FUNDAMENTAL HUMAN RIGHTS IN NIGERIA
Fundamental rights are those rights that have been recognized and have constitutional backing in Nigeria, these rights are contained in chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended (CFRN, 1999). For the purpose of this discussion, our focus would be limited to chapter IV, CFRN 1999 and by extension, the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, and the Fundamental Rights (Enforcement Procedure) Rules, 2009. The principal law governing the enforcement procedure for the enforcement of fundamental rights is the Fundamental Right (Enforcement Procedure) Rules 2009. Where the law is silent, the civil procedure rules of the court where the action is commenced shall be resorted to. Order 15 r 4 FR.
The court that has the jurisdiction to entertain a fundamental right enforcement suit is the court in the state where the infringement occurs or is likely to occur that is the Federal High Court and the High Court of a state or High Court of FCT. Order 1 r 2. Note that there are certain instances where the National Industrial court will have jurisdiction as provided under Section 242(1) 1999 Constitution. The Federal High Court will have jurisdiction where the infringement arises from the original exclusive jurisdiction of the FHC as contained in section 251 of the 1999 Constitution or any other Act of National Assembly. The division of the Federal High Court must be the one where the infringement occurred and if there is no division, the one covering that state. See Section 46 CFRN 1999.
Who can enforce fundamental rights?
Infants through their guardian or next friend, Artificial bodies and associations acting in the interest of its members, any person including a foreigner in Nigeria, an action can also be brought by several people, but a deceased person cannot bring an action. Note however that where the action is for damages, the estate of the deceased can bring an action.
Mode of commencing a fundamental right suit
An application for enforcement of fundamental rights may be commerce by an originating process as accepted by the court without leave of court. Order 2 r 2 provides that leave of court is no longer required for bringing an application. Originating motion is most commonly used, the originating process shall be supported by a statement setting out the name and description of the applicant, the relief (s) sought, the grounds upon which the reliefs are sought supported by an Affidavit setting out the facts upon which the application is made – Order 2 r 3 and a written address in support of the grounds of the application. See Order 2 r 5 and Efcc Vs Akingbola (2015)
Note that the affidavit can be deposed to by either the applicant himself or a person who has personal knowledge of the facts or by a person who was informed of the facts by the applicant where the applicant is in custody or is unable to swear to the affidavit. It must be clearly stated in the affidavit that the applicant is unable to depose to the affidavit personally- Order 2 r 4. Where a respondent intends to oppose the application based on grounds of law, he shall file his written address within 5 days of the service of the originating process on him. Order 2 r 6. The written address shall be accompanied by a counter-affidavit where he intends to depose to contrary facts, the applicant upon being served with the respondent written address may file and serve an address on points of law within 5 days on being served, the address may be accompanied with a further affidavit when new contrary facts arise in counter-affidavit. Order 2 r 7
Where the respondent intends to challenge the jurisdiction of the court, he is to file a notice of preliminary objection, counter-affidavit (where he is opposing facts), and written address Order 8 r 1 and 2. Where he does not file a counter-affidavit, he will be deemed to have admitted the facts in the applicant’s affidavit. order 8 r 3.
In light of the above, there would be two applications before the court. The court will hear both applications (the preliminary objection and substantive application).
The court can make either of the following orders; strike out the application for want of jurisdiction or set aside the service of the original application. Order 8 r 5 provides that where the court assumes jurisdiction, it will go ahead hear and give its ruling on the substantive application. – Order 8 r 6. Note that by virtue of the provisions of Order III, an application for the enforcement of Fundamental Rights cannot be affected by any limitation of Statute, the Public Officer Act inclusive, Order 3 r 1. This is to the effect that an application may be brought at any time notwithstanding the time the act constituting the breach was committed.
Hearing of the proceedings
By virtue of Order IV, the hearing of the application shall be fixed within 7 days from the day the application was filed and the hearing of the application may from time to time be adjourned where it becomes extremely important depending on the circumstances of each case or upon terms as the court may deem fit but the court has to be guided by the urgent nature of the application under the rules . By virtue of Order IV Rule 2 application for enforcement of fundamental rights is to be treated as an urgent matter and the court will not entertain or grant frivolous adjournments, except that which is extremely.
Ex Parte application
Because of the expedited nature of fundamental right enforcement applications, where a party desires interim orders on ex parte application, the court may only hear ex parte application on interim reliefs, where exceptional hardship will be done to the applicant especially when life or liberty of the applicant is involved – Order 4 r 3. The application ex parte is to be supported by affidavit, setting the grounds why delay in hearing the application would cause exceptional hardship – Order 4 r 4(a).
Amendment and consolidation
Amendment can only be permitted on the statement of facts alone, as further affidavit can deal with new issues in counter-affidavit Order 6 r 3. The amendment is by an application supported by an exhibit of the statement of facts to be amended. Order 6 r 3. The applicant upon the grant of the amendment is to amend within the time stated or apply for an extension, else such amendment would be deemed abandoned. Order 6 r 4.
By virtue of Order 7 r 2, the court is empowered to consolidate actions upon the application of the applicant where they are applications relating to infringement of a fundamental right(s) pending against several parties in respect of the same matter and on the same grounds and issues – Order 7 r 1,3
If the applications are before different judges, the applicant must apply to the chief judge to re-assign them to one of such judges
Effect of non-compliance with rules
Non-compliance shall be treated as an irregularity and not a nullity of such proceeding except if such non-compliance relates to the mode of commencement of the application, the subject matter is not within chapter IV of the CFRN or the African Charter on Human and Peoples Right (Ratification and Enforcement) Act – Order 9 r 1.
Orders the court can make
The court is empowered to make orders as it may consider just or appropriate. Such orders include orders contained in chapter IV CFRN, orders in the African Charter on Human and Peoples Right (Ratification and Enforcement) Act, and include damages, declaration, injunction, mandatory order, apology, interim orders as provided in Order 4 r 4, the grant of bail or order release of applicant from detention, production of the applicant on the date the matter is fixed for hearing if unlawful or wrongful detention is alleged, an injunction restraining respondent from acting (maintaining statute quo); other orders like access to counsel and family members; and mandatory order not to arrest again.
From our discussion, it can be deduced that fundamental rights suits in Nigeria are special actions guided by separate rules. The rules governing the fundamental rights action make it expedient for courts to dispose of any fundamental rights action with the urgency they deserve since such lawsuits are intended to protect the constitutional rights of citizens.
However, it is noteworthy to state that a fundamental rights suit can be instituted in either State High Court, the Federal High Court, or the National Industrial Court depending on the circumstances of an individual case.
By Resolution Law Firm