Enabling Public Interest Litigation (PIL) In Nigeria: The Time Is Now!

by Hameed Ajibola Jimoh Esq.

Public Interest Litigation-herein after being referred to as ‘PIL’ has suffered greatly in Nigeria for decades in which case, the issue of ‘locus standi’ of an applicant in such PIL has always been queried and hence, the court would strike out the suit. Such suit is always ‘struck out’ either on a Notice of Preliminary Objection of the Respondent challenging the suit or suo motu (i.e. by the Court itself). It is the aim of this paper to make some recommendations towards enabling the PIL in Nigeria and for a better Nigeria, hence, this paper is of the firm view that the time to ensure such an enabled PIL is now and that making such a step later might be very too late, hence, this topic.

PIL in Nigeria has suffered greatly and quite interestingly, Nigerian courts have not departed from the decision held in the case of Adesanya v President, FRN, (1986) 5 SC 112; (1981) 2 NCLR. In this case, the Appellant had challenged the validity of an appointment made by the President under the 1979 Constitution by the Appellant (a distinguished Senator of the Federal Republic of Nigeria) who took an oath of office to protect and defend the Constitution. The apex court (Supreme Court) held that the Appellant had no locus standi and the case was dismissed in limine. The court further held that for a litigant to possess locus standi, he must show that his privacy rights have been infringed or injured or that there is a threat to such infringement or injury which is personal or peculiar to him. That is to say, in my humble observation (according to the decision of the apex court in this particular case), in PIL, the litigant must show peculiar damage or injury suffered or threatened to be inflicted over and above that suffered or to be suffered by other ordinary members of the public. There are a number another plethora of judicial precedents on this same PIL (both at the High Court and the Court of Appeal of Nigeria. For instance, see the cases of Garki & Ors. V INEC & ors. (2013) LPELR- 20488 (CA) and Bewaji v Obasanjo (2008) 9 NWLR (Pt. 1093) 540 at 576) which have not succeeded to the best of my knowledge, while some might be pending already at the Supreme Court of Nigeria for determination. I personally had instituted some PIL cases at the Federal High Court of Nigeria, Abuja, some years back but did not succeed on the ground of ‘locus standi’ and the suits were respectively struck out by the trial court!  Like I said earlier, the suit was ‘struck out’ and not ‘dismissed’. This means that the suit can still be re-litigated another time (in future) perhaps at the time when the Applicant would be clothed and or possesses the locus standi to institute the action or complain to seek his reliefs in the court in the public interest.

I, therefore, hope that the Supreme Court of Nigeria would set a new path on this PIL to permit Applicant and or any Nigerian to sue the government in PIL, when the apex court would have the opportunity to preside over any of those PIL cases already most likely pending before the court and when called upon by such suit to make its decision in this regard, since, it is most definitely that the Attorney-General of the Federation or the State (concerned) that should and or ought to possess the locus standi to institute such case would not be zealous and or desirous to do so as it is the situation till date. It is worse that the Attorney-General of the Federation or of any of the States of the Federation has not taken up any such PIL in the interest of the public!

Therefore, I might have to recommend here that any person or member of the public that has any genuine complaint on such public need, such a person should write a letter to the Attorney-General of the Federation or of the State (concerned) seeking him to institute an action in that regard and where the Attorney-General (either of the State concerned on a State matter or the Federation on a Federal matter) refuses, then, a mandamus application can be filed in court to compel him to act. This is (in my considered view) a way of enforcing PIL. The second or other way (though independent of the other) is for the Supreme Court (while being called upon to do so) to depart from the Adesanya’s case on PIL while permitting PIL by any member of the public with or without personal interest.

Furthermore, the National Assembly or the State Houses of Assembly should make a law specifically allowing and or enabling PIL. This seems much more workable for an Applicant than the other previous options recommended above by this paper. A similar occasion of such law is the Freedom of Information Act, 2011-herein referred to as the FOIA, which has now enabled any person to sue any public institution and the Attorney-General for failure to comply with the FOIA. See: sections: 1, 2, 3, 4, 7, 20 and 29 of the FOIA.

This FOIA is a form of PIL too which is very commendable in the interest of the good government, law and order and justice!

Finally, therefore, I humbly recommend the following (in summary), while I believe that PIL, if enabled to thrive, has its advantages that overwhelm its disadvantages in national development and that the time to enable the PIL is now:

1. The Supreme Court should (should when called upon to do so) depart from Adesanya’s case on PIL while permitting PIL by any member of the public with or without personal interest.
2. An aggrieved person or member of the public should write a letter to the Attorney-General of the Federation of the State (concerned) seeking him to institute an action in that regard and where the Attorney-General (either of the State concerned on a State matter or the Federation on a Federal matter) refuses, then, a mandamus application can be filed in court to compel him to act.
3. The National Assembly or the State Houses of Assembly should make a law specifically allowing and or enabling PIL.