria and other Justices of the Supreme Court present on the occasion of the conferment of the rank of Senior Advocate of Nigeria on him.”
In previous cases that Gani had pursued, such as Fawehinmi v Akilu, Fawehinmi v NBA, Fawehinmi v Abacha, etc, the same Court had recognized these cases as touching public interest and indeed applied the doctrine of neighbourhood to uphold Gani’s locus in some of the cases. Reading through the facts of this case, I could not see any personal benefit to Gani if the Supreme Court had upheld the laudable declarations of the Court of Appeal. Perhaps this was another policy decision meant to save public officers.
