Fundamental Rights and Enforcement Procedure

Fundamental Rights and Enforcement Procedure

The principle of the universal validity of human rights has been overwhelmingly and weightily emphasized in defiance of some resistance by few jurisdictions. The increasing human rights entrenchments that embody in-depth dealing on various human right norms strengthen this fact in no small measure. It is not surprising, therefore, that the former United Nations Secretary-General, Kofi Annan, declared human rights to be a cross-sectoral UN subject that was to apply to all UN areas of responsibility.

However, some legal jurisdictions including Nigeria have sought to qualify the applicability of the principle of the universality and indivisibility of human rights by pleading peculiar disabilities of economic, social, cultural and religious nature. In considerable number of cases, they simply deny human rights-infractions in their domains.

The entrenchment of human rights laws in Nigeria is, therefore, not a guarantee for their enjoyment. The successive military governments made conscious effort to assault human rights despite their initial pretentious act to appease the susceptible citizens. In a bid to suppress opponents and stifle dissenting views, they brought into existence draconian decrees that rendered the rule of law impotent and bastardized human rights norms.

Even in this present civilian regime, it is regrettable to observe that the application of human rights norms is far from being satisfactory. It is outrageous to witness the common practice whereby the police keep suspects in detention sine die and trample on citizens’ rights in varying dimensions.

Surprisingly, the civilian government is clearly not doing much in addressing the abusive practices of human rights in Nigeria. The government has not taken it as priority to reform the police and other institutions that practice these human rights abuses. This tacit tolerance has tended to accentuate indulgence and perpetrate these abusive practices.

There is a special procedure for the enforcement of the fundamental fights guaranteed under Chapter IV of the 1999 Constitution. The Constitution empowers anyone who alleges that the fundamental human rights as provided under sections 33-45 of the Constitution of Nigeria 1999 to which he is entitled, has been, is being or is likely to be violated, infringed or contravened in any State in relation to him, to apply to a High Court in that State for redress.[1]

The High Courts include the State High Court and the Federal High Court.[2] However, the circumstance under which any of the High Courts’ is resorted to, differ. Notably, Section 25l of the 1999 Constitution vests exclusive jurisdiction over specific matters in the Federal High Court.

In respect of human rights enforcement, the combined effect of section 251 of the I999 Constitution and the Supreme Court decision in Tukur v Government of Gongola State[3] was that an action for the enforcement of fundamental rights against the Federal Government or any of its agencies must be brought in a Federal High Court. Fundamental right enforcement actions that are not against the Federal Government or any of its agencies should be instituted at the State High Court, and in the area where the violation of right occurred.

Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any of the fundamental rights to which the applicant is entitled.[4]

In Ogugu v. State,[5] the legal implication of the foregoing subsection is that only a High Court of a State or a Federal High Court has original jurisdiction to entertain and determine matters in respect of fundamental rights enforcement especially where they are really relevant or intrinsic to the determination of the merit of the case or the merit of an appeal thereon.

Essentially, the appellate courts including the Supreme Court have no original jurisdiction to determine questions relating to an alleged breach of fundamental rights where the issue involved is relevant or intrinsic to the determination of the merit or otherwise of an appeal properly brought before it.

Accordingly, the Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purpose of enforcing the fundamental rights guaranteed by the Constitution.[6] Therefore, in examining the enforcement of the fundamental rights guaranteed under chapter IV of the 1999 Constitution, copious reference shall be made to this Court Rules.

It is important to stress that the fundamental rights guaranteed in Chapter IV of the 1999 Constitution can be enforced not only against the government but also an individual who infringes on the rights.

In the case of Peterside v IMB (Nig) Ltd,[7] the Court of Appeal held that it was Wrong in law to say that the fundamental rights guaranteed in the constitution can only be enforced against the government but cannot be enforced by one individual against another. While some of the provisions can only be enforced against the government,[8] there are some others which can be enforced against both the government and an individual.[9] The determining factor is the provision of the section in question as to whether it guarantees the right against the government, an individual or both of them.

In enforcement of any of the guaranteed fundamental rights under Chapter IV of the 1999 Constitution, the application may be made by any originating process accepted by the court which shall, subject to the provisions of these rules, lie without the leave of court, and shall be supported by a statement setting out the name and description of the applicant, the relief sought and the ground upon which it is sought and supported by an affidavit setting out the facts relied upon.[10]

Every application shall be accompanied by a Written Address which shall be succinct argument in support of the grounds of the application.[11] Where the respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.[12] An Application for the enforcement of Fundamental Right shall not be affected by any limitation Statute whatsoever.[13]

The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates, or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following:

(i) Anyone acting in his own interest; (ii) Anyone acting on behalf of another person; (iii)Anyone acting as a member of, or in the interest of a group or class of persons; (iv) Anyone acting in the public interest, and (v) Association acting in the interest of its members or other individuals or groups.

The application shall be fixed for hearing within 7 days from the day the application was filed.[14] The hearing of the application may from time to time be adjourned where extremely expedient, depending on the circumstances of each case or upon such terms as the Court may deem fit to make, provided the Court shall always be guided by the urgent nature of applications under these Rules.[15] No grounds shall be relied upon or any relief sought at the hearing of the application except the grounds and the reliefs are set out in the statement.[16]

The Court may, on the hearing of the application allow the statement to be amended and may allow further affidavits to be used if they deal with new matters arising from the counter affidavit of any party to the application.[17]The application for amendment shall be supported by an exhibit of the proposed application to be amended and may be allowed by the Court upon such terms or otherwise as may be just.[18]

Where a party who obtained an order to amend fails to comply with the order within the time allowed by the order of Court, such party shall be deemed to have abandoned the amendment unless he obtains an order of Court for extension of time to file the same.[19]Where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he must put the other party or parties on notice of his intention to amend.[20]

Where the Respondent is challenging the Court’s jurisdiction to hear the application, he may apply to the Court for an order striking out the suit or setting aside the proceedings.[21] The Respondent’s Notice of Preliminary Objection must be filed along with the counter affidavit to the main application.

Where the Respondent elects, not to file a counter affidavit to the main application, the Court shall presume that the Respondent has accepted the facts as presented by the Applicant. On the date of hearing, the preliminary objection shall be heard along with the substantive application. The Court after hearing the application may make any of the following orders:

(a) Striking out the application for want of jurisdiction; or

(b) Setting aside the service of the originating application.[22]

  1. Where the Court does not decline jurisdiction, the Court shall go ahead to give its Ruling on the substantive application.

Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to–

(i) Mode of commencement of the application;

(ii) The subject matter is not within Chapter IV of the Constitution or the African Charter on Human and People’s Rights (Ratification and Enforcement) Act[23]

At the hearing of any application, under these Rules, the Court may make such orders, issue such writs, and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution or African Charter on Human and People’s Rights (Ratification and Enforcement) Act to which the applicant may be entitled.[24]

Hearing of the application shall be on the parties’ written addresses. Oral argument of not more than twenty minutes shall be allowed from each party by the Court on matters not contained in their written addresses provided such matters came to the knowledge of the party after he had filed his written address.

When all the parties’ written addresses have been filed and come up for adoption and either of the parties is absent, the Court shall either on its own motion or upon oral application by the Counsel for the party present, order that the addresses be deemed adopted if the Court is satisfied that all the parties had notice of the date for adoption and a party shall be deemed to have notice of the date for adoption if on the previous date last given, the party or his Counsel was present in Court.[25]

Any person or body who desires to be heard in respect of any Human Rights Application and who appears to the Court to be a proper party to be heard may be heard whether or not the party has been served with any of the relevant processes, and whether or not the party has any interest in the matter.  Amici curiae may be encouraged in human rights applications and may be heard at any time if the Court’s business allows it.[26]

 

[1] Section 46(1) 1999 CFRN

[2] Fundamental Rights (Enforcement Procedure) Rules, 2009, Order II Rule 1

[3] [1989] 4 NWLR (pt.117) p. 517

[4] Section 46(2), 1999 CFRN

[5] [1994] 9 NWLR (pt. 36) p. 1 at 7

[6] Section 46(3) 1999 CFRN

[7] [1993] 2 NWLR (pt 278) p. 712

[8] Uzoukwu v Ezeonu II [1991] 6 NWLR (pt. 200) p. 708

[9] Agbai v Okagbue (1991) 7 NWLR 391

[10] Order II Rule 2 & 3 FREP 2009

[11] Order II Rule 5

[12] Order II Rule 6

[13] Order III Rule 1

[14] Order IV Rule 1

[15] Order IV Rule 2

[16] Order VI Rule 1

[17] Order VI Rule 2

[18] Order VI Rule 3

[19] Order VI Rule 4

[20] Order VI Rule 5

[21] Order VIII Rule 1

[22] Order VIII Rule 5

[23] Order IX Rule 1

[24] Order XI

[25] Order XII

[26] Order XIII

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