Nigeria | Fundamental Rights Enforcement: A Recommendation For Supreme Court To Be First Instance And Final Court – H.A. Jimoh, Esq 

Fundamental Rights Enforcement Action In Nigeria: A Recommendation For The Supreme Court To Be A Court Of First And Final Instance

 – Hammeed Ajibola

Fundamental rights enforcement action or suit in Nigeria has always suffered setback as a result of delays in our courts that last for years and in some instances, the suits are frustrated by unnecessary appeals to the Supreme Court which lasts for over a number of unpredictable years in court. Some of the Respondents devise the use of appeal to cause frustration to the Applicant or victim of the violation in order for the victim not to enjoy the fruits of the judgment held in his favour by the court (and knowing that the Applicant may not have the financial capacity to pursue such appeal up to the Supreme Court). Also, with due respect, some of our High Court Judges (by their reasoning and Judgments in fundamental rights enforcement actions) are not experienced in fundamental rights enforcement suits thereby creating unhealthy environment for the success of such suits and create opportunities for avoidable appeals. Also, a number of orders are not being obeyed by the Respondents especially government and some of its agencies because a number of fundamental rights enforcements suits are against the government or any or some of its agencies. This act of disobedience by the government and some of its agencies (if not all) has become the order of the day. Disobedience to court orders with no consequences has established confidence in the government. It seems (in my humble view) that the only court at the moment that the government of Nigeria is ready to obey its orders is the ‘SUPREME COURT’, probably for being the final court of the land. Hence, for the above background reasons, this paper in a way of finding lasting solutions to all the above highlighted issues in fundamental rights enforcement suits, came up with a recommendation that our law makers should amend the Constitution as necessary as required to confer original jurisdiction on the Supreme Court of Nigeria, to hear fundamental rights enforcement suits at first instance and that the entire proceedings shall be concluded within a specified period but not more than six (6) months from the day of filing and Judgment delivered within the same period and whose decision shall be final. This in my humble view, would assist an effective and efficient justice delivery in fundamental rights enforcement suits in Nigeria, if human beings are actually honourable in the minds of our law makers and those actors in the enactment of laws in Nigeria. Hence, this topic.

First and foremost, I must state that provisions of the Fundamental Rights (Enforcement) Rules, 2009, -herein after referred to as the FREPR- has the force of the Constitution as itself and is sui generis and is therefore superior to the Rules of Court and Practice Direction. On the sui generis status of fundamental rights contained in Chapter IV of the Constitution and the procedures or Rules made thereto, see the cases of: Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A., Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. and Odogwu v A.G. of the Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6.

For emphasis and not for verbosity, furthermore, it is important for me to state here that the Constitution has laid down the Rules for enforcing the rights guaranteed under Chapter IV of the Constitution respectively and or jointly (as the case might be) and the Rules laid down are codified and named Fundamental Rights (Enforcement Procedure) Rules, 2009 (supra), which is made pursuant to the Constitution. In the case of Abia State University, Uturu v Anyaibe (1996) 3 NWLR (pt. 439) 646 at 661, per Katsina-Alu, JCA (as he then was) held that the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the Constitution, have the force of law as the Constitution itself; and overrides the provisions of any other enactment to the contrary. In which case, such a provision has equal force of law as the Constitution itself.

Furthermore, I humbly submit that fundamental rights suits are sui generis (i.e. of their own Rules and Procedures) known as the ‘Fundamental Rights (Enforcement Procedure) Rules, 2009’ (supra). The following cases are noteworthy:

1. In the case of Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A. (delivering the leading judgment), held thus

 ‘I must start by stating the obvious, that Fundamental Rights Enforcement Procedure is sui generis, being specially and specifically designed with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which actually came to correct some perceived wrongs and hardship which the 1979 Rules (fashioned on the 1979 Constitution) caused to applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications’. The case of Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. is humble referred to. Also, Furthermore, the Supreme Court of Nigeria in the case of Odogwu v A.G. of the Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6, also defined fundamental human rights thus ‘A fundamental human right is a right guaranteed in the Nigerian constitution and it is a right which every person is entitled to, when he is not subject to the disabilities enumerated in the constitution to be enjoyed by virtue of being a human being. They are so basic and fundamental that they are entrenched in a particular chapter of the constitution’.

1. Furthermore, the Supreme Court of Nigeria has held in the case of Jim-Jaja v C.O.P. Rivers State (2013)6 NWLR (Pt. 1350) 225 SC. (page 254 paragraphs E-F and F-G) on the objectives of the procedure of fundamental human right thus

 ‘The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the Nigerian’s fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed’.

I must also observe that the FREP Rules is a very concise and precise legislation with very simple diction that leaves no one in doubt as to its meanings and has easy to comprehend provisions contained in some few pages termed the FREP Rules.

Also, it is my understanding and submission that it is not the intendment of the Constitution that the provisions of any statute (or and or including the Rules of Court or Practice Direction) would render its (i.e. the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the Constitution) provisions nugatory and unrealistic. The Supreme Court of Nigeria has held in A.C.B. V Losada (Nig.) Ltd. (1995) 7 NWLR (pt.405) 26 thus:

‘It has never been the case in our laws that the provisions of any ordinary statute would render nugatory the relevant provisions of the constitution. Therefore, if any law of the State including a subsidiary legislation… is inconsistent with the provision of the constitution, the provision of the constitution prevails and that State law is to the extent of inconsistency void’. It was also held in Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt. 1129) 475, where the court held thus: ‘The provisions of an ordinary statute would not render nugatory the relevant provisions of the constitution’.

The Constitution thus provides in section 46(1) thus

‘Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress’.

In Okereke V. Yar’Adua (2008) 34 NSCQR (Pt.11) 1370; Per Onnoghen, JSC; emphasized the need for strict compliance with statutory provisions when he held at page 1403 that:

“It is settled that where legislation lays down a procedure for doing a thing there should be no other method of doing it.” See further MV Arabella V. NAIC (2008) 34 NSCQR (Pt.11) 1091 at 1116 Per Ogbuagu, JSC who held that the cardinal principle of law in the interpretation of Statutes is that where the words of the Statute are clear, the Court should give them their ordinary meaning without resort to any internal or external aid. Ojokolobo & Ors. V. Alamu & Anor (1987) 7 S.C.N.J. 98; Obomhense V. Erhahon (1993) 7 SCNJ 479; Fawehinmi V. I.G.P. & 2 Ors. (2002) 5 SCNJ 103, Ibrahim V. Ojoimo & 3 Ors. (2004) 4 NWLR (Pt 862) 89; all referred.

Furthermore, I humbly submit that the Rules of Court cannot even be used to supersede or override the clear provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009. In the case of ‘Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) at Page 12-15, Para. D-B’, Abiru JCA said as follows:

‘It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) & NWLR (Pt.979) 302.’.

Furthermore, the issue of application for extension of time and requirement for payment of default fee as provided for under the Rules of Court and Practice Direction in a fundamental rights suits were considered in the case of ANOLIEFO V ANOLIEFO (2019) LPELR 47247 CA and the appellate Court held thus

‘In Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) at Page 12-15, Para. D-B, My Learned Brother, Abiru JCA said as follows: “It is not in contest that the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009 give a respondent desirous of filing a response to a Fundamental Right application, either by way of address, counter affidavit or notice of preliminary objection, a period of five days to do so. There is no provision in the Fundamental Rights (Enforcement Procedure) Rules, 2009 for seeking either extension of time to file processes or leave to file processes out of time. It is correct that Order 15 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 says that where in the course of a Human Rights proceedings any situation arises for which there are no adequate provisions in the Rules, the Civil Procedure Rules of the Court shall apply and it is also correct that High Court of Kaduna State Civil Procedure Rules contain, provision requiring leave to file an affidavit out of time and for extension of time to file processes. It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) NWLR (Pt.979) 302. The Fundamental Rights (Enforcement Procedure) Rules, 2009 states clearly what the effect of failure to file processes within the time stipulated in the Rules should be. Its Order 9 reads: “Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a 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 4 of the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.” In other words, by the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a Court is enjoined to treat failure to file a process within the time allowed by the Rules as an irregularity, and not as a nullifying factor, except it relates to the commencement of the application, or that the subject matter is not within Chapter 4 of the Constitution.’. (Underlining is mine for emphasis).

The above case laws are to the effect that fundamental rights matters prevail upon a statute, Rules of Court and Practice Direction. On ‘Whether an action founded on Fundamental Rights Enforcement Procedure Rules is subject to the other rules of Court’, held in the case of ‘JULIUS BERGER (NIG) PLC v. IGP & ORS (2018) LPELR-46127(CA)’

“The suit, the subject matter of this appeal was commenced under the Fundamental Rights (Enforcement procedure) Rules. It is my view that that procedure being SUI GENESIS, is does not admit of the importation of any other procedure of Court, inclusive of Section 97 of the Sheriffs and Civil Process Act. The case of DR. CHRIS NGIGE & ANOR v. HON. NELSON ACHUKWU & ANOR (2005) 2 NWLR (PT. 909) 123 relied on by the Appellant, has one issue that the Court had to determine which was whether the High Court of Enugu State, sitting at Enugu had the territorial and substantive jurisdiction to make the order which it made directing the Inspector General of Police to remove the 1st Respondent office as Governor of Anambra State. The Court observed that the 30 days required for the Defendant to answer the process before the Court in Section 99 of the Sheriff and Civil process Act will not apply to cases of Enforcement of Fundamental Rights which must be heard within 14 days from the grant of leave to hear such an application as founded for in the Rules made by the Chief Justice of Nigeria. The authorities cited by the Appellant have nothing to do with the enforcement of Fundamental Rights Procedure. Interestingly, the Appellant conceded at page 19 of his amended brief of argument that by Order 11 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rule 2009, a Fundamental Rights application can be commenced without the leave of Court. I agree with him entirely. I must re-emphasize that the procedure which obtains regarding Fundamental Rights is peculiar in its scope and does not admit the importation of any other Rules of Court. The reason is simple. Issues of Fundamental Rights and its infringement are sensitive and dire. It borders on the dignity of the person and protection of its rights as a human being. They are matters that need to be tackled by the Courts expeditiously and must not be subject to the whims and caprices of technicality.” Per RITA NOSAKHARE PEMU, JCA (Pp 27 – 29 Paras C – A)’.

It is therefore important to note that section 46(1) of the Constitution confers jurisdiction on a High Court only (as court of first instance) thus

‘Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress’.

However, notwithstanding the section 46(1) of the Constitution conferring original jurisdiction on the High Court, fundamental rights enforcement suits have continued to suffer at the High Court level because many of the time, its orders are being disobeyed by the government or any or some of its agencies and such High Court is helpless. Hence, the need to confer original jurisdiction on the Supreme Court to hear fundamental rights enforcement suits at first instance and that the entire proceedings shall be concluded within a specified period but not more than six (6) months from the day of filing and Judgment delivered within the same period and making its decision in this regard (presided by a panel of 7-member panel of Justices of the Supreme Court) final.

Finally, therefore, I humbly call on the National Human Rights Commission of Nigeria, the Nigerian Bar Association, human rights activists, Nigerians, and the Nigerian legislators as well as the Executive Arm of government to consider this recommendation, advocate for it and implement it to assist in the effective delivery of justice in fundamental rights enforcement suits in Nigeria.