CIVIL LITIGATION: CASES AND PRINCIPLES ON FUNDAMENTAL RIGHTS

We will be looking at;

1.      Differences between fundamental rights and human rights

2.      Significant provisions in the Fundamental Rights (Enforcement Procedure) Rules 2009

3.      Jurisdiction of court

4.      Commencement of Action and the modes of commencement

5.      Various order court make

6.      Reliefs to be sought by Applicant

7.      When you can bring Ex-Parte Application

8.      Fundamental Rights and Judicial Review

9.      Drafting

SO, Let start with the case of UZOUKWU V EZEONU, were the court laid down the differences between Fundamental Rights and Human Rights.

                                            

                                                  UZOUKWU V EZEONU

The court stated that due to the development of constitutional law in this field distinct difference has emerged between ‘’Fundamental Rights and Human Rights’.

HUMAN RIGHTS were derived from and out of the wider concept of natural rights. They are rights which every civilized society must accept as belonging to each person as a human being irrespective of citenzenship, race, and religion and so on. This has now formed part of international law.

FUNDAMENTAL RIGHTS remain in the realm of domestic law. They are fundamental because they have been guaranteed by the fundamental law of the country; hat is by the constitution.

THE END

SIGNIFICANT PROVISIONS UNDER FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 (Herein will be called FER)

Under FER the rules defines Fundamental Rights to mean;

            ‘’any of the rights stipulated in the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act’

Consequently, the Rule in its Preamble expands the scope of the rights to include rights enshrined in not just our municipal laws but also regional and International bills of rights. See PREAMBLE 3 (b&c) of the Rules.

THE SIGNIFICANT PROVISIONS

NUMBER ONE (LOCUS STANDI)

During my externship program,  I witnessed a proceeding where the counsel raised the objection  of Locus Standi in an Enforcement of Fundamental Rights Proceeding,  then Justice Tijani asked me that How Relevant is the Question of Locus Standi in Enforcement of Fundamental Rights under the Rules today?

 Under the FER Rules by virtue of its provision in the Preamble 3 (e) and Order 13 both provides for Public Interest Litigation.

In Preamble 3 (e) of the Rules provides that no human rights case may be dismissed or struck out for want of locus standi.

Order 13 Rule 1 of the Rules provides that;

            ‘’Any person or body  who desires to be heard in respect of any human rights Application and who appears to the court to be a proper party to be heard, may be heard whether or not the party has been served with any of the relevant processes, and whether or not the party has any interest in the matter’’

Rule 2, further provides that an Amici Curiae may be encouraged in human rights application and may be heard at any time if the court business allows it.

So in conclusion the Objection of the counsel is misconceived under the Law, the FER RULES now gives legal capacity to applicants who have no interest in the matter to be a party or even institute human rights application on behalf of any potential applicant.

TAKE NOTE,  the Preamble 3 further provides that applicant may include the following;

a)      Anyone acting in his own interest

b)      Anyone acting on behalf of another person

c)      Anyone acting as a member of or in the interest of a group or class of persons

d)      Anyone acting in the public interest

e)      Association acting in the interest of its members or other individuals or groups

NUMBER TWO (LIMITATION OF ACTION)

While sitting inside the Temple of Justice, I saw a counsel raising an objection that the matter was statue barred having exceed the period of 1 year before it was instituted.

Under the new FER RULES, in ORDER III it provides;

            ‘’An application for the enforcement of Fundamental Right shall not be affected by any limitation statute whatsoever’

TAKE NOTE: This section also applies to Pre-Action Notice, it is not applicable to application for enforcement of fundamental Rights

CASE: BABRINDE V OGUN STATE UNIVERSITY

‘’…..the issue of pre-action notice would appear to be a clog in the wheel of the exercise of the fundamental rights……I do not agree that before a person can enforce his fundamental rights he would be bound to give 3 months’ notice during which his right could have been so trampled upon that it is possible for his life to have expired before the indulged government could make up its mind’’

NUMBER 3 (ORAL ARGUMENTS) ORDER 12 RULE 2

Generally the mode of arguing your application is by WRITTEN ADDRESS.

However, oral arguments can be allowed by the court on matters not contained in the written address provided such matters came to the knowledge of the party after he had filed his written address

NUMBER 4 (ADOPTION OF ADDRESS) ORDER 12 RULE 3

In a situation where parties written address have being filled and come up for adoption and either of the parties is absent. What will the court do?

The court shall either on its own motion or upon application by the counsel to the party present, order that the address be deemed adopted.  If the court is satisfied that all the parties had notice of the date of adoption

NUMBER 5 (TIME- LINE)

1.      Where a respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application. ORDER 2 RULE 6

2.      Upon being serve the Respondent written address, the applicant file and serve an address on point of law within 5 days of being served. ORDER 2 RULE 7

NUMBER 6 (CHALLENGING THE COURT JURISDICTION)

THE PROCEDURE

The Respondent will file a Respondent’s Notice of preliminary objection which must be filled along with counter-affidavit.

HOWEVER, Where he fails to file a counter-affidavit, the court will presume that the respondent has accepted the facts as presented by the applicant. ORDER 7 RULE 2& 3

THE HEARING (ORDER 7 RULE 4)

POSER: How will the application be heard?

The Respondent cannot pray that his application for Notice of Preliminary objection be heard alone. The Rule provides that the application would be heard along with the substantive application.

NUMBER 7 (LEAVE OF COURT)

Let assume that the Respondent raised an objection that the applicant cannot invoke the jurisdiction of the court without the leave of the court being a condition precedent.

POSER: What will be your reply to the objection?

By virtue of Order 2 Rule 2 of FER RULES an application for the enforcement of fundamental rights shall lie without the leave of the court.

Therefore, the objection of the counsel is misconceived in law and should be discountenanced

                        COMMENCEMENT OF ACTION

THE COURT

The courts that have jurisdiction are;

1.      Federal High Court

2.      State High Court

3.      National Industrial Court

THE REASONS

GENERALLY by virtue of Section 46(1) CFRN 1999 as amended provides thus;

             “Any person who alleges that any of the provisions of this Chapter [Chapter IV of the 1999 Constitution] 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.”

ORDER 1 RULE 2 provides thus;

      ‘’Court means the Federal High Court or the High Court or the High Court of the Federal Capital Territory, Abuja.

Therefore we can conclude the two courts are vested with jurisdiction under the constitution in respect of enforcing fundamental rights.

SPECIFICALLY, What will determine the jurisdiction will be the subject matter

When Federal High Court will Have Jurisdiction

Federal High Court, for instance, can only exercise jurisdiction over fundamental rights enforcement in respect of matters in which it is vested with jurisdiction under section 251 of the 1999 Constitution.

CASE: NATIONAL DRUG LAW ENFORCEMENT AGENCY V BABATUNDE OMIDINA

I presume that we all know about the case which involved the popular ‘’baba suwe’’ ….

HELD: …..IT is the Federal High Court which should have entertained the application for breach of fundamental rights and not the high court, as in this instant circumstances, particularly as it relates to the ‘’subject matter’’ of drug trafficking. The Subject matter is what has to be put into consideration in determining whether the court has jurisdiction or not…..’’

When the State High Court will have Jurisdiction

This will also be determined by the subject matter, the State High Court shall also be mindful of the provisions of section 251 to which its jurisdiction is made subject to the Constitution.

So, if the infringement does not fall under the exclusive jurisdiction of the federal high court then it can be instituted in the State High Court

When The National Industrial Court will have Jurisdiction

By virtue of SECTION 254C (1)(d) Provides that; the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

‘’relating to or connected with any dispute over the interpretation and application of the Provisions of Chapter IV of this constitution as it relates to any

a)      employment,

b)      labour,

c)       industrial relations

d)      Trade unionism

e)      Employer’s association or

f)       Any matter which the court has jurisdiction to hear and determine.

MODE OF COMMENCING ACTION

You commence by ORIGINATING MOTION

REMEMBER, that you do not need the leave of the court.

The Drafting should comply with FORM 1

ACCOMPANYING DOCUMENTS

1.      Statement of facts setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought - Order 2 r 3

2.      Affidavit setting out the facts upon which the application is made – Order 2 r 3

3.      Written address, a succinct argument in support of the grounds of the application - Order 2 r 5

TAKE NOTE ON AFFIDAVIT, Order 2 r 4

a)      The affidavit can be deposed to by the applicant himself

b)      By a person who has personal knowledge of the facts

c)      By a person who was informed of the facts by the applicants

THE DRAFTING (N.B: This is the most important aspect of the Note)

IN THE FEDERAL HIGH COURT OF NIGERIA

                                           IN THE LAGOS JUDICIAL DIVISION                

HOLDEN AT LAGOS

SUIT NO: ................

IN THE MATTER OF APPLICATION FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS

AND

IN THE MATTER OF AN APPLICATION BY MR  PETER SINGER FOR AN ORDER OF ENFORCEMENT OF HIS FUNDAMENTAL RIGHTS TO PERSONAL LIBERTY, DIGNITY OF HUMAN PERSONS AND MOVEMENT  UNDER SECTIONS 34 , 35 AND 41 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).

BETWEEN

MR. PETER SINGER.......................................................................APPLICANT

AND

1. NATIONAL DRUG LAW ENFORCEMENT AGENCY……. 1 ST RESPONDENT

2. INSPECTOR GENERAL OF POLICE.........................2nd RESPONDENT

3. CONTROLLER GENERAL OF PRISONS.................3rd RESPONDENT

 ORIGINATING MOTION

BROUGHT PURSUANT TO SECTIONS 35(1),34(1) (a) AND 41 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) AND ORDER II RULE 1 OF THE FUNDAMENTAL RIGHTS(ENFORCEMENT PROCEDURE) RULES 2009 AND UNDER THE INHERENT JURISDICTION OFTHIS COURT

TAKE NOTICE that this Honourable court shall be moved on the ----- day of-------, 2016 in the hour of 9 o’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Applicant praying the Court for the following orders:

1. A DECLARATION that the detention of the Applicant is unlawful and contrary to s.35 of the 1999 Constitution of the Federal Republic of Nigeria.

 

2. AN ORDER enforcing the fundamental human rights of the applicant by ordering his unconditional release from unlawful detention imposed on him by the Respondent.
3. AN ORDER compelling the Respondents to render unreserved apology to the applicant for the infringement on his fundamental human rights.
4. AN ORDER awarding general damages of the sum of one million naira (10,000,000) only jointly and severally to the Respondents in favour of the Applicant.
5. AN ORDER restraining further infringement on the fundamental human rights of the Applicant by the Respondents.

AND FOR SUCH FURTHER OR OTHER ORDERS which the court will deem fit to make in the circumstance

AND TAKE FURTHER NOTICE that on hearing of this application, the Applicant will rely on Statements in support of the application and the affidavit of MRS. Peter Singer.

DATED THIS 3RD DAY OF APRIL, 2017

                                   

                                    _________                

S.O DERIN ESQ

Counsel to the Applicant,

                                                                                                             Mamah & Associates,

                                                                                                          No 2 Ozumba  MbadiweStreet,

                                                                                               Victoria Island Lagos

          mamahandassocia@gmail.com

07050387584

For Service on:                                                                                                     

1^ST Respondent

Director General,

National Drug Law Enforcement Agency,

Lagos Command,

NHQ, 4 Shaw Road Ikoyi,

Lagos.

2^ND  Respondent

Inspector General of Police,

Police Command Headquarters,

Ikoyi, Lagos.

3^rd  Respondent

Comptroller General of Prisons,

Nigerian Prisons Service Headquarters,

Ikoyi, Lagos.

IN THE FEDERAL HIGH COURT OF NIGERIA

                                           IN THE LAGOS JUDICIAL DIVISION                

HOLDEN AT LAGOS

SUIT NO: ................

IN THE MATTER OF APPLICATION FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS

AND

IN THE MATTER OF AN APPLICATION BY MR  PETER SINGER FOR AN ORDER OF ENFORCEMENT OF HIS FUNDAMENTAL RIGHTS TO PERSONAL LIBERTY, DIGNITY OF HUMAN PERSONS AND MOVEMENT  UNDER SECTIONS 34 , 35 AND 41 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).

BETWEEN

MR. PETER SINGER.......................................................................APPLICANT

AND

1. NATIONAL DRUG LAW ENFORCEMENT AGENCY……. 1 ST RESPONDENT

2. INSPECTOR GENERAL OF POLICE.........................2nd RESPONDENT

3. CONTROLLER GENERAL OF PRISONS.................3rd RESPONDENT

STATEMENT IN SUPPORT OF THE APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS

1. NAME AND DESCRIPTION OF THE APPLICANT                  

The name of the Applicant is MR. PETER SINGER, male, adult, Christian, an artist and Nigerian citizen of  Lagos State.

2. RELIEF SOUGHT

a.       A DECLARATION that the detention of the Applicant is unlawful and contrary to s.35 of the 1999 Constitution of the Federal Republic of Nigeria.

b.      AN ORDER enforcing the fundamental human rights of the applicant by ordering his unconditional release from unlawful detention imposed on him by the Respondent.

c.       AN ORDER compelling the Respondents to render unreserved apology to the applicant for the infringement on his fundamental human rights.

d.      AN ORDER awarding general damages of the sum of one million naira (10,000,000) only jointly and severally against the Respondents in favour of the Applicant.

e.       AN ORDER restraining further infringement on the fundamental human rights of the Applicant by the Respondents.

AND FOR SUCH FURTHER OR OTHER ORDERS which the court will deem fit to make in the circumstance

3. GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT

a. The Applicant has fundamental rights to dignity, personal liberty, fair hearing and freedom of movement under sections 34, 35, and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (As amended).

b. The Applicant was arrested on the 12th of March 2016, detained and tortured without any justification by the 1st Respondent.

c. The Applicant was not informed formally of the reason for his arrest nor was he charged to court within a reasonable period of time required by the Constitution of the Federal Republic of Nigeria.

f. The Applicant was imprisoned in an overcrowded prison and subjected to inhuman condition by being detained in a cell with a 250 – watt electric bulb left on day and night by the 2nd Respondent

g. The arrest, detention, torture, trial and imprisonment of the Applicant constitutes a breach of his fundamental human rights to dignity, personal liberty, fair hearing and freedom of movement under sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (As amended)

DATED THIS 5TH DAY OF MARCH, 2017

                                    _________                

S.O DERIN ESQ

Counsel to the Applicant,

                                                                                                             Mamah & Associates,

                                                                                                          No 2 Ozumba  MbadiweStreet,

                                                                                               Victoria Island Lagos

          mamahandassocia@gmail.com

07050387584

For Service on:                                                                                                     

1^ST Respondent

Director General,

National Drug Law Enforcement Agency,

Lagos Command,

NHQ, 4 Shaw Road Ikoyi,

Lagos.

2^ND  Respondent

Inspector General of Police,

Police Command Headquarters,

Ikoyi, Lagos.

3^rd  Respondent

Comptroller General of Prisons,

Nigerian Prisons Service Headquarters,

Ikoyi, Lagos.

IN THE FEDERAL HIGH COURT OF NIGERIA

                                           IN THE LAGOS JUDICIAL DIVISION                

HOLDEN AT LAGOS

SUIT NO: ................

IN THE MATTER OF APPLICATION FOR THE ENFORCEMNT OF FUNDAMENTAL RIGHTS

AND

IN THE MATTER OF AN APPLICATION BY MR  PETER SINGER FOR AN ORDER OF ENFORCEMENT OF HIS FUNDAMENTAL RIGHTS TO PERSONAL LIBERTY, DIGNITY OF HUMAN PERSONS AND MOVEMENT  UNDER SECTIONS 34 , 35 AND 41 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).

BETWEEN

MR. PETER SINGER.......................................................................APPLICANT

AND

1. NATIONAL DRUG LAW ENFORCEMENT AGENCY……. 1 ST RESPONDENT

2. INSPECTOR GENERAL OF POLICE.........................2nd RESPONDENT

3. CONTROLLER GENERAL OF PRISONS.................3rd RESPONDENT

AFFIDAVIT IN SUPPORT OF APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS

I, Mrs. PETER  SINGER, female, adult, Christian, Medical practitioner, and Nigerian citizen of No. 2 Startimes Estate Festac, Lagos do make an oath and state as follows:

1. That I am the wife of the Applicant and by virtue of which I am conversant with the facts of this case.

2. That I have the consent and authority of the Applicant to depose to this affidavit.

3. That the Applicant is in the Federal prisons, Ikoyi Lagos by virtue of which he is unable to depose to this Affidavit himself.

4. That on the 17^th June 2016, I visited the Applicant in Ikoyi Prison, Lagos and found him in a terrible condition and he reported the following facts to me, which I verily believe to be true

 that:   

a.       On the 12th of March, 2016, the Applicant was arrested by men of the Nigerian Drug Law and Enforcement Agency at the Muritala Muhammed International Airport and handed over to the police on allegation of drug related offence.

c. He was never charged before any court of law till date since his arrest and detention.

d. Various tests were carried out on him while in custody including body scan, CT Scan, and colonoscopy.

e. That his guilt has not been determined by a court.

f. That his life is in endangered by the prison authority since he has not been taken to court.        

6. That by the time he was arrested, the Applicant was not informed of the reason for his arrest.

7. That the last time I visited the Applicant in the prison, the Applicant was in an over-crowded prison and confined to a cell with a 250 watt electric bulb left on day and night under the authority of the 2nd Respondent.

 8. That the last time I visited the Applicant the prison was full of dead and decayed animals, human excreta and very unhygienic.  

9. That I depose to this affidavit in good faith believing its content to be true and in accordance with the Oaths Act.

Dated this 3^rd Day of March, 2017.

_____________

DEPONENT

SWORN TO AT THE FEDERAL HIGH COURT REGISTRY

THIS 3RD DAY OF APRIL, 2017

BEFORE ME

COMMISSIONER FOR OATHS

THE ORDERS THAT THE COURT CAN MAKE IN AN ENFORCEMENT OF FUNDAMENTAL RIGHT PROCEEDING

1.      When the court rules that it does not have jurisdiction, the order will be;

Striking out the Application for want of jurisdiction See ORDER 8 RULE 5

2.      When the court rules on Procedural Jurisdiction, the order will be;

Setting aside the service of the Originating Application

3.      At the hearing of the application, the court may make the following order; (ORDER 11)

a)      The Prerogative writs and Order of Habeas Corpus, Mandamus, prohibition and certiorari

b)      Declaration

c)      Damages and compensation

d)      Order for release

e)      Public Apology. SECTION 35 (6) CFRN

EX PARTE APPLICATION (ORDER 4)

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 3a)

THE PROCEDURE

1.      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)

2. May be supported by an address

THE ORDERS THE COURT MAY MAKE

1.      Grant bail or Order release of the Applicant from detention pending the determination of the application

2.      Order that the Respondent against whom the order for the release of the applicant is sought be put on notice and abridge the time for hearing the application

3.      Order the production of the Applicant on the date the matter is fixed for hearing if the Applicant alleges wrongful or unlawful detention

4.      Grant injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all actions pending the determination of the application

5.      Any other order as the court may deem fit to make as the justice of the case may demand.

SERVICE OF COURT PROCESS (ORDER 5)

RULES ON SERVICE

Service of the Originating Application or Order of court shall be done by;

a)      Sherriff

b)      Deputy Sheriff

c)      Ballif or

d)      Other officer of the court.

How the Service is effected;

      a)            Service may be effected between 6 a.m and 6 p.m – Order 5 r 10

      b)            Service is not to be effected on Sunday or public holidays unless authorized by court in exceptional circumstances – Order 5 r 11

      c)            Personal service on persons to be served where it is an order for production of applicant, personal service would include, if the person directed to as police officer, a prison superintendent or other public officer, leaving it with;

1. Any other officer working in the office of the police officer, office of superintendent, or
2. Office of public officer

Substituted service is effected;

Order 5 r 3 – 6. Where personal service with or without attempt at it, appear to the court that it cannot be conveniently effected, substitutional service upon application may be ordered. This includes:

a)      Delivery to adult members of abode or business place last known.

b)      Delivery to agent on prove that such in ordinary course will come to knowledge of the party

c)      Delivery to any senior officer of any government agency that has office in where breach occurs or FCT.

d)      By advertisement in official gazette, federal government official gazette or some newspapers circulating within the jurisdiction; or

e)      Notice put up in court, public place within judicial division, last known place of abode or business – Order 5 r 7(a)-(e)

POSER: WHAT IS THE EFFECT OF NOT SERVING PROCESS?

Where a person who ought to be served is not served; the court may adjourn the hearing of the application. See Order 7 r 9

PERSONS AGAINST WHOM RIGHT CAN BE ENFORCED & WHO CAN COMMENCE

GENERALLY by virtue of Section 46(1) CFRN 1999 as amended provides thus;

             “Any person who alleges that any of the provisions of this Chapter [Chapter IV of the 1999 Constitution] 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.”

The Persons referred to in this section includes;

1.     

 Natural Persons (Private Individuals)  .Uzoukwu v Ezeonu

2.      Corporate Bodies: It is a settled law that fundamental rights are applicable to corporate bodies and enforceable by corporate bodies.

CASE: TELL COMMUNICATION LTD & ORS V SSS: The court overruled a preliminary objection to the competence of the 1^st applicant to sue for the enforcement of its fundamental rights under the FREP RULES and enforced the 1^st Applicant rights to freedom from compulsory acquisition of property.

3.     

 Infants:  An infant can enforce his fundamental rights, however this is subject to the rule that they can only sue by their next friend or Guardian (depending on jurisdiction )

CASE: BADEJO V MINISTER OF EDUCATION & ORS

4.     

        Deceased Person: Under the 2009 FREP RULES provides that an applicant includes person who file an action on behalf of another. The Fundamental rights of a deceased person can be enforced by any concerned persons or organization.

CASE: BELLO V A.G OYO: Where the deceased person was executed while the appeal was pending. His dependents filled an action, claiming damages for unlawful and unconstitutional killing of their breadwinner.

HELD: The Supreme Court upheld the claim because the plaintiff’s had an interest in the continuance of the deceased life and suffered damages upon the unlawful termination of same and were claiming for injury done to them