By Festus Ogun, Esq

Fundamental rights enforcement, in our respectful view, is one of the most litigated causes of action in Nigeria – no thanks to the highhandedness of Nigeria’s security operatives. The jurisprudence of fundamental rights enforcement is increasingly evolving and the year 2024 has witnessed some of the most significant decisions that hold great potential in enforcing human rights violations. The purpose of this article is to highlight and briefly review some of these far-reaching decisions.

Total Exploration & Production (NIG) Limited v. Okwu & Ors (2024) LPELR-62623(SC)

No doubt, the decision in Total Exploration & Production (NIG) Limited v. Okwu & Ors (supra) represents perhaps the most significant decision in the human rights landscape in 2024. The Supreme Court finally settled the long, confusing debates on joint application for enforcement of fundamental rights. Prior, the argument was that the operative word used in Section 46(1) of the Constitution is “person” which is in singular form. Similarly, the proponent of this school of thought argued that by Order 1 Rule 2 and Order 2 Rules 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009, the words used therein are ‘any person’, ‘applicant’ and ‘application’ which are in singular form. Consequently, it follows that fundamental rights suits must be filed separately by individual applicants and that one fundamental right action cannot be filed by joint applicants. Curiously, this position was given judicial imprimatur by the Court of Appeal in the following line of cases: Finamedia Global Services Ltd Vs Onwero Nigeria Limited (2020) LPELR 51149(CA), Chief of Naval Staff & Ors Vs Archibong & Ors (2020) LPELR 51845(CA) and Abuja Electricity Distribution Company Plc & Ors Vs Akaliro & Ors (2021) LPELR 54212(CA).

On the other hand, there is a school of thought that postulates that regardless of the singular nature of the phrase “any person” as used in Section 46(1) of the 1999 Constitution and other singular words used in the FREP Rules, it can be interpreted to mean multiple persons. This is supported by provisions of Section 14(b) of the Interpretation Act, which provides that “in an enactment, words in the singular include the plural, and words in the plural include the singular.” In short, the proponents argue that a joint application for fundamental rights enforcement is permissible in so far as the cause of action of the applicants are similar. See: Government of Enugu State Vs Onya (2021) LPELR-52688(CA), Incorporated Trustees of Digital Rights Lawyers Initiative & Ors Vs National Identity Management Commission (2021) LPELR 55623(CA), and Nuwawan & Ors Vs Inspector General of Police(2023) LPELR 61580(CA).

Thankfully, the Supreme Court, in its recent decision in Total Exploration & Production (NIG) Limited v. Okwu & Ors (2024) LPELR-62623(SC), had the opportunity to consider the controversy and held that joint application for fundamental rights enforcement is permissible and maintainable, in so far as “the applicants share the same cause of action or share a common interest”. Specifically, the Apex Court held that Court of Appeal decisions in the line of Abuja Electricity Distribution Company Plc & Ors Vs Akaliro & Ors (Supra) “do not represent good law”. This is, without doubt, a landmark decision that will positively impact our human rights jurisprudence in Nigeria.

Miss Folasade Molehin v United Bank for Africa (UBA) FHC/L/ CS/2625/2023

In this digital age where data is gold, the case of Molehin v UBA represents a significant decision where the Court decided that the rights to privacy of data under the Nigeria Data Protection Regulation (“NDPR” or “the Regulation”) issued by the National Information Technology Development Agency (NITDA) is subsumed under the right to privacy under Section 37 of the 1999 Constitution and thus, a fundamental right.

Briefly, the facts of the case are that Miss Molehin provided her UBA savings account to her employer for the payment of her salary, which was denominated in US Dollars. The employer subsequently deposited the salary into the designated account as instructed. However, UBA did not make any confirmation as to the payment; rather UBA informed Miss Molehin via a text message that it had created a domiciliary account for Miss Molehin where the salary amount was deposited. On receipt of the text message, Miss Molehin reached out to UBA on the reason and justification for unilaterally opening a domiciliary account for her. She requested that the domiciliary account be closed. However, UBA failed to close the domiciliary account. Taking out an Originating Summons before the Federal High Court, Miss Molehin contended that the right to privacy of data is a fundamental human right guaranteed under Section 37 of the Constitution of the Federal Republic of Nigeria and that this right was violated by UBA when the bank created a domiciliary account for her without her consent. On its part, UBA contended that as at the material time, it was illegal in Nigeria to make a foreign currency transfer into a Naira account and that in order to avoid a situation where the transaction was aborted, UBA acted in Miss Molehin’s best interest in line with the existing banker-customer relationship by channeling the fund into a system-created domiciliary account. Significantly, UBA contended that the subject matter of the Suit falls under general civil claim and not litigable under the fundamental rights enforcement procedure.

In determining the Suit, His Lordship Honorable Justice A.O Faji of the Federal High Court, Lagos held that data privacy violation under the Regulation are subsumed under the right to private and family life guaranteed under Section 37 of the 1999 Constitution and therefore, litigable under FREP. Further, the Court found that the actions of the Bank in using Miss Molehin’s personal data to create a bank account without her consent or authorization indeed violated her right to data privacy and that under Paragraph 2.2 of the Regulations, UBA unlawfully processed the personal data of Miss Molehin in breach of her right to privacy.

This decision, when considered with similar decisions of the court in Nworah v UBA (Unrep. Suit No. FHC/L/CS/1484/2021) and Tokunbo Olatokun v Polaris Bank Limited (Unrep. Suit No: LD/17392MFHR/2024), is significant as it shows the willingness of Nigerian courts to expand the frontiers of data privacy jurisprudence. It remains to mention that while the case of Molehin v UBA was held on the strength of the Regulation, Tokunbo Olatokun v Polaris Bank Limited was decided pursuant to the Nigeria Data Protection Act 2023 (NDPA).

Mr. Ipinloju Damola Femi v. EFCC & 3 Ors (2024) LPELR-61914 (CA)

Section 44 of the 1999 Constitution guarantees the right to property. Thus, restriction of funds in a bank account without lawful justification constitutes an infringement of the fundamental right to property as guaranteed under the Constitution and Article 14 of the African Charter on Human and Peoples’ Rights as ratified and domesticated in Nigeria by virtue of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. The seizure, acquisition or confiscation of property including bank accounts (whether movable or immovable) without due process of law or court order clearly violates the fundamental rights to property. See Diamond Bank V. Unaka and Others (2019) LPELR-50350(CA) and Government of Plateau State and Others V. Nwaokorie (2014) LPELR-23368(CA). Specifically, our courts have held that for a financial institution or a bank to lawfully place a restriction on a customer’s account, it must first satisfy itself that there is in existence a valid order of court authorizing such exercise – any restriction placed on an account without a valid court order amounts to a breach of fundamental rights. See: GTB V. ADEDAMOLA (2009) 5 NWLR Part 1664 pg at 30 at 45.

Now, the Court in Ipinloju v EFCC (supra) has created a paradigm shift from the lines of earlier decision when it held that a bank may place a restriction on customer’s account without a court order on account of suspected fraud.

Briefly, the Appellant’s bank account with the 4th Respondent (Zenith Bank Plc) was frozen due to a written request by the 1st to 3rd Respondents asking the Bank to freeze the Appellant’s bank account on the basis that investigations on issues pertaining to fraud were ongoing against the Appellant. Although the 1st Respondent sought an order of Court freezing the Appellant’s bank account, same was also frozen by the 1st Respondent’s written request before it could be granted. Consequently, the Appellant filed an originating motion seeking amongst others, a relief for the Court to declare that the act of freezing his bank account by the Respondents was an infringement of his fundamental rights as guaranteed under sections 34, 35 and 44 of the Constitution of the Federal Republic of Nigeria (CFRN). The trial court refused the Appellant’s reliefs and dismissed the Appellant’s originating motion. Aggrieved by the decisions of the trial court, the Appellant appealed to the court of Appeal.

The Court of Appeal in dismissing the appeal held, inter alia, that Zenith Bank’s reliance on Paragraph 3 the Central Bank of Nigeria (CBN) Circular to All Deposit Money Banks, Switches and Payment Service Providers on Establishment of Industry Fraud Desk dated June 11 2015 (“the CBN Circular”) in freezing the Appellant’s account was justified. Paragraph 3 of the CBN Circular places banks and other financial institutions under a binding obligation to “Block and/or Place No Debit restrictions on accounts upon receipt of fraud complaint”. In short, the Court held that a Bank will be justified to place a Post No Debit restriction on its customer’s account whence there is a complaint of fraudulent transaction against the customer and further held that the CBN circular “did not require a court order before posting a no debit order on the account of any customer suspected of holding funds from suspected fraud. In this digital age where banking transactions can be made within minutes across continent without “no chance of recovery”, the court courageously considered that it would be contrary to the overall objectives of the CBN Circular if the banks have to helplessly watch fraudulent transactions carried out without restriction “while waiting for the court to make the order at its convenience”.

The decision in Ipinloju v EFCC was recently followed in Kuda Microfinance Bank v Mrs Amarachi Blessing CA/EK/48/2024 delivered on December 27 2024 where the Court of Appeal restated that a financial institution will be justified to place PND on a customer’s account when a complaint of fraud is made and the Court carefully distinguished the cases in line of Adedamola v GTBANK on the reasonable basis that the CBN Circular was not considered in those decisions and the CBN Circular was issued after the causes of action in those suits arose.

We consider the decisions in Ipinloju v EFCC and Kuda Bank v Amarachi Blessing as monumental; in protecting financial institutions from legal risks that arise from their regulatory obligation in preventing fraudulent practices in the banking ecosystem. On the flip side, the decision may negatively impact enjoyment of the fundamental right to property as it may aid financial institutions in acting with impunity whilst hiding under the pretext of complying with the CBN Circular.

Benita Ezumuzu v Nigeria Immigration Service & Anor Unreported FHC/ABJ/CS/75/2023

The case of Ezumuzu v NIS presents a new jurisprudence in the enjoyment of the rights to freedom of movement. Briefly, the facts culminating to this Suit are that the Applicant, a Nigerian citizen born in 1994, had some international engagements in December 2023 and promptly applied for international passport at the Nigerian Immigration Service (“NIS”), met all requirements for the issuance of passport and was subsequently scheduled for biometric enrolment – the last stage of passport issuance process.

However, in non-compliance with Section 9(4) of the Immigration Act 2015, the NIS refused or neglected to issue the Applicant a passport “forthwith” or within six weeks as provided on NIS website.

Frustrated by delays in issuance of the passport which had obviously affected the Applicant’s travel plans, the Applicant filed this action and contended, among other things, that non-issuance of international passport, 14 weeks after her biometric enrolment constitutes a contravention of her rights to freedom of movement as guaranteed under Section 41 of the Constitution and Article 12 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. On its part, the 1st Respondent contended that the Applicant did not support her claims with sufficient evidence and that the Applicant did not meet the condition precedent to the issuance of passport. Similarly, the Honourable Minister of Interior (the 2nd Respondent) simply argued that there was no reasonable cause of action against him and he was not a necessary party to the Suit.

In the final analysis, the Court in its judgment dated December 12 2024 upheld the case of the Applicant and held that NIS non-issuance of Nigerian passport to the Applicant within 14 weeks after the Applicant had met all the requirements, including submitting application, payment of approved fees and biometric enrolment constitutes a contravention of the Applicant’s right to freedom of movement as guaranteed by the Constitution.

Instructively, the Court ordered the Minister of Interior to ensure adherence of NIS to issuance of passport forthwith as stipulated in Section 9(4) of the Immigration Act and issuance of passport shall not exceed the 6 weeks announced by the Interior Minister and published by NIS on its website. In our respectful view, this falls under the purview of judgment in rem.

Undoubtedly, the court decision underscores the critical role the issuance of international passports plays in the enjoyment of the right to freedom of movement in Nigeria and this case has the potential of influencing policy makers in putting in place efficient machineries in the issuance of international passport so as not to encroach on citizens’ right to freedom of movement.

Amendment to Section 24 (1) of the Cybercrime Act

In 2015, the Nigerian government signed into law the Cybercrimes (Prohibition, Prevention, Etc) Act, 2015 (“the Act”) as “an effective, unified, and comprehensive legal, regulatory, and institutional framework for the prohibition, prevention, detection, prosecution, and punishment of cybercrimes in Nigeria”.

Section 24(1) of the Act, prior to its recent amendment, made it an offence to send a message via a computer system that was “grossly offensive, pornographic or of an indecent, obscene or menacing character” or to send a message or cause any such message or matter to be so sent; or to send a message, knowing it to be false for the purpose of “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another” or to cause such a message to be sent. The sentence on conviction for such an offense is a fine of up to N7,000,000 (Seven Million Naira Only) or imprisonment for up to three years or both.

Over the years, Section 24(1) reproduced above, has been used by the authorities to suppress and harass critics, activists, opposition members, media organizations, and journalists for publications that are critical of powerful interests, as well as politically exposed and influential individuals.

The nebulous section 24 and other sections of the Cybercrimes Act 2015 have been contested at national and regional courts for violating freedom of speech. The suit was struck out at the Federal High Court and the Court of Appeal. It was then appealed to the Supreme Court in 2019, and since when the brief was filed, a date has not been fixed for its hearing. The attitude of the Nigerian courts in not nullifying the draconian provision of Section 24(1) of the Act gave a boost to the authorities to attack journalists and individuals who hold dissenting views and an opportunity to violate their rights to freedom of expression further.

Another suit was filed at the ECOWAS Court in 2018, and in a 2020 judgment, the court ordered the Nigerian Government to repeal or amend section 24 of the 2015 Act. This judgment was not obeyed by the Federal Government until 2024 when the Federal Government amended the Act.

Thankfully, by the Cybercrime (Prohibition, Prevention, Etc) (Amendment) Act, 2024, the controversial Section 24(1) was amended to remove the nebulous words and phrases with which the authorities suppress free speech. The newly amended Section 24(1) provides as follows:

“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that – 

(a) Pornographic: or 

(b) He knows to be false, for the purpose of causing a breakdown of law and order, posting a threat to life or causing such a message to be sent commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.” 

By the amendment, vague, nebulous and ambiguous words used in Section 24(1) of the Principal Act have been deleted and replaced with clarity and certainty. Now, Section 24 (1) of the Cybercrimes Act simply criminalizes messages that are ‘pornographic’ or sent by a person knowing them to be false, for the breakdown of law and order, posing a threat to life, or causing such a message to be sent. The above construction makes a reason leap towards clarity, evades the previous ambiguity, and may not be easily manipulated to intimidate journalists and vocal citizens. It is a victory for the advancement of free speech and democratic freedom in Nigeria.

From the foregoing highlights, one would easily decipher that 2024 remains a significant year, as far as our fundamental rights jurisprudence is concerned. The developments in human rights jurisprudence are rapid and technology played a big role in shaping the scope of our human rights jurisprudence. From the bar, civic space to the bench, 2025 holds a lot of promises.