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INTRODUCTION
The last installment of this treatise was foundational: it defined ‘right’; distinguished between fundamental rights and fundamental human rights; human rights; in Nigeria and international charters and conventions; limitation of fundamental rights and enforcement of rights. In this week’s feature, we shall discuss what constitutes violation of fundamental rights and ask whether their enforcement is restricted to the Fundamental Rights Enforcement Procedure Rules. Enjoy.
What constitutes a violation of fundamental rights?
By virtue of section 46(1) of the 1999 Constitution of the Federal Republic of Nigeria:
“Any person who alleges that any of the provisions of this chapter has been in being or likely to be contravened in any state in relation to him may apply to a high court in that state for redress.”
The Applicant under this provision must be a person whose right has been, is being, or is likely to be contravened, and the right must be within the fundamental rights provisions of the Constitution.
A person’s right is said to be violated when any right guaranteed him/her under the Constitution is infringed upon. Thus, mere speculative conduct will be an insufficient basis for a cause of action. Furthermore, the burden of proof is on an applicant to show that a cause of action exists. It should be noted that a claim of violation that does not fall within the bound of sections 33 – 46 of the Constitution will be dismissed.
Whether the enforcement of the right is restricted to the fundamental rights enforcement procedures rules only?
The 1999 Constitution makes it clear that anyone whose right has been, is being or likely to be contravened may approach the High court for redress. However, the germane question is whether securing the enforcement of these fundamental human rights is strictly restricted to the enforcement procedure rules, 1979, now made pursuant to section 46(3) of the 1999 Constitution, and whether it excludes other means of enforcement either under common law, statue or rules of court, e.g. writs of habeas corpus, prohibitio, certiorari, mandamus, Quo Warranto, Declaratory reliefs, damages, injunction, etc.
Prior to the enforcement procedure Rules 1979, the agenda with regard to the procedure to be followed by courts in the enforcement of rights seem to have been articulated by the court in the case of Taiwo aoko vs. Fagbemi & DPP (1961)1 all NLR 410, where Fatai-Williams J, (as he then was) said
”With regard to the procedure, it would appear that the procedure adopted in bringing the matter before this court for adjudication is not strictly an application for an order of certiorari to issue. This application was made in pursuance of the provision of section 31 of the second schedule to the Nigerian Constitution Order- in-Council…
Since no law with respect to practice and procedure has yet been passed by parliament, I am of the opinion that the procedure adopted in the present application is in order. To my mind, the whole purpose of a special procedure for the enforcement of fundamental human rights, the essence of which is to provide for easy and speedy access to the courts, will be defeated if the slow and sometimes cumbersome procedure which an application for an order of certiorari will involve, is adopted.”
In spite of the existence of the Enforcement Procedure Rules, it has been said that applications for the enforcement of fundamental rights can be made in a manner which depicts the violation of such rights. In alhaji dahiru saude Vs. Alhaji Haliru Abdulahi (1989)4 NWLR (Pt. 116) 387 418 Eso JSC (as he then was) stated, inter alia:
“It seems to me that the whole complaint of the appellant in this respect is an attempt to draw a red herring. Let us ask the question: has the court, that is the High Court Jurisdiction to take an originating summons on the issue affecting Fundamental Human Rights? Of course the answer is in the affirmative. The Constitution itself (that is the 1979 Constitution) spells out in its chapter IV the Fundamental Rights of the citizen. So be it, but it did not stop there. Section 42 of the 1979 Constitution gives the High Court a special jurisdiction in respect thereof. It provides:
42 – 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 High Court in that State for redress’
To stop here for a moment. It is my view that application has been made, once it is clear that it seeks redress for infringement of the Rights so guaranteed under the Constitution. Assuming the statutory instrument – S, 1.1. of 1979 had not been made, the person seeking redress could bring the action to court in any manner that clearly depicts compliant of the infringement of the Rights. Indeed the Statutory instrument is so clearly worded that it does not lay the procedure therein down as the only procedure by which redress could be sought.”
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With respect, the liberal approach advocated by Eso JSC in the Saude case cannot now appear to be justified as it has become axiomatic that were a special procedure for enforcing a particular cause of action has been made, the procedure ought to be applied as it is exclusive and mandatory. Accordingly, Enforcement Procedure for securing the enforcement of fundamental rights in Nigeria. This was made abundantly clear by the Supreme Court in Joseph Mangtup Din Vs. Attorney-General Of The Federation (1988) 4 NWLR (Pt. 87) 147 at 186 where Nnaemeka-Agu, JSC, said inter alia:
“Another fundamental question in the whole case is whether the whole proceedings took off the ground at all. In order words, was the Fundamental Rights (Enforcement Procedure) Rules which came into effect on the 1st of January, 1980 rightly invoked to challenge a forfeiture which took effect in 1970? This question assumes an important dimension in view of the rule that generally the form of commencement of an action may amount to irregularity and not a ground for nullity. There are, however, decided cases to the effect that where a particular procedure has been prescribed, it is to be followed. See on this: Karimu Alade Obajimi Vs. The A-G, Western Nigeria & Ors (1967) NMLR 96 also lohan Vs. A-G of Western Region F.S.C 41/1962 decided in June 19 1963.
Admittedly, there have been cases in which for the enforcement of fundamental rights, other forms of procedure have been approved by this Court or the Federal Supreme Court. In J.S. Olawoyin Vs. Northern Region (1961)1 ALL NLR 269 the Federal Supreme Court approved a procedure by way of a declaratory relief. In Taiwo Vs. Fagbemi & DPP (1961)1 ALL NLR 400 procedure by way of an application was approved by Fatayi-Williams J. (as he then was). So did the Supreme Court in Fajimi Vs. Speaker, Western House of Assembly (1962)1 All NLR (Pt. 1 205. See also AKANDE Vs. ARAOYE (1968) NMLR 283; and in RE. G.M. Boyo (1970)1 ALL NLR (Pt. 1) 111. But it must be noted that the Constitution which gave the right intended that a law would be passed to regulate the procedure. But, as no such law had been passed, it would be wrong to hold that the failure to pass the law has taken away the entrenched right. In the circumstances the court would apply reasonable procedure.
Under the 1979 Constitution, a new situation has arisen. The Chief Justice of Nigeria in exercise of the powers vested in him by Section 42(3) of that Constitution had made the Fundamental Rights (Enforcement Procedure) Rules, 1979, effective from 1st January, 1980 which have prescribed rights which arise under Chapter IV of that Constitution.”
However, this raging controversy seems to have been finally laid to rest in the case of Alhaji Mohammed Shaaba Lafiaji Vs. Military Administrator Of Kwara State (1995) FHCLR 321, Jega J. (as he was) relied on the case of Tofi Vs. UBA (1987)3 NWLR (Pt. 62) 707 to hold that:
“Matters concerning the enforcement of fundamental rights of citizens are so important that the mode of access to courts to enforce these basic rights should not be restricted to one particular means nor the procedure used in the attainment of the enforcement of these basic rights be made cumbersome and technical…
I therefore find that a citizen’s access to court to secure the enforcement of any alleged infringement of any of the Fundamental Rights provided for in the Constitution is not restricted only to the mode prescribed by the Fundamental Rights (Enforcement Procedure) Rules”
This seems to have been fully confirmed by the Supreme Court in the case of OGUGU Vs. THE STATE (1998)1 HRLRA 167 AT 187; (1996)9 NLWR 1 at 6, when the apex court (per Mohammed Bello CJN) insisted that Fundamental Rights (Enforcement Procedure) Rules could not be said to constitute the only mode of enforcement of fundamental human rights.
We respectfully agree with the position of the Supreme Court. It is our humble view that in most cases, aggrieved parties have successfully sought and obtained other forms of equitable remedies, i.e. certiorari, habeas corpus, quo warranto, prohibition, mandamus, injunction, etc. as incidental remedies, while employing substantive remedy through the Fundamental Rights (Enforcement Procedure) Rules. As such, both can be said to work in pari-pasu.
PROCEDURE FOR ENFORCEMENT
The procedure for the enforcement of fundamental rights in Nigeria as provided for under the enforcement rules has been judicially summarized by the court in case of AGBAKOBA Vs. DIRECTOR SSS, (1994) CLR 8(G) (CA), where Ayoola, JSC (as he then was) outlined the procedure thus:
(1) It is commenced first by an application ex parte made to the court for leave.
(2) Upon leave being granted, notice by motion or originating summon for redress is then filled and served on the respondent.
(3) The application on notice is then heard based on the supporting affidavit and counter-affidavit filed by the parties before the court. (To be continued).
Thought for the week
“The issue of human rights is one of the most fundamental human issues and also one of the most sensitive and controversial”. – Ali Khamenei
