Fundamental Rights

• Pages: 377-512

FUNDAMENTAL RIGHTS

(1) ACTION UNDER THE FUNDAMENTAL HUMAN RIGHTS

(ENFORCEMENT PROCEDURE) RULES

801. Determining the justiceability of a cause of action under the Funda-

mental Human Rights (Enforcement Procedure) Rules, 1979.

(1) “I think it is a wrong approach to the issue on hand to say that the power to

determine the justiceability of a cause of action under the Fundamental Rights (En-

forcement Procedure) Rules 1979 lies with the trial Judge and that once he had given

leave to bring in an application, justiceability can no longer be questioned. I think the

proper approach is to examine the relief’s sought by the applicant; the grounds for

such relief’s and the facts relied upon. If they disclose that breach of fundamental

right is the main plank, redress may be sought through the Fundamental Rights (En-

forcement Procedure) Rules 1979. But where the alleged breach of fundamental

right is incidental or ancillary to the main complaint, it is incompetent to proceed

under the rules. So this Court decided in Tukur v. The Government of Taraba State

(1997) 6 N.W.L.R. (Pt. 510) 549 and in Egbuonu v. Borno Radio Television Cor-

poration (1997) 12 N.W.L.R. 29.” - Per Ogundare, J.S.C. in Sea Trucks v. Anigboro

Suit No. S.C. 120/1995; (2001) 10 W.R.N. 78 at 94; (2001) 2 N.W.L.R. (Pt. 696) 159

at 175.

(2) “It is manifest that on the facts of the case that the respondent’s grievance is

based on wrongful summary dismissal and can be redressed by an action at common

law. There is no doubt that the respondent’s grievance also, as it were, wears an

elusive colouration that could be redressed as a breach of fundamental right under

the rules. The pitfall in the respondent’s claim as in many similar claims including

those on chieftaincy matters is the deliberate and disingenuous act of over sighting

the restricted frontiers of chapter IV of the 1979 Constitution and the specified fun-

damental rights therein which are enforceable under the rules. Once such pretence is

dismantled the clear limits of the Constitutional provision under chapter IV will ne-

gate the apparent right of a plaintiff to initiate actions under the rules in relation to

matters outside the purview of the provision of chapter IV of the Constitution.” - Per

Achike, J.S.C. in Sea Trucks v. Anigboro Suit No. S.C. 120/1995; (2001) 10 W.R.N.

78 at 101-102; (2001) 2 N.W.L.R. (Pt. 696) 159 at 182.

802. Duty on an applicant for order of certiorari to bring up a proper applica-

tion of the Fundamental Right (Enforcement Procedure) Rules 1979.

“Perhaps it is important to restate the provisions of Order 3 rule 1 Fundamental

Rights (Enforcement Procedure) Rules 1979. Order 3 rule, l provide as follows: -

“rule 1 - In the case of an application for an order to remove any proceed for the

purpose of being quashed, the application may not question the validity of any order,

377

Action under the fundamental human rights ........... Paras. 801,802

Paras. 802-804 Vol. 11: FUNDAMENTAL RIGHT 378

warrant, commitment, conviction, inquisition or record. Unless before the hearing of

the motion or summons, he has served a certified copy thereof together with the

application on the Attorney-General of the Federations or of the State in which the

application is being heard or accounts for his failure to do so to the satisfaction of the

Court or the Judge hearing the motion or summon.” What is required to be done by

the applicant under Order 3 rule 1 aforesaid is: - (a) Service of certified copy of the

proceedings together with the copy of the application on the Attorney-General of

Benue State or, (b) Account for his failure to do so to the satisfaction of the Court or

Judge hearing the motion or summons.” - Per Orah, J.C.A. in Ugoh v. Benue State

L.G.S.C. & Ors. Suit No. CA/J/211/90; (1995) 3 N.W.L.R. (Pt. 383) 288 at 312-313.

803. Failure to approach Court properly is irrelevant as no specific proce-

dure is laid down for enforcement of violated rights.

“On the third issue raised, I will only say briefly that the Court below was wrong to

have held that the respondent approached the Court for his redress by a wrong

procedure. It is now settled that a person whose rights have been violated must be

free to seek redress for such wrongs in the Courts. It is a mere technicality to hold it

against him that he failed to approach the Court properly as in this case. In any event

no specific procedure had been laid down for the enforcement of violated rights

under Cap. 10. The case of Ogugu v. The State (supra) is in my humble view in

support of the view held above. The respondent was therefore free to approach the

Court by commencing an action by writ or by any other procedure such as the funda-

mental Rights (Enforcement Procedure Rules, 1979).” - Per Ejiwunmi, J.S.C. in

Abacha v. Fawehinmi Suit No. S.C. 45/1997; (2000) 4 S.C. (Pt. 11) 76 – 77.

804. Failure to verify fact relied upon in an application for enforcement of

fundamental rights.

“It could be seen that the appellant has set out his name and description. He has also

set out the relief sought and the ground in which it is sought. What is not contained in

the statement of support are the material particulars which gave rise to these pro-

ceedings. These particulars are said to be contained in a supporting affidavit. A sup-

porting affidavit was indeed filed in which the material particulars were given. After

stating the particulars, the appellant averred in paragraph 24 that: - “24. I have read

the statement in support of this application and I confirm that the statements therein

contained are true and correct.” According to the appellant, the above averment is

sufficient to satisfy the requirement of Order 1 rule 2(3) of the Fundamental Rights

(Enforcement Procedure) Rules, 1979 of filing an affidavit verifying the facts relied

on. According to the appellant by paragraph 24, the facts relied on have been verified

and as such there is no need to file another verifying affidavit. Upon critical consid-

eration of the Rules, it could be seen that an applicant is required to set out the facts

relied on in the statement of support. The statement of facts should not be on oath.

379 Action under the fundamental human rights ........... Paras. 804,805

After setting out the facts an applicant is then required to verify on oath the facts

relied on. In our present case, the appellant did not state the facts in the statement in

support. Instead the facts giving rise to the proceedings are contained in a supporting

affidavit. This in my view is a contravention of Order 1 rule 2(3).

Moreover, paragraph 24 of the supporting affidavit which is supposed to verify

the facts relied on referred to and verified the statements in the statement in support.

If one looks at the statement in support, the facts relied on are not there. Instead one

is referred back to the supporting affidavit. Since the particulars are not contained in

the supporting statement, paragraph 24 of the affidavit couldn’t have verified them. It

is therefore my opinion that the facts relied on have not been verified as required by

Order 1 rule 2(3). Verifying the facts relied on is a condition precedent to granting

leave to enforce fundamental right. This is because at this stage the proceeding is ex-

parte and the order to be made would be based on the facts, as such these facts must

be verified by an affidavit. The verifying affidavit is the prima facie evidence of the

statement in the application.” – Per Muhammad, J.C.A. in Oyawole v. Shehu Suit

No. CA/1/88/94; (1995) 8 N.W.L.R. (Pt. 414) 484 at 494-495.

805. Motion on notice or summons must be filed within 14 days of grant of

leave under Order 2 rule 1(2) of the Fundamental Rights (Enforcement Pro-

cedure) Rules 1979.

“Clearly in my view, Order 2 rule 1(2) of the Fundamental Rights (Enforcement

Procedure) Rules 1979 allows for only fourteen days, after leave have been granted

within which the Motion on Notice or Summons must be filed or entered for hearing.

In computing the fourteen days period within which the Motion on notice or the

Summons as the case may be, must be entered for hearing under Order 2 rule 1(2),

the time will start to run from the day next following the day of the grant of the ex

parte Motion for leave to enforce the fundamental rights, that is, excluding the day

on which the leave was granted.

Where the last day of the period is a holiday or a dies non juridicus time

will continue to run until the end of the next following day, which is not a holiday or a

dies non juridicus. See Section 15(2)(a) and (b) of the Interpretation Act 1990. In

the instant case, the respondents were granted the ex parte motion or leave to en-

force their fundamental rights on the 4th of August 1997 by the Court below which

also adjourned the case to the 6th of October 1997 for hearing. It is evident on the

record that the respondents filed the Motion on Notice on the 20th August 1997

instead of 18th August 1997, which by computation of the fourteen days period for

filing the motion on notice was the fourteenth day. The respondents were two days

late or two days out of the prescribed time pursuant to Order 2 rule 1(2) aforesaid.”

- Per Ekpe J.C.A. in Umoh v. Nkan Suit No. CA/C/143/99; (2001) 6 W.R.N. 1 at

13; (2001) 3 N.W.L.R. (Pt. 701) 512 at 524.