Human rights or fundamental rights?

“Human rights were derived from and out of the wider concept of natural rights. They are rights which every civilised society must accept as belonging to each person as a human” – part of international law.

“Fundamental rights are such rights but are fundamental because they have been guaranteed or entrenched by the fundamental laws of the country; the constitution” – domestic law – UZOUKWU V EZEONU 11

The scope of enforcement under the Fundamental rights enforcement 2009 rules is wider in the sense that it covers fundamental human rights contained in chapter 4 of the constitution and the African charter on human and people’s rights.

At all times the duty of the court is to expand as much as possible not to restrict those rights. The application of the rules is not limited to chapter IV or the domesticated rights in the African charter. When bringing an application for enforcement of fundamental right there is nothing wrong in bringing the application pursuant to any international instrument, it would be cognisable by the courts (see the overriding objectives in the preamble 3 to the rules)

Locus standi is no longer a relevant factor. It is no longer a limiting factor in bringing such applications.

It allows for public interest litigation

Amicus curiae may be encouraged (see order 13 rule 2)

 

Court & jurisdiction

• 46 1999 constitution - any high court of the state.
• Order 1 rule 2 – court means the Federal High Court, high court of a state, high court of the FCT. However the appropriate court depends on the subject matter.
• Is the NIC included? Yes By implication when fundamental rights issue arise – s.254C(1)(d) 1999 constitution. Infringement of rights in labour related matters.

 

If the matter is one which the court does not have original jurisdiction, then you cant go there with a fundamental rights enforcement application.

 

When appropriate to commence at the Federal High Court?

• Must be one within the original jurisdiction in s251; TUKUR V GOVT OF GONGOLA STATE (1998)
• Or 2 R 1- ADETONA V IG ENTERPRISES (2011) ; NDLEA V OMIDINA – here the state high court had no original jurisdiction in drug related matters so it was set aside on appeal

 

Commencement of action

What cause of action is actionable under the rules?

 Which court has jurisdiction to entertain the application? O2 R 1

Within what time can an application for commencement of enforcement be brought? – O 3

Against whom can the application be brought?

A form that is acceptable is originating motion. See Form 1 , before leave of the court ought to be obtained but under the new rules there is no need to obtain leave of court  

 

Apart from the originating motion, there should be a statement of fact setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, it must also be dated and signed see order 2 rule 3. The statement must be headed in the name of the court just like the originating motion. In addition there must also be an affidavit (Or 2 R 3). The affidavit can be deposed to by the applicant, this is the primary person but if its impossible for the applicant to depose to it someone who knows about the facts can depose to it (Or 2 R 4). So the documents needed for an application for enforcement of fundamental human rights:

1. Originating motion
2. A statement setting out the name and description of the applicant, the reliefs sought and the grounds for the relief.
3. Affidavit – affidavit setting out the facts upon which the application is made.
4. Written Address Or 2 R 2

 

 

APPLICATION & OPPOSITION

• What is the mode of the application? Any necessity for leave? Order 2 R 2 ; Form 1
• What are the supporting documents to the application? Or 2 R 3
• Who will depose to the affidavit? – Or 2 R 4
• Every application ton be supported by a written address – order 2 rule 5
• Assuming the respondent intends to oppose the application, what will he do and within that time? Order 2 rule 6

 

Who to depose to the affidavit? / Deposing to the affidavit

There are two different situations – 1) a person who has personal knowledge or/and 2) informed of the facts by the applicant. 

In the second situation you must tell the court the circumstances in which you were informed so e.g that you were informed by xxx  on --- date and at ---- time  on --- the place and that you verily believe it

 

See Or 12 R 4& 5 for structure of the written address

 

A respondent in response must file a written address but can file a counter affidavit if he is opposing the facts. If he’s opposing on law alone he doesn’t need to file a counter affidavit.

 

If there is a preliminary objection (see Or 8).

A preliminary objection is an objection on points of law. It is filed when there a point of law that needs to be raised. A notice of preliminary objection ought not to be supported by an affidavit. If the person want to join issues on facts the person then files a counter affidavit as well as a notice of preliminary objection – so you’re filing two processes.

When filed together and the respondent claims that the objection on jurisdiction should be taken first as jurisdiction goes to the root of the case, you response as applicants counsel is that the rules provide that it should not be given priority, it is to be taken with the substantive suit, the court will hear the applications together. Only one ruling will be delivered if they are taken together (see order 8 rule 5 &6)

 

 

Order 3 – limitation of action

 

A foreigner can enforce fundamental rights in Nigeria because the provision says any person so long you’re within the jurisdiction of the state. Corporate body can enforce because there is natural and legal person.

 

• Infants – can enforce the right through next friend BADEJO V MIN. OF EDUCATION. Note: Sofolahan v Fowler constitution of such action
• Deceased: no cause of action. FR in perosnam – EZECHUKWU V. MADUKA (1997). Contrast right to damages by estate or beneficiaries: BELLO V AG (Oyo)  - so they can claim for damages through another process but not through the enforcement of fundamental rights   
• Different individuals in the same suit, family rights, representative capacity – not enforceable because personal rights – OPARA V SPDC (2015) 14 NWLR (Pt. 1479) 307

There is a difference between an action in a representative capacity and an action on behalf of person who do not have legal capacity e.g. an infant or lunatic. Persons who do not have legal capacity would bring an action in his own name but through his next friend or guardian ad litem.

 

So there can be no representative action or class action in fundamental right enforcement but individual actions can be consolidated. So if the different individuals bring their application they can be consolidated (see order 7).

Contrast: Joinder of several applicants in one application -  not allowed because fundamental rights are personal to each individual.

Two or more persons cannot file single application – RTFTCIN V Ikwecheigh (2000)

 

What to do?

A respondent can file either of the following in response

1. Where the respondent intends to oppose, should file a written address within 5 days; may accompany with a counter affidavit. Order 2 rule 6
2. Can file an address without a counter affidavit
3. Can file just a notice of preliminary objection and address. In this case it means he has admitted to the facts in the affidavit
4. May file a notice of preliminary objection, counter affidavit and an address

 

The applicant may file a reply on points of law within 5 days; may accompany with a further affidavit. Order 2 rule 7. He doesn’t have to file a further affidavit, he can only file a further affidavit where the counter affidavit has raised new issues.

 

There are situations where you can have ex parte applications

Order 4 rule 3 & 4

 

APPLICATION EX PARTE

Is it permissible for the court to hear an application for enforcement ex parte ? O.4 R 3

What conditions must be satisfied? O.4 r 3&4

What possible orders may the court make upon an ex parte application? O 4 R 4 (c)

What can a party do that is affected by an order made ex parte – O 4 R 6

A person can ask for a discharge of the ex parte order within 7 days and this is by motion on notice

 

Possible orders that a court can make when it hears a fundamental human rights application

• General damages
• Detained person should have access to the family
• Public apology under s 35(6) 1000 const. –
• Release from detention, production
• Prerogative writs under O.10; habeas corpus, certiorari, prohibition, injunction
• Minister of internal affairs v ShugabaDarman (1982)

 

 

A declaration that the

A mandatory order directing the

“A mandatory order commanding the respondents jointly and or severally to deliver an apology in writing”

10,000,000 damages jointly and severally

 

CONTENTS OF THE WRITTEN ADDRESS

O.12 r.4 &5:

 Introduction – the application which the address is based

 Brief statement of facts

 

HEARING OF THE APPLICATION

• Application can be set aside for hearing within 7 days from date of filing – order 4 rule 1

 

FUNDAMENTAL RIGHTS AND WRIT OF HABEAS CORPUS

Order

 

Note: o 10 r 1 – in the nature of certiorari. Certiorari under the rules must be one where the rights have been infringed 

UGOH V BENUE  l.g.s.c (1995) 3 NWLR (PT 383); BAMAIYI v BAMAIYI (2005)

 

 

COSTS AND SANCTIONS

Sanctions are penalties, punitive measures or coercive measures that the court would impose on someone who has defaulted in obeying the order of the court.

What are costs? These are the monies that the court would award to indemnify or compensate the other party for reasonable expenses, time & effort for litigating a matter

Costs and sanctions are interlinked. Cost is a part of sanction so costs can be punitive in nature. Normally costs are paid to the other party but when the cost is punitive in nature and becomes a sanction then it is paid to the court.

Power of court to impose. See order 49 (1) lag; order 52 (1) – (5)Abj

 

Types of sanctions

• Striking out an action for want of diligent prosecution. See or 30 r 1 & 19 LAG; or 35 r 2 Abj ; see also or 30 r 3 lag; or 35 r 4 Abj
• Striking out of applications. See Or 39 R 6 LAG; Or 7 R 22 Abj
• Striking out action for non-compliancewith rules or statutes. Or 5 R 1 & 2 Lag; OR 2 R 1(2)
• Failure to perform an act within time authorised by the judge or rules. OR 9 R 5 – late appearance, pay N200 for each day of the default; OR 24 R 4 & OR 44 R 4 LAG
• Committal for contempt See s 72 SCPA; OR 26 R 11 & 12 LAG; OR 42 R 9 LAG; OR 41 R 1 ABJ; OR 30 R 20 & 22 ABJ
• Award of punitive costs and penalties. OR 19 R 2(3) & 3(3) LAG; OR 30 R 22 ABJ
• Failure to attend or participate in case management conference or ADR proceedings. See OR 25 R 5 & 6 (2) LAG the matter will be dismissed against the claimant if the claimant fails to participate, if it’s the defendant then judgment will be entered
• Disciplinary measures against counsel for professional misconduct. See rule 24(2) & (3) RPC

 

COSTS

Principle behind the award of costs. See Or 49 r 1 LA; OR 52 R 7 ABJ

The principle is that a particular person must be compensated for the expenses or energy he has put in for litigating a matter.

Power of court to award costs is discretionary and provided for under the rules of the court. See Or 49 Lag; Or 52 abj. It is discretionary because the court determines who to award cost to, how much cost should be awarded, but the discretion should be exercised judiciously

 

The general rule on award of cost is that costs follow events. Order 49 rule 11 Lagos; UBN v NWAOKOLO

What will the court consider in awarding costs? Or 49 R 2, OR 52 R1 Abj

1. Conduct of the parties
2. Any offer of settlement made by any of the parties or payment into court
3. If anything is done or omission is made improperly or unnecessarily

 

The rules provide for securities for costs. This is an undertaking to pay costs rather than paying costs or the person getting a bond that.

At what stage of the proceedings can the issue of costs

Or 49 rule 10 (2) Lagos should be paid forthwith and within 7 days of award of cost. Abuja doesn’t make provision for time limit. Where it is not paid the court would not grant party or his counsel any audience in court. Furthermore the court can go ahead and stay proceedings until the costs are paid especially if the costs are punitive in nature.

 The judge has the power under the rule to determine summarily how much to be paid as cost and sanction. However there may be a technical issue and the court wouldn’t know how much costs should be awarded. In such instance, the court can give it to the tax officer to compute the cost, order 49 (2-3) order 52 rule 10 ABJ 

AG Leventis v OBIAKPOR

 

Orders the court can make

1. The courts can make an order as to costs of the action – the successful party would be paid the costs of the action by the unsuccessful party.
2. No order as to costs – this means the parties will bear their respective costs and the court would not make any award as to costs. The court usually makes this order where the application that is brought is necessary
3. Order of costs in cause – it means at that stage the court isn’t making any order as to cost, rather it is pending the final determination of the suit. So the costs would be reserved till the end of the trial, so whoever wins the suit at the end would get the cost
4. The application is dismissed with costs – This means the application before the court lacked merit and the court would dismiss it and award costs against the party.
5. Costs in any event –

 

Personal liability of legal practitioner Order 49 r 14 Lagos, or 52 r 8 Abuja – where they have unnecessarily incurred cost for their clients, lawyers are liable to pay costs