Locus Standi

• Pages: 697-804

LOCUS STANDI

(1) ABSENCE OF LOCUS STANDI

2101. Absence of locus standi.

(1) “It is settled law that locus standi is the legal capacity to institute an action in a

Court of law. Thomas v. Olufusoye (1986) 1 N.W.L.R. (Pt.18) 669, and if a person

had no legal standing to institute an action, the Court will have no jurisdiction to

entertain his claims. See: Madukolu v. Nkemdilim (1962) 1 All N.L.R. 587 at 595,

(1962) 2 S.CN.L.R. 341.” - Per Kawu, J.S.C. in Dada v. Ogunsanya (1992) 23

N.S.C.C. (Pt. I) 569 at 574; (1992) 3 N.W.L.R. (Pt. 232) 754 at 764.

(2) “I now come to another aspect of the matter. Having found that the appellant has

no locus standi, what is the proper order to make? The absence of locus standi

imports that the Court has no jurisdiction to entertain the suit. Order 10 Rule 1 of the

High Court Rules of Anambra State under which learned counsel for respondents

made his demurrer application provides in sub-rule (3) that the Court shall, on hearing

the application either “dismiss the suit or order the defendant to file his statement of

defence.” On finding that a plaintiff has no locus standi, the Court would seem to

have no option than to dismiss the suit. The rule uses the word “shall” which is

mandatory. In Dr. Irene Thomas v. Olufosoye (supra) the High Court dismissed the

suit. The Court of Appeal and subsequently the Supreme Court upheld the dismissal.

In Abraham Adesanya v. The President of Nigeria (supra), the Supreme Court

dismissed the suit. In Oloriode v. Oyebi (supra), however the Supreme Court held

that the proper order to make is to strike out the case instead of dismissing it. At the

expense of prolixity I shall repeat here what Eso J.S.C., said in this regard at page

407: - “I think the proper order when the Court has no jurisdiction to adjudicate upon

a matter for whatever reason, like the parties before the Court having no locus

standi, is to strike out the action.” - Per Ubaezonu, J.C.A. in Ojukwu v. Ojukwu

Suit No. S.C. 287/1990; (2000) 11 N.W.L.R. (Pt. 677) 65 at 93.

2102. Duty on party raising the absence of locus standi.

“Locus standi is a threshold issue, the absence of which terminates the actions since

the Court is thereby bereft of jurisdiction vide Madukolu v. Nkemdilim (1962) 1 All

N.L.R. 587 (595) (1962) 2 S.C.N.L.R. 341. It therefore behoves a party raising it not

to do so under a completely wrong procedure, even though it can be raised at any

stage of the proceeding.” - Per Omo, J.S.C. in Dada v. Ogunsanya Suit No. CA/E/

95/99; (1992) 23 N.S.C.C. (Pt. I) 569 at 580; (1992) 3 N.W.L.R. (Pt. 232) 754 at

771.

2103. Proper order to make where a party lacks locus standi.

“I agree with the submissions in the aforesaid briefs that even where the Court

rightly finds that the 1st plaintiff/appellant and the applicant did not have locus standi,

697

Absence of locus standi Paras. 2101-2103

the correct and proper order to be made is to strike out the suit rather than dismissing

it as was done by the trial Court in the present case – See: Nigerian Airways Ltd. v.

Lapite (1990) 7 N.W.L.R. (Pt. 163) 392; Otapo v. Sunmonu (1987) 2 N.W.L.R.

(Pt. 58) 587 at 615; and Oloriode v. Oyebi (1984) 1 S.C.N.L.R. 390.” – Per Adamu,

J.C.A. in Ebongo v. Uwemedimo Suit No. CA/E/131/94; (1995) 8 N.W.L.R. (Pt.

411) 22 at 44.

(2) ACTIONS FOR DECLARATION OF TITLE

2104. A person’s right to apply for an injunction to protect public and private

right.

“Learned counsel for the defendant referred to para. 740 in Halsbury’s Laws of

England (3rd) ed.) vol. 21, which states that: – “The general rule is that if a plaintiff

applies for an injunction in respect of a violation of a common law right, and the

existence of that right, or the fact of its violation is denied, he must establish his right

at law, but having done that, he is except under special circumstances, entitled to an

injunction to prevent a recurrence of that violation.” (etc., irrelevant). Both the

existence of the right and its violation have been proved. The defendant does not

claim that he is entitled to stop the plaintiff from fishing where he was fishing in the

tidal water shaded yellow on the survey sheet put in by the plaintiff, but he is entitled

to put up the argument that the plaintiff has no right to claim an injunction.

Be it borne in mind that the defendant fought the case in the Court below and

is fighting it on appeal; he does not concede that the plaintiff has a right to fish there,

and he does not say that he undertakes not to molest the plaintiff when fishing there.

The question remains. Was it imperative for the plaintiff to join the Attorney-General?

The statement in Halsbury’s vol. 21 (3rd ed.) para. 855, is as follows: - “An injunction

will only be granted at the suit of a party having sufficient interest in the relief sought.

If the injury complained of affects the public interest the Attorney-General must be

joined, unless the plaintiff can show that the interference with the public right involves

an interference with his private rights or that, although his private rights are not

interfered with, he suffers special damage, peculiar to himself, from the interference

with the public right.” (Boyce v. Paddington Borough Council (1903) 1 Ch. 109, at

114; Ch. 556; and (1906) A.C. 1).

The plaintiff’s evidence is that he has been a fisherman for about twelve years

(before May, 1962) and that he realized about N4 a week from fishing, so he comes

within the rule that “he suffers special damage, peculiar to himself, from the

interference with the public right”, and is entitled to the injunction he was granted.”

Per Bairamian, J.S.C. in Adeshina v. Lemonu Suit No. FSC 94/1963; (1965) 4

N.S.C.C. 177 at 180-181.

Paras. 2103,2104 Vol. 15: LOCUS STANDI 698

2105. A territory has no legal right to establish constituencies within its

boundaries.

“The rule that no constituency shall form part of more than one territory makes for

administrative convenience, and enables provision to be made in Section 53 for the

hearing of election petitions by the High Court of the territory, but it cannot be con-

strued as conferring on a territory a legal right to have any particular number of

constituencies established within its boundaries. It is Nigeria, not a territory, that is

divided into constituencies for the purpose of elections to the House of Representa-

tives, and the constitution confers no legal rights on a territory in relation to member-

ship of that House.” - Per Brett, J.S.C. in A-G. (East) v. A-G. (Fed.) Suit No. S.C.

231/1964; Suit No. S.C. 232/1964; (1964) 3 N.S.C.C. 160 at 165.

2106. Action to redress wrong to a company.

(1) “It is clear law that in order to redress a wrong done to a company or to recover

money or damages alleged to be due to a company, the action should be brought by

the company itself except where the majority are endeavouring directly or indirectly

to appropriate to themselves money, property or advantages which belong to the

company or in which the other share holders are entitled to participate. See: Foss v.

Harbottle 67 E.R. 189; Mozley v. Alston 41 E.R. 833 and Elufioye & Ors. v.

Halilu & Ors. (1993) 6 N.W.L.R. (Pt. 301) 570.” - Per Ogwuegbu, J.S.C. in Gombe

v. P.W. (Nig.) Ltd. & Ors. Suit No. S.C. 94/1991; (1995) 6 N.W.L.R. (Pt. 402) 402

at 420.

(2) “The rule in the case of Foss v. Harbottle Suit No. S.C. 232/1964; (1843) 2 Hare

461, which precludes a minority shareholder or shareholders from suing where there

is irregularity in the internal management of the company that is capable of being

confirmed by a simple majority of the shareholders, clearly applies to this case. For

that reason the Federal High Court could not interfere at the suit of the appellant as

a minority of the shareholders. Admittedly, there are exceptions to the rule in Foss v.

Harbottle, which do enable a minority shareholder to sue where there is a fraud on

the majority shareholders.” - Per Uwais, J.S.C. in Gombe v. P.W. (Nig) Ltd. & Ors.

Suit No. S.C. 94/1991; (1995) 6 N.W.L.R. (Pt. 402) 402 at 419.

2107. Basis for granting locus standi.

(1) I am also unable to find in these oaths the basis for granting the appellant locus

standi or for conceding that he has sufficient interest to bring the claim he brought in

Court. It seems to me that the obligations which arise from the Oath of Membership

of the National Assembly are limited to the performance of the duties of the appellant

as a Senator. In other words, they relate to his functions and duties as a Senator. In

my view, he is to preserve, protect and defend the constitution in the context of the

performance of his duties as a Senator. From the facts of this case as set out in the

699 Action declaration of title Paras. 2105-2107