By Kingsley Ezenwa Izimah, Esq
Access to court plays an important role in the quality of a legal system and speedy administration of justice in any country. The courts have held in the case of Umeh v. Iwu (2007) 6 NWLR (Pt. 1030) 416 p. 428, paras E-F that: “parties are permitted to air their grievance at the law courts as when there is a right, there must be a remedy”. See also the case of Falobi v. Falobi (1976) 9-10 SC 1; Bello v. A.,-G., Oyo State (1986) 5 NWLR (Pt. 45) 828. This article x-rays the problems associated with denial of right of access to court due to procedural rules as against constitutionally guaranteed rights to persons seeking justice through the courts.
What is access to court?
Access to court is a right guaranteed by the constitution and is specifically interpreted by section 36 (1) of the 1999 Constitution which provides that:
“In the determination of his civil rights and obligations, including any questions or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”.
By the above provision, every person has right of access to court in order to protect his legal rights, freedom and interests as access to justice is an important aspect of due process, the absence of which violates the fundamental rights to fair hearing.
However, the right of access to court is not absolute. This right can be restricted in cases where the aggrieved party lacks locus standi ab initio to approach the court or as a result of restrictions created by some laws or practice and procedures which has been systematically adopted into our legal system and used as a tool to restrict a person’s unfettered right of access to court guaranteed under the constitution. Thus on the right of a person to access the court for justice, the court have held in the case, of Ojukwu v. Ojukwu (2008) 12 SC (Pt. 111) pg. 1 per Regina Obiageli Nwode, JCA as follows:
“The right or competence to institute proceedings in a court of law for redress or assertion of a right enforceable at law is not unlimited. The legal capacity to institute proceedings in a court will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or affected”.
It is not enough that the unfettered right to access the court to seek justice is constitutionally guaranteed, but it needs to be also utilized timeously and effectively. Unlike other rights, the right to justice and access to court has a peculiar nature as provided for by section 36(1) of the 1999 Constitution, requiring the relevant rules of deadlines, pre-action protocols, court fees, immunity clause, limitation of action laws and public officers protection laws to be waived and should not affect the essence of law in achieving justice itself.
All rights and freedoms would remain abstract, if the right to access the court and to restore the rights infringed upon or likely to be infringed is not recognized and/or protected by the courts. The specificity of the right to access the courts consist in the fact that this right does not stand independently from the due legal process, but backed by the constitution and international laws.
What is a law court?
According to William Blackstone’s commentaries on the Laws of England, a court is a tribunal, often as a government institution with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal and administrative matters in accordance with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute resolution and it is generally understood that all persons have an ability to bring their claims before a court. Similarly, the rights of those accused of a crime include the right to present a defence before a court. Thus, a court is constituted by a minimum of three parties: the actor or plaintiff, who complains of an injury done; the reus or defendant, who is called upon to make satisfaction for it and the judex or judicial power, which is to examine the truth of the fact to determine the law arising upon that fact and if any injury appears to have been done, to ascertain and by its officers to apply a legal remedy.
In summary, a court is an institution that the government sets up to settle disputes through a legal process whereby people come to court to resolve their disagreements. Courts decide what really happened and what should be done about it. The court also decide whether a person committed a crime and what punishment should be applied for such offence and most importantly, the court provides a peaceful way to decide private disputes that people can’t resolves by themselves. See the case of Brown v. Board of Education of Topeka, 347 U.S 483 (1954).
Does everyone have right of access to court?
Once court opens for business, the time available to be applied towards adjudication of disputes technically belongs to court users and the satisfaction of their needs and not the judges themselves since it is to meet the needs of court users that the judiciary owes its existence. On this premise, the courts have pronounced that everyone has a right of access to court as was held in the case of Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 the court held that:
“Access to court implies approach or means of approach to court without constraint”. The above pronouncement of the courts was further buttressed in the case of Idris v. Agumagu (2015) 13 NWLR (Pt. 1477) 441, p. 480, paras. C where it was stated that:
“A party possesses the unfettered constitutional right to ventilate his grievance in a court of law, but the right is violable as it is subject to proper use”. See also the case of Adejumo v. Agumagu (2015) 12 NWLR (Pt. 1472) 1 at p.29, para. B.
What are the conditions that can deny any person access to court?
There seems to be a conflict between the provisions of law particularly rules of practice and procedure prescribing mandatory or compulsory pre-action protocols as pre-requisite for instituting legal actions and the right of access to court which is constitutionally guaranteed under section 6 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which in turn creates a problem in denying aggrieved citizens the right of access to court. This was enunciated by the court on the nature of rules of court regulating access to court in the case of Ayida v. Town Planning Authority (2013) 10 NWLR (Pt. 1362) 226 , p. 266, paras. D-F; where the court held:
“Though the right of a citizen to approach the court is inviolate, regulations on how to access the court cannot be ignored because they are recognized conditions precedent which must be fulfilled before a suit filed by a litigant could be competent”. See also the case of Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172.
But the question to be asked is whether the rules of court can deny a litigant his constitutionally guaranteed legal right to ventilate his grievance in court. In the case of Nwosu v. Nwosu (2012) 8 NWLR (Pt. 1301) 1 at p. 25, paras A-B, the court in stating what constitutes a legal right held:
“A legal right is a right cognizable in law. It means a right recognized by law and capable of being enforced by the plaintiff. It is the right of a party recognized and protected by a rule of law, the violation of which would be a legal wrong done to the interest of the plaintiff, even though no action is taken”.
It is submitted that there is indeed nothing wrong with proscribing rules of court to guide practice and procedure before any person can approach the court to seek redress, but without prejudice, such practice and procedure should not be couched in such a way that it radically erases a person’s right of access to court. The courts have been admonished to encourage parties to be invited to address the court no matter how frivolous their case may be in order to prevent a miscarriage of justice. See the case of Oloriode v. Oyebi (1984) 1 SCNLR 390, Odiase v. Agbo (1972) 1 All NLR (Pt. 1) 170 where it was held that:
“It is the law that a court should not raise a point suo moto, no matter how clear it may appear to be and proceed to resolve same without inviting the parties or their counsel to address the court on the point. This is to avoid a breach of parties right to fair hearing”. See also the case of Katto v. CBN (1999) 6 NWLR (Pt. 607) 390.
Apart from the rules of court which can hinder right of access to court, the most important factor that can deny a party’s right of access to court is where the court lacks jurisdiction.
What is lack of jurisdiction?
Where an action before a court is found to be incompetent whether by reason of locus standi or the parties in court are incompetent or that the appropriate court was not approached, it will amount to lack of jurisdiction of the court to hear the case and the proper order for the court to make in such circumstance is that of striking out and not dismissal. See the cases of Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Abu v. Kuyaba (2002) FWLR (Pt. 99) 1041, Adesokan v. Adetunji (1994) 6 SCJN 123, Agbenyi v. Agbo (1994) 7 NWLR (Pt. 359) 735, Onumajuru v. Akanihu (1994) 3 NWLR (Pt. 334) 620. The law is trite and it has been emphasized that jurisdiction is the very basis in which any court or tribunal can hear a case. It is the life line of all trials in our courts and as such any trial without jurisdiction is a nullity. See the case of PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205 at page 255, Skein Consult (Nig.) Ltd. v. Ukey (1981) 1 SC 6.
Thus, when a court lacks jurisdiction to entertain a suit for any reason, the proper order to make is to strike it out and not to dismiss it. See the case of Ohiaeri v. Akabueze (1992) 2 SCNJ 76, Uwazuruike v. A.G. Federation (2007) 2 SCNJ 369. Also, in the case of Ukolo v. Union Bank of Nigeria Ltd (2004) 2 SCM 187; it was held that the proper order to make where a court has no jurisdiction to entertain an action is that of striking out.
Thus, if a court has no jurisdiction to hear and determine a matter, the proceedings remain a nullity ab initio, no matter how well conducted or decided. See the case of Egunjobi v. Federal Republic of Nigeria (2012) 12 SC (Pt. IV) 148; Nigeria National Supply Co. Ltd. v. Establishment Sima of Vaduz (1990) 11-12 SC 209. Based on the foregoing, a party whose case was struck out by the court for lack of jurisdiction has the legal right to file a fresh suit or re-institute the case after the needful had been done and thereby gain access to court to air his grievance and seek justice.
What constitutes legal right capable of enforcement?
The right of fair hearing is foremost of the basic rights of the citizenry. However, the expression “fair hearing” is indeed vague and incapable of precise definition. It can only be properly defined in relation to the fact and circumstances of a given case but not otherwise. Fair hearing must necessarily involve “fair trial” according to the rules of law and when one speaks of fair hearing of a case, it is the whole and entire conduct of the proceedings under consideration that has to be looked at and it has to be looked at objectively. See the case of Dalorima Merchant (Nig.) Ltd. v. U.B.A Plc (2001) FWLR (Pt. 71) 1851.
The determination of the existence of a legal right is not whether the action will succeed at the trial but whether the action denotes such a right by reference to the enabling law in respect of the commencement of the action. See the case of A.-G., Lagos State v. A.-G., Federation (2004) 18 NWLR (Pt. 904) 1.
Can the rules of court deny a litigant his constitutionally guaranteed legal right of access to a law court?
The constitutionally guaranteed right of access to court is provided in sections 6 (6) (b) and 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which states as follows:
Section 6 (6) provides that:
“The judicial powers vested in accordance with the foregoing provisions of this section “(b) shall extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”.
Also section 36 (1) provides that:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality’’.
The above provisions have been interpreted in a plethora of cases to the effect that the legislature cannot make laws to stultifying or hamper the right of free access to court granted to litigants by the Constitution. See the cases of Cotecna Int’l Ltd. v. Churchgate Nig. Ltd (2010) 18 NWLR (Pt. 1225) 346, where the court held that the constitution guarantees citizens’ right to vent their grievances in court and any law that seeks to deprive a citizens of any of his constitutional right must be construed strictly by the courts. It was further held that unhindered accessibility to the court of law by the citizens of Nigeria which is guaranteed under the constitution to vent their grievance is the hallmark of civilization. See also the case of Olu of Warri v. Kperegbeyi (1994) 4 NWLR (Pt. 339) 416.
One is mindful of the part of decision of the Supreme Court in the case of Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 which provides to the effect that regulations of the right of access to court, like pre-action notice are legitimate and constitutional.
It is respectfully submitted that the case of Amadi v. NNPC (supra) violates the constitutional guaranteed right of access to court which provides for any person to take action or initiate proceedings where any of the rights are in issue, it provides thus:
“Any person that alleges that any of the provisions of chapter IV of the Constitution has been; is being or likely to be contravened in relation to him may apply to high court for redress”.
The concept of fair hearing is a universal phenomenon. It is not only a Constitutional right but also a rule of natural justice inherently embedded in every adjudicatory system as the pillars upon which adjudication rests. This indispensable rule of natural justice, consisting of two pillars, of hearing the other side first and no one should be a Judge in his own case, is entrenched in Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as amended. In the words of Oguntade JSC in Geoge v. Dominan Flour Mills (1963) 1 SC NLR 117, (1963) 1 All NLR 71. “Adjudicatory Justice has its foundation in the concept of fair hearing. The fairness of a trial can be tested by the maxim “audi alteram partem.” A party cannot be expected to prepare for the unknown. Any procedure which short-changes a party and prevents him from knowing the case to be met at the hearing and thus prepare against must be condemned. In the same vain where a party is unreasonably denied an opportunity to present his case in the name of speedy trial, amounts to a denial of fair hearing. Any such trial conducted in contravention of the very foundation upon which adjudication should be based, cannot be a fair trial and invariably cannot be sustained by an Appellate Court. See the cases of Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587, Gakus v. Jos International Breweries Ltd (1991) 6 NWLR (Pt. 199) 614 and Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628.
Fair hearing requires that a party to a cause must be given the opportunity to put forward his case fully and freely and to apply to the Court to hear any material witness and consider relevant documentary evidence with a view to reaching a fair and just decision in the matter. See the case of Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1. This right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground. See the case of Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 at 35, Iwuoha v. Okoroike (1996) 2 NWLR (Pt. 429) 237, Olufeagba v. Abdul- Raheem (2009) 18 NWLR (Pt. 1173) 384. It is perhaps to underscore the inviolability of this right of a patty to a dispute to fair hearing that a provision guaranteeing the right to every citizen of this country is firmly ensconced in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. Hence, fair hearing is not only a common law right but also a constitutional right. See the case of Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290, Agip (Nig) Ltd v. Agip Petroli International & Ors (2010) 5 NWLR (Pt. 1787) 348, Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175. The right to fair hearing does not, however, exist in absolute terms and the question whether or not it has been accorded a litigant depends upon a careful consideration of the facts and circumstances of each case. See the case of Daniel v. Federal Republic of Nigeria (2014) 8 NWLR (Pt. 1410) 570, Ukachukwu v. Peoples Democratic Party (2014) 17 NWLR (Pt. 1435) 134.
It is imperative to point out that in interpreting any statutory or constitutional provision; the apex court in a line of cases has held that our courts should be liberal so that the intendment of the instrument or constitution can be met. See the case of C.C.C.T.C.S Ltd & Ors. v. Ekpo (2008) 6 NWLR (Pt. 1083) 362 SC per Onnoghen JSC where he stated that:
“It is settled law that where the words of a statute or constitution are clear and unambiguous, they call for no interpretation, the duty of the court in such circumstance being to apply the words as used by the legislature”.
It is trite that the court is a place where serious businesses are conducted and those who have business in the court must take it with all seriousness, respect and reverence. More so, business of the court must be conducted with expedition and the general rule as provided by the constitution is certainly trite that the principle of fair hearing is not negotiable. Thus the right of access to court and fair hearing is a two-edged sword and it cuts both ways implying that a person is entitled to have his case determined within a reasonable time and the right of both parties must be balanced; one cannot be sacrificed to the other without perverting justice. See the case of Sunkanmi Adebesin v. The State (2014) LPELR-22694SC 40.
For further information, do not hesitate to contact the author:
Kingsley Ezenwa Izimah, Esq., email@example.com, 0805-101-9362, 0806-809-5282.
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