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The Problem with Standing to Sue in Nigeria

Published online by Cambridge University Press:  28 July 2009


The function of a legal test is to navigate the court through various possible solutions to achieve the optimum result in the application of a legal principle. It therefore forms part of the process for securing a just result to a controversy in adversarial proceedings. A well-articulated legal test should reflect the judicial policy on the principle it applies. Such a test should generally yield results that are just and are in consonance with the policy behind the principle. If the test fails in this respect, it ceases to be functional. It is against this background that the one test used by Nigerian courts to determine standing to sue in all doctrinal contexts will be examined.

Copyright © School of Oriental and African Studies 1995

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1 [1981] 1 All NLR 1 (hereafter referred to as Adesanya).

2 Per, Uwaifo J., in Attorney General, Anambra State v. Eboh [1992] 1 NWLR 491 at 501.Google Scholar

3 Oputa, J., in Oredoyin v. Arowolo [1989] 4 NWLR 172 at 211, doing just that, said: “If this appeal hinged solely on the issue of locus standi, then one should have been obliged to face up to the problem. But if it can be decided on other equally substantial grounds (as certainly it can), then, prudence will dictate that the issue of locus standi be shelved for a more direct and a more opportune occasion when, maybe, a full court will re-visit and review our decision in Abraham Adesanya supra. Discretion, they say, is the better part of valour.”Google Scholar

4 See for example, Bendel State v. The Federation [1982] 3 NCLR 1; Attorney General of Kaduna State v. Hassan [1985] 2 NWLR 483; Thomas v. Olufosoye [1986] 1 NWLR 669; Fawehinmi v. Akilu [1987] 4 NWLR 797; Adefulu v. Oyesile [1989] 5 NWLR 377; Odeneye v. Efunuga [1990] 7 NWLR 618; Adediran v. Interland Transport Ltd [1991] 9 NWLR 155.

5 [1961] All NLR 269.

6 [1961] All NLR 584.

7 This was the position in England. See Boyce v. Paddington BC [1930] 1 Ch. 109 and Gouriet v. Union of Post Office Workers [1977] 3 All E.R. 70.

8 This test now has a statutory footing in the Supreme Court Act 1981: s. 31(3).

9 Lagos State, where the old Order 53 still applies, remains an exception to this.

10 See for example, Order 43 r. 3(5) of Ogun State High Court (Civil Procedure) Rules Edict, 1987.

11 . S. 6(6) provides as follows: “The judicial powers vested in accordance with the foregoing provisions ofthis section (a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law; (b) shall 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.”

12 [1981] 2 NCLR 424.

13 [1982] 3 NCLR 206 at 210.

14 Per, Bello J., in Adesanya, at 39.Google Scholar

16 In Owners M/V Baco Liner 3 v. Adeniji [1993] 2 NWLR 195, 201–202, Tobi, J., pointed “in order to confer jurisdiction in a court of law, the plaintiff must have locus standi to commence or institute the action. Where this is lacking, the court cannot entertain the action as it lacks jurisdiction to do so.”

17 Attorney General of Kaduna v. Hassan, above, n. 4.

18 Nigerian Soft Drinks Co Ltd v. Attorney-General, Bendel State [1984] 5 NCLR 656.

19 Ekpan v. Uyo [1986] 3 NWLR 63. The claim here was for damages for trespass to land. The defendants argued that since the plaintiffs were not in possession of the land, althoug h entitled to the reversionary interest, they could not claim for trespass. Essentially their argument was that one of the ingredients for the tort of trespass was absent. The Supreme Court treated this as a question of standing. Obaseki, J., at p. 78, stated that “the question as to civil rights and obligations of the plaintiffs/respondents did not arise for determination so they have no locus standi”. See also Orogan v. Soremekun [1986] 5 NWLR 688.Google Scholar

20 Agbonikhena v. Egba [1987] 2 NWLR 494. This was a trade union case where the Court of Appeal applied the test even though it is trite law that there is a contractual relationship between members of a trade union arising out of the rules of the union. See Nigerian Civil Service Union v. Essien [1985] 3 NWLR 306; Lee v. Shoumen's Guild of Great Britain [1952] 2 Q.B. 329. Announcing the effect of s. 6(6)(b) on standing to sue in shareholder suits, Uche, Omo J., in the recent Supreme Court case of Elufioye v. Halilu [1993] 7 SCNJ 347 at 367, remarked that the rule in Foss v. Harbottle (1843) 2 Hare 461, will not be permitted to stand in the way of a person whose “civil rights” are in issue for determination. See also CBN. Kotoye [1994] 3 NWLR 66.Google Scholar

21 Ovie-Whiskey & the Federal Electoral Commission & Ors v. Olawoyin [1985] 6 NCLR 156.

22 The Court of Appeal had said, “Civil rights and obligations” mean “private rights—personal Proprietary and pecuniary rights—his private duties, arising from agreemen t or undertakings or by operation of law” (quoted in Adesanya, 29).

23 See for example, Ovie-Whiskey & the Federal Electoral Commission & Ors v. Olawoyin, above, n. 21 at 182, where Karibi-Whyte, J., of the Court of Appeal (as he then was) stated that “the expression civil rights and obligations refer to real controversy (sic) in disputes affecting the private rights of the disputants” (emphasis added). Nasir, J., of the same court in Uzochukwu v. Ezeonu II [1991] 6 NWLR 708 at 761, observed that, “it is common ground diat citizens and aliens alike enjoy legal rights, popularly called civil rights which are ordinarily enforceable by and justiciable in our courts”.Google Scholar

24 Indeed, Karibi-Whyte, J., of the Supreme Court, in Afolayan v. Ogunrinde [1990] 1 NWLR 369 at 391, denned a right as “an interest recognised and protected by the law”. See alsoGoogle ScholarDijk, P. Van, Judicial Review of Governmental Action and the Requirement of an Interest to Sue, The Hague, 1980, 2728.Google Scholar

25 Adesanya 40 d 51

26 Ibid., 52.

27 Ibid. He reaffirmed this in the later case of Olaye v. Alegbe [1983] 2 SCNLR 35.

28 Adesanya, 42.

29 Ibid. See also p. 54. There are dicta in justice Bello&s, speech tha t also give this impression.Google Scholar

30 So far, it appears that only Oputa, J., has come near to accepting this fact. In Hassan's case, above, n. 4, at 521, he referred to the Justices as being “almost equally divided”. It will be seen that they were in fact equally divided. See below.

31 Adesanya, 20, quoting Thio, S. M., Locus Standi and Judicial Review, Singapore, 1971, 3.Google Scholar

32 Adesanya, 20.

33 This is the section that spells out the supremacy of the Constitution.

34 S. 4 confers legislative powers on the legislative houses of the Federation.

35 Adesanya, 24–25.

36 In a later case, Bendel State v. The Federation, above, n. 4 at 100–101, Eso, J., of the Supreme Court “whole heartedly endorsed “ this base of standing and dismissed the criticism that it will lead to the opening of the floodgates of litigation, and that even if it does lead to the opening of the floodgates, that is the only way the Constitution can be tested in the courts.

37 Adesanya, 23.

38 Ibid., 26.

39 Ibid., 24–25.

40 See Bolaji v. Bamgbose [1986] 4 NWLR 632, 652, where this aspect was assumed. See also Susu, B. A., “Locus standi, the Constitution (1979) and confusion in the courts”, The Nigerian Bar Journal, XIX, 2 (1983) 81 at 97.Google Scholar

41 This is because the Constitution is the supreme law of the legal order. It will be noticed that this has been the result of Justice Bello's construction of the provision, hence his test is applicable in all contexts.

42 See below.

43 Adesanya, 50.

44 Ibid., 27.

45 Ibid., 28.

46 As Sarna points out, “the declaratory jurisdiction is discretionary in virtue of the very wording of die statute which creates or confirms that jurisdiction”. Sarna, Lazar, The Law of Declaratory Judgments, Carswell, 1988, 11.Google Scholar

47 Adesanya, 27, per Fatayi-Williams, C.J.N.

48 Ibid., 28.

49 Admittedly, in deciding whether the remedy of a declaration is appropriate, the court may examine the nature of the question posed for judicial determinations. For example, the court may determine that the issue raised is hypothetical and decline to grant a declaration.

50 The C.J.N., at 28, had opined that “the position would probably have been otherwise if he was not a Senator”.

51 However, a more important reason why his actio popularis went into oblivion was that it did not receive the support of his fellow Justices of the Supreme Court. Regardless of whether his test was satisfactory, it could nevertheless have been applied, even in the light of his conclusion, if the courts proceeded by considering seriatim, the following three issues: whether the action is justiciable; if the action is justiciable, standing should be automatic if the plaintiff is a Nigerian subject or resident; even where such a plaintiff has been accorded standing, the courts may nevertheless deny him a remedy if his conduct or role is such as to warrant a denial.

52 In Thomas v. Olufosoye, above, n. 4, at 693, Oputa, J., in making a few remarks on the issue of whether there were any conflicts in the rationes decidendi of the Justices in Adesanya's case, lends support to the point being made mat attention is always focused on conclusions only. He said as follows: “The ratio decidendi of the case must never be confused with the obiter dictum. … In Abraham Adesanya's case, there was no disagreement on the rationes decidendi of the Justices. Each agreed that the appeal be dismissed—the reason being that the Appellant had no locus standi. How each of the Justices arrived at his decision—that is, the way he argued it, is not as important as the decision he arrived at based on general principles of law.” Contra, Karibi-Whyte, A.G., “The tyranny of judicial precedents”, 3 Calabar Law Journal [1990] 1, 22.Google Scholar

53 See Oputa, J., in Thomas v. Olufosoye, above, n. 52, and the views of Eri, J. in Damisha v. Speaker, Benue State [1983] 4 NCLR 625.Google Scholar

54 See for example, Oluokun v. Governor, Oyo State [1984] 5 NCLR 680, 687.

55 See Bendel State v. The Federation, above, n. 4; Akinpelu. Attorney-General, Oyo State [1984] 5 NCLR 557; Adefalu v. Governor, Kwara State [1984 ] 5 NCLR 767 and Ejeh v. Attorney-General of Imo State [1985 ] 6 NCLR 390.

56 Adesanya, 42.

57 Ibid.., 43. Cf. his views in Bendel State v. The Federation, above, n. 4, at 88, where he stressed that “the Constitution has opened the gates to the courts by its provisions and there can be no justifiable reason for closing the gates against those who do not want to be governed by a law enacted NOT in accordance with the provisions of the Constitution”.

58 Below, n. 60.

59 Below, text accompanying n. 63.

60 Sowemimo and Obaseki, J.J., at 30 and 42, both agreed with the reasoning of the C.J.N. Some courts are, however, of the erroneous view that Justice Obaseki, J., was in support of Bello, J. In Oluakum v. Governor, Oyo State, above, n. 54, at 687, Ademakinwa, J., erroneously says that a close study of Justice Obaseki's judgment reveals that he was more in support of Justice Bello's views. This is not correct. To the extent that Obaseki, J., rejected the view that s. 6(6)(b) introduced a requirement of standing his opinion certainly does not support the views of Bello, J. Sowemimo, J., on the other hand, gave a decision more on justiciability than on standing to sue, although he did not characterize his decision as such. Unfortunately, it is seldom recognized that he was also in agreement with the C.J.N.'s reasoning. The learned Justice of the Supreme Court stated, at 30, as follows: “I have read in the draft judgment of the Hon. the Chief Justice (sic) an (sic) exhaustive reasonings of his views and I agree with all the points set out in his judgment … I have had the opportunity of reading in drafts the judgments of my brethren Bello, Idigbe and Uwais. It is agreed in the three judgments that the appellant had no locus standi since his interest was not alleged to be adversely affected. … On the narrow compass of locus standi … I am in complete agreement with the conclusions in these three judgments that the appeal be dismissed. On interpretation (sic) placed on section 6(6)(b) I prefer to reserve my comments until a direct issue arises for a determination” (emphasis added). Justice Sowemimo in the first paragraph shows that he agreed in entirety with the C.J.N.'s opinion. In the last paragraph, he agrees with the conclusion reached by Bello, Idigbe and Uwais. This conclusion, that the plaintiff lacked standing, is the same as that of the C.J.N. Essentially, Sowemimo, J., was therefore saying that he agreed with the C.J.N.'s judgment and all the common conclusions reached in the case. But he never said he agreed with Justice Bello's reasoning, in fact he reserved his comments on the interpretation of s. 6(6)(b).

61 Idigbe and Nnamani, J.J., both agreed with Justice Bello's reasoning. Ibid., 39 and 51.

62 Unfortunately, this is not appreciated, hence Justice Bello's view is taken as representing the majority position. For instance, in Anago-Amanze v. Onwudiwe [1985] 6 NCLR 620, Araka, C.J., was of the view tha t Sowemimo, Obaseki and Uwais, J.J., were in favour of Justice Bello's view. See also Oluokun v. Governor, Oyo State, above, n. 54, where Ademakinwa, J., at p. 688, stated: “It is therefore clear that as of today, the majority view of the Supreme Court in Adesanya's case, is that which this court … [is] bound under the doctrine of judicial precedent to follow.”Google Scholar

63 Adesanya, 56–57.

64 This rule is actually derived from the old nuisance cases. See Heydon, , “Injunctions and declarations” in Stein, L., Locus standi, Sydney, 1979, 38.Google Scholar

65 [1991] 9 NWLR 155.

66 Ibid., per Karibi-Whyte, J., at 180.

67 See Evans, J., De Smith's Judicial Review of Administrative Action, 4th ed., London, 1980, 188189, and the cases the author lists at note 26. The author also cites the Nigerian case of Merchants Bank Ltd v. Federal Minister of Finance [1961] 1 All NLR 598 (see below, text accompanying n. 71). See also the Nigerian Court of Appeal's decision in Okakpu v. Resident, Plateau Province [1958 ] NRNLR 5.Google Scholar

68 [1986] 5 NWLR 1007.

69 Re Findlay [1985] A.C. 31 8 and O'Reilly v. Madman [1983] 2 A.C. 237.

70 Re Findlay, above, n. 69, at 338.

71 [1961] NLR 598.

72 At the time of the Merchants Bank case, the Constitution in force was the 1954 Constitution, which did not have a provision equivalent to s. 6(6)(b) of the 1979 Constitution. However, this does not affect the point being made, as there does not appear to be any difference between the construction of the term “civil right and obligation” as used under both Constitutions.

73 With the adoption by the Supreme Court, in Hart v. Military Governor of Rivers State [1976] 11 SC 211, of the principles enunciated in the English decision of Ridge v. Baldwin [1964] A.C. 40, before a licence is revoked, the licensing authority must now act fairly.

74 In Ovie-Whiskey & the Federal Electoral Commission & Ors v. Olawoyin, above, n. 21, at 192, where the Electoral Commission, instead of revising a voters register, as was provided by statute, proceeded to illegally compile a new register, with consequences on the interests of a political party, Akpata, J., of the Court of Appeal observed as follows: “I do share the view however, that the compilation of a new register … instead of a revision of the register of voters is not an issue which infringes the civil rights and obligations of any of the respondents. The respondents suffered no injury.… In effect the irregularity if any, may be a breach of the Electoral Act 1982. It is certainly not an infringement of the civil rights and obligations of the respondents.”

75 [1985] 2 NWLR 483.

76 [1984] 5 NCLR 177 at 194.

77 “The respondent has no special legal right or proprietary interest in the prosecution of those accused of the murder of his son and their discharge from prosecution in my view does not affect his civil rights and obligations.” Ibid., at 203.

78 Oputa, J., above, n. 75, at 522, put it clearly when he said, “what will the Respondent think of our justice if his simple application for a declaration that the Solicitor-General was wrong in acting the way he did (and die Respondent is right) was thrown out on what Fatayi-Williams, C.J.N. in Adesanya's case called the ‘flimsy excuse of lack of sufficient interest’? If we are to keep our peoples together we must observe the commandment—‘thou shall not ration justice’.”

79 An example was the emphasis laid on the fact that the respondent was a witness for the prosecution. “One has to note here that the Respondent was a witness for the prosecution. He therefore definitely had some interest in the prosecution and its eventual outcome.” Per Oputa, J. Ibid., 524.

80 An example of such was the argument of Bello, J., which proceeded thus. The culpable homicide of the respondent's son grants the respondent a right of action for damages under the Fatal Accidents Law or for compensation under Moslem law. Therefore the respondent has a legal right for damages or compensation. That the rule of practice as laid down in Smith v. Sewyn—that an action based upon a felony is not maintainable so long as the defendant has not been prosecuted or a reasonable excuse shown for his not having been prosecuted—makes the exercise of the civil right of the Respondent to sue for damage s or compensation dependent on prosecution by the state. Since the accused persons have not been prosecuted and reasonable excuse has not been shown for the non-prosecution, the rule in Smith v. Selwyn has not been complied with. The learned Justice of the Supreme Court therefore concluded, at 509, that “the Respondent may not be allowed to maintain his legal right to sue for compensation. That being the case, it is apparent that die civil right of the respondent has been adversely affected by the action of the Solicitor-General.” Such reasoning is highly artificial and takes the law no further.

81 Aniacolu, J., was of the view that standing to sue lay “in the parental and filial relationship between him and his alleged murdered son; that the law must see in that relationship a right in the father to seek after, defend, and inquire into, his son's affairs and interests and prosecute proceedings in relation thereto”. Ibid., 510. If the Nigerian courts apply a sufficient interest test, then this reason would have been justifiable. But it is unjustifiable using the “civil rights” test.

82 The section provides: “Any right of appeal to the Supreme Court from decisions of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto or, with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter.”

83 Re: Ijelu [1992] 9 NWLR 414 at 437.

84 [1983] 4 NCLR 625.

85 Ibid., 631.

87 Above, n. 21.

88 Ibid., 182.

90 Adesanya, 49.

91 Ibid., 49–50. Obaseki, J., surprisingly capitulated to Justice Bello's thesis in later cases, without explaining why: see Thomas v. Olufosoye, above, n. 4, and Fawehtinmi v. Akilu, above, n. 4.

92 Above, text accompanying n. 43.

93 S. 236(1) of the 1979 Constitution.

94 [1973] 1 NSWLR 233 at 246–247.

95 Adesanya, 25.

96 See for example, Perkins v. Lukens Steel Company (1940) 310 U.S. 113.

97 As codified in 5 U.S.C. §. 702.

98 Schwartz, B., Administrative Law, 2nd ed., Boston, 1984, 468470.Google Scholar

99 Above, n. 68, Justice Coker, rightly observed, at p. 1039, that “[e]Den where the person claiming some benefit has no legal right to it as a matter of private law, he may have a legitimate expectation of receiving the baufit or privilege”. In fact, as early as 1962,Google ScholarCharles, J. in R v. Governor in Council, Western Region, ex parte Adebo [1962] 2 All NLR 195 at 200, had made it clear that “[c]ertiorari is not confined to determinations affecting rights in the strict sense but extends to any determination which affects any legally recognized interest or activity of a subject whether it exists or is carried on as a right, privilege or liberty, or under an immunity”.Google Scholar

100 [1990] 1 NWLR 369, 382–383.

101 Ibid., 382.

102 The test was applied analytically by Coker and Karibi-Whyte, JJ., in Attorney-General, Kaduna State v. Hassan, above, n. 75 at 194 and 203, and, as was seen earlier, it produced results that the Supreme Court was not prepared to accept.

103 At the Supreme Court, Aniagolu, J., in Attorney-General, Kaduna State v. Hassan, above, n. 81, was applying a sufficient interest test as articulated by Nnamani, J., in Adesanya at 54. In Attorney General, Anambra State v. Eboh, above, n. 2, at 505, Uwaifo, J., applied a sufficient interest test, citing Adesanya as his authority for so doing. See also Amadi v. Essien [1994] 7 NWLR 91, 115.Google Scholar

104 See Chairman, Gwaram Local Government v. Datine [1993] 2 NWLR 370 at 377, where Mohammed, J., under the guise of applying the “civil rights” test applied the welter of tests in Adesanya. It was seen earlier that Karibi-Whyte, J., in Ovie-Whiskey & the Federal Electoral Commission & Ors v. Olawoyin, above, n. 21 at 182, having stated that he was applying the “civil rights” test, goes further to apply a test linked to the particular remedy sought. See also Albion Construction Co Ltd v. Rao Investments & Properties Ltd [1992] 1 NWLR 583 at 593, where Niki Tobi, J., of the Court of Appeal held that “a plaintiff will have locus standi in a matter only if he has a special legal right or alternatively if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. As the learned Justice of the Court of Appeal did not question the “civil rights test”, it is assumed that he was applying the welter of tests under its guise. The confusion in the case law is apparent when some courts apply conflicting parts of the Adesanya decision as if there is no conflict: see Ogunsanya v. Audu [1982] 3 NCLR 529 and Adefalu v. Governor, Kwara Slate [1984] 5 NCLR 767.

105 In Bolaji v. Bamgbose, above, n. 40, at 658, Ademola, J., of the Court of Appeal noted that “the Supreme Court has used the words ‘rights being affected’ and ‘interest being affected’ as if the two are inter-changeable words and also mean one and the same thing. Surely ‘interest’ connotes a different thing from ‘rights’.” Further down, he says, “it does appear to me that the courts have not been consistent in the application of one test to the exclusion of the other. Sometimes, the test of the adversity of right is used where no such question has arisen and where it could have been sufficient to determine the issue of locus standi on whether a plaintiff has sufficient interest to maintain the action.” Nnaemeka-Agu, J., was not impressed by the discovery made by Ademola, J. He said, at 658, “until the Constitution is amended, locus standi must of necessity, be based on the civil rights and obligations of the plaintiff. It may be true that in some judgments the words ‘interest’ and ‘right’ are used interchangeably: but is it not because as legal concepts the boundaries between the two words are not always so clearly denned?”

106 See for example, Atsegbua, “Locus standi: beyond section 6(6)(b) of the 1979 Constitution of Nigeria: a comparative study”, (1990) 2 RADIC 314 at 320.

107 Above, n. 4.

108 Jackson, R. M., The Machinery of Justice in England, 7th ed., Cambridge, 1978, 108110.Google Scholar

109 Apart from the three areas where the “civil rights” test causes problems (examined above), it is expected that it will present problems in those shareholder suits where no legal rights have been infringed. (Recall that the Supreme Court in Elufioye v. Halilu, above, n. 20, has signalled that the “civil rights” test will also apply in shareholder suits.) Such a suit will be an “unfair prejudice” case brought under ss. 310–313 of the Companies and Allied Matters Act 1990 (CAMA). In recognition of the fact that shareholders could be treated unfairly without a breach of their personal rights or corporate rights—those provisions provide such shareholders with a right of action to protect their interests. However, this right of action is not a legal right which the courts will recognize for standing purposes under s. 6(6)(b), as the “civil rights” test focuses only on the subject-matter of the action, i.e., the legal right which is infringed. What the CAMA merely does in this context is to provide a remedy when an interest is affected; it certainly does not elevate the affected interest into a legal right, and, as Van Dijk has noted, although a right represents a legally protected interest, not all legally protected interests are rights. See Judicial Review of Governmental Action and the Requirement of an Interest to Sue, 26–27. Indeed, if the CAMA had elevated this interest into a legal right, there would have been no need for the unfair prejudice remedy in the first place, as a litigant would merely bring his action under the personal rights exception to Foss v. Harbottle, above, n. 20. The result of this analysis is that if s. 6(6)(b) is taken to lay down a constitutional requirement of standing (and therefore a universal standing test applies) then ss. 310–313 of the CAMA which give a shareholder a right of action to protect his interests (which are not legal rights) will then be unconstitutional. Surely, this is an absurd result. However, it must be pointed out that since the Constitution (Supremacy and Modification) Decree No. 1 1984 renders laws enacted by the federal military government after 31 December 1983 superior to the Constitution, there can now be no judicial review of the constitutionality of the CAMA. See Labiyi v. Anretiola [1992] 8 NWLR 139 at 162.

110 The courts appear helpless when trying to tackle the problem of standing precisely because of this reason. Hence in Thomas v. Olufosaye, above, n. 4 at 686, Obaseki, J., stressed that “this court does not make the law. Its function is to administer and interpret the law. As the law stands, there is no room for the adoption of the modern views on locus standi being followed by England and Australia.”

111 R v. I.R.C. ex parts Federation of Self-Emplqyed [1982] AC 617.

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