Under the narrow application of locus standi a person who does not have interest or sufficient interest, nor has suffered nor likely to suffer specific or personal injury in respect of a matter has no locus standi to sue nor obtain remedy in court. The reason for the above is that primary elections are in-house matter of a political party. A non-member of the party has no locus to raise the issue and no member of the party who was not an aspirant can raise the issue. It is considered non-justiciable, unless where an individual is shown to have suffered special damage over and above the one suffered by other members of the party. The locus standi rule developed primarily to protect the courts from being used as a playground by professional litigants, or a meddlesome interlopers, busy-bodies, who really have no real stake or interest in the subject matter of the litigation, having assumed the role of a hired mourner is crying more than the bereaved whose voices ought not to be heard in the internal- matters of another. Therefore, limiting the interest of party members and even the electorates to that of aspirant will work hardship and will inevitably make justiciable wrong non-justiciable. Developed legal systems such as Britain, India, USA, Australia and some developing countries such as Ghana and Gambia have laws which encourage individual citizens to participate actively in the enforcement of laws towards liberalizing the rules of standing .Nigeria should take cue from this thereby giving members of a political party the right to challenge the conduct of a party’s primary where it is perceived to have marred with irregularities or improprieties and the electorates to challenge the conduct of a general election. This is because the strict interpretation of this locus standi principle has become a shield for locus impunity. This will be better expatiated by the use of doctrinal approach.
1.1 Background to the Study
Locus standi is a Latin word for standing , traditionally; it implies that a person who applies to the court for redress should have sufficient interest to approach the court . 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 issue he wished to adjudicate . The concept of locus standi therefore concerns the capacity of a person to institute legal proceedings in a court of law or other competent tribunal. It follows that such person must have an interest, which is sufficiently affected by the action and that it is not enough that such a person merely claims that he falls within the class of persons for whose general interest that statute was passed. He must go further to establish that he has some personal interest that has been, or is most likely or certain to be affected by the action complained of .
Nigerian courts generally interpret the principle of locus standi strictly. They mostly accepted case, is where a person shows that he or she has personal interest in the subject matter of litigation or that the violation complained of affects the party directly . This has also been the position of the courts in public interest litigation cases , election cases and cases involving human rights abuse. This follows the interpretation of S. 87 (9) of the electoral Act 2010 (as amended)by the Supreme court of Nigeria in Aisha Jummai Alhassan & anor v. Mr. Darius Dickson Ishaku & Ors . Where the question was, who has locus to challenge the outcome of political party primaries “I have stated elsewhere that only a candidate who took part in the primary election of a party who has the locus standi to challenge the outcome of the party primary in line with the electoral Act. No other person, whether within the political party or outside of it can ventilate his grievance arising from party nomination as there is no law backing him up . This position hinders access to justice, because a person who was not an aspirant in a party primaries cannot in anyway be said to have reasonably been affected by the conduct of the party’s primaries in the nomination of its candidate even where the said primary was taken by events which is illegally conducted.
This research critically examines the effect of the strict interpretation of locus standi in the Nigerian legal system especially in electoral petition/litigation challenging the nomination of a party candidate, and suggesting possible remedies.
1.2 Statement of Problem
The restrictive interpretation of locus standi in Nigeria limits individuals and even party members who perceived non-compliance with the provisions of the electoral Act in the conduct of party primaries access to justice on the basis that only an aspirant who contested during the party primaries has the locus to challenge the conduct of such primary election. It is pertinent to note here that such narrow interpretation has rendered many justiciable wrong non-justiciable, even when it is glaring that the primary election has been taken by some events, especially in Nigeria where godfatherism has become the order of the day in our body politics. The question that is still yet to be answered is for how long do our courts continue to use this narrow interpretation to subvert justice; even when the requirements as to compliance in the conduct of such party primaries has not been duly observed by the party to whom this strict interpretation of locus standi favored. Is it possible to robed the law and get away with it on this narrow application of standing. These are problems that need proper attention in our judicial system today because of the attitude of court to administration of law and justice.
In Lawan Abdullahi Buba Wassah & Ors v. Tukshahe Kara & Ors ; it was held; per Rhodes-Vivour JSC that, “law is blind. It has no eyes. It cannot see. That explains why a statute of a woman with her eyes covered can be found in front of some High Courts. On the contrary justice is not blind. It has many eyes, it sees, and sees very well. The aim of court is to do substantial justice between the parties and any technicality that rears its ugly head to defeat the cause of justice will be rebuffed by the court” .
The problem now is when will our courts rebuffed this technicality of locus standi for justice to prevail. This is because when justice is done it brings joy to the righteous .
1.3 Research Questions
- What are the effects of a restrictive interpretation of locus standi in Nigerian courts on electoral petition?
- Who can proof non-compliance with the provisions of electoral Act in the conduct of party primaries?
- Is the innovation of the card Reader is in conflict with the electoral Act?
- To what extent can the failure to use card Reader Machine for accreditation of voters invalidate an election?
1.4 Aim and Objectives of the Research
The aims is to appraise the strict interpretation of the principle of locus standi in Election Petition Matters in Nigeria
The specific objectives of the study are to:
- determine the effects of a restrictive interpretation of locus standi in Nigerian courts on electoral petition.
- identify where the onus of proof non-compliance lies in the provisions of electoral Act in the conduct of party primaries.
- assess if the innovation of the card Reader is in conflict with the electoral Act.
- determine if the failure to use card Reader Machine for accreditation of voters invalidate an election.
1.5 Research methodology
The study adopts the doctrinal design. Analysis of the provision and interpretation of locus standi in other jurisdiction such as Britain, India, Australia, Ghana and Gambia was carried out because these countries had strict interpretation of the locus standi rule but now are more liberal in their interpretation of locus standi and the need for her (Nigeria) to conform to international best practices. Reliance was placed on both primary and secondary sources of data. Primary source of data is mainly from the statutes. Secondary source of data if from library sources, case law, Text books and other academic literature.
1.6 Scope of the Study
The scope of this research is to take analytical voyage in ascertaining the strict interpretation of the locus standi principle in electoral petitions, its effects and why our courts are so fond of being timid in holding unto that narrow interpretation and barring access to litigants on want of standing and if possible recommends the way out.
1.7 Literature Review
There are extensive literatures on the interpretation of locus standi on human rights and public interest litigation in Nigeria.
Olowu, ascribed the perilous state of economic, social and cultural rights adjudication in Nigeria to substantive issues of the legal structure; he said “perhaps the most formidable impediment to the effective protection of such rights remains the common law procedural doctrine of locus standi .
According to John , standing to sue is the first step in access to justice. He maintained further that extensive access to justice is more likely to result in equal justice. Although, inequalities will always exist, people with power and wealth will all the time have more influence on governmental and private decisions than those that do not have power and resources. But this inequality is prevalent where access to courts is limited, because restrictions may likely not to affect economic interests. MCcrombo Wondered why there is so much academic Write-up against the principle of standing particularly in public interest environmental litigation. He then concluded that natural resources, animate or inanimate, increasingly requires us to lawfully protect them from the untenable exploitation that was brought about by industrialization, but that locus standi become the “arch enemy” of environmental protection and sustainable use of natural resources. He further posed a question, if only a litigant who has a sufficient, specific individual interest could approach the courts to protect such interest who was going to do this on behalf of nature.
In the opinion of Nijar, public interest litigation provides successful judicial defense to weaker sections of community, demands accountability from the government, encourages transparency in decision-making processes, ensures access to justice and ensures that authorities act in accordance with established obligation to abide by and put into effect legal norms . This is also the opinion of the Nigerian Bar Association in its publication: “An x- ray of public interest litigation in Nigeria where it says; “the concept of public interest litigation is a noble concept which makes justice quickly and readily available to the masses when their fundamental rights are been threatened ”.
Ghosh, believed that judicial activism signifies the concern of courts to find out suitable remedy to the aggrieved by formulating a new rule to solve the conflicting questions in the event of illegality or vague laws. He attributed the current liberal interpretation of locus standi in India especially public interest litigation to judicial activism .
Adedimeji said that “judicial activism in public interest litigation remains one of the veritable tools to bring about good governance, quality and responsive leadership and accountability in governance . Locus standi has been the main reason behind many public interest cases not being successful, many public interest cases have been lost or dismissed in the past as a result of this limitation, and it is a challenge to the realization and successful prosecution of public interest cases. Litigants suing the government to challenge any decision or act of the government face the task of showing sufficient interest in the matter .
The institute for Human Rights and Development said in a report that problems often arise from restrictive interpretations of locus standi . It further states that:
However, in Nigeria, this test has been interpreted to mean that only those whose rights (constitutional or legal) have been directly infringed by executive or legislative decision can bring an action for judicial review. This greatly restricts access to justice and, therefore, accountability of government. Living only those with a” personal” right standing to sue greatly reduces the number of people eligible to bring action against the government.
The report stressed further that legal actions are expensive, therefore, restrictive interpretation of standing makes the person with sufficient interest and the right to bring an action to the court to rely solely on his resource and financial strength and professionalism of a public interest group or an NGO. This is always an encumbrance, especially in developing countries where a lot of the people are poor and cannot afford the huge expenses that comes with legal actions .
Another problem the report stated is that “the person with standing has to actually want to bring the action . The lack of will power to bring the action can result in threats or gifts to dissuade the person from bringing the case to court. The result is that, under a restrictive locus standi regime, fewer cases are brought to court, lessening the pressure on government to hold fast to principles of good administration . Nwauche opined that the requirement in preamble 3(e) of the fundamental Rights Enforcement procedure) Rules (FREPR 2009) that the court shall encourage and welcome public interest litigation in the human rights filed and no human rights case may be dismissed or struck out for want of standing to sue”, suggest that the standing principle set out inAdesanya v. president of the Federal Republic of Nigeria , was no longer a binding precedent.
Okey Ilofulunwa , having identified the genesis of the confused state of law on locus standi in Nigeria, I now suggest a way out “our courts should first of all appreciate that the supreme court did not in fact by majority in Adesanya’s case decided that S. 6 (6) (b) of the constitution of Nigeria should be the test for locus standi. At best, it was the opinion of Mohammed Bello JSC with Nnamani JSC and Idigbe concurring. Other justices of the Supreme Court that sat in that panel never subscribed to that view. This position has found support in the decision of the Supreme Court in Owodunmi v. Registered Trustees of Celestial church & Ors . He suggested that once this point is well noted the road will be clear for the courts to be free to follow the better approach to the issue of locus standi as done in other jurisdictions. This is by adopting the cause of action test in private law actions and sufficient interest test in public law actions with sufficient interest given a liberal interpretation. In other word, one does not necessarily have to show that his civil rights and obligations are affected by the act complained about especially in public interest litigations, he observed.
According to Duru , because the (FREPR 2009) were made pursuant to S. 46 (3) of the1999Constitution, they are considered to be equal. With the provisions of the constitution. He is of opinion that the Rules have the same strength and influence as the provisions of the constitution. He maintains that they are therefore of a “higher status than other laws in the hierarchy of laws in this country” and that” in the event of any inconsistency between the fundamental rights (enforcement procedure) rule 2009 Rule and any other law, the former will prevail to the extent of such inconsistency”. He cited the decision of the court of Appeal in the case of Abia State University, Uturu v. Chima Anyaibe , as his basis, where it was stated that “the fundamental rights (enforcement procedure) rule 1979 form part of the constitution and therefore enjoy the same force of law as the constitution.”
However, Sanni disagrees with this assertion, he argues that, assuming (without conceding) that the fundamental human rights (enforcement procedure) rule 2009 are an integral part of the constitution, this however, cannot result in making the provisions of the Rules supersede the express provisions of the constitution. Based on S. 1 (1) & (3) of the 1999 constitution , Sanni submitted that every one of the provisions of the (FREPR 2009) which are not in agreement with the constitution stand the danger of being declared null and void to the extent of their inconsistency .
All the authors referred to above have contributed to the advancement of this research. But none of the authors has examined the effect of the strict interpretation of locus standi by Nigerian courts on electoral petitions in the Nigerian political scene. This crucial gap in previous literature is what this research attempts to tackle.