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22 Jan

CIVIL WEEK 20; FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE

WEEK 20

FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE.

Prerequisites and Procedures should be complied with-Madukolum v Nkemdilim and AGIP Nigeria Ltd v AGIP Petro International & Ors respectively.

FHR are justiciable and inalienable-Ransome Kuti v AG Federation

:: APPLICABLE RULES.

– The CFRN 1999 (Especially Chapter IV); – ACHPRs; – FREPR 2009[1] made pursuant to Section 46(3) of the CFRN[2] therefore a part of it-George Adumu v Comptroller of Prisons[3]; – Other municipal, regional and international bills of rights (UDHR, etc.)

:: COURT WITH JURISDICTION; DG SSS v Ojukwu and Tukur v Government of Gongola State held that it is the Court with respective substantive jurisdiction, Grace Jack v University of Agriculture Makurdi held that both FHC and HC in state where breach occurred. Section 254(c) grants NIC exclusive jurisdiction for cases arising from labour related issues.

combined reading of Section 46(1 & 2) of the 1999 Constitution and Order II Rule 1 FREPR 2009, any person may apply to the High Court (FHC, SHC, HCFCT or NIC depending on the propriety and subject matter) in the State where an infringement of his fundamental human right allegedly occurred, is occurring or is likely to occur. See Tukur v Government of Gongola State, Grace Jack v University of Agriculture, Makurdi[4].

:: COMMENCEMENT AND MODES OF APPLICATION: Or II commenced by any mode accepted by the court. PROVIDED that the cause of action must be for breach of right under Ch.IV CFRN or ACHPR[5] only (i.e. either or both). Upon which the main claim must be predicated/disclose such breach.. WAEC v Akinkunmi, Tukur v Government of Taraba State. Akintemi v Onwumechili

First; Applicant is to file; – his chosen originating process (originating motion is the commonest); – A Statement setting out his name and description, relief sought (Formulated under Ch. IV and/or ACHPR) and grounds upon which the reliefs are sought (disclosing breach of Ch. IV and/or ACHPR), affidavit in support (deposed to by applicant or his authorised… setting out the facts upon which the application is made); -written address[6]. EFCC v Ekeocha. Order II.

Next; respondent opposing the application shall file counter affidavit and written address within 5 days of being served with applicant’s processes. May add notice of preliminary objection if he wishes to challenge court’s jurisdiction (Counter affidavit and PO be heard at the same time). Then there could be applicants response on point of law and further affidavit if any.

Service to prison superintendent or respondent’s agent can amount to personal service. Or V. Substituted service can be ordered where personal service cannot be conveniently effected.

Service outside the state should comply with Section 97 SCPA.

Application shall be fixed for hearing within 7 days from the day the application was filed. Adjournments only where extremely expedient-Fawehinmi v Abacha.

Hearing is based on affidavits and written address. Oral argument of not more than 20 minutes on matters discovered after filing written address. An absent party’s written address may be adopted where the court is satisfied that he got notice. No written address, no oral argument.

Other persons (like amicus curia) may be heard. For consolidation of pending actions, first apply to CJ and then the the judge of the particular court.

Numerous orders can be made on FHR Min of Internal Affairs v Shugaba

Appeals go to the CoA then Scourt. 241 and 245 CFRN.

:: REMEDIES.

:: ADVANTAGES, DISADVANTAGES AND LIMITATIONS OF THE RULES.

:: COMPARISON OF FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE WITH JUDICIAL REVIEW AND WRIT OF HABEAS CORPUS.

JR is concerned with the manner and legality of conduct of proceedings at lower court/tribunal/quasi-judicial body rather than the correctness and unlike appeal, it cannot substitute its decisions.

They include: Habeas Corpus (challenges the legality of the applicant’s detention and seeking an order for release), Mandamus (commanding a public official/corporation to perform his duty not discretion-Fawehinmi v Akilu), Prohibition (restrain an official or tribunal from embarking upon endeavour that would amount to a nullity or breach of rights) Certiorari (to quash where the foregoing has occurred).

Similarity:

– JR remedies can be applied in FHR.

– Both accompanied by Statement, Affidavit and Written Address

Differences.

– JR needs leave of court (details, affidavit and written address) by motion or originating summons. No leave for FHR and any mode of application would suffice.

– JR does not need FHR to be in issue.

:: SANCTIONS AND COSTS IN CIVIL LITIGATION. Or 49 Lagos and Or 52 Abuja.

COST is an amount discretionarily awarded by the court to compensate a (usually successful) party for expenses incurred in the action. Judiciously and judicially awarded (NNPC v KLIFCO Nig. Ltd) considering cost of endeavours like filing, service, time, legal representation, travel, fees paid, duration of case, parties called, nature of the case, monetary value at the time of incurring and at present, etc. See University of Uyo and Ors v Dr Edet P Akpan (2013).

Cost is Payable within 7 days of the Order otherwise defaulting party may be denied further audience in the proceedings.

TYPES OF COST: Cost order may be as to – Cost of Action (for whole and final matter), Cost in Course (for interlocutory), Cost in any event (for default of one party), No order as to cost (each party is to bear his own cost)

SANCTIONS: penalties prescribed by rules of court to be paid by litigants to court for their non-compliance with the rules.

:: DRAW UP A COMPOSITE TABLE OF SANCTIONS AND COSTS IN A COMPARATIVE MANNER BETWEEN THE HIGH COURT RULES OF LAGOS AND ABUJA.

SANCTIONS TABLE.

S/N EXAMPLE OF DEFAULT/NON-COMPLIANCE SANCTION IN LAGOS SANCTION IN ABUJA
1 Non-compliance At the beginning nullifies proceedings

At other stage is an irregularity

Proceedings can be set aside wholly or partly or court can order cost.
2 Late appearance By defendant; N 200 for each day of default General cost may apply.
3 Filing of Frivolous Suit Costs and possible Professional and ethical sanction Costs and possible professional sanction.
       

 

 

Ethical issues:

Appropriately draft, date and sign processes and documents.

Assist the court to do justice and avoid unnecessary delay of justice.

Care, diligence and avoid preventable pitfalls. Need more assiduousness and thoroughness.

 

[1] Main features of this rule include; The preamble of the FREPR 2009 Encourages Courts and parties to seek to give effect to the new overriding objectives which include; – A purposive and expansive interpretation of the CFRN and ACHPR; -Speedy and efficient enforcement of FHR; -Human Rights Cases be given priority (and if liberty is involved, it shall be treated as an emergency); Courts shall respect the FHR Rules and Laws. Note that the courts should take this preamble into cognisance in construing a provision. Additional Innovations (features which the 1979 did not have) in this one include; -Relaxed requirement of locus standi (as public interest litigations are welcomed, NGOs HRD can sue on behalf of others, etc.); No limitation period, no leave required, no one mode of application, no filing of affidavit of service, how service is to be effected is now stated; non-compliance with the rules is now irregularity, Anicus curia is now allowed to be heard, ex parte application can be first made in cases of urgency relating to threat to life or liberty (with affidavit of urgency and written address…. The application is to be brought and filed together with the main application), preliminary objection is taken with main application for enforcement; substituted service can be applied for without attempt of service; there is now requirement for written addresses. Freedom for all

– Non-compliance with requirement of Pre-action notice or POPA should not defeat the claim.

[2] By then CJN Legbo Kutigi

[3] Pending cases filed under the 1979 rules would continue under the new rules but would not be re-litigated, vitiated or struck out for non-compliance except manifestly substantial

[4] In this case it was held that the jurisdiction of the courts is concurrent rather than exclusively based on jurisdiction. See also NDLEA v Babatunde Omidina (Alias Baba Sue) which followed the Tukur’s case.

[5] African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9, LFN, 2004.

[6] containing application, brief statement of facts, issues for determination, succinct statement of argument, conclusion, list of authorities, ctc of any unreported judgment cited.

Isochukwu

Quite eccentric really

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