Powers of Non-Governmental Organizations (NGO’s) to sue in public interest litigation in Nigeria: conditions that must be fulfilled

Contributor: Olugbade Johnson Abiola

Introduction

Litigation is the legal process of bringing an action before a court to enforce or defend a right. Public Interest Litigation, however, goes beyond individual rights and is typically initiated to address matters of widespread public concern or importance. In this regard, Non-Governmental Organizations (NGOs) often play a crucial role, as they are established to advocate for social progress, human rights, and economic development. As part of their mission to protect public welfare, NGOs frequently engage in Public Interest Litigation to champion causes that affect the broader society, particularly issues that impact marginalized or vulnerable groups.

In Nigeria, the use of Public Interest Litigation by NGOs has become a significant avenue for promoting justice, accountability, and the protection of fundamental rights. However, the power of NGOs to initiate Public Interest Litigation is not automatic, as they must satisfy specific legal requirements to gain standing before the courts. These requirements ensure that the case brought forward is genuinely of public interest and that the NGO has the necessary capacity and mandate to represent the affected parties.

This article aims to explore the legal powers of NGOs to sue in Public Interest Litigation in Nigeria, focusing on the requirement for NGO to maintain an action under the head of public interest litigation and challenges faced by NGOs.

Legal Framework for Public Interest Litigation in Nigeria

NGOs just like other corporate bodies have the power to sue under the extant Nigerian Laws Some of the statutes giving them such enablement include but are not limited to:

1. Fundamental Rights Enforcement Procedure Rules (2009
2. The 1999 Constitution- which provides for Fundamental Rights: These sections guarantee the fundamental rights of every citizen in Nigeria, including the right to life^[1], dignity of the human person, personal liberty, fair hearing^[2], privacy, freedom of expression, and access to justice. NGOs can invoke these rights in Public Interest Litigation cases, especially when they are violated in ways that affect the general public or vulnerable groups.
3. Judicial Precedents (Case Law)

NGOs Suing in Public Interest Litigation: Locus Standi and Requirements

The law is trite that any person or corporate body instituting an action must have the locus standi the legal standing to do so. This principle applies equally in Public Interest Litigation^[3], where an NGO seeks to initiate a case in the broader interest of society, rather than for personal or private gain. Locus standi plays a crucial role in determining who can bring an action before the courts, especially in cases that concern the rights and interests of the general public.

In Nigerian law, both Natural Persons (individuals) and Juristic Persons (corporate bodies, including NGOs) have the capacity to sue and be sued. A Juristic Person refers to an entity that has a legal identity separate from the individuals who operate it, and upon registration, an NGO becomes a juristic personality. This confers on the NGO the legal right to initiate and defend legal actions in court, including Public Interest Litigation^[4].

However, for an NGO to successfully maintain an action under Public Interest Litigation, it must meet certain requirements to demonstrate that it has the requisite locus standi^[5]. The mere existence of an NGO as a juristic entity does not automatically grant it standing to sue on any matter it must show that the issue at hand is of genuine public interest and that the NGO has a direct connection to the cause it seeks to litigate.

Therefore, to have the locus standi to initiate a Public Interest Litigation case, an NGO must fulfill the following key requirements:

1. The NGO Must Be Duly Registered; this goes without saying that for an NGO to even maintain an action in any Court in Nigeria, it must first and foremost be registered so as to have the status of a juristic personality as this is when and only when it can sue in the first place.

Hence for a Corporate Body to prove that indeed it is a registered corporate body, it must tender it certificate of incorporation. Instructive on this is the case of EDO CEMENT CO. LTD & ORS V. ATTA^[6] where the Court of Appeal held thus “The proof of incorporation of a company is the production of the Certificate of Incorporation. See Magbagbeola v. Sanni (2005) LPELR 1815; NNPC v. Lutin Inv. Ltd & Anor (2006) LPELR – 2024 (SC). The registration status of a registered company is well within the domain of the Corporate Affairs Commission. If anyone wants to find out the registration profile of a corporate citizen, he must refer to the Corporate Affairs Commission. To back up the allegation that the 2nd appellant was not registered, it is naturally the business of the ones making the allegation to proof the fact of non-registration. It is not the other way round. Our law is that anyone who asserts the non-registration must proof the fact of the situation. Since the accuser did not raise sufficient proof of the non-registration, the allegation shall be taken as not proved. I therefore agree with the learned counsel for the respondent that the burden is in the accuser to proof that truly it is not a registered company and not the other way round. It is obvious there is no element of proof to justify it being called a non-registered company. The fact of it being presented on record as registered body ex facie shows that the 2nd appellant is a registered company until it is rebutted by evidence of non-registration”

This is because only a Certificate of registration, or incorporation of a company or association is prima facie evidence of incorporation of such company or association.

1. Relevance of the Issue to the Public Interest: The matter being litigated must directly impact the public or a specific group of individuals, such as marginalized or vulnerable populations. The NGO must establish that the issue transcends private interest and has broader societal significance^[7].
2. Purpose and Mandate of the NGO: The NGO must demonstrate that the action it seeks to initiate is in line with its core objectives as outlined in its constitution, registration documents, or mission statement. Courts require that the NGO prove it has a legitimate interest in the issue and that it is acting in furtherance of its statutory or charitable goals^[8].
3. No Alternative Remedy: The NGO must show that the issue cannot be adequately addressed through other means or that there is no alternative remedy available to the affected parties. This is particularly important in cases of human rights violations or systemic issues that may not have clear avenues for redress for the affected individuals^[9].
4. Standing on Behalf of the Public: The NGO must be able to show that it represents a group or section of the public whose rights are affected, or that it has the capacity to act on behalf of the public for the greater good. This is especially relevant when the specific individuals whose rights are violated are not in a position to bring the action themselves^[10].

By fulfilling these requirements, an NGO ensures that it has the necessary locus standi to maintain an action in Public Interest Litigation. This safeguards the judicial process from frivolous or unrelated claims and helps ensure that only those with a legitimate interest in promoting the public good can access the court to enforce public rights.

This section highlights the significance of locus standi for NGOs in Public Interest Litigation, explains how it functions within the Nigerian legal context, and outlines the essential conditions an NGO must fulfill to have standing in such cases.

Challenges Faced by NGOs in Public Interest Litigation

Despite the legal provisions that allow Non-Governmental Organizations (NGOs) to engage in Public Interest Litigation, there are several practical and procedural challenges they often face. These challenges can hinder the effective use of Public Interest Litigation to advance public causes and protect the rights of vulnerable groups. Below are some of the key difficulties that NGOs encounter^[11]

1.  Financial and Resource Constraints

Cost of Litigation^[12]: One of the most significant obstacles for NGOs in pursuing Public Interest Litigation is the financial burden. Litigation can be expensive, requiring resources for legal fees, expert witnesses, court filing fees, and other associated costs. Many NGOs, particularly smaller ones, struggle to secure sufficient funding to initiate and sustain lengthy litigation.

1. Court Delays and Backlog: Nigerian courts are often burdened with case backlogs, leading to long delays in the resolution of cases. For NGOs involved in Public Interest Litigation, these delays can undermine the urgency of the issues at hand, particularly in cases that involve human rights violations or environmental damage.
2. Public Awareness and Support

Raising Public Awareness: While NGOs are typically advocating for the public good, they may face challenges in raising awareness about the importance of their PIL cases. Lack of public knowledge or interest in a case can hinder support for the litigation, especially when the issues at stake are complex or technical. In some cases, NGOs may struggle to generate widespread public support for the causes they are advocating for. Without public backing, it may be difficult for the NGO to demonstrate the broad societal impact of the case, which could affect the court’s decision to allow the litigation.

RECOMMENDATIONS

To enhance the effectiveness of NGOs in Public Interest Litigation, it is recommended that they seek partnerships to secure funding and resources, build legal expertise through capacity-building initiatives, and focus on strategic litigation to set legal precedents. NGOs should also advocate for judicial reforms to reduce court delays and improve enforcement of judgments^[13]. Additionally, increasing public awareness and support through media campaigns and community engagement can strengthen the impact of Public Interest Litigation efforts. Finally, collaboration with government and international organizations can further bolster the success of Public Interest Litigation cases.

Conclusion

In conclusion, Non-Governmental Organizations (NGOs) play a crucial role in advancing public welfare through Public Interest Litigation. While Nigerian law grants NGOs the standing to initiate such litigation, they must meet specific legal requirements, including demonstrating locus standi and ensuring the issue at hand is of public significance. Despite challenges like financial constraints, procedural hurdles, and political resistance, NGOs can effectively overcome these barriers through strategic partnerships, capacity-building, and public engagement. By addressing these challenges, NGOs can continue to serve as powerful advocates for justice, accountability, and the protection of fundamental rights in Nigeria.

1. Section 33 of the 1999 Constitution ↑
2. Section 36 of the 1999 Constitution ↑
3. Chief Sebastine Tar. Hon, SAN, FCIArb V. National Assembly & 3 ORS NICN/ABJ/142/2022. Available at https://nicnadr.gov.ng/nicnweb/details.php?id=7196&p=Chief%20Sebastine%20Tar%20Hon%20SAN%20-VS-%20National%20Assembly%20&%203%20ORS accessed on 22 November 2024.  ↑
4. Nigeria Network NCO Legal Framework for Establishment of Not-for-Profit Organisations accessed 22 November 2024 ↑
5. Ibid ↑
6. (2018) LPELR-46809 (CA) ↑
7. CHIEF F. O. ORBIH, Public Interest Litigation mailto:https://nigerianlawguru.com/wp-content/uploads/2024/06/PUBLIC-INTEREST-LITIGATION.pdf?subject=https://nigerianlawguru.com/wp-content/uploads/2024/06/PUBLIC-INTEREST-LITIGATION.pdf accessed 22 November 2024 ↑
8. Ibad ↑
9. CHIEF F. O. ORBIH, Public Interest Litigation mailto:https://nigerianlawguru.com/wp-content/uploads/2024/06/PUBLIC-INTEREST-LITIGATION.pdf?subject=https://nigerianlawguru.com/wp-content/uploads/2024/06/PUBLIC-INTEREST-LITIGATION.pdf accessed 22 November 2024

   Ibad ↑

10. ↑
11. Law Pavilion Public Interest Litigation in Nigeria Challenges and Opportunities mailto:https://lawpavilion.com/blog/public-interest-litigation-in-nigeria-challenges-and-opportunities-2/?subject=https://lawpavilion.com/blog/public-interest-litigation-in-nigeria-challenges-and-opportunities-2/ accessed 22^nd November 2024 ↑
12. Ibad ↑
13. Nigerian Tribute Public interest litigation in Nigeria: Challenges and opportunities (1) mailto:https://tribuneonlineng.com/public-interest-litigation-in-nigeria-challenges-and-opportunities-1/?subject=https://tribuneonlineng.com/public-interest-litigation-in-nigeria-challenges-and-opportunities-1/ Accessed 22^nd November 2024 ↑