MANDAMUS AND LOCUS STANDI
What is mandamus?
A Mandamus is an order issued by the court against an
individual, organisation, administrative tribunal, quasi-judicial body or court
requiring it to perform a duty which it is obliged to perform by law but failed
to perform. It can also be defined as a writ or order that is issued from a court of superior jurisdiction
that commands an inferior tribunal, corporation, Municipal Corporation, or individual to
perform, or refrain from performing, a particular act, the performance or
omission of which is required by law as an obligation[1].
Simply put, an aggrieved person files an application
in court to compel another, whether an individual, organisation, administrative
tribunal, quasi-judicial body or court to carry out or perform the duties of
his office as required by law.
·
Note that the Defendant must have a
binding legal obligation to perform the duty for which the Plaintiff seeks
performance. Where the Defendant does not have such a legal obligation, such a
suit will amount to an action in futility. Thus, the duty sought to be enforced
must be of public nature, imperative and not subject to discretion.
Karibi-Whyte, JSC in Fawehinmi v. Akilu (1987) 4 N.W.L.R.(Pt.67) 797 stated:
“It is not disputed that the purpose of a mandamus proceedings is to compel a public officer vested with a statutory right to discharge a duty to exercise such right in the public interest. For the Order to issue, the applicant must establish the existence of a statutory duty and not merely a discretion in the proposed recipient of the order.”
·
The Plaintiff must ensure that a request
for performance has previously been made to the Defendant and the latter has
refused or neglected to do as required. This is a condition precedent that must
be complied with before approaching the court. Affen, J. In Chief Olusegun Oni Vs. Attorney-General of the Federation held:
"An order of
mandamus is not a mechanical relief that slavishly follows the filing of an
application; even where a case falls into one of the categories in which
judicial review will lie, the court is not bound to grant it because the
jurisdiction to make any of the orders available in proceedings for judicial
review is discretionary. Whilst the discretion to grant an order of mandamus
must be exercised both judicially and judiciously, the court may refuse to make
the order unless it has been shown that a distinct demand for performance of
the duty has been made and the demand has deliberately not been complied
with."
·
There must not be
another remedy equally conveniently available.
·
An order of Mandamus is
a discretionary remedy. The grant of an order of mandamus is subject to the
discretion of the court. The applicant must ensure that the application is made
in good faith and not with ulterior aims.
On
the issue of whether an individual can bring an action to mandate law enforcement agencies to perform their legal duties–The issue of Locus
Standi may arise.
Locus standi simply
means the right of a person to bring an action before a court. It is an applicant’s
legal right to stand before the court to seek a relief.
The applicant must show
that he has sufficient interest in the subject matter of dispute. The court in determining
what amounts to sufficient interest will be guided by the overall interest of
the parties involved in the matter in the absence of a specific enabling
statute.
An applicant pleading
for an order of mandamus must show to the court that he has a legal right to
compel the respondent to do or refrain from doing the specific act which is the
subject matter of the case. That is, the duty sought to be enforced must be of
public nature, imperative and should not be discretionary.
For instance, where the
Attorney General of the state or federation as the defender of public interests
refuses or neglects to sue a state government or a federal government, an
individual has the legal standi to challenge the violations of the constitution.[2]
In Governor
of Ekiti State Vs. Hon. Kola Fakiyesi & Anor [2009 - Court of Appeal], the court held
that in constitutional matters the factors to be taken into consideration in
the determination of locus standi are:
“1. Whether the Applicant can show some sincere concern for constitutional issues and that there has been substantial default or abuse as in this case where the Respondents complained of the violation of Section 105(1) of the 1999 Constitution and not whether his personal rights or interests are involved.
2. The importance of vindicating the rule of law which is one of the cardinal agenda of the present administration, as in this case.
3. The importance of the issue raised in the claim of the Respondents - in this case the constitutional issue of the exercise of the legislative powers of the Ekiti State House of Assembly which tenure had allegedly expired.
4. The likely absence of any other challenger of the act complained of - in this case the fact that the 1st and 2nd Plaintiffs/Respondents were/are an ex-Legislator and party chieftain respectively in Ekiti State who have challenged the act of the defunct Assembly in the absence of other challengers.
5. The nature of the breach of duty against which relief is sought - in this case the alleged breach of section 105 of the 1999 Constitution by the defunct Ekiti State House of Assembly; and
6. The prominent role the Respondents as members of a political party with thirteen legislators in the Ekiti State House of Assembly ought to play in the screening of the 5th - 16th Appellants and the unnamed twelve Special Advisers appointed by the 1st Appellant."
It should be noted that the issue
of locus standi is very vital to achieving one’s aim of commencing the
suit. The applicant may be faced with the challenge of showing to the court that he
is an interested party in the matter and that he has the legal right to be
before the court. This is so as a result of the Supreme Court decision on locus
standi in the case of SENATOR ABRAHAM
ADE ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR. (1981)
2 NCLR 358.
Justice Mohammed Bello,
JSC, on the issue of locus standi raised and analysed the provisions
of section 6(6) b of the 1979 Constitution of the Federal Republic of Nigeria (same
as 1999) which provides:
“The judicial powers vested in accordance with the foregoing provisions of this section – (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating there to, for the determination of any question as to the civil rights and obligations of that person.”
And held at pages 385-386 as
follows:
“it seems to me that upon the construction of the subsection, it is only when the civil rights and obligations of the person who invokes the jurisdiction of the court, are in issue for determination that the judicial powers of the court may be invoked. In other words, standing will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.”
This decision by the court has
been upheld in several cases that came after it. In most of the cases, the
courts held that for a Plaintiff to have locus, he must show that his civil
rights and obligations have been or are likely to be affected by the action
complained of. An example of one of such cases is the Chief Thomas v. Rev. Olufosoye (1986) 1 NWLR, pt. 18, p.669
wherein the Supreme Court held that:
(a) in determining the issue of locus standi, the courts had to be aware of the scope of their powers of review as provided in Section 6(6) of the Constitution where it was stated to “extend to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.
(b) The issue of locus standi could not be regarded independently from the provisions of Section 6(6) of the Constitution.
(c) That “the requirement of locus standi, is mandatory where the judicial power is constitutionally limited to the determination of a “case” or controversy or a “matter” which is defined by reference to criteria which include the legal capacity of the parties to the litigation. The Constitutional provisions on locus standi are contained in sections 6(6)(b), 46(1) and 272(1) of the 1999 Constitution as amended.
However, in a 2000 case, Owodunmi v. Registered Trustees of Celestial
Church & Ors. (2000) 10 NWLR(Pt. 675) 315, Ogundare JSC, delivering
the lead judgment with no dissent evaluated the Adesanya case at page 341 f-h and
held:
“A word or two on Adesanya v. President of the Federal Republic of Nigeria(supra). It appears that the general belief is that this court laid down in that case that the law on locus standi is now derived from Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1979 (re-enacted in section 6(6) (b) of the 1999 Constitution)…I am not sure that this general belief represents the correct position of the seven Justices that sat on that case only 2 (Bello and Nnamani JSC) expressed view to that effect... From the extracts of their Lordship’s judgments I have quoted above one can clearly see that there was not majority of the court in favour of Bello JSC’s interpretation of Section 6 subsection (6)(b) of the Constitution.”
He held further:
“In any respectful view, I think Ayoola JCA (as he then was) correctly set out the scope of section 6 subsection (6)(b) of the Constitution …in NNPC V. Fawehinmi & Ors.”
In NNPC V. Fawehinmi & Ors. (1998) 7 NWLR (pt. 559) 598 at 612, Ayoola JCA held:
“In most written Constitutions, there is a delimitation of the power of the three independent organs of government namely: the Executive, the Legislature, and the Judiciary. Section 6 of the Constitution which vests judicial powers of the Federation and the States in the courts and defines the nature and extent of such judicial powers does not directly deal with the right of access of the individual to the court. The main objective of section 6 is to leave no doubt as to the definition and delimitation of the boundaries of the separation of powers between the judiciary on the one hand and the other organs of government on the other, in order to obviate any claim of the other organs of government, or even attempt by them, to share judicial powers with the courts. Section 6(6)(b) of the Constitution is primarily and basically designed to describe the nature and extent of judicial powers vested in the courts. It is not intended to be a catch-all, all-purpose provision to be pressed into service for determination questions ranging from locus standi to the most uncontroversial questions of jurisdiction.”
In conclusion, the
outcome of an application for mandamus will depend on the
perception of the judge before which the matter is tendered since such a grant is subject to the judge's discretion. The
court may decide to consider the locus standi of the applicant by taking into
cognisance the judgments of Ayoola, JCA in NNPC vs. Fawehinmi and Ogundare,
JSC in Owoduni Vs. R.T.C.C. & Ors. or choose to retain the decision of
Mohammed Bello, JSC in the Adesanya Vs. President.
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