Supreme Court’s distinction without a difference
Whereas in one breadth, the Supreme Court held that a citizen is free to challenge a violation of the Constitution, it stated nonetheless that when it comes to specific actions of the executive, the plaintiff has to show how he is specifically affected above and beyond other members of the society.

The Court took back with one hand what it had granted with the other. Logically, foundation should be the prime consideration, which in this case, is the Constitution. How can a citizen be entitled to challenge the violation of the foundation and then at the same time be powerless to upturn and pull down the superstructure erected upon the said faulty foundation? You can challenge the violation of the law but you are barred from contesting actions taken pursuant to such violation! It just does not add up, to create two standards of locus standi, in the same action.

In this case, Chief Gani Fawehinmi, SAN, contended that payments made to certain Ministers are in gross violation of the Constitution and other extant statutes and thus sought a reversal of such payments in full compliance with the Constitution. 

The Supreme Court met Gani halfway in agreeing with him that he had the locus standi to challenge any violation of the Constitution but it went further to deny him locus standi to contest the specific act of payments to Ministers, being executive actions taken pursuant to existing laws. Let us hear the Court.

On Locus standi of Nigerian citizen to institute action for protection of Constitution:
 “The law has moved beyond the restrictive application of the rules of locus standi to a more flexible and purposeful dispensation in which a Nigeria citizen should have access to court for the protection of the Nigerian Constitution from any attack or violation. If an Act made by the National Assembly or any Law made by the State legislature is unconstitutionally assaulted or is in itself unconstitutional, every Nigerian should have access to court to vindicate the rule of law and arrest any breach of the law and the Constitution. But when the claim is directed towards an executive action over any subject-matter, the plaintiff’s locus standi will inure if he shows direct and personal effect of the action complained of on his right as a Nigerian.

To be unconstitutional means to be in conflict with the letters and intent of the Nigerian Constitution. Since the Constitution is the grundnorm, any assault on it can be challenged in court by any citizen of Nigeria.

But when it comes to issues of steps or decisions of the Executive such as payments of salaries, one needs to show sufficiently his interest or right that is in danger. A challenge of the Constitution which is the general law governing all Nigerians is quite different from a challenge of a specific law governing a special class of people.

The specific law may take its life from the general law, such as the Constitution. In such a situation, the plaintiff needs to show his interest and how it is affected or infringed upon. In the instant case, the plaintiff being a lawyer and a senior advocate did not confer on him the duty or obligation of challenging the decision to pay any type of salary to the appellant by the Government that hired her. It could not confer any standing on him to prosecute the claim.”
Per ADAH, J.S.C. at page 41, paras. B-E:
To be continued tomorrow.
Adegboruwa, is a senior Advocate of Nigeria (SAN).