In human rights litigation, there has always been the hurdle of execution and or enforcement of judgment/judgment sum by the Judgment creditor, especially in the case of judgment in favour of the Applicant which is to be enforced against government or any of its ministries, agencies or departments, as it has always been the case that the government or the Central Bank of Nigeria –herein after referred to as the CBN- against whom garnishee proceedings have been instituted to enforce the judgment sum, always engage the victim of fundamental rights violation in another battle of a second litigation by raising an objection that the Applicant has not sought the consent of the Attorney-General of the Federation-hereinafter referred to as AGF or of the State-herein after referred to as the AGS- before he could garnish the account of the government., relying on the provisions of section 84 of the Sheriffs and Civil Process Act, 2004, which is a law enacted during the military regime.

Truly, I am of the humble submission that this is a great frustration to the enforcement of fundamental rights and against the intendment of the Constitution. This paper is a research work which I have carried out on the likely constitutional powers of the Chief Justice of Nigeria-herein after referred to as the CJN- to make special Rules and Procedures on enforcement of compensatory Judgment/awards in fundamental rights cases. In my findings and submissions, I am of the humble view and submission that the Honourable, the CJN actually has the constitutional powers to depart from the provisions of the Sheriffs and Civil Process Act-herein after referred to as the SCPA-, which is an Act of the National Assembly made during the military regime, though as an existing law under section 315 of the Constitution of the Federal Republic of Nigeria-herein after referred to as the Constitution, the fundamental rights suits being sui generis and having the force of the Constitution, as the Constitution itself.

First and foremost, it is my humble submission that fundamental rights suits initiated pursuant to the Fundamental Rights Enforcement (Procedure) Rules-herein after referred to as the FREPR- derive their powers pursuant to the provision of the Constitution, since the rights contained in Chapter IV of the Constitution are constitutional provisions and override the provisions of any other enactment to the contrary, including enactment of the National Assembly or an existing law, such as the SCPA. 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: 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 humble referred to. Also, Furthermore, 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, also 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’.

Furthermore, 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). The question that I ask myself is ‘of what benefit or use or importance is a judgment that is not enforceable or that keeps hanging till eternity for an Applicant?!’.

Also, it is my understanding and submission that it is not the intendment of the Constitution that the provisions of any statute such as the SCPA would render its provisions nugatory and unrealistic. The Supreme Court of Nigeria has held in A.C.B. V Losada (Nig.) Ltd. (1995) 7 NWLR (pt.405) 26 thus: ‘It has never been the case in our laws that the provisions of any ordinary statute would render nugatory the relevant provisions of the constitution. Therefore, if any law of the State including a subsidiary legislation… is inconsistent with the provision of the constitution, the provision of the constitution prevails and that State law is to the extent of inconsistency void’. It was also held in Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt. 1129) 475, where the court held thus: ‘The provisions of an ordinary statute would not render nugatory the relevant provisions of the constitution’.

It is my considered view that a situation where an Applicant whose right or rights conferred on him under the Chapter IV of the Constitution and who has utilized the rights of seeking redress as conferred on him by the Constitution which provides thus ‘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 a High Court in that State for redress’, and complying with the FREPR, and having secured compensation in his favour but despite that, will be required and or mandated to seek consent of his opponent or the AGF or the AGS (where applicable) on the ground of the provisions of section 84 of the SCPR and other Rules subsidiary thereto, is in a way allowing the provisions of a statute to override the provisions of the Constitution and rendering the provisions of the Constitution (which confers the right of redress and compensation on the Applicant) nugatory and compromising the entitlement of the Applicant to enjoy the judgment sum. The Supreme Court of Nigeria has held on interpretation of the provisions of the Constitution, while laying down the guidelines for a court of law to follow when it held in Registered Trustees, A.O.N. V N.A.M.A. (2014) 8 NWLR (pt. 1408)1 SC. (pg. 61-62, H-B) thus ‘In the interpretation of any provisions of the Constitution, not only the letters, but also the spirit behind the provision must be taken into consideration’. Noteworthy also is the decision of the Court of Appeal of Nigeria in the case of Okungbowa v Gov. Edo State (2015)10 NWLR (pt. 1467) 257 C.A. (page 298, paragraphs B-C) which prohibits compromising the fundamental rights provisions under the Constitution thus ‘In the interpretation of any provisions of the Constitution, not only the letters but also the spirit behind the Constitution must be taken into consideration. In the determination of a person’s rights provisions and obligations, fundamental human rights provisions under the Constitution cannot be compromised’. (Underlining is mine for emphasis).

Furthermore, and having said all the above, in my course of seeking a way out of all these restrictions in enforcing the judgment sum by an Applicant, who is left with no opportunity of enjoying the fruits of his judgment by the requirement of seeking the consent of the AGF or the AGS, I considered the provisions of the Section 46(3) of the Constitution which confers powers on the CJN to make Rules and Procedures in relation to the provisions of the Chapter IV of the Constitution, which provides thus ‘(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.’. In my humble submission, the CJN having by this section of the Constitution, made the FREPR, the CJN also has the incidental powers to make Rules and Procedures for the enforcement of the judgment of the High Court which have been decided pursuant to the Chapter IV of the Constitution, other international statutes on human rights  and the FREPR. I further humbly submit that in considering whether the CJN has the incidental powers to make the Judgment Enforcement Rules and departing from the provisions of the SCPA and its subsidiary(ies) for the enforcement of judgment in fundamental rights litigation, I place reliance on the provisions of section 318(4) of the Constitution which adopts the provisions of the Interpretation Act. The said section 318(4) of the Constitution provides thus (4) The Interpretation Act shall apply for the purposes of interpreting the provisions of this Constitution.’ Also, the Interpretation             Act provides in section 10 for statutory powers and duties while section 12 provides on Construction of statutory powers and duties thus ‘10.  (1)   Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires. (2)     An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.’ And by Section 12 of the Interpretation Act, ‘12. (1) Where an Act confers a power to make a subsidiary instrument, proclamation or notification, the power shall include- (a) power to make different provision for different circumstances; (b)     power, exercisable in the like manner and subject to the like consent and conditions (if any), to vary and revoke the instrument, proclamation or notification; (c) in the case of a subsidiary instrument, power to prescribe punishments for contravention of provisions of the instrument, not exceeding as respects a particular contravention- (i) in the case of rules of court imprisonment for a term of three months or a fine of fifty naira or both, (ii) in any other case, imprisonment for a term of six months or a fine of one hundred naira or both. (2) A contravention of a provision of a subsidiary instrument may be prosecuted in a summary manner.’. Also, by section 19 of the Interpretation Act, additional provision on interpretation of a subsidiary instrument is provided for thus ‘19. (1) An expression used in a subsidiary instrument has the same meaning as in the Act conferring power to make the instrument. (2) In a subsidiary instrument, the expression ‘the Act’ instruments means the Act conferring power to make the instrument.’

Furthermore, it is my humble submission that the Constitution is the enabling law pursuant to which the FREPR was made by the Honourable, the then CJN, as a subsidiary law. Therefore, I humbly submit that the FREPR only derives its source of powers from the Constitution. And the CJN too only derives his powers to make the FREPR from the Constitution just as the National Assembly derives its powers to make the SCPA. I rely on the case of:  Abia State University, Uturu v Anyaibe (supra).

Also noteworthy is the law that the SCPA is within the legislative competence of the National Assembly as an Act, pursuant to Section 4 of the Constitution and item 57 of the Part I of the 2nd Schedule to the Constitution, which provides thus 4.—(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.’. and by Part I of the Second Schedule to the Constitution, item 57 provides thus ‘Service and execution in a State of the civil and criminal processes, judgments, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria other than a court of law established by the House of Assembly of that State.’.

From the above arguments and submissions, what I am submitting is that the CJN has the Constitutional powers to make Rules and Procedures on the Service and execution in a State or High Court of the fundamental rights processes, judgments, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria so far it pertains to the fundamental rights enforcement suits. Section 46(2) of the Constitution has also conferred on the High Courts, such powers of making orders, judgment, etc., as follows: (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.’

Furthermore, it is very surprising that despite the decision of the Supreme Court of Nigeria in the case of C.B.N. V Interstella Comm. Ltd. (2018)7 NWLR (pt. 1618)294 SC (which is a 2018 decision) specifically at page 346, paragraphs: D-H, where Ogunbiyi J.S.C. held thus ‘…. In other words and as rightly argued by 1st and 2nd respondents’ counsel, the appellant is not a public officer in the context of section 84 SCPA where regard is had to the history of this appeal. Section 84 has been reproduced earlier in the course of this judgment. It is apparent herein, on the facts of this case that the CBN acts as a banker to the Federal Government Funds with respect to government funds in its custody. Section 2(e) of the CBN Act provide thus: ‘Act as a banker and provide economic and financial advice to the Federal Government’ Section 36 of the CBN Act also provides:- ‘the bank shall receive and disburse Federal government money’s and keep accounts thereof’. The appellant does not stand as public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise’.  (Underling is that of the Respondent for emphasis), among other decisions held in that case, the CBN or the government has not stop challenging Applicants who are judgment creditors from attaching government’s accounts in the custody of the CBN on the bases of consent of the AGF or where applicable, the AGS.

Therefore, I am of the humble views and submissions that where the Honourable, the CJN utilizes his powers conferred on him pursuant to the section 46(3) of the Constitution and other enabling sections of the Constitution and the Interpretation Act, by making and or amending the provisions of the current FREPR or by passing a Practice Direction on Rules and Procedures on the Service and execution in a State or High Court of the fundamental rights processes, judgments, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria so far it pertains to the fundamental rights enforcement suits, the human rights enforcement of Nigerians will be easily attainable, the courts being the last hope of the common man. More so, there are several judgments in favour of judgment creditors in fundamental rights enforcement proceedings, which have not been enforced till date due to the consent of the AGF or AGS mantra.

I therefore, hereby humbly urge the Honourable, the CJN to utilize his powers pursuant to the section 46(3) of the Constitution and other enabling sections of the Constitution and the Interpretation Act, by making and or amending the provisions of the current FREPR or by passing a Practice Direction on Rules and Procedures on the Service and execution in a State or High Court of the fundamental rights processes, judgments, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria so far it pertains to the fundamental rights enforcement suits, which will depart from the provisions of the SCPA and its accompanying subsidiary especially the careless provisions of requirement for consent of the AGF or the AGS. I also call on the National Human Rights Commission, Nigerian Bar Association, human rights activists, non-governmental organizations protecting the human rights of Nigerian citizens to also use their influence in ensuring that the Honourable, the CJN utilizes these his powers in the interest of justice and that of the public. It is specifically recommended that the Nigerian Bar Association should set up a Committee to immediately consider and make further recommendations for the implementation of this research work to the Honourable, the CJN.

Finally, I shall conclude my submissions with the good counsel of the Supreme Court of Nigeria on the importance of law and applicable rules to specifically regulate the enforcement and enjoyment of fundamental rights under the law and the negative consequences of the lack of such law and rules as held in the case of A.C.N. V I.N.E.C.(2013)13 NWLR (pt. 1370) 161 SC, 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’. (Underlining is mine for emphasis).

e-mail: hameed_ajibola@yahoo.com

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