By Hameed Ajibola Jimoh Esq.
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In the Nigerian law, there are sometimes that issues might arise before a court of law on the resolution of an issue regarding the dichotomy between the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- and a legislative statute: either an Act of the National Assembly or the Law of a State made by a House of Assembly of the State. It could also be a dichotomy between the Constitution and the Rules of Court. In another vein, it could be a dichotomy between a statute and the Rules of Court. The dichotomy could also be between the Rules of Court and a/the Practice Direction. Whichever the dichotomy might be, the aim of this paper is to provide an insight into the dichotomy towards making some recommendations on the probable way of resolving such dichotomy when it arises. Hence, this paper.
THE SUPREMACY OF THE CONSTITUTION OVER ALL OTHER LAWS: STATUTES; RULES OF COURT; AND OR PRACTICE DIRECTIONS:
In my humble submission, the concept of ‘constitutional supremacy’ is a very important concept in Constitutional law. ‘Constitutional supremacy’ is said to be similar to ‘constitutional sovereignty’ according to Ese Malemi (of blessed memory) in his book ‘Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, pages: 48-49 as he defined ‘constitutional supremacy’ thus ‘Constitutional sovereignty or supremacy means the supremacy and bindingness of the Constitution, which is the will of the people, on all authorities and persons in the country’. A.G. Bendel State v A.G. Fed. & 22 Ors. (1982) All NLR 85 SC. The author further posited that ‘the people make and own the constitution. The constitution recognizes the people as the sovereign and the will of the people as expressed in the constitution is supreme and sovereign’. These statements are what I view to be the scope of the Constitutional supremacy. In this definition of the constitutional supremacy, there are some words that are important to highlight, these words are: ‘peoples’ sovereignty’, ‘will of the people’, ‘expressed in the constitution is supreme and sovereign’.
Furthermore, section 14(2)(a) of the Constitution has provided that the people are the sovereign entity and the final authority in the country when it provides as follows ‘It is hereby, accordingly, declared that – (a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;’. And this constitutional supremacy is reechoed by the provisions of the Constitution in section 1 of the Constitution as follows ‘1(1) this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2) the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. (3) If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void’. This in my humble view means that whatever that is done by any person or authority against the will of the people or in other words, against the constitution shall to such extent of its inconsistency be void.
The following is what is taken to be the will of the people to submit themselves to the constitution which is a real intention of the military ruling council and or a partial will of the people, with due respect ‘WHEREAS the Federal Government of the Federal Republic of Nigeria in compliance with the Transition to Civil Rule (Political Programme) Act 1998 has, through the Independent National Electoral Commission, conducted elections to the office of President and Vice-President, Governors and Deputy-Governors, Chairmen and Vice-Chairmen, the National Assembly, the Houses of Assembly and the Local Government Councils ; AND WHEREAS the Federal Government in furtherance of its commitment to hand over to a democratically elected civilian administration on 29th May, 1999, inaugurated on 11th November 1998, the Constitutional Debate Co-ordinating Committee charged with responsibility to, among other things, pilot the debate on the new Constitution for Nigeria, co-ordinate and collate views and recommendations canvassed by individuals and groups for a new Constitution for Nigeria ; AND WHEREAS the Constitutional Debate Co-ordinating Committee benefitted from the receipt of large volumes of memoranda from Nigerians at home and abroad and oral presentations at the public hearings at the debate centres throughout the country and the conclusions arrived thereat and also at various seminars, workshops and conferences organised and was convinced that the general consensus of opinion of Nigerians is the desire to retain the provisions of the 1979 Constitution of the Federal Republic of Nigeria with some amendments ; AND WHEREAS the Constitutional Debate Co-ordinating Committee has presented the report of its deliberations to the Provisional Ruling Council; AND WHEREAS the Provisional Ruling Council has approved the report, subject to such amendments as are deemed necessary in the public interest and for the purpose of promoting the security, welfare and good governance and fostering the unity and progress of the people of Nigeria with a view to achieving its objective of handing over an enduring Constitution to the people of Nigeria ; AND WHEREAS it is necessary, in accordance with the programme on transition to civil rule, for the Constitution of the Federal Republic of Nigeria 1979, after necessary amendments and approval by the Provisional Ruling Council, to be promulgated into a new Constitution for the Federal Republic of Nigeria in order to give the same force of law with effect from 29th may 1999’. In my view, this is such as enforcing the will of the military government on the will of the people because, in reality, the will of the people has not been respected and or obeyed.
Furthermore, constitutional supremacy is no doubt a principle/concept of a democracy. The word ‘Democracy’ according to President Abraham Lincoln, the then President of the United States of America, is ‘a government of the people, by the people and for the people’. In other words, ‘Democracy’ is: (i) a government made up of the generality or representatives of the people; (ii) a government formed and installed by the people; and (iii) a government that exists for the welfare of the people’. See: Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, page: 30. There is no doubt that in Nigeria, as of the moment, the types of democracy practiced is ‘the Indirect/Representative Democracy,’ which is a system of democracy where all persons of voting age are expected to vote to form the government by electing persons into government who will represent and act on their behalf, especially in the executive and legislative arms of government, which elected persons are expected to properly constitute all the other organs and agencies of government, and generally manage the affairs of government for the welfare of the people’. See: Ese Malemi (op cit) at page 31. As has been said above, government is then a joint function of: (i) the Executive; (ii) Legislature; (iii) and the Judiciary. This separation of powers as provided in the Constitution is the basis of powers shared by the various arms of government, so therefore that no arm must encroach on the other.
Furthermore, the concept of ‘Constitutionalism’ in Constitutional law means simply, ‘adherence to the principles laid down in the Constitution’. It means adherence to constitutional procedures and provisions. It is formed from the noun ‘Constitution’. See: Dr. Ifedayo Timothy Akomolede, Good Governance, Rule of Law and Constitutionalism In Nigeria, European Journal of Business and Social Sciences, Vol. 1, No. 6, p. 81, September, 2012.
In INEC v. Musa (2003) 3 NWLR (pt. 806) 72 it was held that:-
‘1. The Constitution is supreme, and the validity of any provision will be tested by the following interrelated propositions, that is: (a) All powers, legislative, executive and judicial must ultimately be traced to the Constitution; (b) The legislative power of the legislature cannot be exercised inconsistently with the Constitution where it is so exercised, it is invalid to the extent of such inconsistency; (c) Where the Constitution as enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution has enacted must show that it has derived the legislative authority to do so from the Constitution. (d) Where the Constitution sets the condition for doing a thing no legislation of the National Assembly or of a State House of Assembly can alter those conditions in any way, directly or indirectly, unless the Constitution itself as an attribute of its supremacy expressly so authorized, P. 157. Provisions in a Constitution are of equal strength and constitutionality. No provision is inferior to the other, and a fortiori, no provision is superior to the other. See INEC v. Musa (2003) 3 NWLR (pt. 806) 72.”.
Also, Section 13 of the Constitution which provides for the Fundamental Objectives and Directive Principles of State Policy provides thus:
‘13. It shall be the duty and responsibility of all organs of government and of all authorities and persons, exercising legislative, executive or judicial powers to conform to, observe and apply the provisions of this Chapter of this Constitution’.
In Nafiu Rabiu v. Kano State , (1980) 8-11SC 130 at pp 148-149, Udo-Udoma, JSC, (as he then was) re-emphasised the concept of constitutional supremacy in the following words:
‘… it is the duty of this Court to bear constantly in mind, the fact that the present Constitution has been proclaimed the supreme law of the land, that it is a written, organic instrument meant to save not only the present generation, but also several generations yet unborn; that it was made, enacted and given to themselves by the people of the Federal Republic of Nigeria in Constituent Assembly assembled-for which reason and because it is autochthonous, it, of necessity, claims superiority to and over and above any Constitution ever devised for the governance of this country-the unwarranted intermeddleness of the military authority with some of its provision notwithstanding; that the function of the Constitution is to established a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural dynamic society….’.
Now therefore, the word ‘unconstitutional’ has been defined by the Webster Online dictionary to mean
‘not allowed by the constitution of a country or government; not constitutional’.
Furthermore, it is my submission that the concern of the Constitution is to declare such an act or omission that is ‘inconsistent’ with any of the provisions of the Constitution and thereby challenging the ‘superiority’ of the Constitution to be ‘void’ or ‘null and void’ as the case might be. This expression is contained in section 1 generally and sub-section 1(3) of section 1 (specifically) of the Constitution which provides thus
‘1.—(1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. (3) If any other Law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.’. (Underlining is mine for emphasis).
The word ‘void’ has been defined by the Court of Appeal in the case of Buraimoh v Karimu (1999) 9 NWLR (pt.618) 310 C.A. as follows:
‘void’ means ‘ineffectual, nugatory, having no legal force or binding effect, which is unable, in law, to support the purpose for which it was intended. In its strictest sense, it means that which has no force and effect, without legal efficacy and is incapable of being enforced by law or has no legal or binding force. However, the word ‘void’ is used in Statutes in the sense of utterly void as to be incapable of ratification and also in the sense of voidable and recourse must be had to the rules of construction in many cases to determine in which sense the legislature intended to use it’. And in the case of Ishola v Ajiboye (1998) 2 NWLR (pt.532) 71 C.A., the Court of Appeal held thus ‘when a thing is void, it does not exist, you cannot put something on nothing, it will just not stand’.
The words ‘null and void’ was expressed by the Supreme Court in the case of Adefulu v Okulaja (1996) 9 NWLR (PT.475) 668 SC., in the following words
‘once an act has been declared ‘null and void’ by a court of law, the effect in law is that the act was never carried out. And in Ishola v Ajiboye (supra), the Court of Appeal held as follows ‘when an act or decision is declared ‘null and void’, it is meant to say that the act or decision binds no one and is incapable of giving rise to any right or obligation under any circumstance’.
Furthermore, in the case of: F.C.D.A. v. Ezinkwo (2007) ALL FWLR (Pt. 393) 95 at 115, paras. C- D it was held that:
” The constitution being the organic law of the country and the fons et origo from which all other laws derive their validity…no part of it can be described to be adjectival or procedural law…The Constitution is a substantive law.”.
Furthermore, on the instruments of interpretations of the Nigerian Constitution and statutes, HON. JAMES ABIODUN FALEKE V. INEC & ORS. (2016) 18 NWLR (PART 1543) 61 AT 117 F–H per KEKERE-EKUN, JSC, who said:
“The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided. See: A-G, Bendel State v. A-G, Federation (1981) 10 SC 132–134, (1982) 3 NCLR 1; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506. It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See: ‘Ojokolobo v. Alamu (1987) 3 NWLR Pt.61) 377 @ 402, F-H; Adisa v Oyinwola & Ors. (2000) 6 SC (Pt. II) 47, (2000) 10 NWLR (Pt. 674) 116; Saraki v. FRN (2016) LPELR–40013 SC, (2016) 3 NWLR (Pt. 1500) 531.” 2. OCHOLI ONOJO JAMES, SAN V. INEC & ORS. (2015) 12 NWLR (PART 1474) 538 AT 588 D–G also per KEKERE-EKUN, JSC, who had this to say– “In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their natural and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See: Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. The State (1981) 2 NCI-R 293; Adetayo v. Ademola (2010) 15 *NWLR (supra) @ 190 191 G–A, 205 D–F.”. 3. CHIEF (MRS.) O. V. EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS. (2006) 18 NWLR (PART 1012) 544 at 588: “It is settled law that the Court should, when interpreting the provisions of the Constitution, bear in mind that the function of the Constitution is to establish a framework and principles of Government, broad and in general terms, intended to apply to the varying conditions which the development of a plural and dynamic society must involve. Therefore, more technical rules of interpretation are to some extent inadmissible in a way as to defeat the principles of Government enshrined in the Constitution. Therefore, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the object and purpose of the Constitution. See: Rabiu v. Kano State (1981) 2 NCLR 293, (1980) 8/11 SC 130; Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; A-G, Abia State v. A-G, Federation (2002) 6 NWLR (Pt. 763) 264.
Furthermore, I humbly submit that the ‘blue pencil’ rule shall be applied to any legislation or Rules of Court or Practice Direction that contains inconsistent parts and or portions in order to bring it into conformity with the provisions of the Constitution. This was also the decision of the Supreme Court of Nigeria on the ‘blue pencil Rule’ in the case of A.G. Ondo State v A.G. Federation (2002) 9 NWLR (Pt.772) page 722. SC., where the Court held as follows:
‘where only some portions of a legislation are unconstitutional or bad and the rest is not affected, so that the good can be severed from the bad, the court would not invalidate the whole of the Act, but apply the blue pencil rule to strike out the portions affected.’ This is the doctrine of ‘Blue Pencil Rule’.
FUNDAMENTAL RIGHTS: RIGHTS AS THE CONSTITUTION ITSELF AND THEREBY SUPERIOR TO STATUTES, RULES OF COURT AND PRACTICE DIRECTION:
I must also here state that provisions of the Fundamental Rights (Enforcement) Rules, 2009, -herein after referred to as the FREPR- has the force of the Constitution as itself and is sui generis and is therefore superior to the Rules of Court and Practice Direction. On the sui generis status of fundamental rights contained in Chapter IV of the Constitution and the procedures or Rules made thereto, see the cases of: Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A., Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. and Odogwu v A.G. of the Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6.
For emphasis and not for verbosity, furthermore, it is important for me to state here that the Constitution has laid down the Rules for enforcing the rights guaranteed under Chapter IV of the Constitution respectively and or jointly (as the case might be) and the Rules laid down are codified and named Fundamental Rights (Enforcement Procedure) Rules, 2009 (supra), which is made pursuant to the Constitution. 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) known as the ‘Fundamental Rights (Enforcement Procedure) Rules, 2009’ (supra). 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’.
Also, it is my understanding and submission that it is not the intendment of the Constitution that the provisions of any statute (or and or including the Rules of Court or Practice Direction) would render its (i.e. the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the Constitution) 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’.
The Constitution thus provides in section 46(1) 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’.
In Okereke V. Yar’Adua (2008) 34 NSCQR (Pt.11) 1370; Per Onnoghen, JSC; emphasized the need for strict compliance with statutory provisions when he held at page 1403 that:
“It is settled that where legislation lays down a procedure for doing a thing there should be no other method of doing it.” See further MV Arabella V. NAIC (2008) 34 NSCQR (Pt.11) 1091 at 1116 Per Ogbuagu, JSC who held that the cardinal principle of law in the interpretation of Statutes is that where the words of the Statute are clear, the Court should give them their ordinary meaning without resort to any internal or external aid. Ojokolobo & Ors. V. Alamu & Anor (1987) 7 S.C.N.J. 98; Obomhense V. Erhahon (1993) 7 SCNJ 479; Fawehinmi V. I.G.P. & 2 Ors. (2002) 5 SCNJ 103, Ibrahim V. Ojoimo & 3 Ors. (2004) 4 NWLR (Pt 862) 89; all referred.
Furthermore, I humbly submit that the Rules of Court cannot even be used to supersede or override the clear provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009. In the case of ‘Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) at Page 12-15, Para. D-B’, Abiru JCA said as follows:
‘It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) & NWLR (Pt.979) 302.’.
Furthermore, the issue of application for extension of time and requirement for payment of default fee as provided for under the Rules of Court and Practice Direction in a fundamental rights suits were considered in the case of ANOLIEFO V ANOLIEFO (2019) LPELR 47247 CA and the appellate Court held thus
‘In Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) at Page 12-15, Para. D-B, My Learned Brother, Abiru JCA said as follows: “It is not in contest that the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009 give a respondent desirous of filing a response to a Fundamental Right application, either by way of address, counter affidavit or notice of preliminary objection, a period of five days to do so. There is no provision in the Fundamental Rights (Enforcement Procedure) Rules, 2009 for seeking either extension of time to file processes or leave to file processes out of time. It is correct that Order 15 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 says that where in the course of a Human Rights proceedings any situation arises for which there are no adequate provisions in the Rules, the Civil Procedure Rules of the Court shall apply and it is also correct that High Court of Kaduna State Civil Procedure Rules contain, provision requiring leave to file an affidavit out of time and for extension of time to file processes. It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) NWLR (Pt.979) 302. The Fundamental Rights (Enforcement Procedure) Rules, 2009 states clearly what the effect of failure to file processes within the time stipulated in the Rules should be. Its Order 9 reads: “Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to: i. Mode of commencement of the application; ii. The subject matter is not within Chapter 4 of the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.” In other words, by the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a Court is enjoined to treat failure to file a process within the time allowed by the Rules as an irregularity, and not as a nullifying factor, except it relates to the commencement of the application, or that the subject matter is not within Chapter 4 of the Constitution.’. (Underlining is mine for emphasis).
The above case laws are to the effect that fundamental rights matters prevail upon a statute, Rules of Court and Practice Direction. On ‘Whether an action founded on Fundamental Rights Enforcement Procedure Rules is subject to the other rules of Court’, held in the case of ‘JULIUS BERGER (NIG) PLC v. IGP & ORS (2018) LPELR-46127(CA)’
“The suit, the subject matter of this appeal was commenced under the Fundamental Rights (Enforcement procedure) Rules. It is my view that that procedure being SUI GENESIS, is does not admit of the importation of any other procedure of Court, inclusive of Section 97 of the Sheriffs and Civil Process Act. The case of DR. CHRIS NGIGE & ANOR v. HON. NELSON ACHUKWU & ANOR (2005) 2 NWLR (PT. 909) 123 relied on by the Appellant, has one issue that the Court had to determine which was whether the High Court of Enugu State, sitting at Enugu had the territorial and substantive jurisdiction to make the order which it made directing the Inspector General of Police to remove the 1st Respondent office as Governor of Anambra State. The Court observed that the 30 days required for the Defendant to answer the process before the Court in Section 99 of the Sheriff and Civil process Act will not apply to cases of Enforcement of Fundamental Rights which must be heard within 14 days from the grant of leave to hear such an application as founded for in the Rules made by the Chief Justice of Nigeria. The authorities cited by the Appellant have nothing to do with the enforcement of Fundamental Rights Procedure. Interestingly, the Appellant conceded at page 19 of his amended brief of argument that by Order 11 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rule 2009, a Fundamental Rights application can be commenced without the leave of Court. I agree with him entirely. I must re-emphasize that the procedure which obtains regarding Fundamental Rights is peculiar in its scope and does not admit the importation of any other Rules of Court. The reason is simple. Issues of Fundamental Rights and its infringement are sensitive and dire. It borders on the dignity of the person and protection of its rights as a human being. They are matters that need to be tackled by the Courts expeditiously and must not be subject to the whims and caprices of technicality.” Per RITA NOSAKHARE PEMU, JCA (Pp 27 – 29 Paras C – A)’.
Also, on the sui generis nature of the fundamental rights action, the court held thus “It is to be borne in mind that fundamental rights action is sui generis. In the case of the LEAGUE MANAGEMENT Co. Ltd. & Anor. V. ABUBAKAR & Anor. (2017) LPELR- 43426(CA) the Court of Appeal, Per ABIRU JCA (P.34 Paras A-C) held:
“The sui generis nature of matter commenced under the Fundamental Rights (Enforcement Procedure) Rules, 2009, is that it is governed by specific and special Rules of Procedure, and is not subject, except where the context so admits, to the Rules of Procedure governing civil matters. It has nothing to do with the Application of established principles of law to such matter….’ Also, In the case of ‘SEATRUCKS ANIGBORO (2001)2 NWLR (PT 696)159’, it was held thus “it is that fundamental right enforcement procedure rules are special type proceedings. They are in special class of their own unlike the ordinary cases that run through our courts daily, they are to be treated with due diligence and not to be handled anyhow. This is because the object of enforcement of fundamental right is to provide a simple and effective process for the enforcement of fundamental right in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of common law and other statutory provisions. See also ADUMU V. COMPTROLLER OF PRISONS, FEDERAL PRISONS, ABA ORS (2013) LPELR- CA/OW/292A/2011.”
Furthermore, in my humble submission, that is why ‘public interest’ suit can be filed in fundamental rights actions. The Court held on this submission thus
‘On Rule of locus standi in respect of public interest litigation by public spirited individuals and non-governmental organisations, the Supreme Court in Centre For Oil Pollution Watch v. N.N.P.C. (2019) 5 N.W.L.R. 537, held that ‘In a public interest litigation, the chambers of the Attorney General of the Federation traditionally holds sway. However, the law on focus stand in that regard has grown beyond that and now encompasses public spirited individuals and non governmental organisations. (P 575, para C). It is a matter of high constitutional principle that if there is good ground for supposing that government department or public authority is transgressing the law, or is about to transgress it, in any way which offends or injures thousands of the citizens, then anyone or those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced and the courts in their discretion can grant whatever remedy is appropriate. Centre For Oil Pollution Watch v. N.N.P.C. (supra).’.
The Court further held in this regard of ‘public interest’ litigation and locus standi thereto in the case of ‘HUMAN RIGHTS & EMPOWERMENT PROJECT LTD/GTE v. PRESIDENT OF FRN & ORS (2022) LPELR-58230(CA)’ while deciding on ‘-Meaning of public interest; whether locus standi is required to bring a public interest litigation under the Fundamental Rights (Enforcement Procedure) Rules 2009’ held thus
“what is public interest within the meaning of the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 and was the Appellant’s Suit one within the contemplation of a ‘public interest litigation’ By Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, ‘Public Interest’ is defined as including: “The interest of Nigerian society or any segment of it in promoting human rights and advancing human rights law.” My Lords, looking at the facts of this case in respect of the capacity and core mandate of the Appellant, which were largely unchallenged, and having considered the succinct provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, and keeping in mind the preamble to the said Rules, it does appear to me, and I so hold, that in application for the enforcement of fundamental rights of the citizen under Chapter IV of the Constitution of Nigeria 1999 (as amended) and by virtue of the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, the general requirement of locus standi has indeed been done away. Thus, the Appellant an undisputed human rights Non – Governmental Organization with the core mandate of promoting, defending and protecting human rights of the citizens of this country, through public interest litigation etc., is in my finding and I so firmly hold, empowered by law pursuant to the provisions of Fundamental Rights (Enforcement Procedure) Rules 2009, to institute and maintain this Suit against the Respondent as a Public interest litigation for the enforcement of the Fundamental rights of the members and residents of Nimo Village. After all for a better society to take root in this country, we must all begin, if we are not yet, to be our brothers and sisters’ keepers! See Fawehinmi V. Akilu (1987) 4 NWLR (Pt. 67) 797, where the Supreme Court per Obaseki JSC, had reiterated succinctly inter alia thus: “Since we are all brothers in the society, we are our brother’s keepers. If we pause a little and cast our minds to the happenings in the world, the rationale for this rule will become apparent.” See also Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Paragraph 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009, Fawehinmi V. The President (2008) 23 WRN 65 My Lords, carefully reading through the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, particularly Paragraph 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009, the more it becomes apparent to me that it has in matters of enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) clearly and legally expanded the frontiers of public interest litigation in Nigeria for the protection and enforcement of the fundamental rights of the Citizen. I therefore cannot but agree with the apt and unassailable submission of learned counsel for the Appellant, subject however to my consideration later of the subject matter of the Appellant’s Suit as to whether the claims are founded on alleged infringement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), that in public interest litigation for the enforcement of fundamental rights of the citizen there is in law no longer any need for any express permission, authorization or consent from either the victim of human right abuse or his relatives to validate an application for the enforcement of any of the fundamental rights as constitutionally guaranteed to the citizens. See Section 46 (1 – 3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is therefore very clear to me, and I so firmly hold, that the lower Court had, despite the clear provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 reducing to non-existence the requirement of locus standi as it operates and governs other civil proceedings in proceedings for enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), unwittingly insisted on the application of the concept of locus standi in proceedings for the enforcement of Chapter IV of the Constitution of Nigeria 1999 (as amended) contrary to the very clear and unambiguous provisions of the governing rules of procedure. I think that was a grave error on the part of the lower Court, and must have resulted from the failure to appreciate that the procedure for enforcement of Chapter IV of the Constitution of Nigeria 1999 (as amended) is a special procedure unique to only this procedure and none other. In other words, the provisions of the Fundamental Rights (Enforcement Rules) 2009 governs exclusively the proceedings in action for the enforcement of Chapter IV of the Constitution of Nigeria 1999 (as amended). It follows therefore, whatever procedure is validated under the said Rules is valid and should be given effect to by the Court for the enforcement and protection of the fundamental rights of the citizen. The lower Court, regrettably missed this point when it proceeded to dismiss the Appellant’s Suit merely on account of locus standi contrary to the provisions of the said Rules which validates public interest litigation for the enforcement of the fundamental rights of the citizen either by themselves or on their behalf. The Appellant’s Suit was therefore, not rendered incompetent by reason of lack of locus standi as the Appellant is clothed with the requisite locus standi to institute and maintain the Suit against the Respondents.” Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 15 – 20 Paras C – B)’.
Finally, on this issue, the court held on the issue of whether a deceased person’s dependants can institute fundamental rights on behalf of the deceased (contrary to what the Rules of the Court provides for as to ‘locust standi’) and held in the case of ‘AGUPUGO & ANOR v. PSC & ORS (2020) LPELR-50592(CA)’ held on the issue of ‘Whether the constitutional right to life of a dead person can be enforced by his dependants’
“In view of my finding on issue 1 above, the answer to issue 2 whether the Constitutional right to life of the deceased can be enforced by the appellants who are his relations is also answered in the affirmative. The learned trial Judge in his judgment delivered on 12th June, 2013 held, inter alia that: “The legal position of the applicants, the widow of the man who has had his life illegally terminated, cannot maintain an action under the Fundamental Right Enforcement Rules.” This finding by the lower Court was based on the 1979 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 1979 upon which this Court reached its decision in Ezeadukwa v. Maduka (supra) which was cited, quoted and relied upon by the learned trial Judge in reaching his decision. Fortunately for the Nigerian judicial system, in the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 2009 the definition of an applicant was expanded by paragraph 3 (e) of the preamble to the FREPR, 2009 to include the party who files an application or on whose behalf an application was filed under these Rules. I have quoted paragraph 3 (e) of the preamble to the FREPR, 2009 in my finding in issue 1 above to show that there is a departure from the provisions of the 1979 Constitution and FREPR, 1979. Under the current dispensation, the Appellants falls under the definition of Applicants in Order 1 Rule II of the FREPR, 2009 particularly the preamble. In FAITH OKAFOR v. LAGOS STATE GOVERNMENT & ANOR (2016) LPELR – 41066 (CA) this Court per OGAKWU, JCA held thus: “I reiterate that for a cause of action to be cognizable under the Fundamental Rights Enforcement Procedure, the cause of action must come within the ambit of the enforcement of any right contained in Chapter IV of the Constitution in the sense that it alleges that any of the provisions of the Chapter has been, is being or is likely to be contravened. Relief 1.3 is clearly an enforcement of the right of freedom of movement enshrined in Section 41 (1) of the Constitution. The reasoning of the lower Court that the relief was not personal to the Applicant seems to have overlooked the liberalization of the procedure and the overriding objectives for enforcement of Fundamental Rights and that anybody, not necessarily the person whose right has been infringed can bring the application to enforce the right as stated in paragraph 3 (e) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009. The lower Court therefore got it wrong when it struck out Relief 1.3 on the ground that it was not personal to the Appellant and was not within the ambit of the Fundamental Rights Rules.” (page 13 -14, Paragraphs A – B). Upon considering the holding by this Court above, it is obvious that a suit can be instituted under the FREPR, 2009 by any one affected by the action of the respondents, which in this case are the widow and the mother of the deceased (a victim of the uncontrolled use of firearms by the 5th Respondent). It does not matter whether the victim of the constitutional right infringement is dead or alive. In MRS. PRECIOUS OMONYAHUY & ORS v. THE INSPECTOR GENERAL OF POLICE & ORS (2015) LPELR – 25581 (CA) this Court per AUGIE, JCA (now JSC) held, inter alia, thus: “Under public interest litigation, it is not necessary that the applicant has suffered some injury of his own or has had personal grievance to litigate. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or the African Charter on Human and Peoples Rights and to which the applicant or some other potential applicant is entitled, has been, is being, or is likely to be infringed may apply to the Court in the state where the infringement occurs or is likely to occur, for redress…..” “It appears that we have charted a way to the answer to our question – the constitutional right to life of a dead man can be enforced by his dependants.” The holding by this Court on the rights of the dependants of a deceased victim of a constitutional right infringement to enforce the right of their deceased relative is in pari materia with the facts and circumstances of this appeal. As I stated above under issue 1, human rights actions are public interest litigation as provided by paragraph 3 (e) of the preamble to the FREPR, 2009. Therefore, the holding by the learned trial Judge that relations of a deceased victim of fundamental right infringement that lead to loss of life cannot sue is no longer the position of the law. I resolve this issue in favour of the Appellants.” Per BITRUS GYARAZAMA SANGA, JCA (Pp 21 – 25 Paras A – A)’.
PRECEDENCE OF THE STATUTE OVER THE RULES OF COURT AND THE PRACTICE DIRECTION:
The Supreme Court has held on this position in the case of ‘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’. Also see: Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt. 1129) 475. Further see: the case of INEC v Musa (2003) 3 NWLR (pt. 806) 72 SC, page 157, at paras. D-G, (Ayoola, J.S.C).
Furthermore, in regard to ‘strict’ compliance with the provisions of a statute, the word ‘strict’ according to the Oxford Advanced Learner’s Dictionary, 6th Edition, page 1186, means among other meanings, ‘that must be obeyed exactly’ and the word ‘exactly’ by the same Dictionary at page 398 means ‘used to emphasise that something is correct in every way or in every detail’. Therefore, in I.N.E.C. v. Action Congress [2009] 2 NWLR (Pt.1126) 524 P. 616, paras D-F, Per Salami, J.C.A. posit on the strict compliance with statutory provisions by a court and every person (including a lawyer and a litigant in a case or administrative body of government) thus:-
“Where a method or manner of discharging responsibility is stipulated by a statutory provision it is that method that must be employed: See Co-operative and Commerce Bank Nigeria Plc v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528, 556 para. G, the Supreme Court stated as follows: -“Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other must have to be adopted” In Nuhu Sani Ibrahim v. INEC & Ors. (1999) 8 NWLR (Pt. 614)334, 352 paras. E-F, this court per Salami, JCA said that – “It is settled law that where a legislation lays down a procedure for doing a thing, there should be no other method of doing it.” Also, The Supreme Court in Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd. (Supra) Pp. 193 – 194, held as follow:- “It is the view of this court that where a statute clearly provides for a particular act to be done or performed in a particular way, failure to perform the act as provided will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. It was held by this court in Adesanoye v. Adewole (2006) 14 NWLR (pt. 1000) 242 that in such a situation, the consequences of non-compliance follow notwithstanding that the statute does not specifically provide for sanction. This knocks the bottom off the submission of the learned counsel for the appellant in this case that because section 50(1) of the Act does not provide for sanction, the contract cannot be said to be illegal. A contract which violently violates the provisions of a statute as in this case, with the sole aim of circumventing the intendment of the law maker is to all intents and purpose illegal null and void and unenforceable. Such a contract or agreement is against public policy and makes nonsense of legislative efforts to streamline the ways and means of business relations. This court, and any other court for that matter would not be allowed to be used to enforce any obligations arising therefrom.”.
Furthermore, the reason (or the main reason) for strict compliance with the provisions in a statute by a court of law is because such strict compliance is in accordance with the ‘doctrine of separation of powers’ and as enshrined in sections: 4, 5 and 6 of the Constitution, by section 6 of the Constitution, the judiciary (court of law) has the duty to interpret laws (and not to make laws rather to be bound by laws made by the legislature), this power is donated by Section 6 of the 1999 Nigerian constitution. In exercise of such duty, the courts in Nigeria is to ensure that they interpret the law in such a manner as not to defeat the intention of the Legislators. It is expected that they restrain and confine themselves as passive-onlookers to judicial precedent i.e stare decisis which is the traditional mode of approach to cases brought before it, as it bothers on interpretation of statutes. This is because, it is expressed that the judge duty is to declare the existing law and not make one (Judicis est jus dicere non dare). This principle was echoed by the Supreme Court in the case of Okumagba v. Egbe (1965) 1 All NLR 62 at p. 65. So judges in performance of their judicial functions in constructing statutes, recourse had to be made to the plain meaning of words as against their moral view, as it behooves on them not to fill in the gaps in a legislation rather covey the intention of the legislature. As Allen K.C in his work “Law in the Making” 6th.ed., page 294, posited that:
“By no possible extension of his office can a judge introduce new rules for the compensation of injured employee…The Legislature can project the future a rule of law which has never before existed. The court can do nothing of the kind.” See: –DO JUDGES MAKE LAW? by Nonso Robert Attoh, Faculty of Law, University of Nigeria, Enugu State, Nigeria (2015/2016 Session). Therefore, in my humble view, whenever a litigant or witness intends to tender a secondary evidence in such conditions allowed by the EA, to prove existence or contents of the primary evidence which is the original of the said evidence, such person has to make sure that ‘proper’.
Furthermore, on the effect of ‘Documents pleaded but not front loaded, the court held same to be admissible in the case of admissible. ‘ABUBAKAR V. INEC (2020) 12 NWLR (PART 1737) 37 (SC)’ thus
‘The fact that a party has omitted to front-load a document with his pleadings or originating process should not be a ground to reject the document on the basis of admissibility. The logic here is, if admissibility of documents in trial is governed by the Evidence Act, Rules of Courts which provide for front-loading of documents which is subservient to the Evidence Act, ought not apply to cause rejection of tendering documents in trial. ‘DUNALIN INV. LTD V BGL PLC (2016)18 NWLR (PART 1544), 262’
PRECEDENCE OF RULES OF COURT OVER A PRACTICE DIRECTION
The Court of Appeal of Nigeria held as follows in the case of ‘OLOLADE v. INEC & ORS (2008) LPELR-4760(CA)’ on the ‘Position of the law where there is a conflict between a rules of Court and practice direction’ thus
“I agree with Learned Appellant Counsel that in the event of any conflict between Section 151 of the Electoral Act, paragraphs 43 and 50 of the Acts Schedule and Order 23 Rule 3(1) and (2) which enable extention of time for the taking of necessary steps in all situations except those under Section 141 and paragraph 14 of the Act’s first schedule, and sub paragraph 4 of paragraph 3 of the Practice Direction which does not, the former provisions will prevail over the provision of sub paragraph 4 of paragraph 3 of the Practice Direction to the extent of the inconsistency. In UNILAG Vs. AIGORO (1984) a case cited and relied upon by the Learned Appellant Counsel, the Supreme Court held at page 756 of the law report per Bello JSC (as he then was and now of blessed memory) as follows:- “- a Practice Direction has no force of law and cannot fetter a rule of court and cannot tie the court in the exercise of its discretion. Where there is a conflict between a rule of court and a Practice Direction, the rule must prevail”. In ABUBAKAR v. YAR’ ADUA (2008) 1 NWLR (Pt. 1078) 465 At 515, the Supreme Court specifically pronounced on the supremacy of the Electoral Act over the Practice Directions. Implicit from all these decisions however, is the enduring applicability of the Practice Directions in all situations where conflict does not arise between their provisions and those made under the rules of court on the same point, issue or subject matter. Practice Directions, therefore, remain in force having been made with the intention of guiding the courts and the legal profession on matters of Practice and Procedure. Practice Directions are overridden by the rules of court only where they are in conflict with the rules. But where Practice Directions as issued co-exist harmoniously with the rules of court, a party or counsel who ignores them does so at his peril. See N.A.A. v. OKORO (1995) 6 NWLR (Pt. 403) 510 At 523 SC.” Per MUSA DATTIJO MUHAMMAD, JCA (Pp 26 – 27 Paras B – E).
Finally, therefore, it is my humble hope that the reader of this paper would find at least a piece of knowledge to benefit from in this paper from the topic.
Email: hameed_ajibola@yahoo.com 08168292549.
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