Utility versus Legality: Further Discussions on the Federal High Court Practice Direction on Payment of “Default Fees” in Human Rights Cases in Nigeria (Part 2)

1) Introduction

This is Part 2 of this discussion series. Part 1, titled “Legal Validity of the FHC Practice Direction Introducing Payment of ‘Default Fees’ in Fundamental Rights Enforcement Matters”, was published[i] on Friday, 29 October 2021. This further analysis is triggered by commentaries from two giant-SANs and foremost human rights activists in Nigeria and Africa, Femi Falana Esq and Ebun-Olu Adegboruwa Esq. They both hardly need any further introduction; each of the mentioned names rings a bell, within the human rights activism ring, around the law community, and all over the country of Nigeria, and even Africa.

a) In reaction to Part 1 aforesaid, Adegboruwa  had  made the following short remark:

‘.… The FREP Rules [Fundamental Rights (Enforcement) Procedure Rules, 2009] has its own schedule of filing fees made by the CJN. It does not include payment of default fees. The highest fee payable is N1000, in any case at all. The purpose of this is that the FREP Rules target the indigent and oppressed citizens of our land. So if the main filing fees subsidizes access to justice for Nigerians, how can a practice direction withhold it? And to think that the government which usually infringes the rights of citizens through the police and other officials would get to file their own process free of charge! With due respect, the Practice Direction cannot stand!’

b) On his part, learned luminary-SAN Femi Falana reacted thus:

‘Sometime in 2010, the Federal High Court Chief Judge issued a Practice Direction which increased filing fees in respect of fundamental rights cases to N50,000 and above. I sued the CJ to justify the increase. The Practice Direction was withdrawn and the case was discontinued.  Since then, I  have kicked against moves by successive Chief Judges to increase fees for filing applications under the FREP Rules. But the FREP Rules have not made provisions for late filing of processes. Hence, the CJ [of the] FHC may have invoked Order XV Rule 4 which provides that “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.” In challenging the validity of the default fees, the human rights community should not encourage tardiness or delay in filing processes under the FREP Rules, 2009. However, we should challenge the delay in assigning and hearing fundamental rights applications by the CJ and Admin Judges of the various judicial divisions of the Federal High Court. In particular, the attention of the Judges should always be drawn to Paragraph 3 (g) of the [Preamble to] FREP Rules which stipulates that “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 Order IV Rule 2 which states that “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.”’

2. Discussion

a) I agree with Learned Silk Adegboruwa’s conclusions to the effect that “the FREP Rules target the indigent and oppressed citizens of our land” and that “With due respect, the Practice Direction cannot stand”. But his submission throws up yet another issue, which is now like a door, wide open, and needs to be closed: Is the the disputed Practice Direction not in the best interest of the said/same “indigent and oppressed citizens of our land”? To deal with this (consequential) question, may I set out some facts which I respectfully hold to be indisputable in respect of the intentions of the said new Practice Direction:

i) The culprits in majority of the cases of breach of fundamental rights of citizens and residents of Nigeria, are  government agents, agencies and institutions;

ii) An overwhelming majority of fundamental rights enforcement suits are commenced against government agents, agencies and institutions;

iii) These government agents, agencies and institutions who constitute a large chunk of the respondents in most Fundamental Rights Enforcement cases, usually/habitually file their processes out of time with a view to frustrating or delaying FREP applications filed by aggrieved persons, majority of whom belong to the “indigent and oppressed citizens of our land”;

iv) Introduction of payment of “Default Fees” (as the Chief Judge of the Federal High Court did on 26 October 2021) in respect of defaults associated with late filing of processes in FREP cases will serve as a deterrent, especially to government agents, agencies and institutions.

v) The Practice Direction issued by the Chief Judge of the Federal High Court on 26 October 2021 is therefore in the best interest of the applicants in FREP suits (especially “the indigent and oppressed citizens of our land” who suffer the most from Respondents’ usual delay in responding to FREP applications);

vi) The new Practice Direction will help to advance the provisions of Paragraph 3(f) of the Preamble to the FREP Rules, 2009, which provides that “The Court shall … pursue the speedy and efficient enforcement and realisation of human rights”. Yes, because the imposition of default fees on delayed processes would discourage late filing of such processes which will in turn lead to accelerated hearing or determination of such suits; it is in the best interest of the applicant/applicants that the FREP suit(s) be disposed of speedily.

If learned silk agrees with these six facts, then I respectfully submit that learned silk is entitled to agree also that the said Practice Direction will operate “For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms”, as required by the Preamble to the FREP Rules, 2009.[ii] Hence, the Practice Direction is well-intentioned, although one may raise a further question as to whether a Practice Direction may fulfil the purposes of or otherwise qualify as a “consequential Order as may be just and expedient” made by “the Court”[iii] more so as the FREP Rules itself has defined Court to include the FHC.

All these notwithstanding, it is respectfully submitted that the conclusion drawn by learned silk Adegboruwa (that “the Practice Direction cannot stand”) is both relevant and believable because, as I see it, the intention, intendment, acceptability or benefits (however altruistic or excellent) of a piece of legislation is one question while its legal validity is an entirely different question. This reminds us of the Legality Test and the Morality Test; to what extent (if any) is the morality test relevant in determining legal validity?[iv] To deal with this poser, I prefer to fall back on my earlier proposition on meaning, nature and effect of  ultra vires acts:

“Ultra vires” …[means] ‘beyond the powers’… is used to describe an act which requires legal authority or power but is then done/completed outside of or without the requisite legal authority (lexisnexis.co.uk)….when the person/authority acts beyond the scope of the powers and purposes provided to him/it by law. Ultra vires acts are generally void. (see: Communities Economic Development Fund v. Canadian Pickles Corp., (1991) CarswellMan 402 (S.C.C.)) (PracixalLaw). See also, NOSDRA v. Mobil Prod. (Nig.) Unltd (2018) 13 NWLR (Pt.1636) 334. Where legal authority is required in order to /make/enact a law or take certain actions, any law made or action taken without any such enabling law or outside or in excess of the powers granted by law is said to be or to have been taken ultra vires and accordingly void and of no effect… totally void and it’ll not bind anyone; is not enforceable”[v]

Thus, as it appears, however pure and benevolent anyone thinks that the intentions of the said new Practice Directions issued by the CJ of the FHC on 26 October 2021 may be, it is my humble submission that the Practice Direction may still not stand because (1) it’s made without any enabling legal authority, as I’ve already explained; and (2) a Practice Direction has no authority to validly make substantive provisions on any subject not already legislated upon by an extant statute or a Rules of Court.

b) A Discussion of Learned Silk Falana’s Submissions :

i) First, I salute Falana, SAN for his indelible contributions to development and promotion of Fundamental Human Rights in Nigeria and Africa. Now, regarding the present discussion The learned silk does not want us to throw away the baby with the bath water. Learned silk sees imposition of default fees as part of efforts by the FHC to fill a gap that the FREP Rules failed to fill. Therefore, the learned silk prefers the “human rights community” in “challenging the validity of the default fees” to bear it on mind that “the FREP Rules have not made provisions for late filing of processes. Hence, the CJ [of the] FHC may have invoked Order XV Rule 4 which provides that ‘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.’”. Applying the legal test of validity might “encourage tardiness or delay in filing processes under the FREP Rules, 2009”, is, as I understand it, the position of the learned silk who suggests additionally, that we should focus more on challenging “the delay in assigning and hearing fundamental rights applications by the CJ and Admin Judges of the various judicial divisions of the Federal High Court” while lawyers should endeavour to always draw the “the attention of the Judges … to Paragraph 3 (g) of the [Preamble to] FREP Rules which stipulates that ‘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’ as well as [to] Order IV Rule 2 which states that “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.’”

ii) The Utility Appeal

From the above, it is my supposition or conclusion that learned silk Falana appears to leading a School of Though that supports retention/permission of the said Practice Direction on grounds of its utilitarian value. The learned silk, in drumming up support for the new Practice Direction, appears to be alluding to the morality test of validity. A summary of the suggestions made by the learned silk in support of his humble advice to the “human rights community” may be made as follows:

A. Striking down a Practice Direction that penalises late filing of processes in FREP suits will “encourage tardiness or delay in filing processes under the FREP Rules, 2009”

B. The new Practice Direction came on board to fill in an obvious lacuna in the FREP Rules, 2009. So, why not we let it be for this reason; and

C. The disputed Practice Direction was made in pursuance of the objectives of Order XV Rule 4 of thew FREP Rules, and as such “the human rights community” should allow the Practice Direction to stand on that ground.

iii) Further Comments on Learned Silk Falana’s

In analyzing the learned silk’s remarks, so many issues and legal postulations may be looked into, including the following:

A. I think the combined effect of my suggestions in Part 1 of this discussion[vi] and my comments on the effect of actions taken Ultra Vires,[vii] would appear to be sufficient to address learned silk’s beautiful submissions, which, I must admit, does not pass an express imprimatur on the legal validity of the new Practice Direction, but is merely an appeal to the human rights community to consider whether it would not pay us better to not throw away the baby with the bath water, especially considering the high utilitarian value of the Practice Direction and the grave adverse implications of pushing hard for a strike-down of the same on account of its alleged failure to meet the ultra vires A further response to learned silk’s utility approach may be seen in the famous declaration by the legal positivists and philosopher, John Austin: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry”.[viii] This is closely related to the questions raised earlier regarding the place of morality in the legal validity test, or regarding the relevance of social functions in legal validity of law. You would recall how the sociological school or theory of law viewed law as “the whole of legal norms in society as well as the practices and institutions that are associated with those norms”;[ix] the school places much emphasis more on the functional aspect of law rather than its abstract content.[x] In my opinion, a law ought, first and foremost, to be validly in existence before any questions regarding its merits and demerits can arise. This throws up the question: in view of the submissions of the present author in Parts 1 and 2 of this discussion, can it be successfully argued that the Practice Direction made by the Chief Judge of Nigeria’s Federal High Court on 26 October 2021, was/is validly in existence as a law properly so called, irrespective of whatever may be its utilitarian value? Was the Practice Direction not made utra vires? If, as argued by learned silk Falana, the intention of the Hon CJ was truly to contribute to filling the gap left in the law by the FREP Rules, and in line with Order 17 Rule 4 of the FREP, what had stopped the Hon CJ of the Federal High Court from amending the Federal High Court Rules, 2019 for this and other purposes as he may deem necessary, in line with the provisions of the Constitution of the Federal Republic of Nigeria, 1999?[xi] Section 254 of the Constitution authorizes the CJ of the FHC to make or amend the FHC Rules: “Subject to the provisions of any Act of the National Assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court”. Further, although the CJ of the FHC possesses powers to “issue practice directions, protocols, directives and guidance towards the realization of speedy, just and effective administration of justice”,[xii] his lordship may only validly issue such Practice Directions in respect of an area wherein he has powers to make rules or to issue such Practice Direction. With due respect, the submission may be raised notwithstanding the utilitarian objectives of the disputed Practice Direction, that the Hon CJ of the FHC does not possess any powers to make Practice Directions in respect of FREP actions nor towards the realization of speedy, just and effective administration of justice in FREP Actions. This is because the Constitution has[xiii] already donated the power of making or amending rules of practice and procedure in FREP actions exclusively to the Hon Chief Justice of Nigeria. Moreover, why must the Hon CJ of the FHC violate extant law in an attempt to put in place another law? As I said earlier, a Practice Direction does no more than provide guides on how to comply with existing Rules of Court (Rules made by the person issuing the Practice Direction), or on implementation of the rules or any aspect thereof. Thus, before you can make a Practice Direction in respect of any Rules/Statute, you yourself must be the authority that had made the said Rules/Statute.[xiv]  A further question is whether the CJ of the FHC is the “appropriate authority” to make practice direction introducing default fees in re FREP suits, as required by the (apex) court in UNILAG v AIgoro.[xv]

B) Section 1(1) and (3) of the Constitution of the Federal Republic of Nigeria provides that “(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria. (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void. From my explanations above, does the new practice Direction not violate section 46(3) of the Constitution? How then can the Practice Direction stand? It was the Hon Justice Nikki Tobi of blessed memory who once said, “One can add something to something, but one cannot add something to nothing because there will be nothing to receive the something. The something which will have nothing to support it will fall away, following Newton’s law of gravity or gravitation”.[xvi] The Constitution is the supreme law of the land; the validity or otherwise of provisions of any other law (including practice directions) iis determined by reference to the Constitution; the reverse is not the case.[xvii] Thus, the effect of the concept of constitutional supremacy extends, without any exception, to all other laws, which are therefore considered subordinate to the constitutional supremacy.[xviii] In Marwa v. Nyako,[xix] the Supreme Court gave further illustration of the concept of the supremacy of the constitution, thus:

“The Constitution is described as the grund norm and the fundamental law of the land. All other legislation in this country take their hierarchy from the provisions of the Constitution. It is not a mere common legal document. It is an organic instrument which confers powers and also creates rights and limitations. It regulates the affairs of the nation state and defines the powers of the different components of government as well as regulating the relationship between the citizens and the state. … The provisions of the constitution take precedence over any law…. A-G Ondo State v. A-G Federation (2002) 1 NWLR (Pt.772) pg.222. A-G Abia State v. A-G Federation (2002) 6 NWLR (Pt.763) pg.204. Abacha v. Fawehinmi (2000) 4 SC (pt.11) pg.1. Balonwu v. Gov. Anambra State (2009) 18 NWLR (Pt.1172) pg.13.”

C. Supremacy of the Rule of Law: The Rule of law[xx] is the predominance that is absolute of an ordinary law over every citizen and institution regardless of status, position, power. Much of the content of the rule of law can be summed up in two points, one of which is “that the people (including, one should add, the government) should be ruled by the law and obey it.[xxi] Rule of law requires that all persons and organizations including governments and government officials (such as the CJ of the FHC) are subject, and accountable to, ordinary laws of the land.

D. Effect of an act (however useful) done without legal authorization: For any new Practice Direction (indeed, any law) by any public authority to have legal effect or to be considered valid, the maker of the said Practice Direction or other law must prove that he/she/it has the statutory power to make In other words, he/she/it must point to the specific provision of extant law that empowers him/her/it to so make it and to so do in the way he/she/it has done. “It is well settled principle of our jurisprudence and an important requirement of our administration of justice that where the exercise of a power is statutory, such power can only be exercised within the limits prescribed by the statute”.[xxii] In Agu v. Okpoko,[xxiii] the Court of Appeal said:

“It is trite that where a statute vests specific powers in an institution and the exercise of such powers becomes an issue the institution vested with such powers must provide proof that the powers were exercised in the manner provided by law. EJIOFOR V. OKEKE 2000 7 NWLR (PT. 665) CA 363.”

3) Conclusion:

I leave us to take it from here. What is your own view on the validity of the new Practice Direction made on 26 October 2021 by the CJ of the FHC, bearing in mind the decision in UNILAG v Aigoro[xxiv] and the provisions of section 46(3) CFRN, 1999, as well as other legal authorities referred to in Parts 1 and 2 of this discussion? Should we close our eyes to the legal deficiencies of the said Practice Directions on account of its utilitarian value. Or, should we err on the part of legalism/legality and throw the baby away with the bath water? Meanwhile , thank you for finding time to read my humble opinion. I can’t wait to read your reaction to this continuing discussion. Please, help me and send me a copy of your reaction: udemsyl@gmail.com (Email) or 08109024556 (WhatsApp).

Respectfully,

Sylvester Udemezue (udems), 08109024556., udemsyl@gmail.com.

[i] See: Udemezue, S.C., “Legal Validity of the FHC Practice Direction Introducing Payment of ‘Default Fees’ in Fundamental Rights Enforcement Matters” (BarristerNG, October 29, 2021) <https://barristerng.com/legal-validity-of-the-fhc-practice-direction-introducing-payment-of-default-fees-in-fundamental-rights-enforcement-matters/> accessed October 29, 2021.

[ii] Paragraph 3(c)

[iii] See Order 1 Rule 2 of the FREP Rules 2009, which defines “The Court”.

[iv] See: Crowe J, “Is There a Moral Test for Legal Validity?: FifteenEightyFour: Cambridge University Press” (FifteenEightyFour | Cambridge University PressJuly 9, 2020) <http://www.cambridgeblog.org/2019/04/is-there-a-moral-test-for-legal-validity/> accessed October 29, 2021

[v] Udemezue SC, “The Federal High Court [Federal Inland Revenue Service] Practice Directions, 2021 And Questions Of [Dis] Respect For Rule Of Law, Human Rights And Access To Justice” (TheNigeriaLawyerJune 14, 2021) <https://thenigerialawyer.com/the-federal-high-court-federal-inland-revenue-service-practice-directions-2021-and-questions-of-dis-respect-for-rule-of-law-human-rights-and-access-to-justice/> accessed October 29, 2021

[vi] See: Udemezue, S.C., “Legal Validity of the FHC Practice Direction Introducing Payment of ‘Default Fees’ in Fundamental Rights Enforcement Matters”, Op Cit.

[vii] Udemezue, “The Federal High Court [Federal Inland Revenue Service] Practice Directions, 2021 And Questions Of [Dis] Respect For Rule Of Law, Human Rights And Access To Justice” Op Cit.

[viii] Austin, J., The Province of Jurisprudence Determined (John Murray, 1832) <http://www.koeblergerhard.de/Fontes/AustinJohnTheprovinceofjurisprudencedetermined1832.pdf> accessed October 29, 2021.

[ix]Deflem M, “Sociology of Law” (Oxford Bibiliographies, October 23, 2018) <https://www.oxfordbibliographies.com/view/document/obo-9780199756384/obo-9780199756384-0056.xml> accessed October 29, 2021

[x] Saxena R, “Sociological School Of Law – Notes” (Indian Judiciary NotesJuly 23, 2019) <https://indianjudiciarynotes.com/notes/jurisprudence/sociological-school-of-law-notes/> accessed October 29, 2021

[xi] section 254

[xii] See: Order 57 of the Federal High Court (Civil Procedure) Rules, 2019 contains provisions on powers of the Chief Judge of the Federal High Court to amend the Federal High Court (Civil Procedure) Rules, 2019

[xiii] In section 46(3). See also: Udemezue, S.C., “Legal Validity of the FHC Practice Direction Introducing Payment of ‘Default Fees’ in Fundamental Rights Enforcement Matters”, Op Cit.

[xiv] See: Nwoko v. Nzekwo (2012) 12 NWLR (PT 1313) 160 at 175;

[xv] (184) 11 SC 152 at 159

[xvi] See Owners v. Adeniji (1993)2 NWLR(Pt 274). See also Macfoy v UAC (1962) AC 158.

[xvii] Madumere  v. Okwara (2013) LPELR-20752(SC), per NGWUTA ,J.S.C (p. 38, paras. A-D)

[xviii] Kayili v. Yilbuk (2015) LPELR-24323(SC) Per OGUNBIYI ,J.S.C ( pp. 33-34, paras. G-E)

[xix] (2012) LPELR-7837(SC), the Supreme Court [per Adekeye, J.S.C (pp. 169-170, paras. B-F)], per Adekeye, J.S.C (Pp. 169-170, paras. B-F)

[xx] Garner, B, In: Black’s Law Dictionary (9th ed., Thomson Reuters, 2009) 1148

[xxi] Geoffrey de Q. Walker, The rule of law: foundation of constitutional democracy, (1st Ed., 1988

[xxii] (1992) LPELR-3009(SC), Per KARIBI-WHYTE, J.S.C (pp. 19-20, paras. F-C). See also Bowaje v. Adediwura (1976) 6 S.C.143.”

[xxiii] (2009) LPELR-8286(CA), Per Nwodo, J.C.A (p. 25, paras. E-F)

[xxiv] supra