FUNDAMENTAL RIGHTS ENFORCEMENT IN NIGERIA

FUNDAMENTAL RIGHTS ENFORCEMENT IN NIGERIA

                       BY

EDIKAN UMO EDEM, Esq. LL.B (Hons), B.L.

Fundamental Human Rights are inalienable rights accorded to every citizen of Nigeria. These rights are enshrined in Chapter IV of the 1999 Constitution of Nigeria as Amended, and they are as follows:

Right to Life – Section 33;

Right to dignity of Human Person – Section 34;

Right to Personal Liberty – Section 35;

Right to Fair Hearing – Section 36;

Right to Private and Family Life – Section 37;

Right to Freedom of Thought, Conscience and Religion – Section 38;

Right to Freedom of Expression and the Press – Section 39;

Right to Peaceful Assembly and Association – Section 40;

Eight to Freedom of Movement – Section 41;

Right to Freedom from Discrimination – Section 42;

Right to Own Moveable and Immovable Property in Nigeria – Section 43;

Right to Adequate Compensation upon Compulsory Acquisition of Property by the Government – Section 44.

LAWS REGULATIONG FUNDAMENTAL RIGHTS ENFORCEMENT IN NIGERIA:

The 1999 Constitution of the Federal Republic of Nigeria as Amended (Chapter IV);

The Fundamental Rights (Enforcement Procedure) Rules 2009;

The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act;

United Nations Universal Declaration of Human Rights 1948 (Nigeria is a Signatory).

See the case of LAFIA LOCAL GOVERNMENT V. EXECUTIVE GOVERNOR OF NASSARAWA STATE.

COURTS WITH JURISDICTION:

The Courts with jurisdiction over Fundamental Rights Enforcement in Nigeria as provided in section 46 of the 1999 Constitution and Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 are as follows:

The Federal High Court;

High Court of a State;

The jurisdiction of either Courts will depend on whether the subject matter falls under the Legislative List, or the Concurrent List, or the Residual List, as provided under Parts 1&2 of the Second Schedule of the 1999 Constitution. See also GRACE JACK V. UNIMAID; and TUKUR V. GOVERNMENT OF GONGOLA STATE.

PERSONS ENTITLED TO INSTITUTE FUNDAMENTAL RIGHTS PROCEEDING IN NIGERIA:

This is clearly stipulated in section 46(1) of the 1999 Constitution, Order 2 Rule 1 and Paragraph 3(e) to the Preamble of the Fundamental Rights (Enforcement Procedure) Rules 2009. Anyone who alleges that any of the provisions of Chapter IV of the 1999 Constitution has been, is being, or likely to be contravened in any state can institute an action for enforcement of fundamental rights, in any the following capacities:

In his own interest;

On behalf of another person;

As a member of, or in the interest of a group or class of persons;

In the public interest, i.e., interest of the Nigerian society, and the interest of any segment of it;

An Association acting in the interest of its members or other individually.

WHAT THE APPLICANT MUST PROVE:

Any of the Rights is breached; or

Any of the Rights has been breached; or

Any of the Rights is likely to be breached.

MODE OF COMMENCEMENT OF FUNDAMENTAL RIGHTS ENFORCEMENT ACTION IN COURT:

Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 provides as follows:

“An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provision of these Rules, lie without leave of Court.”

Thus, application may be commenced by:

Writ of Summons (if the breach is contentious);

Originating Summons (if the applicant is seeking for an interpretation of any instrument or document in relation to his fundamental rights);

Originating Motion (This is the most preferable mode. See SAUDI V. ABDULLAHI)

Petition (If the Rules of Court expressly provides for it).

NOTE: 

No leave of Court is required to enforce Fundamental Human Rights in Nigeria.

There is no time limit within which to commence actions for the enforcement of Fundamental Rights in Nigeria (ORDER 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009).

PROCEDURE FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS IN NIGERIA:

The Applicant must file the following documents in the Court of Competent Jurisdiction:

Originating Motion brought pursuant to the relevant section (s) of Chapter 1V of the 1999 Constitution and other relevant laws;

A Statement setting out:

The Name and Description of the Applicant;

The Reliefs Sought;

The grounds upon which the reliefs are sought.

Affidavit setting out the facts upon which the application is made;

Written Address.

See ORDER 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

NOTE THE FOLLOWING:

The Affidavit shall be deposed to by the Applicant, but where the Applicant is in custody or if for any reason is unable to swear to an Affidavit, then the Affidavit shall be deposed to by:

A person who has personal knowledge of the facts; or

A person who has been informed of the facts by the Applicant.

In such instance, the Affidavit must state the fact that the Applicant is unable to depose personally to the Affidavit and also state how the person knows of the facts and the time and place he was told of the facts.

See ORDER 2 RULE 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

Where the Respondent intends to oppose the application, he shall file the following within 5 days of the service on him of the Application for Enforcement of Fundamental Rights:

A Written Address;

A Counter Affidavit (discretional)

Notice of Preliminary Objection if the Respondent is challenging the jurisdiction of the Court. The Notice of Preliminary Objection shall be accompanied by a counter affidavit if any) and a written address (ORDER 8 RULES 1-2 of the Fundamental Rights (Enforcement Procedure) Rules 2009. The Preliminary Objection shall be heard along with the substantive application. (ORDER 8 RULE 4).

See, generally, ORDER 2 RULE 6 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

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. (ORDER 8 RULE 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

The Applicant may on being served with the Respondent’s Written Address, file and serve a Reply Address on Points of Law within 5 days of being served, and may accompany it with a Further Affidavit. (ORDER 2 RULE 7 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

EFFECT OF NON-COMPLIANCE:

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 the Mode of Commencement of the Application, or the subject matter is not within Chapter IV of the 1999 Constitution or the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. (ORDER 9 RULE 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

EX-PARTE APPLICATIONS:

An application ex-parte may be made by the application in extremely urgent situations, pending the determination of the substantive suit, without the other party being heard.

The Court may, if satisfied that exceptional hardship may be caused to the Applicant before the service of the substantive application especially when the life or liberty of the Applicant is involved, hear the applicant ex-parte upon such interim reliefs as the justice of the application may demand. (ORDER 4 RULE 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

The Application ex-parte shall be supported by Affidavit which shall state sufficient grounds why delay in hearing the Application would cause exceptional hardship. (ORDER 4 RULE 4(a)).

A party moving the Court ex-parte may support the Application by a Written Address to the Court on the facts put in evidence. (ORDER 4 RULE 4(b)).

Where the application is made ex-parte for interim reliefs, the Court may make the following Orders:

Grant bail or order release of the Applicant forthwith from detention pending the determination of the substantive Application on notice;

Order that the Respondent against whom the Order for the release of the Applicant is sought be put on notice and abridge the time for hearing the substantive Application on notice. 

Order the production of the Applicant on the date the matter is fixed for hearing if the Applicant alleges wrongful or unlawful detention;

Grant injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all actions pending the determination of the application;

Any other Order as the Court may deem fit to make as the justice of the case may demand.

See ORDER 4 RULE 3&4 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

Where an Order is made on a motion ex-parte, a party affected by it may within seven days after service of the Order, or within such further time as the Court may allow, apply to the Court by motion on notice to vary or discharge it, and the Court may, on notice to the party obtaining the Order, either refuse to vary or discharge it with or without imposing term as costs or security, or, as may seem just. (ORDER 4 RULE 6)

HEARING OF THE APPLICATION AND GENERAL CONDUCT OF PROCEEDINGS:

The Application for Enforcement of Fundamental Rights shall be fixed for hearing within 7 days from the day the application was filed. (ORDER 3 RULE 1)

Hearing of the Application shall be on the parties’ Written Address. (ORDER 12 RULE 1)

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. (OREDER 12 RULE 2)

When all the parties’ written addresses have been filed and come up for adoption, and either of the parties is absent, the Court will deem the written address filed as being adopted. (ORDER 12 RULE 3)

REMEDIES AVAILABLE TO AN APPLICANT IN AN ACTION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS:

Section 46(2) of the 1999 Constitution empowers the High Court with Original Jurisdiction to hear and determine any application made to it for the enforcement of fundamental rights, 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 right to which the person who makes the application may be entitled under Chapter IV of the 1999 Constitution.

Generally, the Court of competent jurisdiction may make the following Order(s):

A Declaration that the Fundamental Human Rights of the Applicant have being breached;

An injunction restraining the Respondent from further breach of the Applicant’s Fundamental Rights;

An Order directing that the Applicant be released from detention forthwith;

An Order for the production of the Applicant;

Damages for breach of the Applicant’s Fundamental Rights;

An Order directing that the Applicant be allowed to have access to medical care;

Issue of Writ or Warrant.

NOTE: Damages, declaratory reliefs and injunctive reliefs can only be granted by the Court at the end of the proceedings. Other reliefs can be granted by the Court in the interim pending the determination of the substantive application.

EFFECT OF DISOBEDIENCE OF COURT OREDER FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHT:

Disobedience of Court Order for the Enforcement of Fundamental Human Right of the Applicant amounts to Civil Contempt which is punishable by an Order of Committal. Order 14 of the Fundamental Rights (Enforcement Procedure) Rules 2009 empowers the Court of Competent Jurisdiction in an action for enforcement of fundamental rights to punish for contempt, notwithstanding any provision in the Rules.