Protection Of Our Fundamental Rights By Our Nigerian Courts: Non-Negotiable!

By Hameed Ajibola Jimoh Esq.

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. This paper is of the firm view that protection of fundamental rights or human rights by our Nigerian Courts is non-negotiable.

As rightly stated above, 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 laws 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. See: the Preamble to the Rules. Furthermore, it is my submission nevertheless, that human rights and fundamental rights do not mean the same thing in concept. The various concepts surrounding the nomenclature of the words ‘human rights’, ‘fundamental rights’, ‘legal/civil rights’, ‘enforceable rights’ and ‘unenforceable rights’ have been dealt with 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.

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 the writer of this paper’s 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.’

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 15^th 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! 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!

I therefore humbly recommend the following recommendations to the Honourable, the Chief Judge of Nigeria who has been saddled with such powers in regard to fundamental rights pursuant to Section 46(3) of the Constitution, in promoting the fundamental rights of Nigerian citizens:

1. directing all courts to desist from charging any applicant for the enforcement of fundamental rights contained under Chapter IV of the Constitution, for any assessed pre or post judgment sum, in line with the overriding objectives of the Rules as enumerated in the preamble to the Rules;
2. reviewing and or amending or repealing the FREPR of the 2009 and making provisions that waive the payment of any fee on actions bothering on Chapter IV of the Constitution and or the provisions of the Rules. This is what is expected in no time and not an increment in the current prescribed fee;

• fundamental rights suits should be concluded within not more than 90 days from filing and hearing at the trial court and at the appellate court (i.e. Court of Appeal and Supreme Court respectively) within 60 days;

1. at least, at every five (5) years and maximum period of ten (10) years, any FREPR in force should always be reviewed most especially, in line with the overriding objectives of the Rules as enumerated in the preamble to the Rules;
2. establishment of special panel courts in High Courts in Nigeria to hear fundamental rights enforcement cases;
3. 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 Sheriffs and Civil Process Act and its accompanying subsidiary legislations especially the careless (and militant) provisions of requirement for consent of the Attorney-General of the Federation or of the State before such moneys awarded to an Applicant under the Rules, can be garnished (even though Nigerian courts are recently departing from this issue of ‘no consent of the Attorney-General’;

• there should be a quarterly monitoring of the implementation of the FREPR by the Chief Justice of Nigeria who has been constitutionally saddled with the protection of the FREPR, so as to affirm to the common man and everyone having roles to play in regard to fundamental rights enforcement (including Nigerian courts) that protection of fundamental rights is never negotiable!

e-mail: hameed_ajibola@yahoo.com