NBA Pub Sec. Kunle Edun Identifies Possible Areas For Amendment In FREP Rules

Kunle Edun, the National Publicity Secretary, Nigerian Bar Association, Administrator, Human Rights Defenders of Nigeria and Executive Director, Centre for Transparency and Defence of Human Rights has made proposals on the “REFORM OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009” and has identified “POSSIBLE AREAS FOR AMENDMENTS/INCLUSION”.

The said proposal which was made available to TheNigeriaLawyer (TNL), reads as follows:

NO TECHNICAL ARGUMEMTS

1. There should be a new paragraph in the Preamble that will expressly state that the Courts should endeavour and ensure that technical arguments shall not be allowed to defeat any fundamental rights action.

EXPAND DEFINTION OF “APPLICANTS”

2. There is need to widen the definition of the word “Applicant” in the Interpretation Section of FEPR. Presently, it is defined as the person who files the application or on whose behalf it is filed. The issue of “on whose behalf” may raise interpretational problems, requiring authority of the victim before such action is filed. This will defeat the intervening essence of the innovative provisions of FREPR. I suggest that the definition of Applicant should include PERSONS WHO FILE SUCH APPLICATION IN THE INTEREST OF THE PUBLIC OR FOR THE PROMOTION OF THE RULE OF LAW.

NO ARGUMENT ON JURISDICTION IF ACTION IS FHR ENFORCEMENT

3. Order iii of the FREPR should be more emphatic and to bring it in line with the Supreme Court decision in the case of FEDERAL UNIVERSITY OF TECHNOLOGY MINNA V. OLUTAYO (2018) 7 NWLR (PT. 1617) 176 by stating expressly that NO ACTION SHALL BE STRUCK OUT ON THE GROUND THAT THE PARTIES OR SUBJECT MATTER ARE NOT WITHIN THE JURISDICTION OF THE COURT PROVIDED THE CAUSE OF ACTION IS WITHIN CHAPTER IV OF THE CFRN. FREPR is sui generis and occupies a supreme position, donated to it by the Constitution. It is only the provisions of the FREPR that should guide its jurisdiction.

TIME LIMIT FOR FHR ACTIONS

4. With respect to the Order IV of the FREPR, it would be wise that, like election petition cases, fundamental rights enforcement action should be given accelerated hearing in practical terms. There are FHR matters that are still in courts for more than 2 years. A time limit must be set to achieve the intended noble objectives. 2 months should suffice for the hearing and conclusion of an FHR matter at the trial court and two months maximum each at the Court of Appeal and the Supreme Court.

FILLING OF ACTION AUTOMATICALLY STAYS ARREST/DETENTION

5. It is also important that considering the lawlessness of our security agencies, there should be an express stipulation that upon the filing of an FHR matter it should automatically act of arrest and detention of the Applicant by the Respondents except the Judge or Court decides otherwise; and that the Respondents when filing their defences MUST SHOW evidence of compliance or include an UNDERTAKING that the Applicant has not been arrested/detained and will not.

INAPPLICABILITY OF PROVISIONS OF SHERIFFS AND CIVIL PROCESS ACT IN FHR ACTIONS.

6. Regarding service (Order V of the FREPR) there is a troubling argument of the need for an applicant to seek leave to issue and serve a Respondent who is outside a particular State where the process is filed 9section 97 & 98 SCPA). In this wise, it would suffice to stipulate that no leave of Court or special endorsement is necessary for the filing and service of any process on a respondent who is outside the State where the process is filed.

PERSONALIZE AND WIDEN SCOPE OF MODE OF SERVICE.

7. Further on the issue of service of processes of the Court the options should be widened to include the Plaintiff undertaking to serve and filing an affidavit of service. Express Courier delivery service should also be included as a principal mode of service (like in the NICN) without leave of court.

JOINDER OF APPLICANTS SHOULD BE ALLOWED ON COMMON CAUSES

8. Order VII on consolidation of action. The contradictory decisions of courts on the validity of joinder of Applicants should be looked into. If Respondents can be joined in an FHR action, why not Applicants that have a common cause? The Rules should expressly state that persons with similar complaints or cause can file a joint application. This saves time and avoids multiplicity of action; and with this new provision there may not be need for consolidation of applications.

CONSENT OF THE AGF/AG NOT REQUIRED IN FHR ACTIONS.

9. There should be a provision stating that the execution or enforcement of judgments against State parties or agencies shall lie without leave of the Attorney General of the Federation or the Attorney General of the State, as the case may be. This is critical considering the overall objectives of the FREPR and the penchant for State parties to use the AG’s consent to frustrate execution of judgments of Court.

PUBLIC ACTIVISTS/ADVOCATES EXCLUDED FROM PAYING FILING FEES

10. Activist and public interest advocates filing pro bono applications should be excluded from paying filing fees when they file applications on behalf of the victim or in the interest of the public but for the benefit of the victim.

HOLD AGF/AGs RESPONSIBLE FOR DISOBEDIENCE OF COURT ORDERS.

11. Enforcement of orders of court in FHR actions are difficult. We must find a way round it. I will suggest that when the actions are against State parties who are represented by the office of the Attorney General, the AGF or AG has the responsibility of ensuring obedience and compliance with every order made against the State party within 7 days therefrom. Failure, therefore, the Applicants/Judgment Creditors are entitled to file an application for the committal of the occupant of the office without filing the mandatory committal notices. The Court hearing the application is entitled to make such orders as may be necessary including referring the AG/AGF directly to the Legal Practitioners Disciplinary Committee for sanctions and awarding cost personally against the occupant of the office of the AG/AGF, except good cause is shown within 5 days of being aware of the order/judgment of the Court.

This should suffice for now.

Kunle Edun Esq.
National Publicity Secretary, Nigerian Bar Association.
Administrator, Human Rights Defenders of Nigeria
Executive Director, Centre for Transparency and Defence of Human Rights.