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 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. v 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.”
Commenting on the suit. The Appellant, Mr. Olumida Babalola stated:
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.
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 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.
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 matra 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.
Olumide Babalola writes from Lagos, Nigeria.