By Prof Mike Ozekhome SAN
INTRODUCTION
In our last discourse on this series, we examined the procedure for enforcement of fundamental rights, including applications for leave; as well as the substantive application itself and the reactions that follow. Today, we shall continues from where we stopped with the substantive application itself and the reactions thereto and later x-ray the applications to squash proceedings; applications for production and/or release of persons restrained; orders for bail, production and access to medication. Please read on.
SUBSTANTIVE APPLICATION: THE MOTION OR SUMMONS (Continues)
In the case of LAWRENCE OLUSEGUN ADEYEMO V. C.O.P, OYO STATE ([2021] LPELR-56272(CA)), the applicant requested the court for a writ of habeas corpus under order 2 of the fundamental Rights (Enforcement Procedure) rules 1979 which provision enjoined the applicant to serve all parties who are or might be interested in the proceedings. Although the affected party had put up appearance, but raised a preliminary objection to the application for non-compliance with the statutory conditions. Babalakin. J. (as he then was) struck out the application on the ground that order 2(1)(4) is mandatory whether the application is for mandamus, certiorari, or habeas corpus.
However the Supreme Court in recent times in respect of the fundamental rights enforcements has favourably leaned towards the equitable principle of “Ubi Jus Ubi remedium”, therefore looking more at the substance rather than the form. Hence the liberalization of the procedure for the enforcement of fundamental rights as exposed in the case of ABACHA V. FAWEHINMI ((2000) 6 NWLR (Pt. 660) 228) and UBI UJONG INAH & ORS V. MARCUS UKOI ((2001) (CA) 41981.
APPLICATION TO QUASH ANY PROCEEDINGS
Sometimes it may be necessary for an applicant by way of certiorari to apply to the court for an order that such proceedings be removed from a particular court or tribunal to another court for the purpose of being quashed for lack of power and/or jurisdiction to entertain such proceedings or make such order.
However, an applicant shall not be able to question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of his application (Motion or summons), he has served a certified copy (CTC) thereof together with a Copy of the application on the Attorney-General of the Federation or of the State in which the applicant is being heard (as the case may be).
The court in granting an application seeking to quash proceedings, shall direct that the order, proceedings, conviction or the records of an inquisition be quashed forthwith upon being removed into the court hearing the application.
APPLICATION FOR PRODUCTION AND/OR RELEASE OF PERSON RESTRAINED
By virtue of Order 4 of the Fundamental Rights (Enforcement Procedure) Rules, where an applicant complains of wrongful or unlawful detention, the court or judge to whom the application is made ex-parte may make an order forthwith for his release from such detention.
The court may also direct that an originating summons (as in form 2) be issued or that an application therefore be made by notice of motion (as in form 3). The court may also as it deem fit adjourn the ex-parte application so that notice thereof may be given to the person against whom the order for the release of the applicant is sought.
ORDER FOR BAIL, PRODUCTION, AND ACCESS TO MEDICATION
Pursuant to order 4 of the bail application, the court upon application may grant to the detainee reliefs including bail, production of the detainee, access to mediation etc.
The court may grant bail at ex-parte stage, pending the substantive application. Where an applicant complains of wrongful or unlawful detention, the court may subject to its discretion order that the person restrained be produced in court. And where such order is so made, it shall constitute a sufficient warrant to any superintendent of a prison, police officer in charge of a police station, police officer in charge of the complainant or any other person responsible for his detention, to produce or ensure the production of the person so restrained or detained in court.
For the purpose of enforcing a person’s fundamental rights, no matter where a detainee is kept he can be allowed access to his personal physician or medically prescribed drugs.
It suffices to note here, that once an order has been made by the court pursuant to the Enforcement Rules, and for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the constitution, such order must be complied with. Failure to obey or comply with any order so made by the court under these rules will incur proceedings for the committal of the party disobeying such an order.
CONCLUSION
Without any controversy, the idea of human rights and personal liberties has become firm and secured. The universality and immutability of human rights are now globally accepted. Consequently, any nation that slacks or shyies away from the diligent protection and enforcement of human rights stand the precarious risk of being shunned by decent and civilised nations. The United Nations seems to have captured the importance and primacy of the issue of human rights and its protection when it poignantly stated as follows:
“Human Rights and fundamental freedoms are the birth right of all human beings, their protection and promotion is the first responsibility of Government” (Universal Declaration of Human Rights (UDHR).
It is the duty of every Government everywhere and every courts of law in every jurisdiction to promote, protect, uphold, and ensure enforcement of fundamental Human rights at all times, because these rights encapsulate the very essence of man.
The end.
THOUGHTS 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.
“Because no matter who we are or where we come from, we’re all entitled to the basic human rights of clean air to breathe, clean water to drink, and healthy land to call home”. – Martin Luther King III
“Human rights are not only violated by terrorism, repression or assassination, but also by unfair economic structures that creates huge inequalities”. – Pope Francis.
