Protocols.
I am most honoured to be invited to this gathering of eminent legal practitioners who are the creame de la creame of the legal profession in Nigeria. I am sure that my invitation is not borne out of the fact that I am called to the bar yet, (as I just finished my LL. B degree programme with honours, my 3rd first degree but because I am probably seen by the larger public as conscience and mouthpiece of the people, the down trodden, the unrepresented or under represented. For this, I am grateful.
This topic is a very germane, inexhaustible and limitless one. I will however start by defining the word as a concept.
What really is meant by the word “public interest”? I will however add “in other climes vis-a vis our dear country Nigeria” to the topic.
Economist Lok Sang Ho in his Public Policy and the Public Interest argues that the public interest must be assessed impartially and therefore defines the public interest as the “ex ante welfare of the representative individual.” Under a thought experiment by assuming that there is an equal chance for one to be anyone in society and, thus, could benefit or suffer from a change, the public interest is by definition enhanced whenever that change is preferred to the status quo ex ante. This approach is “ex ante”, in the sense that the change is not evaluated after the fact but assessed before the fact without knowing whether one would actually benefit or suffer from it.
This approach follows the “veil of ignorance” approach, which was first proposed by John Harsanyi but popularized by John Rawls in his 1971 Theory of Justice. Historically, however, the approach can be traced to John Stuart Mill, who, in his letter to George Grote, explained that “human happiness, even one’s own, is in general more successfully pursued by acting on general rules, than by measuring the consequences of each act; and this is still more the case with the general happiness, since any other plan would not only leave everybody uncertain what to expect, but would involve perpetual quarrelling…”
The Institute of Chartered Accountants in England and Wales argues that applying a detailed definition is likely to result in unintended consequences, in Acting in the Public Interest (2012). Instead, each circumstance needs to be assessed based on criteria such as the relevant public, wants, and constraints. The key to assessing any public interest decision is transparency of the decision-making process, including balancing competing interests. That is to say, public interest may be assessed based on Igbo, Fulani, Hausa, Yoruba, Ibibio, Kaje, Benin/Edo etc interests specifically. In the context of a conglomeration of nations like Nigeria, joined together by fiat in 1914, defining public interest may be very tasking, difficult and impossible as we lack a cohesive and considerate aggregation or balancing method or system. It is a winner takes it all syndrome that operates. This is why the zoning formula/federal character, which ordinarily is premedieval and archaic is still very valid here in Nigeria as opposed to meritocracy.
“Public interest law” is a term that became widely adopted in the United States during and after the social turmoil of the 1960s. It built upon a tradition exemplified by Louis Brandeis, who before becoming a U.S. Supreme Court justice incorporated advocacy for the interests of the general public into his legal practice. In a celebrated 1905 speech, Brandeis decried the legal profession, complaining that “able lawyers have to a large extent allowed themselves to become adjuncts of great corporations and have neglected their obligation to use their powers for the protection of the people.” In the late 1960s and 1970s, large numbers of American law school graduates began to seek “relevance” in their work — wishing to have an effect on the social issues that were so visibly and hotly debated within American society at that time. They defined themselves as public interest lawyers in order to distinguish themselves from the “corporate adjuncts” referred to by Brandeis.
Public interest law does not describe a body of law or a legal field; the term was adopted to describe whom the public interest lawyers were representing, rather than what matters they would work on. Instead of representing powerful economic interests, they chose to be advocates for otherwise underrepresented individuals. Consequently, a significant current in public interest lawyering has always emphasized the need to provide legal services to those living in poverty. The term has grown, however, to encompass a broader range of activities of lawyers and non-lawyers working toward a multitude of objectives, including civil rights, civil liberties, women’s rights, consumer rights, environmental protection, and so on. Nevertheless, a common denominator for public interest lawyers in the United States and in a growing number of countries remains the ethic of “fighting for the little guy”—that is, representing the underrepresented and vulnerable segments of society.
IN GOVERNMENT.
Public interest has been considered as the core of “democratic theories of government” and often paired with two other concepts, “convenience” and “necessity”. Public interest, convenience and necessity appeared for the first time in the Transportation Act of 1920 and also appeared in the Radio Act of 1927. After that, these three concepts became critical criteria for making communication policies and solving some related disputes.
The public interest is a concept that can be defined in several ways. It is often treated as an ideal standard to which appeals for validation of political claims and policies are directed. References to the public interest commonly occur in editorials, political speeches, and other utterances of an admonitory or edifying character. The term is also often encountered in judicial and regulatory pronouncements. The significance of the conception is normative rather than analytical.
Attempted definitions
In efforts made to define the term systematically, several categories appear. There is the formal meaning wherein the public interest is viewed as the objective of the duly authorized organs of government or as the expression of majority rule. In substantive or policy terms, the public interest may be envisaged as embracing those activities necessary to the safety of the state and the welfare of the community: defense, police protection, education, and public health and sanitation. The public interest has no a priori content waiting to be revealed. Public responsibilities regarded as being in the public interest in one setting may not be so regarded in a different context. The fact that the concept is elastic and relative rather than fixed and absolute makes it of greater utility in the quest for a supporting consensus as social changes occur and efforts at accommodation are made. The public interest then serves to remind the parties immediately concerned that there are considerations extending beyond their own goals or their particular rivalries or negotiations. Thus in labor-management disputes, or when subsidies or favorable tariff rates are sought for special groups, the consumer interest may be identified as the public interest. The individual may find himself in one role seeking to advance his self-interest and in another capacity allied with the larger good. Hence the term, whether for manipulative ends or for hortatory or inspirational purposes, is neither the device nor exclusive goal of any one group or class. As an aim to be articulated or an ideal to be enunciated, the public interest stands for the broad versus the narrow, the more inclusive versus the limited.
Indeed the very existence of the state as a collectivity would seem to prompt the formulation of basic common purposes. Thus the public interest is akin to the statements of ultimate ends that characterize political philosophy, varying from Plato’s concern with the moral development of citizens as the purpose of the city-state to Hobbes’s emphasis on order, Locke’s protection of natural rights, and the utilitarian’s assertion of the greatest good for the greatest number. As these illustrations indicate, the existence of a common interest is an implicit assumption, although its more specific manifestation cannot always be readily agreed upon. Yet both in traditional political thought and in contemporary organization theory, it has been noted that despite uncertainty about exactly what the shared interests may be, some measure of sharing exists for every human association.
The public interest can be visualized as a continuum that represents the values, aspirations, and objectives of the community or polity. There are values that are clearly central, such as health; and there are objectives that are controversial, such as fluoridation of water or discouragement of cigarette smoking. There are aspirations that are nearly universal, such as world peace; but there are numerous policy objectives to this end, which are subjects for debate. It is impossible to state with precision where any given item belongs on the continuum, yet there is general acceptance that a range of activities and goals exists above irrational or selfish individual interests.
Granted that a wide consensus supports freedom, justice, and compassion, the problem is to objectify these ideals in public policies bearing concretely on such areas as civil rights, race relations, juvenile delinquency, or narcotics addiction. The public interest cannot be thought of as a compromise struck between the desires of dope addicts and moralists or between hoodlums and the police. The public interest is clearly more than the sum of competing interests. It is an insistent reminder that morality must have a central place in any society that respects the freedom of its members. The concept of public interest holds the ultimate ethical justification for the demands that the state makes on the individual. The high value placed upon freedom and justice calls for the readiness of the citizen to make sacrifices if necessary and to share responsibility for sustaining the values of the polity.
The concerns of the philosopher and the needs of the official and the politician will call for continuing reference to the public interest if for no other purpose than as a symbol, as a shorthand device for directing attention to considerations that transcend the immediate, the selfish, and the merely expedient.
The public interest, as a concept, seems to be employed in situations that involve a conflict of interests or a problem of defending or interpreting broader or longer-range considerations against special or more immediate factors. Thus T. H. Green in his Lectures on the Principles of Political Obligation refers to the “common good“in analyzing the rights and duties of the state and the citizen. Brief reference is made to the public interest in the following context: “If the injured individual were likely to fail in the institution of proceedings for his own redress or defence, the public interest would require that the matter should be taken out of his hands“([1882] 1960, p. 240; italics added).
Similarly Robert Maclver in The Web of Government refers to the general welfare and community, but when he describes the conflicting interests of modern industrial states, he writes that “government cannot afford to sit by while the disputants bring economic pressure to bear on one another. …In the public interest it must devise whatever measures are expedient … to prevent any interruption of vital services” ([1947] 1963, p. 350).
Uses of the concept
The fact that the term is imprecise does not mean it is disappearing from ordinary usage; this is evident from the frequent references to the public interest in political polemics and in day-today discussions of public policy. The term then is justified as a useful working hypothesis: if it were abolished today, some other polar term would be coined to contrast the selfish goals of the few with the larger good, or sheer majority power with the proper rights of a minority. The occasional debasement and abuse of the term, it is argued, is no reason for its rejection (Colm 1960, p. 127). And as for ambiguity: Is “individual freedom“any more precise than “public interest”?
The concept of the public interest has won acceptance in the context of a functionally differentiated political system and a modern, industrial, and bureaucratized society that has a strong tradition of constitutionalism and rule of law.
The term is closely associated with the growth and professionalization of the civil service. The existence of a “neutral bureaucracy,“officeholders neither subservient to the will of a monarch nor dependent upon a political party, calls for some focus of loyalty. The public interest helps to meet such a need.
Felix Frankfurter, in his The Public and Its Government, uses the concept in referring to the public officials “pitted“against the utilities experts, for whom they are no match “except for occasional men of great capacity and exceptional devotion to the public interest“(1930, p. 115). There are also occasions when officials are accused of exceeding their authority to the detriment of the public interest.
Where clearly distinguishable interests compete and policies can be seen as expressions of group desires, the public interest can be determined with some degree of specificity. Industrialization and improved means of communication and transportation have brought about conditions of complexity requiring more competence and expertise to determine the public interest in particular cases.
In negative terms one can list the efforts made to protect the public interest from threats to public order, safety, and morals (laws and ordinances with respect to crime, accidents, vice) and in the economic sphere regulations applying to fraud, monopolies, vote fixing, fair employment practices, and consumer protection.
Institutionally and procedurally, legislative bodies must rely upon special agencies to discover and protect the public interest within their respective jurisdictions.
From the standpoint of jurisprudence it would appear that the concept has a firm position. According to one spokesman, “the lawmen have a vested interest in ’the public interest’ as an operational concept: They would be tongue-tied without it“(Cohen 1962, p. 160). Nor have judges refrained from definition: “Public interest means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected“(State v. Crockett, 206 Pac 816, 817, quoted in Montgomery 1962, p. 222). And Munn v. Illinois states, “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large…. When …one devotes his property to a use in which the public has an interest, he …must submit to be controlled by the public for the common good“(94 U.S. 113, 126). Technological development and economic growth have resulted in industries whose activities go beyond the owners, shareholders, employees, competitors, and direct customers and affect the interests of a wide community, as in the case of the railroads and power companies.
Recent scholarly discussion
The literature of recent years indicates a wide range of views concerning the significance of the concept. The differences of opinion result from the varying emphases with respect to its normative aspects and questions concerning its usefulness for analytical purposes. Since there is no generally accepted definition of the term, several different formulations are offered.
According to Walter Lippmann, “the public interest may be presumed to be what men would choose if they saw clearly, thought rationally, acted disinterestedly and benevolently“(1955, P- 42).
Alfred Verdross regards the public interest as“the establishment of social conditions under which individual persons are able to build, through industry and productive work, a life which is in consonance with the dignity of the human being”(Bodenheimer 1962, p. 213).
Charles Frankel writes:
The ideal of the public interest calls on men, despite their egoism, to set their preferences side by side with the preferences of others and to examine them all with the same disinterestedness and impartiality. It asks them to seek as tolerable and comprehensive a compromise among these interests as is possible. And it reminds them that every decision they make is a limited one, that some interests may have been overlooked, that something better may be possible. (1962, p. 200)
Stephen Bailey (1962) calls public interest “the central concept of a civilized polity. Its genius lies not in its clarity but in its perverse and persistent moral intrusion upon the internal and external discourse of rulers and ruled alike“(p. 106). He also notes: “There is perhaps no better example in all language of the utility of myth than the phrase ’the public interest’“(p. 97).
The work of nearly a score of writers on the public interest is collected in Nomos No. 5 under the editorship of Carl J. Friedrich, who notes that it is not possible to discern “any distinctly philosophical, legal or political-scientific approach, though some of the authors lean more in one direction, some more in the other“(Friedrich 1962, p. viii).
Frank J. Sorauf (1962) has given thoughtful attention to “the conceptual muddle“concerning the “public interest“; his conclusions are as follows:
No single criterion or standard, such as the public interest, can subsume or encompass all that is good and desirable for society—regardless of the system of values one prefers or propounds. The matter of the goals of a contemporary industrial society consists in reality of a series of specific, policy-centered questions which involve the entire range of our concern, from a realistic approach to the emerging nationalism of Africa, through care for the ill among the aged, to the resolution of domestic racial conflict and tension. The answers to these policy questions will be hammered out painfully and pragmatically, and they will certainly be expressed in alternatives and wisdom considerably more specific and vastly less grandiose than the all-encompassing guise of a “public interest“. If one argues that a public interest exists in all these problem areas, and if he can go the next step and identify it, all well and good. But why then resort to a concept of the public interest? (p. 188)
That the “public interest“ has meaning for some public officials and interest groups is an incontestable fact. That it may in these terms affect the shaping and administration of public policy is equally incontestable. Observation of American politics will also afford instances of its effective use as a unifying symbol and a social myth. Even should scholars reject the public interest for their own analysis, they must observe and record its prevalence and influence in the political system. But it is only as political datum that the public interest has a definable relevance to the study of politics and public policy, (p. 190)
Glendon A. Schubert has reviewed definitions and usage in an effort to discover whether the term could be used as a standard susceptible to empirical verification. His conclusion, if practicable, would point to a wide range of investigations:
If we assume that the peaceful adjustment of conflicting interests is not only the consummate art of the politician, but that it is also the fundamental task of all policy processes in a democratic polity, then a model of administrative due process would be empirically verified if, in practice, the decisions actually made resulted in the maximal accommodation of the affected interests, in comparison with the relative capacities of alternative structures for making the same decisions, and measured by a reciprocally minimal recourse to other centers for public policy change (i.e., the legislature, the chief executive, courts, etc.)…. There would be technical problems in the construction of realistic models, and there would be practical problems in inducing political support for the translation into actuality of any models that went beyond the description of existing agencies and processes. (1957, p. 368)
Schubert concludes that in spite of these difficulties the task is worthwhile. In a later paper, however, he suggests that political scientists might do better to concentrate on concepts other than the public interest, concepts that promise more usefulness as scientific tools (1962, p. 176).
RESEARCH NEEDS AND OPPORTUNITIES
From an analytical viewpoint, the concept of the public interest may be best understood when viewed within a specific context or continuum. There is ample opportunity for research into decisions of regulatory bodies and judgments by the courts where the concept is interpreted in the light of specific issues.
Inquiry into the purposes to which the concept is put, by whom, under what conditions, and with what consequences may lead to a clear understanding of the dilemmas and choice points that face opinion leaders, legislators, officials, judges, and all others who would engage in the contest of politics. A history of the usage of the concept might well be undertaken. What relationship can be traced between the public interest and ideas of the general welfare or the national interest? Have significantly different shades of meaning or emphasis occurred? Moreover, international civil servants have yet to classify the public or publics they serve and the interests to which their energies are dedicated. Many of these problems can currently be examined in the new “modernizing“ countries where officials are uncertain of their status and their standards.
While a civil servant may feel that the public interest has been served if he follows the inner check of conscience or the course dictated by the highest technical or scientific standards of his profession, the problem of responsibility is not thereby resolved. The community’s values are also involved in the public interest: public debate, discussion by the press, and legislative action or judicial intervention may be called for before an equilibrium is reached that appears to satisfy the articulate elements. There can obviously be no definitive adjustment “in the public interest“ but rather a temporarily acceptable accommodation of interests and values. In this process of interaction there is opportunity for innovation and creativity and the public interest may be newly forged. The frontiers of scientific inquiry and problems of foreign aid in exotic cultures, for example, confront civil servants (and military officers) with necessities and opportunities for seeking fresh solutions for policy problems and unprecedented courses for governmental decision and activity.
A fresh perspective is gained if the public interest concept is viewed against the conditions that obtain in the developing countries. The problem of governance begins in the identification and articulation of interests. In traditional societies the peasant is a spectator or a pawn rather than a self-conscious participant. In the absence of effective interest groups, the charismatic leader rather than the politician qua broker has full opportunity. An underdeveloped society by definition lacks a well-defined infrastructure, and leaders accordingly are prone to make emotional appeals to a mass public and to stimulate nationalistic sentiments. Moreover, problems are not met through legal processes and administrative procedures of an essentially rationalistic character. Governmental sanctions are to be found in custom or in the will of the ruler or the authority of a dominant class rather than in appeals to the public interest. The ruler is the symbol or expression of power; governance is not thought of as a process of formulating issues and of analyzing, negotiating, manipulating, and adjusting special interests to reach generally acceptable outcomes and thereby to articulate the public interest. As Lucian Pye writes:
Although in transitional societies there is generally a somewhat greater awareness of the potentialities of politics as a means of rationally solving social problems than there is in traditional systems, the expressive aspects of politics usually continue to occupy a central place in determining the character of political behavior. The peculiar Western assumption that issues of public policy are the most important aspect of politics, and practically the only legitimate concern of those with power, is not fully accepted in non-Western politics. Indeed, in most non-Western societies the general assumption is not that those with power are committed to searching out and solving problems, but rather that they are the fortunate participants in an exciting and emotionally satisfying drama. (1962, pp. 28-29)
Lippmann has argued (1955, p. 136) that “the art of governing well has to be learned. If it is to be learned, it has to be transmitted from the old to the young, and the habits and the ideas must be maintained as a seamless web of memory among the bearers of the tradition, generation after generation.”
New nations, for example in Africa, need governmental institutions to provide justice and order. They need wise public policy to provide education, employment, and social welfare services for their rapidly growing populations. Here are newly enfranchised voters aspiring to the fruits of modernity but arriving at the status of citizenship without the historical experience or traditions out of which grew the polities of the West. Can the concept of the public interest be introduced; or can these new societies get along without such a unifying and disciplining concept? One answer offered is the theory of “one party rule.“Loyalty to the leader of a single party can be quickly though not always permanently imposed, as Nkrumah and many other leaders have demonstrated. Acceptance of the public interest as a guiding belief would mean restraint on the ambitions of politicians and limits to the demands of the electorate.
In the developing countries, as industry advances, problems of administrative discretion can emerge, but whether the public interest will become an influential concept is uncertain. Will the civil service be motivated to serve the public? Will the courts be called upon to bring large economic enterprises within their jurisdiction? Will a recognition of individual rights requiring adjudication between adversary parties lead judges to apply criteria of public interest? Will the ties of kinship or loyalty to village tribe, community, or region permit an awareness of the larger configuration of “public“? Will the acceptance of tradition stand in the way of the rational pursuit of “interest“? Does the concept strengthen nationalism? Dictatorship?
The answers to such questions will determine whether the term public interest has a universal applicability or whether it will remain a feature of Western jurisprudence and political thought.
The rule of law, due process, a free press, a loyal opposition, and the public interest are all valueladen concepts the limits and substance of which are difficult to define with precision, but all are significant in the maintenance of democratic government. Sport without the idea of fair play would lose zest—so, too, politics bereft of appeal to the public interest. The task of the umpire, in both situations, is probably made easier psychologically by reliance on such abstractions; but the responsibility of decision is in no way lessened, and the readiness of participants to question and of other observers to object remains.
The public interest is a concept that leaves open the way to change, as general acceptance for new policies is won and officials remain accountable for their decisions. Since there are many ways for seeking public acceptance and for safeguarding administrative responsibility within a democratic polity, it is doubtful that anything would be gained by insistence upon a precise definition of the public interest.
Pendleton Herring
RULE OF LAW AND POLICE BRUTALITY IN THE TIME OF COVID-19
IN THE UNITED STATES OF AMERICA.
The one thing we didn’t foresee, were the events in the US over the last few days. In Minneapolis on May 25, four police officers violently tackled 46-year-old George Floyd, an African-American man, for allegedly trying to pass off a counterfeit bill at a store. One of them, Derek Chauvin, a Caucasian police officer, knelt on Floyd’s neck for 8 minutes and 46 seconds. Mr Floyd died after lapsing into unconsciousness.
The incident sparked protests and looting in Minneapolis and spread to nearly 30 other cities in the US. The killing of George Floyd once again spotlighted racism and police brutality in America, but this time there was something different. Democratic activist Abdul El-Sayed summed it perfectly: “I think people are sick of it but then it’s not just that, it’s the fact that you look at COVID-19, which has been the story for the past four months, rightly so, 100,000 lives lost. Those lives are disproportionately black folks’ lives. As a function of the same exact structural forces that have allowed black people to be executed by law enforcement,” he said.
The African Union, in a rare action, condemned George Floyd’s killing. And in a highly unusual move, the US embassies in Kenya and Uganda, publicly issued statements expressing anguish over his brutal death.
This “death by knee” shocked Africa for many reasons, but it had echoes of something we saw at the start of the lockdowns in Africa as police brutally enforced curfews, and in Uganda, Kenya, Nigeria, and South Africa in the early stages they were killing more people than the-virus.
Experiences like these mirror certain African realities and we are continually committed to plant the seeds of a network of global support and collaboration on cross-border crime and the rule of law.
IN NIGERIA.
We were all witnesses to the breach of fundamental rights of citizens in the country during the Covid-19 curfew imposed on the people. Many people were arrested and detained by law enforcement agencies for no good reasons and made to pay for their bail. Some were tried summarily without the right to counsel of their choice. During the END- SARS protest by the youths, we witnessed killings, assault, battery, ill treatment of all dimensions all over Nigeria. The Lekki killings of the innocent, harmless and unarmed youths is still fresh in our hearts. Commissions of Enquiry are still sitting in some states eg Lagos. The panels set up by National Human Rights Commission are also still on in most states. We are hopeful that justice would be served at the end of the day.
ADVANCEMENT OF AND INTERVENTION IN PUBLIC INTEREST ADVOCACY.
It is pertinent to say that the interest of the public is protectable by advocacy i.e litigation and or by
media propaganda eg facebook, yahoo messenger, twitter, whatsapp, Instagram etc. It is epochal the kind of media intervention being carried out by some of us.
In times past, we had many lawyers who advocated strongly in public interest either by themselves (eg Late Chief Gani Fawehinmi (SAM, SAN), Chief Alao Aka-Bashorun, Senator Abraham Adesanya (all of blessed memory), Olisa Agbakoba (SAN), Mrs Taiwo Ibidapo-Obe etc. Public interest advocacy was also carried out through Civil Society Organizations (C.S.Os) eg Civil Liberties Organization (CLO), Transparency International (TI), Human Rights Watch, Amnesty International. Some new CSOs like Anti-Corruption Network (ACN) (powered by me) are very strong on the ground now.
The greatest obstacle on the way of intervention by litigation is the principle of locus standi ie standing to sue, which is a foundational issue in all cases as it affects jurisdiction which is so fundamental.
As enunciated by Dr Tunde Ogowewo in his Article titled “The Problem with Standing to Sue in Nigeria” published in Journal of African Law Vol 39, No 1 (1995), he wrote that “it is against this background that the one test used by Nigerian courts to determine standing to sue in all doctrinal contexts will be examined. The test was formulated in the Nigerian Supreme Court’s decision in SENATOR ABRAHAM ADESANYA vs PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA & ANOR (1981) 1 All NLR 1, which is generally regarded as the locus classicus on standing to sue so as to give a flavor of the problem with this test, it will be interesting to note the following; as a result of its constitutional pedigree, the test applies in all contexts regardless of the cause of action or the remedy sought; it has extinguished the Common law standing rule in public nuisance; where a court applying the test determines that a plaintiff has no standing, it cannot assume jurisdiction in the matter; and finally an analytical application of the test bars entitlement to relief where exercise of public power adversely affects an interest that falls short of a private legal right. Against this background, it shoul come as no surprise that the courts regard standing to sue as a “troubling issue”- Per Uwaifo JJSC in AG (ANAMBRA) VS EBOH (1992) 1 NWLR 491@501. The Supreme Court realizing just how thorny the problem of standing has become-has been known to side step the problem when it can afford to do so. See the decision of Oputa JJSC in the case of OREDOYIN VS AROWOLO (1984) 4 NWLR 172.@ 211where he said “if this appeal hinged solely on the issue of locus standi, then one should have been obliged to face up to the problem. But if it can be decided on other equally substantial grounds, (as certainly it can), ten prudence will dictate that the issue of locus standi be shelved for a more direct and more opportune occasion, when, maybe, a full court will re-visit and review our decision in ABRAHAM ADESANYA (Supra). “Discretion they say is the best part of valour”.
The numerous post-Adesanya decisions of the Supreme Court have, instead of elucidating the law made the position even more uncertain. See the position in the case of BENDEL STATE VS FEDERATION (1982) 3 NCLR 1; AG (KADUNA) VS HASSAN (1985) 2 NWLR 483.
It is now routine for cases to go to the Supreme Court on the sole issue of standing alone, a fact that suggests that all is not well.”
HOPE/SILVER LINING FOR PUBLIC INTEREST LITIGATION
However, there appeared to be silver lining in the sky when on the 15th day of February 2018, public interest litigation in Nigeria got a boost from the Court of Appeal sitting in Lagos when the court delivered a unanimous judgement allowing appeal number CA/L/42/2016 brought by your learned colleague, Olumide Babalola against the Attorney General of the Federation and President of the National Industrial Court of Nigeria in a matter that bordered on the interpretation of sections 243 and 245c of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) on the right of appeal with from the decisions of the National Industrial Court of Nigeria (NICN).
It is no longer news that the Supreme Court has finally laid to rest, the nagging debate on the finality of the decisions of the NICN on decisions devoid of infringement of fundamental human rights and criminality especially in the decisions in SKYE BANK PLC V IWU (2017) 16 NWLR (Pt. 1590) 24 at 105-106 and COCA-COLA NIGERIA LTD vs MRS. TITILAYO AKINSANYA (2017) 17 NWLR (Pt. 1593) 75 at 122 where the apex court specifically interpreted sections 242, 243 and 254c of the Constitution to mean appeal shall lie with leave of court in other decisions of the NICN where such appeal does not lie as of right. In Coca-cola’s appeal, Eko, JSC held (with the unanimous approval of his brother justices) that:
“The right to appeal as of right against the decision of the National Industrial Court on question of fundamental rights as contained in chapter iv of the constitution in relation to matters upon which the NICN has jurisdiction is retained in section 243(2) of the constitution. Subsection (3) thereof also does not abrogate the right of appeal. The proviso to the subsection merely makes the exercise of the right of appeal in any matter other than questions of fundamental rights subject to the leave of the court first sought and obtained.”
As much as the above decision agrees with my submissions in my briefs of argument on the interpretation of the foregoing provisions, what particularly makes this judgement momentous for me was the Court of Appeal’s decision on my locus standi to file the suit at the Federal High Court. The Respondents expectedly filed a notice of preliminary objection which was not only upheld by the trial court but was followed by my description as a “busy body and meddlesome interloper” in the trial court’s decision which necessitated the appeal.
The trial court’s finding on my locus standi, no doubt, propelled me to approach the appellate court for posterity’s sake, predominantly on my right and interest to institute the action considering the reliefs sought as well as the subject matter which had constitutional dispute written all over it especially on my submission that the word ‘dispute’ has been interpreted by our courts to include ‘debate’. See page 177 of the newly released Babalola’s Law Dictionary (Of Judicially Defined Words and Phrases), 2018, Noetico Repertum, Lagos.
Babalola had this to say, “As a young lawyer building a career in consumer rights and public interest litigation, I want to be anything but a busy body or meddlesome interloper especially since our courts frown at such cranks who have no real stake in the subject matter of the suit”. See UKEGBU V. N.B.C (2007) 14 NWLR (Pt. 1055) 551 at 571, paras. D – E (CA) where Rhodes-Vivour, JCA (as he then was) held thus:
“The rule on locus standi was developed primarily to protect the courts from being used as a playground by professional litigants, meddlesome interlopers and other cranks who have no real stake or interest in the subject matter of the litigation they are interested in.”
Hence, the decision under review is much more than mere regurgitation of apex court’s decision on the right of appeal from the decisions of the NICN, the learned justices did ‘justice’, no pun intended, to the principle of locus standi especially in public interest cum constitutional matters.
At the risk of adulterating the oven hot decision (delivered a couple of days ago), I would report the relevant part verbatim as follows:
On locus standi, the court held, per Ikyegh, JCA thus:
“The issue of standing to sue was widened by the Supreme Court in Fawehinmi v Akilu (supra) in 1987 after Adesanya (supra) was decided in 1981 that “it is the universal concept that all human beings are brothers and assets to one another especially in this country where the socio-cultural concepts of ‘family’ includes nuclear family or extended family which transcends all barriers (to paraphrase Eso, JSC in Fawehinmi v Akilu (supra).”
On the effect of Fundamental Rights Enforcement Procedure Rules 2009 on public interest litigation:
“To demonstrate the public spirited litigation in fundamental rights related cases is now the norm, the FREPR 2009 made pursuant to section 46(3) of the 1999 Constitution and thus clothed with constitutional force expanded the horizon of locus standi in fundamental rights cases.”
Specifically, on the appellant’s (Olumide Babalola) locus standi:
“In this instant case, the appellant did not commence the action under the FREPR 2009. It was initiated as an ordinary action on originating summons under the Federal High Court Civil Procedure Rules 2009. Having litigated the case under the ordinary channel of litigation by originating summons under the rules of court below, the appellant cannot take benefit under the FREPR 2009. Therefore the amplitude of locus standi under the FREPR 2009 would not apply to this case.
However, the dictum of Aboki, J. in FAWEHINMI V THE PRESIDENT (supra) and the case of FAWEHINMI V AKILU (supra) apply to vest the appellant with the standing to sponsor the interpretation of those sections of the 1999 constitution, in my modest view.”
On what the Federal High Court should do when faced with notice of preliminary objection to an originating summons:
“The court below should have invoked Order 29 rule 1 of its rules to hear and determine the preliminary objection together with the substantive matter starting with the preliminary objection on jurisdiction to save time and costs. Even if the court below decided it lacked jurisdiction in the matter being a court of first instance, the court below should have proceeded to express its opinion on the substantive matter in the event the matter goes on appeal and the appellate court decide otherwise that the court below had the jurisdiction to entertain the substantive case”.
TAKE-HOME/CONCLUSION.
For me, this judgement represents many things. First, a modest vindication of my approach to the Federal High Court on a constitutional issue on my mantra that; “For a legal practitioner, knowing what the court says is more paramount than knowing what the law says, as it is only the court that can tell what the law is.”
Secondly, this decision has further re-emphasized the readiness of our courts to widen the horizon of locus standi in the public’s interest in deserving cases especially on the legacies of the irrepressible Chief Gani Fawehinmi, SAN as seen in his public interest cases which still reverberate in our case laws.
My last word is that the boundaries and parameters of social change and criminal justice reform to change laws, practices, and systemic apparatus that disproportionately continues to affect marginalized groups of people in our society.
It is only cowards that keeps quiet in the face of tyranny. It is also very unjust, in fact, illegal, to keep silent in an unjust society as ours. That is why some of us are made to suffer but we cannot afford to join them. We must all join hands to beat them. We are choiceless in this.