By Prof Mike Ozekhome SAN
INTRODUCTION
Last week’s installment examined amongst others, the features of what constitutes violation of fundamental rights and posed the question- whether enforcement of such rights is restricted to the mechanism of the FREP Rules? This week contuse the same theme by discussing the procedure for enforcing fundamental rights, including applications for leave; the substantive application itself and the reactions thereto. Please read on.
PROCEDURE FOR ENFORCEMENT (Continues)
Furthermore, the Court of Appeal (Benin Division) dilated on the procedure in the case of N.U.T Vs. COSST ((2007) 23 E-WRN / 03 (CA).), thus:
“By virtue of Order 1 rule 2(2) of the Fundamental Rights (Enforcement Procedure) Rules, no application for an order enforcing or securing the enforcement within that state of any such rights shall be made unless leave therefore has been granted in accordance with the rules. Thus, while an applicant can approach the High Court in a state where the infringement of his rights occurs or is likely to occur for redress he has to obtain leave of the appropriate High Court before he can apply to enforce his rights. In the instant case, even if the case was a fundamental right case the suit was not commended by due process, as the respondents approached the court by way of originating summons contrary to the provision of Order 1 rule 2(2) of the Fundamental Right (Enforcement) Rules.
An application for the enforcement of fundamental right becomes incompetent if the main claim does not fall within the ambit or precinct of chapter IV of the Constitution. Any claim that falls outside chapter IV of the Constitution becomes ancillary claim. Therefore, for an applicant for enforcement of fundamental rights to be competent, it must be within the provisions of chapter IV of the Constitution.
This point reverberated in W.A.E.C Vs. Akinwumi, (2008) JELR 49485 (SC), where the Supreme Court succinctly held that:
“In ascertaining the justicieability or competence of a suit commenced by way of application under the Fundamental Rights (Enforcement Procedure) Rules, 1979, the court must ensure that the enforcement of the fundamental rights under chapter IV of the Constitution is the claim and not ancillary claim. Where the claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be said to be properly invoked, and the action is liable to be struck out on ground of incompetence.”
Also, in Unilorin Vs. Oluwadare (2008) JELR 55842 (CA), the court adumbrated the point as follows, when it held that:
“When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights or the securing of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental right or securing the enforcement thereof should, from the appellant’s claim as presented, be the principal or fundamental claim as presented, and not accessory claim. However, where the main claim or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised as it will be incompetent. In the instant case, the respondent’s claim, being a challenge to his expulsion as a student from the 1st Appellant institution, is not one of those claims/reliefs envisaged by the Fundamental Rights (Enforcement Procedure) Rules.
See also Gafar Vs. Govt., Kwara State, (2007) JELR 53915 (SC); Unical Vs. Ugochukwu 2007-LD-CA-232.
It is important to note that an applicant seeking redress for the infringement of his Fundamental Rights shall in addition to declaratory and injunctive orders also be entitled to an award of damages. This is because in fundamental right cases, the law presumes that damages flow naturally from the injury suffered by the victim as a result of the violation of the rights.
APPLICATION FOR LEAVE
By virtue of Judgment (Enforcement) Rules in Nigeria, no application for an order enforcing or securing the enforcement within a state, of any such rights shall be made unless leave therefore has been granted in accordance with these rules. Also, any application for such leave must be made ex-parte to the appropriate court and must be supported by a statement setting out the name and description of the applicant, the relief sought, and grounds on which it is sought and by an affidavit verifying the facts relied on.
The deadline for filling an application for leave is not later than 12 (twelve) Months after the date of the happening of the event complained of, unless the judge is satisfied that extenuating circumstances exist. In case of ongoing act, an action can be brought after 12 Months deadline, at any point during the continuation of the wrong. An applicant must however file the application for leave not later than the day preceding the date of hearing. The court may in granting leave to the applicant impose such terms and condition as it may deem fit, as security for cost.
It is to be noted that leave once granted, shall operate as a stay of all actions relating to or connected with a complaint which forms the subject matter of the application until the determination of the substantive suit.
The ex-parte application for leave must specify the provisions of the enforcement procedure Rules under which it is brought, the precise content of the relief to be requested once the application for leave has been granted and cursory reference to relevant laws. This must be accompanied by an affidavit verifying relevant facts to be relied on.
The deadline for filing an application for leave is not later than 12(twelve) months after the date of the happening of the event complained of, unless the judge is satisfied that extenuating circumstances exist. In cases of ongoing act, an action can be brought after 12month deadline, at any point during the continuation of the wrong. An applicant must however file the application for leave not later than the day preceding the date of hearing. The court may in granting leave to the applicant impose such terms and conditions as it may deem fit, as security for cost.
It is to be noted that leave once granted, shall operate as a stay of all actions relating to or connected with a complaint which forms the subject matter of the application until the determination of the substantive suit.
The ex-parte application for leave must specify the provisions of the enforcement procedure Rules under which it is brought, the precise content of the relief to be requested once the application for leave has been granted and a cursory reference to relevant laws. This must be accompanied by an affidavit verifying relevant facts to be relied on.
SUBSTANTIVE APPLICATION: THE MOTION OR SUMMONS
After obtaining leave, the applicant can apply for an enforcement order by way of NOTICE OF MOTION (as in form 1) or ORIGINATING SUMMONS (as in form 2). In the celebrated case of SHUGABA, A. DARMAN V. MINISTER OF INTERNAL AFFAIRS & ORS. ((1981) 2 NCLR 459). It was held inter-alia that the proper procedure to be followed in an application for enforcement or securing the enforcement of fundamental rights and redress for violation of same is guided by the fundamental Rights (Enforcement Procedure) Rule 1979 which requires that where leave has been granted to apply for the order being asked the application for, such order must be made by notice of motion or originating summons to the appropriate court.
The motion or summons, together with a copy of the statement submitted in conjunction with the application for leave, must then be served on all persons directly affected. Unless the court directs otherwise, there must be at least 8 clear days between service of the motion or summons and the date fixed for hearing.
A substantive application either by motion or summons seeking for substantive reliefs, remedies or orders may include such prayers as:
a. Unconditional release of the detainee
b. Payment of a certain sum of money as compensation in the event of the arrest and detention being illegal, unwarranted, null and void.
The court may equally make any other ancillary order after hearing argument from counsel on all sides based on the affidavit and counter-affidavit.
It should be noted that failure to adhere to the procedure laid down by the Enforcement Rules may lead to the entire proceedings being nullified. The court shall upon objection being raised for non-compliance with the rules strike the entire proceedings out. (To be continued).
THOUGHT FOR THE WEEK
“Human rights, of course, must include the right to religious freedom, understood as the expression of a dimension that is at once individual and communitarian – a vision that brings out the unity of the person while clearly distinguishing between the dimension of the citizen and that of the believer”. – Pope Benedict XVI
Other Articles
EFCC Arraigns Blessing CEO over Alleged N36m Fraud
