NATURAL JUSTICE AND FUNDAMENTAL RIGHTS

 (ENFORCEMENT PROCEDURE)

CONTENTS

1.0       Introduction

2.0       Objectives

• Main Content
• Enforcement Procedure
• Fundamental Right (Enforcement Procedure Rules)
• Application for Judicial Review
• Jurisdiction on Appeal/Supreme Court

4.0       Conclusion

5.0       Summary

6.0       Tutor-Marked Assignment

7.0       References/Further Readings

INTRODUCTION

By chapter IV of the 1979, 1989 and 1999 Constitutions of Nigeria, provisions are made for certain fundamental human rights.

These fundamental rights deal mainly with:

• Right to life
• Right to dignity of human person
• Right to personal liberty
• Right to fair hearing
• Right to private life
• Right to freedom of thought, conscience and religion
• Right to expression and the press
• Right to peaceful assembly and association
• Right to freedom to movement
• Right to freedom from discrimination
• Right to own property, and
• Compulsory acquisition of property

The federal government realizing the importance of these rights therefore made the following provision for their enforcement.

For instance, the High Court of a state has original jurisdiction to hear and determine any application brought to it from any person who  alleges that any of the provisions of Chapter IV has been, is being or is likely to be contravened in relation to him. Thus and accordingly a person who s or likely to be affected by a contravention of any of the provisions contained in fundamental rights may apply to a high court for redress.

And on hearing the application, the High Court may make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state or in the Federal Capital Territory Abuja, of any rights to which  the person who makes the application may be entitled under this  chapter.

Provisions also are made in the said Constitutions for legal aids to be given in order to help those who are considered indigent so as to enable them prosecute their rights accordingly when necessities demand.

Also, it is stated in the Constitutions that the Chief Justice of Nigeria may make rules with respect to the practice and procedure of a high court and procedures made are contained in appendix “B” attached.

These are pertinent discussions on the nature and value of Natural  justice in Nigeria for law without enforcing mechanisms are sterile laws since they serve no utility purpose to any person or persons.

Therefore, should any person be denied of his constitutional right to fair hearing, or should a tribunal or any adjudicative body or process refuse to hear his own side of the case before affixing punishment and or should a procedure meant for determining disputes be abridged or abrogated when trying his case, then he can come to court to seek for redress under the fundamental human right enforcement procedure.

Also should a person charged with a Criminal Offence be denied of any of the following pre-requisites- viz

• To be informed promptly in the language that he understands and in detail of the nature of the
• To be given adequate time and facilities for the preparation of his defence
• To defend himself in person or by a legal practitioner of his own choice.
• To examine in person or by his legal practitioner the witnesses called by the prosecution before any Court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as applying to the witnesses called by the prosecution and
• To have without payment the assistance of an interpreter if he can not understand the language used at the trial of the offence, then he can take an action in a high court having jurisdiction in his state to enforce his fundamental human rights to fair hearing, and declare null and void any proceeding and judgment given so far.

OBJECTIVES

At the end of this unit, you should be able to: understand the definition and judicature

appreciate the fundamental rights enforcement procedure rules

understand the process for enforcing human rights.

MAIN CONTENT

APPENDIX B

Fundamental Rights (Enforcement Procedure) Rules

THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1979

Fundamental Rights (Enforcement Procedure Rules, S.I. Of 1979

Date of Commencement: 1^st January, 1980

In exercise of the powers conferred by section 42 subsection (3) of the Constitution of the Federal republic of Nigeria, the Chief Justice of Nigeria hereby makes the following Rules.

ORDER 1

1. (1) These Rules may be cited as the Fundamental Rights (enforcements Procedure) Rules,
2. In these rules-

 

“application” includes an application for the leave of the court

“constitution” means the Constitution of the Federal Republic of Nigeria, 1979;

“Fundamental Right” means any of the Fundamental rights provided for in Chapter IV of the Constitution;

• The Court or judge may, in granting leave, impose such terms a to giving security for cost as it or he things
• The granting of leave under this rule, if the Court or judge so directs, shall operate as a stay of all actions or matters relating to, or connected with, the complaint until the determination of the application or until the Court or judge otherwise

Time for Applying for Leave

“Court” means the judge of the Court;

“Legal representatives” means a person admitted to practice in the Supreme Court of Nigeria who has been retained by or assigned to a party represent him in the proceedings before the court;

“originating summons” means every summons other than a summons in a pending cause or matter;

“Prison Superintendent” means the person in charge of the prison or any other place in which the complainant is restrained or confined;

“registrar” means the registrar of the Court hearing the application or of any Court to which an order is directed;

“Rules” means these Rules or any amendment thereto and includes the Forms appended to these Rule;

“State” means one of the component parts of the Federal Republic of Nigeria.

Fundamental Rights (Enforcement Procedure) Rules Application for Leave

 

Any person who alleges that any of the Fundamental Rights Provided for in the Constitution and to which he 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.

No application for an order enforcing or securing the enforcement within the State of any such right shall be made unless leave therefore has been granted in accordance with this rule.

An Application for such leave must be made ex parte to the appropriate Court and must be supported by a statement setting out the name description of  the applicant, the relief sought, and the grounds on which it is sought, and by an affidavit verifying the facts relied on.

The applicant must file, in the appropriate Court, the application for leave not later than the day preceding the date of hearing and must at the same time lodge in the said Court enough copies of the statement and affidavit for service on any other party or parties as the court may order.

 

 

 

 

• The Court or judge may, in granting leave, impose such terms a to giving security for cost as it or he things

 

• The granting of leave under this rule, if the Court or judge so directs, shall operate as a stay of all actions or matters relating to, or connected with, the complaint until the determination of the application or until the Court or judge otherwise

 

Time for Applying for Leave

 Leave shall not be granted to apply for an order under these rules unless the application is made within twelve months from the date of the happening of the event, matter, or act;

complained of, or such other period as may be prescribed by any enactment or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the court or judge to whom the application for leave is made.

Where the event, matter, or act complained of arouse out of a proceeding which is subject to appeal and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for the leave until the  appeal is determined or the time for appealing has expired.

Fundamental Right (Enforcement Procedure) Rules 

ORDER 2

 

1.	(1)	When leave has been granted to apply for the order being asked for, the application for such order must be made by notice of motion or by originating summons to the appropriate Court, and unless the Court or judge granting leave has otherwise directed, there must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing Form No 1 or 2 in the appendix may be used as appropriate.
	(2)	The motion or summons must be entered for hearing within fourteen days after such leave has been granted
	(3)	The motion or summons must be served on all persons directly affected, and where it relates to proceedings in or before a court, and the object is either to compel the court

or an officer therefore to do act in relation to the proceedings or to quash them or any order made therein, the motion or summons must be served on the registrar of the court, the other parties to the proceedings and, where any objection to the conduct of the judge is made, on the judge.

• An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the motion or summons must be filed before motion or summons is listed for hearing, and if any person who ought to have been served under paragraph (3) has not been served, the affidavit must state the fact and the reason why service has not been effected, and the said affidavit shall be before the Court of judge on the hearing of the motion or
• If on the hearing of the motion or summons the Court or judge is of the opinion that any person who ought to have been served with the motion or summons has not been served, whether or not he is a person ho ought to have been served under paragraph (3), the Court or judge may adjourn the hearing on such terms, if any, as it or he may direct in order that the motion or summons may be served on that person

Statement and Affidavits

2.	(1)	Copies of the statement in support of the application or leave under Order 1 and 2 (3) must be served with the notice of, motion or summons under rule 1 (3) of Order 2 and, subject o paragraph (2) of this rule, no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in the said statement.
	(2)	The Court or judge may, on the hearing of the motion or summons allow the said statement to be amended, and  may allow further affidavits to be used if they deal with new matters arising out of any affidavit of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he must give notice of his intention and of any proposed amendment of his statement to every other party, and must supply to every such other party, copies of such further affidavits.

 

(3) Every party to the application must  supply  to  any other party copies of the affidavit which he proposes to use at the hearing.

Several Applications to the Same Infringement

1. Where several applications relating to the infringement of a particular Fundamental Right are pending against several persons in respect of the same matter, and on the same grounds, the applications may be consolidated by order of the Court or judge hearing the

ORDER 3

Application to Quash any Proceedings

1.	(1)	In the case of an application for an order to remove any
		proceedings for the purpose of their being quashed, the
		applicant may not question the validity of any order,
		warrant commitment, conviction, inquisition or record
		unless before the hearing of the motion or summons he
		has served as certified copy thereof together with a copy
		of the application the Attorney General of the federal or of
		the state in which the application is being heard as the
		case may be, or account for his failure to do so the
		satisfaction of the Court or judge hearing the motion or
		summons.

(2) Where an order to  remove  any  proceedings  for  the  purpose of their being quashed is made, in any such case, the order shall direct that the proceedings shall be quashed forthwith on their removal into the court which heard the application.

ORDER 4

Application for Production and or Release of Person Restrained

1.	(1)	In an application where the applicant complaints of wrongful or unlawful detention, the Court or judge to whom the application is made exparte may make an order forthwith for his release from such detention, or may –
	(a)	direct that an originating summons as in the Form 2 in the Appendix be issued or that an application therefore be made by notice of motion, as in the Form 3; or

(b) adjourn the ex parte

• The summons or notice of motion must be served on the person against whom the order for the release of the applicant is sought and on such other persons as the Court or judge may direct, and, unless the Court or judge otherwise directs, there must be at lease five clear days between the service of the summons or motion and the date named therein for the hearing of the application
• Every party to and application under rule 1 must supply to every other party copies of the affidavits which he proposes to use at the hearing of the motion or summons

2. Without prejudice to rule 1 (1), the Court or judge hearing an application where the applicant complains of wrongful or unlawful detention may, in its or his discretion, order that the person restrained be produced in court, and such order shall be a sufficient warrant to any Super indent of a Prison, Police Officer in charge of a police state, Police Officer or Constable in charge of the complainant, or any other person responsible for his detention, for the production in court of the person under restraint.
3. Where an order is made for the production of a person restrained, the Court or judge by whom the order is made shall give directions as to the Court or judge before whom, and the date on which, the order is returnable.
4. (1) Subject to paragraphs (2) and (3), an order for the production of the person restrained must be served personally on the person to whom it is directed.

• If it is not possible to serve such an order personally, or if it is directed to a Police Officer or a Prison Superintendent or other Public Official, it must be served by leaving it with any other person or official working in the office of the Police Officer, or the prison or office of the Superintendent or the office of the public official to whom the order is
• If the order is made against more than one person, the order must be served in manner provided by the rule on the person first named in the order and copies must be served on each of the other persons in the same manner.
• There must be served with the order (in the Form 4 in the Appendix) for the production of the person restrained a notice (in the Form 5 in the Appendix) stating the Court or judge before whom, and the date on which the person restrained is to be brought.

5.	(1)	The return to an order for the release of a person restrained must be endorsed on or annexed to the order  and must state all the' causes or justifications of the detain of the person restrained.
	(2)	The return may be amended, or another return substituted therefore, by leave of the Court or judge before whom the order is returnable.

 

Proceedings at Hearing of Motion  or Summons after Order has been Returned

6. When a return to the order has been made, the return shall first be read in open courts and an total application then made for discharging or remanding the person restrained or amending or quashing the return, and, where that person is brought up in court in accordance with the order, his legal representative shall be heard first, then the legal representative for the State or for any other official or person restraining him. The legal representative for the person restrained will then be heard in reply
7. An order for the release of a person restrained shall be made in clear and simple terms having regard to all the circumstances.

ORDER 5

Right of any Person or Body to be Heard

Any person or body who desires to be heard in respect of any application, motion, or summons, under these Rules, and appears to the Court or judge to be a proper person or body to be heard, shall be heard notwithstanding that he or she has not been served with the copy of the application, motion, or summons.

ORDER 6

Order which the Court Can Make and Effect of Disobedience

1.	(1)	At the hearing of any application, motion, or summons
		under these Rules, the Court or judge concerned may
		make such orders, issue such writs, and give such
		directions as it or he may consider just or appropriate for
		the purpose of enforcing or securing the enforcement of
		any of the Fundamental Rights provided for in the
		Constitution to which the complainant may be entitled.

 

(2) In default of obedience of any order made by the Court or judge under these Rules, proceedings for the committal of the party disobeying such an order will be taken. Order of Committal is in the Form 6 of the Appendix.

FORM NO 1

NOTICE OF MOTION FOR AN ORDER

ENFORCING A FUNDAMENTAL RIGHT

(Order 2 rule (1))

In the Federal High Court High Court of.......................... State

Take notice that pursuant to the leave of the Federal High Court

1. at) High Court State (or the Honourable Justice …………..) given on the .. .. ................................................................................... day of .. ..

.. .. .. .. .. ............................................................................19            ,     or     so

soon thereafter as counsel can be heard on behalf of ……. (for an order that

...........................................) ......................................................................

.... (in terms of the relief sought in the statement accompanying the affidavit in support of the application for leave to apply for the order) on the grounds set out in the copy statement served herewith used on the application for leave to apply for such order.

 

And take notice that on the hearing of this motion the said........... will

use the affidavit of    and the exhibits therein referred to.         (And also take notice that the  )          High Court (or the Honourable Justice     )

 

By order dated .........................................................directed that all proceedings in (or on) the said be stayed until after the hearing of this motion or further order).

 

DATED the ...........................day of ......................19 ........

 

(Signed)

Applicant or his Legal Representative To

Respondent or his Legal Representative

Note: - Delete the High Court which is not applicable.

FORM NO. 2

 ORIGINATING SUMMONS

(Order 2 rule 1 (1), and Order 4 rule 1(1)

 

In the Federal High Court at .........................................High   Court    of State Division (in the matter of……….) ........ Between A.B Plaintiff and C.D …… ……...............................................Defendant                To     C.D.

of in the Of Let the defendant, within fourteen days (or if the summons is to be served out of the jurisdiction, insert here the time for appearance fixed by the order giving leave to issue the summons and serve it out of the jurisdiction) after service of this summons on him, inclusive of the day of service, cause an appearance to be entered to this summons, which  is  issued  on  the  application  of the plaintiff......................................... of

………………..

By this summons the plaintiff claims against the defendant' .................

(or seeks the determination of the Court of the following questions, namely, or as may be) If the defendant does not enter an appearance, such judgment may be given or order made against or in relation to him as the Court may think just and expedient.

DATED the .................................day of ...................19 .....

Note: This summons may not be served later than twelve calendar months beginning from the above date unless renewed, by order of the Court.

This summons was taken out by .........................................of the solicitor        for        the        plaintiff        whose        address        is

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . (or where the plaintiff sues in person this summons was taken out        by        the        said        plaintiff        who         resides        at

. .......................... .. )

The defendant may enter an appearance in person or by a solicitor by handing in the appropriate forms duly completed, at the Federal High Court at or the High Court of State sitting at(Delete Court which is not applicable) For Service on

FORM NO 3

NOTICE OF MOTION FOR AND ORDER

 FOR THE PRODUCTION OF PERSON DETAINED

In the Federal High Court at............................... the High Court of State In

the matter of A.B. Suit No........................................ and In the matter of an

application for the release of person detained Take notice that pursuant to the direction of the Honourable ........Justice .....of the Federal High Court .......................................................at.. .......for  of  the  High Court

of…………...............State the  High  Court  will  be  moved  on  the day of .....................................………….. 19…………..or so soon thereafter as counsel can be heard on behalf of....................................................... for an

order directed to ............... .. .. . .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .  to            have

the body of the said .. .. . .. .. .. . .. . .. .. .. .. . .. .. .. .. .. .. .. before. the High Court at . .. .. .. .. .. .. .. .. .. .. .... at such times as the Court or- judge may direct upon the grounds set out in the affidavits of the said

. ……... .. and . . . . . . . . . . . . . . . . …………….. . . . . . .. and the exhibits therein respectively referred to used on the application                       to the Honourable Justice (or the High Court) for such order, copies of which affidavits and exhibits are served herewith.

And take notice that on the hearing of this motion the said

Signed

Applicant or his Legal Representative

Note - Delete the High Court which is not applicable. To The officer or person who has .. Custody of person detained.

FORM NO. 6

ORDER OF COMMITTAL

(Order 6 rule 1 (2)) (Heading as in Action)

Upon motion has this day made unto this Court by counsel for the plaintiff and upon reading (an affidavit of ……………..filed the

day    of    ………19……….     of     service    on    the     defendant

………………of a copy of the order of the Court dated the ….. Day       of

….. 19 …. and notice of this motion). And it appearing to the satisfaction of the Court that the defendant has been guilty of contempt of court in (state the contempt):

It is ordered that for his said contempt the defendant do stand committed to Prison to be there imprisoned (until further order).

(It is further ordered that this order shall not be executed if the defendant................ complies with the following terms, namely,

 

DATED the ..........................day of .........................19 ........

CONCLUSION

In this discuss you learn about the concept of natural justice and fundamental right enforcement procedure in Nigeria. We learn  about  the various steps of which beach of human right and natural justice could be enforced. The 1979 fundamental right enforcement rules is still applicable in Nigeria.

SUMMARY

In this unit, you have learned about the definition and type of powers or procedure a litigant should employ to get a re-dress in law court.

TUTOR-MARKED ASSISGNMENT

Define order of committal.

REFERENCES/FURTHER READINGS

D.E. Smith (1977). Constitution and Administrative Law. Nwabueze, B. (1973). Constitutionalism; Hurst & Co. London.

Sokefun,  J.  (2002).     Issues in Constitutional Law and Practice in Nigeria, Olabisi Onabanjo University.