Fundamental rights are rights entrenched in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution, while human rights are entrenched in other international human rights and are wider than the fundamental rights. Though, fundamental rights or human rights are both enforceable using the Fundamental Rights E(Enforcement Procedure) Rules, 2009-herein after referred to as the FREPR. By section 46(1) of the Constitution, Nigerian Courts have been empowered to hear and or determine applications and or allegations on breach of fundamental rights and or human rights. Also, fundamental rights are enforced in Nigerian courts either as a fundamental rights provided under Chapter IV of the Constitution or jointly with or solely as a human rights provided under international laws on human rights as allowed under the Preamble to the FREPR. Nevertheless the spirit and importance of promoting the enforcement of human rights or fundamental rights, some of our courts have resorted to commercialization of our court’s statutory legal services to the rich and or the richest to the rejection of the indigent and the common man! This to me is very unjust, wicked, inconsiderate, among others, that one can describe this callous and inhuman treatment. The reason for such denial of access to court and access to justice according to these courts is nothing but because ‘THE APPLICANT IN THE FUNDAMENTAL RIGHTS PROPOSED SUIT FOR FILING IN THE COURT’S REGISTRY MUST PAY THYE PRE-JUDGMENT SUM OF N50,000, REQUEIRED UNDER THE RULES OF THE COURT (BUT NOT UNDER THE FUNDAMENTAL RIGHTS ENFORCEMENT (PROCEDURE) RULES, 2009), FOR CLAIMING MONETARY COMPENSATION (WHEREAS THE COMPENSATION IS MANDATED UNDER THE SECTION 35(5) AND (6) OF THE CONSTITUTION!’ hence, this topic. This paper is also of the firm view that the protection of fundamental rights or human rights of Nigerian citizens by our Nigerian Courts is non-negotiable.
First and foremost, I wish to deal with the issue of some of these courts (the supposed protector and last hope of the common man) being misguided and relying on the provision of Order XV Rule 4 of the FREPR which provides thus ‘4. Where in the course of any Human Rights proceedings, any situation arises for which there is or appears to be no adequate provision in these Rules, the Civil Procedure Rules of the Court for the time being in force shall apply.’ (underlining is mine for emphasis). From this provision which some of our courts respectfully have always relied upon, it is clear that whatever amount as compensation an applicant under fundamental rights suits seeks as reliefs, is none of the business of the court or its registry to compel him to pay any prejudgment or post judgment sum or percentage of any sum awarded by the court since the FREPR did not envisage such a situation. Such misinterpretation is therefore nothing but a selfishly misconceived interpretation! Also, as can be clearly observed from the Order XV Rule 4 (supra), which some of these courts have been relying upon, in my humble submission, ‘it is only in the course of any human rights proceedings…’ and not ‘at the pre-trial or filing state or prior to filing state or at the assessment of filing fees stage’ that the Rules of court would apply as wrongly understood and or interpreted by some of these our courts! Therefore, where a court of law that is mandated by section 46 (1) of the Constitution to protect and give free access to court to an aggrieved applicant, and such court or its registry denies or turns back the applicant on ground of such pre-judgement fee or percentage charge under the Rules of Courts meant for the regular cases in the court, then, such court and or its registry is in violation of the extant provisions of the Constitution and such act and or request will be unconstitutional, null and void and of no effect. See: Section 1 of the Constitution. These courts (which I would not wish to mention their names should therefore be properly guided and reverse their decision in the interest of justice). More so, these courts would be encouraging self-help which the law seeks to prevent by giving free access to court and justice, else, there will be consequential ‘jungle justice’ and anarchy and chaos will pervade the entire nation! God forbid!
In the case of Uzoukwu v Ezeonu II (1991) 6, NWLR (pt. 200), p.708 at 760-761, where Nasir PCA thus ‘Due to the development of constitutional law in this field, distinct difference has emerged between ‘Fundamental Rights’ and ‘Human Rights’. It may be recalled that 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. These were termed human rights. When the United Nations made its declaration, it was in respect of ‘Human Rights’ as it was envisaged that certain rights belong to all human beings irrespective of citizenship, race, 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; that is, by the Constitution. Some of the provisions are limited to the citizens while other provisions are applicable to all persons, citizens and aliens alike. This is the position in this country, in the United States, in India, and many other countries. It is a common ground that citizens and aliens alike enjoy legal rights, popularly called civil rights, some have been chosen and elevated to the level of Fundamental Rights and are protected and enforced under the Constitution. Other legal rights are themselves protected by law and many of them are justiciable. Such rights as the right to own property, the right to form clubs, the right to build houses, and so on, are legal rights which are justiciable and enforceable in the courts. There are other rights which may pertain to a person which are neither fundamental nor justiciable in the courts. These may include rights given by the Constitution as under the Fundamental Objectives and Directive Principles under Chapter 3 of the Constitution’ (underlining is mine for emphasis). Also see: the case of Odogwu v A.G. of the Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6 and the case of A.C.N. V I.N.E.C. (2013)13 NWLR (pt. 1370) 161 SC, the Supreme Court of Nigeria held thus ‘Without law and its rules regulating the enforcement and enjoyment of rights under the law, chaos will reign supreme, with every man pursuing and enjoying his real or perceived rights without regard to the rights of others, and organised society may come to an end’. Also, to these is that there are those human rights laws contained in the Chapter II of the Constitution which have been generally made to be non-justiciable or unenforceable except under some certain exceptions. By section 46(1) of the Constitution, Nigerian Courts have been empowered to hear and or determine applications and or allegations on breach of fundamental rights and or human rights, unfettered!
Furthermore, also, the Supreme Court of Nigeria in the case of Odogwu v A.G. of the Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6, defined fundamental human rights thus ‘A fundamental human right is a right guaranteed in the Nigerian constitution and it is a right which every person is entitled to, when he is not subject to the disabilities enumerated in the constitution to be enjoyed by virtue of being a human being. They are so basic and fundamental that they are entrenched in a particular chapter of the constitution’. Also, the Supreme Court of Nigeria has held in the case of Jim-Jaja v C.O.P. Rivers State (2013)6 NWLR (Pt. 1350) 225 SC. (page 254 paragraphs E-F and F-G) on the objectives of the procedure of fundamental human right thus ‘The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the Nigerian’s fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed’. (Underlining is mine for emphasis). Furthermore, the FREPR provides for the overriding objectives of the Rules which the Court shall give effect to in its Preamble thus 1. ‘The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given to it by these Rules or any other law and whenever it applies or interprets any rule. 3. The overriding objectives of these Rules are as follows: (a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them. (b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include; (i.) The African Charter on Human and Peoples’ Rights and other Instruments (including protocols) in the African regional human rights system, (ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system, (c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient. (d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.’
Pursuant to the provisions of Section 46(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the former Honourable Chief Justice of Nigeria, Honourable Justice Idris Legbo Kutigi, (GCON; CJN), on the 1st day of December, 2009 made the “Fundamental Rights (Enforcement Procedure) Rules, 2009”. By Order 1 Rule 2 thereof “Court” has been defined to mean “Federal High Court or High Court of a State or the High Court of the Federal Capital Territory, Abuja”. The provisions of Section 46 sub-sections (1), (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or provisions ipsissima verba thereof, have been pronounced upon by the Court of Appeal of Nigeria and the Supreme Court in some cases, including but not limited to the cases of Omosowan v. Chidozie (1998) 9 NWLR (Pt. 566) 477; Zakari v. I.G.P. (2000) 6 NWLR (Pt. 607) 66; Grace Jack v. University of Agriculture, Makurdi (2004) 14 WRN 91 and Isuama v. Governor of Ebonyi State (2007) 20 WRN 170. In the case of H.R.H. Igwe Kris Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40 at 82, per Peter-Odili, J.S.C.; the Supreme Court held, inter alia, that the Fundamental Rights (Enforcement Procedure) Rules, 2009 “have same force of law as the Constitution itself”.
Therefore, having regards to the above submissions, it is my further submission that the protection of our fundamental rights (as citizens) of Nigeria by our Nigerian Courts is never negotiable and our courts must protect same with passion and compassion! It is however very shocking and surprising to observe the development that was brought to my knowledge and notice recently (precisely on the 15th December, 2021), by a lawyer whose client was rejected and refused from filing a fundamental rights suit at the Federal High Court of Nigeria, Headquarters, Abuja, wherein some of the officials in charge of the court’s central registry and the Deputy Chief Registrar of the Court refused and turned down the applicant who had approached the Court to ventilate alleged grievance over violation of the applicant’s fundamental rights by the Respondents on the ground that the Applicant must pay the pre-judgment assessment fee of fifty thousand naira (N50,000.00) only and relying on the Rules of Court! I had a similar experience some periods ago from the Registry of the Federal High Court of Nigeria, Abuja Judicial Divisions some periods ago but I was able to scale through the hurdles then but it seems there is a rise in this case of unconstitutionality at the Federal High Court currently! Respectfully, the Honourable, the Chief Judge of the Federal High Court of Nigeria has to intervene in this wrong interpretation of the fundamental rights and the Rules of Court by some officials of the Court (including the current Deputy Chief Registrar of the Court) as protection of fundamental rights is never negotiable and the Rules of court cannot override the FREPR! In the case of Abia State University, Uturu v Anyaibe (1996) 3 NWLR (pt. 439) 646 at 661, per Katsina-Alu, JCA (as he then was) held that the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the Constitution, have the force of law as the Constitution itself; and overrides the provisions of any other enactment to the contrary. In which case, such a provision has equal force of law as the Constitution itself. Furthermore, I humbly submit that fundamental rights suits are sui generis (i.e. of their own Rules and Procedures). The following cases are noteworthy too: in the case of Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A. (delivering the leading judgment), held thus ‘I must start by stating the obvious, that Fundamental Rights Enforcement Procedure is sui generis, being specially and specifically designed with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which actually came to correct some perceived wrongs and hardship which the 1979 Rules (fashioned on the 1979 Constitution) caused to applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications’. The case of Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. is also relevant and relied upon on this issue. Furthermore, under the Constitution, Chapter IV has laid down all the fundamental rights that every person as a Nigerian citizen is entitled to. Also, under the Constitution, section 46 and Order II Rule I of the FREPR provides that ‘any person who alleges that any of the provisions of the Constitution in Chapter IV has been or is likely to be contravened in any State in relation to him may apply to a High Court for redress’. (Underlining is mine for emphasis). Why then would such an aggrieved Applicant be denied access to justice by the same Court of justice for the Applicant to thereby such denial and or rejection suffer injustice in the hands of the court of justice?! This is totally regrettable!
We further humbly submit that the denial of such Applicant by some of our Nigerian courts for non-payment of pre-judgment or whatever percentage fee on his claimed monetary compensation from the Court in his proposed suit amounts to a denial of fair hearing to the Applicant. “The breach of a fundamental right of fair hearing is so fundamental to the hearing of a suit that the breach of the rule renders incompetent the whole proceedings and the trial a nullity no matter how well conducted. See Owobodo vs. Olomu (1987) 3 NWLR (Pt.59) 111; Olagunju vs. Oyeniran (1996) NWLR (Pt.453) 127 and Haastrup Lines (W.A.) Ltd. vs. Wiche (2006) All FWLR (Pt.304) 483 at page 505 paras “G”-“H”.”
Furthermore, on a final note, I humbly submit that by the Rules of interpretation of statutes or provision of law such as the Order XV Rule 4 of the FREPR, which provides thus ‘Where in the course of any Human Rights proceedings, any situation arises for which there is or appears to be no adequate provision in these Rules, the Civil Procedure Rules of the Court for the time being in force shall apply.’ (underlining is mine for emphasis), it is my humble submission that the words ‘‘Where in the course of any Human Rights proceedings…’ does not give the Rules of court any power to override the extant provisions of the Constitution or the FREPR to be misinterpreted as allowing any prejudgment sum or percentage sum to be paid by an Applicant. The Rules of interpretation are clear on this point. In the case of OKOTIE-EBOH V.MANAGER & ORS. (2004) LPELR-2502(SC), the Supreme Court of Nigeria held on this principle of interpretation which should be applied in interpreting the provisions of Order XV Rule 4 vis-à-vis the attitude of some of our High Courts in using the Rules of court as a prerequisite in granting access to court of an Applicant under the fundamental rights enforcement suits and requesting such applicant to pay any such sum or to such high sum of the sum of N50,000.00 else, he would not be allowed to file and or ventilate his alleged grievance of violation of his fundamental rights in the court. This is also a way of ‘commercialization of justice in Nigerian courts’! The Supreme Court held thus “According to the canons of interpretation of statutes, it is a cardinal principle that where the ordinary plain meaning of the words used in a statute are very clear and unambiguous, effect must be given to those words without resorting to any intrinsic or external aid: See Awolowo v. Shagari (1979) 6-9 SC 73, Adejumo v. Military Govemor, Lagos State (1972) 3 SC 45, A.-G., Bendel State v. A.-G., Federation (1982) 3 N.C.L.R. 1. It is also a recognised principle of interpretation of statutes that statutes which encroach on the rights of the subject whether as regard person or property are construed as penal laws fortissime contra proferentes, that is, strictly in favour of the subject: Bello v. Diocesan Synod of Lagos (1973) 3 SC 103, A.-G .. Bendel State v. Aideyan (1989) 4 NWLR (Pt. U8) 646; Abioye v. Yakubu (1991 5 NWLR (Pt. 190) 130; Din v. A.-G .. of the Federation (1988) 4 N.W.L.R. (Pt. 87) 147, Peenok Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122. Another recognised canon of interpretation is the ejusdem generis rule which provides that where particular words are followed by general words, the general words are limited to the same kind as the particular words, unless, of course, there be something to show that a wider sense was intended: Allen v. Emmerson (1944) 1 K.B. 362, Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 536, Shell v. F.B.I.R. (1996) 8 NWLR (Pt.466) 256; (1996) 970 SCNJ 231 at 262.” Per Edozie, JSC. (Pp. 30-31, paras. E-E).
Finally, therefore, I urge the Chief Judge of the various High Courts (especially the Federal High Court of Nigeria, Abuja Judicial Division) perpetrating this unconstitutional act to review this observation and to warn whoever that is aiding and or abetting this broad-day rape of our Constitution to the denial of access to court and justice to an aggrieved Applicant under fundamental rights enforcement suits. The Honourable, the Chief Justice of Nigeria is further urged to take up the protection of the fundamental rights of Nigeria which is not negotiable and to investigate the practice and procedures of all High Courts in relation to the enforcement of fundamental rights all across Nigeria.
Injustice to one, is an injustice to all!
Email: hameed_ajibola@yahoo.com
