Ayodele Babalola*
Introduction
Locus Standi or Standing is the right or capacity of a Plaintiff to bring a particular action before a court. It is a condition precedent to the institution of an action. In environmental law actions based on private law, the Plaintiff would be required to disclose “injury above other members of the public” or “sufficient interest” to be clothed with the requisite standing. The said “injury above other members of the public” requirement wrongfully found its way into public interest actions in Nigeria and for a long time has been applied as the standard for determining standing for public interest actions. It is easy to see how this requirement negatively impacts NGOs and public spirited individuals who institute public interest environmental actions against government agencies and corporate organizations to enforce compliance with extant laws and to protect the environment – such actions always fail the injury and sufficient interest test when traditionally applied. In other common law jurisdictions like the USA, England, Australia and India, the courts have since relaxed and liberalized the interpretation of standing to accommodate public interest environmental suits brought by NGOs.[i] This liberal interpretation is not unrelated with the greater awareness of local and global effects of environmental degradation and the advent of NGOs or not for profit organizations, and other public spirited individuals seeking redress for damage affecting the public, and I dare say, the world. Looking to other common law jurisdictions for guidance, the Supreme Court recently in Centre for Oil Pollution Watch v N.N.P.C[ii] liberalized the standing requirement by holding that NGOs like the Appellant have the requisite standing to institute public interest environmental actions, overruling the decisions of the Court of Appeal and trial court in the process. Going forward, NGOs with the genuine interest of protecting the environment through public interest environmental actions which seek to enforce compliance with extant laws can institute such actions armed with a foolproof response to any standing arguments that may arise. The Appellant in the Centre for Oil Pollution Watch case would return to the trial court to prove the case on the merits.
This paper is structured into six parts. Part I addresses the nexus between Standing and Jurisdiction; Part II analyzes the Restrictive and Liberal interpretation of Standing; Part III summarizes the submissions of Counsel at the Supreme Court in Centre for Oil Pollution Watch; Part IV groups the contributions of Amicus Curiae at the Supreme Court in Centre for Oil Pollution Watch into two – Restrictive and Liberal; Part V summarizes the principles in the lead judgment of the Supreme Court in Centre for Oil Pollution Watch and excerpts from the concurring judgments; and Part VI discusses the implications of the Centre for Oil Pollution Watch decision for the NGOs going forward.
Background
The Appellant[iii] in Centre for Oil Pollution Watch instituted an admiralty in personam action at the Federal High Court (trial court) against the Respondent.[iv] The action was based on an oil spillage which occurred in the Ineh and Aku Streams in the Acha Community of Abia State, Nigeria. The Appellant sought orders of reinstatement, restoration and remediation; provision of portable water as a substitute; and medical evaluation and treatment for the victims. The Appellant alleged that the Respondent was negligent in both the causation and containment of the oil spillage. The trial court and the Court of Appeal struck out the Appellant’s Suit for lack of standing. The Court of Appeal conceded that the position of the law may have changed to cloak pressure groups, NGOs and public-spirited tax payers with the standing to maintain an action for public interest but stated that that is in other countries and not in Nigeria. The Court of Appeal held that the Appellant lacked sufficient interest and that the members of the community are better placed and armed with standing for the case. On further appeal, the Supreme Court in what is a landmark decision held that the Appellant, an NGO, has the standing to institute the suit which is a public interest environmental action against the Respondent.
I
Standing and Jurisdiction
Standing is a condition precedent to the institution of an action before any adjudicatory body. Standing and jurisdiction are interwoven. Where there is no standing to file an action, the court cannot properly assume jurisdiction to entertain and hear the action. Standing being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit or even on appeal at the Court of Appeal or Supreme Court by any of the parties without leave of Court or by the Court suomotu.[v] Standing and by extension jurisdiction is the lifeline of every suit. Jurisdiction is the bedrock of any judicial proceedings and its absence or defect renders any proceedings a nullity notwithstanding that it is well conducted.[vi] The question of the jurisdiction of a trial court must be disposed of before dealing with the rest of the arguments in an appeal if need be and a finding in favour of the arguments in the absence of jurisdiction would even obviate the need to attend to those other issues.[vii]
The trial court and the Court of Appeal in the Centre for Pollution Watch agreed with the Respondent that the Appellant lacked the standing to institute the action. Those courts adopted a strict and restrictive interpretation of standing in denying the Appellant the opportunity to ventilate its claims and contribute to the fast growing environmental and public interest litigation jurisprudence. However, the Supreme Court came to the rescue in a landmark decision by employing a more liberal approach to the interpretation of standing in the case in focus.
II
Restrictive vs Liberal Interpretation of Standing
The interpretation of standing is restrictive where the court requires that a plaintiff discloses “injury far above a particular class” or “sufficient interest” for all manner of disputes. When employed in private disputes, this interpretation makes a lot of sense as it ensures that meddlesome interlopers are kept far away from disputes and also preserves judicial resources. Judges and time are limited resources while disputes are increasingly tending towards being unlimited. At all times, a balance must be maintained between the right of access to courts and the need to check the abuse of same. The abuse of the right of access to courts in itself prevents the right persons from effectively and efficiently benefiting from the judicial machinery.
There are strong arguments leaning towards a liberal interpretation of standing in disputes that have public interest dimensions. An environmental action with public interest dimension is a great example. The Plaintiff in this type of action should not be subjected to the “injury above a particular class” test for the simple reason that that requirement might not be present being suits for the interest of the public. Such environmental actions seek the preservation of the environment from immediate or future harm. I subscribe to the notion that we all have a duty to preserve the environment for our own good and for future generations. The judiciary also has a role to play in regulating the environment and a restrictive interpretation of standing in environmental matters with public interest dimensions is definitely not the way to go.
III
Submissions at the Supreme Court on Locus Standi in Centre for Oil Pollution Watch
The Appellant had the uphill task of distinguishing the present case from plethora of judicial precedents of the Supreme Court which favoured the restrictive interpretation of standing. The Appellant also had the herculean task of arguing for an extension of the standing principles and convincing the Supreme Court to overturn the decisions of the trial court and the Court of Appeal on the same issue. The Appellant’s Counsel submitted that the law on standing with respect to environmental matters that are maintained purely for public interest has changed to the extent that pressure groups, NGOs and even public-spirited tax payers are cloaked with the standing to maintain actions for public interest even though they may not have suffered any injury at all let alone any injury above every other member of the society from the subject matter of the suit. Appellant’s Counsel contended that since the dominant objective of the rule of law is to ensure the observance of the law, it can best be achieved by permitting any person to put the judicial machinery in motion in Nigeria whereby any citizen (including a registered NGO) could bring an action in respect of a public derelict as the Appellant has done in this case. Appellant’s Counsel maintained that the Plaintiff’s action is laudable and will bring peace, justice, orderliness as well as social and economic justice. Based on the foregoing, Appellant’s Counsel submitted that the Appellant had the standing to maintain the action.
The Appellant’s Counsel also made a case for extending the scope of standing in appropriate cases like the present one. He argued that the previous definitions of standing in decisions like Adesanya v The President of the Federal Republic of Nigeria;[viii]Nyame v F.R.N;[ix] and Pam v Mohammed[x] did not take into consideration whether: an action is purely public interest based; an action would vindicate the rule of law; a suit disclosed an extreme case which would justify an exceptional approach to the question of sufficient interest; and a plaintiff has a genuine concern for the environment particularly the un-owned environment. The Appellant further submitted that the above issues were not taken into consideration in the previous decisions which he termed restrictive. He therefore contended that the Court could introduce a qualification (exception) into the meaning of standing or extend same to the extent that a plaintiff who maintains an action – environmental action – for public interest, or to vindicate the rule of law, has the standing to maintain the suit even though he did not suffer any injury from the subject matter of the suit. Appellant’s Counsel also contended that there are new developments in socio-economic and political spheres that tend towards a liberal application of standing.
The Respondent favored a restrictive interpretation of standing. Relying on numerous decisions,[xi] Respondent’s Counsel submitted that the Nigerian law on standing remains as it has always been and that there is no room for the adoption of modern views from England and Australia. He further submitted that the Appellant did not satisfy the principles for determining standing. Relying on previous decisions,[xii] Counsel submitted that the concept of standing is universal and its essence is to keep away interlopers while encouraging those who have suffered to seek judicial remedies in court.
IV
Contributions by Amici Curaeon Standing
While the pro-restrictive interpretation group argued against expanding standing principles for environmental actions with public interest dimensions, the pro-liberal group contended that the paragraphs of the claim reveals standing and that standing should be expanded to accommodate NGOs and public spirited individuals bringing environmental actions for purely public interest. While the pro-restrictive group presented textual, formalistic and rigid arguments aimed at convincing the Supreme Court to maintain the status quo, the pro-liberal interpretation group persuaded the Supreme Court to borrow a leaf from other common law jurisdictions that have since liberalized standing in public interest environmental actions. The respective Counsel in each group presented brilliant arguments, however it would have been more rewarding if the environmental research and advocacy groups, and the Academia were invited to file briefs and to contribute to the development of the law with respect to standing in environmental actions.
V
Lead Judgment affecting Locus Standi
The Supreme Court in a unanimous judgment of 7-0 held that the Appellant, an NGO, has the standing to bring the suit. The lead judgment was delivered by his Lordship Nweze, J.S.C and supported by the other six Justices.[xiii] Being a Constitutional issue, seven justices of the Supreme Court sat as against the regular five.
His Lordship, Nweze, JSC, stated that Nigerian courts embraced the concept of standing from English law and in doing so, merged the narrow and restrictive concept of private law (cause of action test) with the requirements of public law. Nweze, JSC further stated that although Olawoyin v A.G. Northern Region[xiv]which would appear to be the first Nigerian case on the point was a case in the realm of public law,[xv] yet the court invoked the “interest” and “injury” test and that subsequent decisions also towed that line.[xvi] His Lordship also stated that the submission of the Respondent that there is no room for the adoption of the modern views on standing overlooks the approach which the Supreme Court has always adopted in circumstances such as the present one. His Lordship stated that in questions of standing, the Supreme Court had occasion to refer to such jurisdictions like India, USA, Canada and Australia.[xvii] His Lordship also stated that English courts have extended the meaning of standing and its determinant principles in appropriate cases including where an NGO was held to have standing.[xviii] His Lordship referred to the liberalization of the traditional rule by the Supreme Court in India with respect to environmental degradation.[xix] His Lordship made a finding in favour of the Appellant’s standing based on paragraphs 1 and 2 of the Amended Statement of Claim and also held that from the Appellant’s pleadings, the Respondent which is a public authority acted in violation of its constitutional obligation [section 20 thereof] and its statutory obligations occasioning injury to public interest or public inquiry.
On who has the standing to complain against the injury to public interest and public inquiry by the Respondents, his Lordship held that in environmental matters such as the instant one, NGOs such as the Appellant in this case have the requisite standing to sue. His Lordship agreed with Dr. Thio’s opinion in his book, Locus Standi and Judicial Review cited in Gupta v President of India and Ors[xx]that the judicial function is primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public (jurisdiction de droitobjectif).
Excerpts from Concurring Judgments
Onnoghen, CJN (as he then was)held that where the plaintiff an NGO seeks the enforcement of the defendant’s obligations under law vis a vis the rights of the affected communities to maintain a healthy environment which extends to their forest, rivers, air and land, they should be heard.
M.D Muhammad, J.S.Cheld that insisting that the Appellant satisfies the injury test in order to maintain an action is to sustain injustice, and in the interest of justice, found that the Appellant an NGO incorporated for the specific purpose of protecting the environment from being degraded has sufficient interest to maintain this action.
Aka’ahs, J.S.C held that the Appellant being in the vanguard of protecting the environment should be encouraged to ensure that actions or omissions by Government agencies or multinational oil companies that tend to pollute the environment are checked. His Lordship further held that since other commonwealth countries such as England, Australia and India have relaxed their rigidity in the application of the concept of standing in public interest litigations, Nigeria should follow suit.
Kekere-Ekun, J.S.C held that the mere fact that an NGO has interest in environmental protection will not be sufficient, without more, to confer standing on it. It must still satisfy the court as to the legitimacy of its interest in the subject matter of the litigation.
Okoro, J.S.C held that it is the duty of Government to protect the environment for the good of all and where government agencies desecrate such environments and other relevant government agencies fail, refuse and/or neglect to take necessary steps to enforce compliance, NGOs, which do not necessarily seek their personal interest can bring an action in court to demand compliance and ensure the restoration, remediation and protection of the environment.
Eko, J.S.C held that every person, including NGOs who bona fide seek in the law court the due performance of statutory functions or enforcement of statutory provisions or public laws, especially laws designed to protect human lives, public health and environment, should be regarded as proper persons clothed with standing in law to request adjudication on such issues of public nuisance that are injurious to human lives, public health and environment.
VI
Going forward: NGOs at the forefront of Public Interest Environmental Actions
Thanks to the Supreme Court’s decision in Centre for Oil Pollution Watch, NGO’s now have the standing to institute public interest environmental actions in Nigeria without having to disclose “injury far above the other members of the public” or being held to a restrictive standard that requires traditional disclosure of “sufficient interest” in the determination of standing. Those requirements for standing have been held to apply to private actions and not to actions that have public interest dimensions. Plaintiffs in public interest environmental actions are now expected to demonstrate that they genuinely seek to protect a purely public interest which also involves the violation of the law by the defaulter be it the government or a corporate organization. A lot of clarity has been introduced to the standing jurisprudence with respect to private and public actions. With respect to private law actions, nothing has changed. The courts will still apply the “injury test” to prevent its machinery from being overstretched and to avoid entertaining suits brought by meddlesome interlopers. However, it is a new dawn for public interest actions especially environmental matters brought by NGOs. It is however very important that the pleadings disclose that such Plaintiff NGO has a genuine interest towards seeking environmental protection and compliance with the laws of the land. When such actions come before trial courts, they should no longer be subjected to the strict or restrictive standard of interpretation to determine whether or not they are cloaked with standing. The trial court would however take a good look at the pleadings in determining what the public interest sought to be protected is and to also determine what the Plaintiff’s interest in the suit is which as stated earlier must be genuinely geared towards a purely public purpose.
*Ayodele Babalola is qualified to practice law in Nigeria and has an LL.M (Master of Laws) with specialization in Environmental & Energy Law and Public Law from the University of California, Berkeley. He is the Founding Partner, AOB Willows LP where he leads the Dispute Resolution, Environment & Elections Practice.
[i] Friends of the Earth, Inc. v Laidlaw Environmental Services U.S 167 (2000); R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 All E.L.R 611, 620.
[ii] [2019] 5 N.W.L.R (Pt. 1666) 518
[iii] Centre for Oil Pollution Watch (N.G.O)
[iv]Nigerian National Petroleum Corporation (Federal Statutory Corporation)
[v]Ajayi v Adebiyi [2012] 11 NWLR (Pt. 1310) 137 at 176 SC
[vi] INEC v. Ogbadibo Local Government [2016] 3 NWLR (Pt.1498) 167 at 196 paras B-C
[vii]Oni v Cadbury Nig. Plc. [2016] 9 NWLR (Pt. 1516) 80 at 99 paras A-B
[viii] [1981] 5 SC (Reprint) 69, 56-87; [1981] 2 NCLR
[ix] [2010] 7 NWLR (Pt. 1193) 344, 400, F-H
[x] [2008] 16 NWLR (Pt. 1112) 1, 66 paras F-G
[xi]Busari v Oseni [1992] 4 NWLR (Pt. 237) 557; SPDC (Nig.) Ltd v Otoko [1990] 6 NWLR (Pt. 159) 693; and Owodunni v Registered Trustees of Celestial Church of Christ [2000] 10 NWLR (Pt. 675) 315
[xii]Daramola v A.G Ondo State [2000] 7 NWLR (Pt 665) 440, 476; and S.P.D.C. Co. Ltd v Otoko [1990] 6 NWLR (Pt 159) 693
[xiii]Nweze, J.S.C (Lead); Onnoghen C.J.N (as he then was); M.D Muhammad, J.S.C; Aka’ahs, J.S.C; Kekere-Ekun, J.S.C; Okoro, J.S.C; and Eko, J.S.C
[xiv] [1961] 2 SCNLR 5
[xv]Owodunni v Registered Trustees, CCC [2010] 10 NWLR (Pt. 675) 315340
[xvi]Gamioba and Ors v Esezi II [1961] ANLR 584, 613; A.G Eastern Nigeria v A.G Federation [1964] 1 ANLR 224; Odeneye v Efunuga [1990] 7 NWLR (Pt. 164) 618; Thomas v Olufosoye [1986] 1 NWLR (Pt.18) 669; AmusaMomoh v. JimohOlotu [1970] 1 All NLR 117; Maradesa v The Military Governor of Oyo State and Ors [1986] 3 NWLR (Pt. 27) 125; Olawoyin v. A.G of Northern Nigeria [1961] 2 SCNLR 5
[xvii] Senator Adesanya v President of the Federal Republic of Nigeria &Anor [1981] 12 NCLR 358 at 383 per Bello, J.S.C, “In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case, Bengal Immunity Co. v State of Blhar [1955] 2 SCR 602, Fortingham v Mellon [1925] 262 U.S 447; for India and America, respectively. Even in the Canadian case of Thorson v A.G Canada [1974] 1 N.R 225, and the Australian case of Mckinlay v Commonwealth [1975] 135 C.L.R in which liberal views on standing were expressed, the issue of sufficiency of interest was the foundation upon which the decisions in both cases were reached.
[xviii]Reg v Inland Revenue Commissioners, Ex Parte National Federation of Self-Employed and Small Business Ltd [1982] AC 617, 639; R v Sommerset County Council and ARC Southern Ltd, Ex Parte Dixon [1998] Environment LR 111; and R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 All E.L.R 611, 620.
[xix]MaharajSignh v State U.P. AIR [1976] SC2607; Raflan Municipal Council v Vardhichard, AIR 1980 SC 1622; and S. P Gupta v Union of India, AIR 1982 SC 149, 189.
[xx] AIR [1982] SC 22 & 24