Another call for time limits for the enforcement of fundamental rights suits and appeals ~ By Hameed Ajibola Jimoh
The Fundamental Rights (Enforcement Procedure) Rules, 2009-herein after referred to as the FREPR- has made the fundamental rights matters to be expeditious/urgent however, our Nigerian courts in many times, with due respect, have found it very difficult to comply with this provision of the Rules.
There have been salient questions that some of the judges would ask ‘is the applicant in incarceration?’. Then, if the applicant is not in incarceration, it means that the suit can then be adjourned for as along a time as possible! This act of long adjournment can last up to 2 years or 3 years or more as the case might be! This is at the trial court (High Courts) not including appeals! This is my personal experience in this regard!
One is always baffled that the courts are finding it very difficult, with due respect, to conform with this provision on a speedy hearing and determination of fundamental rights suits whereas, there has always been compliance and conformity with the provisions laws relating to electoral matters which the Constitution of the Federal Republic of Nigeria, 1999 (as amended)- herein after referred to as the Constitution- has provided the limit to the finality even up to the Supreme Court of Nigeria. See: Section 9(5) – (8) of the Constitution (2nd Alteration) Act, 2010, which prescribes: 21 days for filing petition; 189 days at the Electoral Tribunal; 60 days at the Court of Appeal and at the Supreme Court respectively!
That is why this paper is of the submission and recommendation that there is indeed the need for the Honourable, the Chief Justice of Nigeria who has been saddled by virtue of section 46(3) of the Constitution to make rules on the fundamental rights enforcement to amend the FREPR to amend the Rules as they are currently to provide for a maximum limit of fundamental rights suits from the initial trial court up to the Supreme Court of Nigeria.
More so, the FREPR has the force of the Constitution and is beyond just a Rule but a subsidiary legislation to the Constitution, hence, it is said to be sui generis. I had written an article published in this regard earlier before now with the title ‘FUNDAMENTAL RIGHTS ENFORCEMENT PROCEEDINGS IN NIGERIA: THE NEED TO LIMIT THE TIME OF PROCEEDINGS. By: Hameed Ajibola Jimoh Esq.’. This article is another call as a reminder and an emphasis on the need for a time limit for the enforcement of fundamental rights suits and appeals.
First and foremost, the Preamble 3 (f) and (g) to the FREPR and Order IV (1) and (2) of the Rules have enjoined the courts hearing the fundamental rights matters to always be guided by the urgent nature of such applications. Nevertheless, in my humble view, the fundamental rights matters must not be trivialized by our Nigerian courts and all government stakeholders and the citizens!
Those rights must be respected at all times and be regarded as very sacrilegious by the judiciary which is the last hope of the common man! There is indeed the need to have a limit of time to fundamental rights suits. It is important that an Applicant would already know when his application would be concluded finally (if he is appealing and if he is not appealing i.e. from the trial court to the apex court- i.e. the Supreme Court of Nigeria). This recommendation in my humble view, is in line with the interest of justice!
Under the FREPR, the preamble in item 3 (f) and (g) only provides the need for a speedy trial without any limit of the time within which such proceedings must be completed as it is the case in an electoral matter where a speedy trial is mandated. The said preamble provides thus ‘(f) The Court shall in a manner calculated to advance Nigerian democracy, good government, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights’ (g) Human rights suits shall be given priority in deserving cases.
Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency’. And by Order III of the FREPR, which provides on adjournments, in Rule 2 thus, ‘The hearing of the application may from time to time be adjourned where extremely expedient, depending on the circumstances of each case or upon such terms as the Court may deem fit to make, provided the Court shall always be guided by the urgent nature of applications under these Rules’.
Very important to note is the provision of Order XV (4) of the FREPR which refers matters not covered at all or not adequately covered by the Rules to be governed by the Rules of the particular court before which the matter is instituted thus ‘Where in the course of any Human Rights proceedings, any situation arises for which there is or appears to be no adequate provision in these Rules, the Civil Procedure Rules of the Court for the time being in force shall apply’.
It is to be further noted that the time limit provided by the FREPR for the doing of any act like filing and reply are not generally enough to make the proceedings of the fundamental rights enforcement speedy as adjournments are in some cases granted and at the discretion of the court.
The time has been limited by the Constitution and the Electoral Act in election matters and if this has been possible, the writer of this paper is of the submission that fundamental rights cases are more deserving or also deserving of the same consideration for time limit of the proceedings including up to the appeal in such cases.
It should not be the case that a court will assign fundamental rights cases to a particular judge at will. There should be a respect for humanity and not just for a mere election matter that there will not be any election where there is no humanity, so humanity comes before election matters. In this case, human rights matters should be speedily and timely disposed of.
The cases of unnecessary adjournments are other cases of an abuse of the enforcement of the fundamental rights matters.
In fact, the courts are bound by the circumstance of the case that an adjournment is better granted than refusing such an adjournment where justice might be seen as not being transparent. And many of the times, fundamental rights enforcements are brought against the government and or its officials and with due respect, these government’s officials act in many or some of the occasions as if they have been trained to always seek adjournment unnecessarily. Take for instance, the situation where a matter on fundamental rights either against an agency of the government or an individual- corporate or natural- in an enforcement of fundamental rights proceedings will have to be adjourned unnecessarily ought to be discouraged by the court.
And with due respect, the attitude of some counsel, especially government lawyers where such counsel will refuse to file his process(s) on time and refuse to enter appearance but to appear to enter an appearance either at hearing or at a time when the other parties and the court have resolved for hearing is very rebuke able.
It is to be noted and understood as well as emphasised that fundamental rights enforcement proceedings are sui generis as opposed to the general proceedings and that is why there is a special Rule for it under the FREPR as opposed to the general Rules of various courts. So, counsels, litigants, and all and sundry should take note and dissociate themselves from unnecessary and unwarranted delay in the fundamental rights proceedings.
We all understand that every petitioner in a political matter already knows when and how long a petition on such matter would take. See: the sections of the Constitution referred to above in this regard. Why then can an applicant in fundamental rights enforcement suits not know when his own case would be finally concluded?!
That is why even many human rights activists would rather than spend time and energy in pursuing fundamental rights suits to qualify to be conferred the privilege and title of a Senior Advocate of Nigeria, a number of them, with due respect to them, rather, queue over electoral matters! Therefore, it is really pathetic that fundamental rights matters would take up to 10 years or more up to the Supreme Court while electoral matters would rather take less than a year up to the Supreme Court!
It is also very surprising that human rights activists would find it very difficult to become a Senior Advocate of Nigeria despite the number of human rights and public interests cases that they must have instituted without them being involved in election petition matters! I have therefore considered the provisions of the Section 46(3) of the Constitution which confers powers on the CJN to make Rules and Procedures in relation to the provisions of the Chapter IV of the Constitution, which provides thus ‘(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.’ And I therefore base this (my) recommendation on same!
It is also very important for me to state that fundamental rights are rights guaranteed in the Constitution and they are rights 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 basic that they are entrenched in a particular chapter of the Constitution.
See: Odogwu v A.G. Federation (1999) 6 NWLR (pt. 455) p. 508, Ratio 6. 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). 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 also relevant and relied upon on this issue. Furthermore, under the Constitution, Chapter IV has laid down all the fundamental rights that every person as a Nigerian citizen is entitled to. Also, under the Constitution, section 46 and Order II Rule I of the FREPR provides that ‘any person who alleges that any of the provisions of the Constitution in Chapter IV has been or is likely to be contravened in any State in relation to him may apply to a High Court for redress’.
Furthermore and having said the above, it is also very important for me to state that I had written two (2) different letters to the Honourable, the Chief Justice of Nigeria both in 2018 and 2019 respectively recommending My Lord, pursuant to Section 46(3) of the Constitution, for: (1) a ‘no chargeable fees’ on enforcement of fundamental rights actions; (2) establishment of special panel courts in High Courts in Nigeria to hear fundamental rights enforcement cases; and (3) establishment of a Fundamental Rights Enforcement Monitoring Committee.
And ( of recent in 2019) recommending that the Honourable, the Chief Justice of Nigeria: (i) should utilize his powers pursuant to the section 46(3) of the Constitution and other enabling sections of the Constitution and the Interpretation Act, by making and or amending the provisions of the current FREPR or by passing a Practice Direction on Rules and Procedures on the Service and execution in a State or High Court of the fundamental rights processes, judgments, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria so far it pertains to the fundamental rights enforcement suits, which will depart from the provisions of the Sheriffs and Civil Process Act and its accompanying subsidiary legislations especially the careless (and militant) provisions of requirement for consent of the Attorney-General of the Federation or of the State before such moneys awarded to an Applicant under the Rules, can be garnished. (ii) set up a Committee to immediately consider means of implementation of the research work submitted to His Lordship.
It is the above recommendations (and in addition to the submission and recommendations that I have made in this paper) that I still humbly recommend to the Honourable, the Chief Justice of Nigeria, to consider at the time His Lordship is prepared to review the Rules.
It is humbly suggested here that fundamental rights enforcement proceedings should be concluded at first instance, within a maximum period of 2 months, while an appeal in such cases shall be concluded and decided within the maximum periods of 1 month based on the brief of argument of parties and at the Supreme Court, within 2 weeks. In total, the trial and appeal, excluding the time for filing and reply as discussed above, it will all be concluded up to the Supreme Court of Nigeria within the maximum periods of 3 months and 2 weeks.
Also, it is submitted that vacation and or holidays should not be a hindrance to the hearing of human rights proceedings. Furthermore, execution of the decision and or judgment in fundamental rights cases is submitted to be effected without any hindrance.
One might be surprised about or at the submissions of the writer of this paper made in this paper, rather, it should not surprise anyone at all because, humanity really deserves to be treated as important and conducting the proceedings in this from is one of those things that would convince and prove to the victims of human rights violation that government cares about them and that human rights cases are without any delay and hindrance.
Furthermore, I humbly recommend that the Nigerian Bar Association too should utilize this opportunity to set up a Committee of human rights activists (lawyers) across the nation who would review the FREPR of 2009 with improvement and advancement in the enforcement of the human rights of the citizens (and not to cause the Rules to be useless and or restricted for personal reasons), after which the Association should make its recommendations to the Honourable, the Chief Justice of Nigeria for his necessary consideration (this is in line with the Constitution of the Nigerian Bar Association as provided in Section 3(k) of its Constitution which provides to promote and protect the principles of rule of law and respect for enforcement of fundamental rights, human rights and people’s rights. Human rights activists are also encouraged to make recommendations to the Honourable, the Chief Justice of Nigeria for a review of the FREPR, 2009.
Finally, I am of the humble submission that the current FREPR is due for review by the Honourable, the Chief Justice of Nigeria. I am also of the recommendation that at least, at every five (5) years and maximum period of ten (10) years, any FREPR in force should always be reviewed most especially, in line with the overriding objectives of the Rules as enumerated in the preamble to the Rules.
I also hope that my recommendations made and submitted to the Honourable, the Chief Justice of Nigeria as well as those made in this paper would be given deserving considerations and approval for the purpose of advancing the fundamental or human rights of Nigerian citizens and not swept under the carpet. I also hope that the Nigerian Bar Association would set up a Committee to consider a review of the said FREPR without any delay and human rights activists too would stand up for the clarion call for review of the FREPR, 2009.