By Ekuma, Chinonso G.

The question as to whether or not several applicants can proceed against one or more respondents in the enforcement of their fundamental human rights is critical and must be established, since several persons may suffer such breach simultaneously. This is another point of confusion usually encountered by applicants in the process of trying to enforce their rights. This article therefore seeks to State the records straight.

By Section 46(1) of the Nigerian Constitution, 1999 as amended, “Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” The law also provides in Section 46(2) (Supra), that the High Court shall have original jurisdiction in respect of fundamental rights actions. See also Order II Rule I of the 2009 FREP Rules which also vested jurisdiction on the High Courts. The Fundamental Rights (Enforcement Procedure) Rules was made pursuant to Section 46(3) of the Constitution, and it has the same force as the Constitution itself. This Rule stipulates the procedure for enforcing fundamental rights actions. The law is that for an action to be competently brought under the Fundamental Rights Enforcement Rules (FREP, Rules) the breach of the fundamental right alleged must be the main claim sought to be enforced and not a mere adjunct or ancillary to the application, that was the view of the court in EZEILO & ANOR v. EZEONU (2019) LPELR-CA/E/284/2009. The court, Per UMAR J.C.A, further stated that “the violation of a fundamental right guaranteed under the Constitution of the Federal Republic of Nigeria must be the principal claim or relief and not merely an incidental or ancillary claim or relief,” for it to be enforced under the rule. He buttressed his point with the decisions in Chukwuogor v. Chukwuogor (2006) 49 W.R.N. p. 183 and Garba v. University of Maiduguri (1986) 2 NWLR (Pt. 18) p. 559. The point being made here is that fundamental rights actions are sui generis, and does not necessarily require filing of pleadings or calling of witnesses. The merit of the matter are decided on the weight of affidavit evidence.

The fundamental rights matters are not in anyway inhibited by statue of limitations by virtue of Order 3 of the FREP Rule. Unlike the old FREP Rule of 1979, leave of court to institute such action is not also required.

It is also worthy of note that an action under the Fundamental Right Enforcement Procedure Rules is not subject to any condition precedent once initiated by a process accepted by the Court. In UBA BANK & ANOR v. JOHNSON (2018) LPELR-CA/OW/175/2014, it was the stance of the Appellants that the Respondent cannot pursue the enforcement of his fundamental right as they committed a criminal offence to wit: contempt of Court,  the lower Court obviously believed it in its judgment, and that the Respondent’s application for the enforcement of his fundamental right ought to have been put in abeyance or suspended until they were sanctioned for the said contempt. The Court of Appeal Per  LOKULO-SODIPE, J.C.A in (Pp. 39-42, Paras. C-D) has this to say, “it is glaring that it is not the intendment of the FREP Rules that the enforcement by a person of his fundamental right is to be subjected to the fulfilment of any condition precedent whatsoever, once the proceeding is initiated by a process accepted by the trial Court.” The court berated the appellants for trying to introduce the adulterated or corrupted Rule in Smith and Selwyn into our Laws.

It is instructive to note that the preamble to the 2009 Rules stated that part of the overriding objectives for which the Fundamental Rights Enforcement Procedure Rules, 2009 were enacted by the Chief Justice of Nigeria at the time was for the purpose of advancing the citizen’s rights and freedoms and that one of the ways of doing this was for the Court to encourage and welcome public interest litigations in human rights field, making sure that no human rights case may be dismissed or struck out for want of locus standi. See OGBE v. OKONKWO & ORS (2018) LPELR-CA/E/431/2014, where the court held that, “it is however important to note that under the present scheme of things, the concept of locus standi has been particularly broadened in order to promote and encourage public interest litigation especially in Human Right related matters.” Per OHO, J.C.A. in (Pp. 15-18, Paras. D-F) cited the case of FAWEHINMI vs. AKILU (1987) 4 NWLR (pt. 67) 797, where the noble Lord, OBASEKI, JSC stated as follows on the subject: “Since we are all brothers in the society, we are our brother’s keepers. If we pause a little and cast our minds to the happenings in the world, the rationale for rule will become apparent.”

Although the FREP Rule virtually broadened the concept of locus standi to enable third parties intervention in enforcement of fundamental human rights it did not, to our mind, suggest that persons can delegate his right to sue to another, so that that other can validly take his position and sue as though he had suffered the wrong originally or directly, what ordinarily in insurance, is called subrogation. What the Rule suggest is that it is possible to sue for and on behalf of those who, by some overriding circumstances cannot sue for themselves, either as a result of incapacity,  or death, etc.

The courts pursuant to the FREP Rule 2009 have given sound judgements to the effect that the Constitutional right to life of a deceased can be enforced by his/her dependents. The courts have maintained that action will lie for the violation of the right to life by or on behalf of any person who has an interest in the continued existence of the deceased.

Specifically, the Court Per AUGIE, J.C.A. (Pp. 52-70, paras. G-F ) in OMONYAHUY & ORS v. IGP & ORS (2015) LPELR-CA/L/493/13 held that the constitutional right to life a deceased person can be enforced by his dependents, in as much as such a person is dead and cannot bring the action himself, same being caught up by the maxim, actio personalis moritur cum persona.  In trying to arrive at this decision, the court made some copious pronouncements, observing that the area before the court is relatively novel, such having no twin precedent from either the Court of Appeal or the Supreme Court. The court sought the aid of some cases decided by the lower courts to affirm his stance.

The court cited two very pathetic cases to wit: Shobayo V. C.O.P, Lagos State, where the Applicant prayed inter alia for a declaration that the arrest, detention, torture, and killing of her deceased husband by some Police officers/men is “unlawful, unconstitutional and contrary to Section 33, 34, 35 and 41 of the 1999 Constitution”, and in his judgment delivered on 15/1/2010, Oyewole, J. (as he then was) held – “Insisting that only the citizen subject of an infringement can approach the court when such right is violated would create an absurdity. This would imply the lion-realization of a fundamental right expressly created by the Constitution. This is more so in relation to the right to life when already contravened, for in this case, the citizen victim of the deprivation would have been dead. Restricting redress for violation of fundamental right to life is antithetical to the letters of the Constitution and to avoid this anomaly, the next of kin of such deceased citizen must be permitted to enforce the right so allegedly deprived. The depositions before the Court indicate that the Applicant was the wife and next of kin of the deceased, who reportedly died in custody of the Respondent. Denying her the right to maintain the action would create a situation never contemplated by the framers of the Constitution, as an unenforceable right would thus have been created. The Applicant without contradiction was the wife of the deceased, a relationship not too distant to fathom. That she will be affected by the deprivation of life of her husband goes without saying. The wife of a deceased whose right was supposedly violated would naturally be affected by the violation and comes within the purview of persons affected by the infraction who, could pursuant to Section 46(1) of the Constitution, approach the Court for redress.”

The court also cited, Orjieh V. The Nigerian Army & Ors, where the Applicant prayed the Federal High Court for a declaration inter alia that the fatal shooting and killing of her husband by a Soldier, was a gross violation of the deceased fundamental rights to life and dignity of his human person “contrary to Sections 33 (1) and 34(1) (a) of the 1999 Constitution and Articles 4 and 5 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, LFN 2004, and therefore, unconstitutional and illegal”. In his Judgment delivered on 20/2/2013. M. B. Idris, J., pointed out that- “…The Applicant’s husband was shot in the head and his brains blown out onto the floor. That was very harsh cruel, dehumanizing, and inhuman. It is all the more pathetic that the Applicant’s husband was killed for a business transaction that he knew nothing about: He had not been the person, who transacted the business with the 6th Respondent. He was not even present when the purported business had been undertaken. He died an Innocent man, unblemished, for nothing. In the instant, case, the Applicant’s husband’s rights were breached with wanton impunity. Clearly, the 7th Respondent acted with the belief that his action cannot be questioned by anyone. Indeed, till date, none of the Respondents took any action and none of them has apologized to the Applicant: The shooting of the deceased, who was unarmed while pursuing his daily activities, was unjustified by any of the exceptions and, therefore, constitute a substantial violation of the Constitution. The right to life imposes on an individual the obligation not to deprive another intentionally of his right to life except in the event of self-defence, suppressing a riot or mutiny or to prevent a lawful arrest…” The judge entered Judgment in favour of the Applicant, and awarded her N300m as general and/or exemplary damages/compensation for the breach of her deceased husband’s Fundamental Right to life and dignity of his person.

It should be noted that at all times, the procedure laid by down by the FREP Rule 2009, must be strictly complied with. This is more particularly as it relates to mode of commencement and documents that must accompany the motion. At all times, applications commenced by motions, evidence is not oral but by affidavit, see OSHO V. A.G. EKITI STATE (2002) 2 NWLR (PT. 758) 628 @ 652. The court in OHENHEN v. NIGERIAN PETROLEUM DEVELOPMENT COMPANY LTD & ORS (2019) LPELR-CA/B/206/2013 observed that failure to follow the laid down rules in enforcement of fundamental rights action by the appellant was fatal and as a result dealt a fatal blow on the application. The court Per  EKPE, J.C.A. (Pp. 27-29, Paras. D-E) put the statement succinctly as follows, “The question that readily comes to mind is whether the verifying affidavit filed by the Appellant satisfied the requirement of the law. To my mind, there is no provision for verifying affidavit under the FREP Rules, 2009. As noted by both counsel, Order 11 Rule 3 enjoins an applicant to support his application with an affidavit which shall set out the facts upon which the application is made. In other words, an affidavit constitutes the evidence upon which the application is hinged. In the absence of an affidavit setting out the grounds, there would be no evidence upon which the reliefs can be granted. The Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought are not on oath and cannot therefore translate into affidavit evidence.”

In JOHNSON v. UDONSEK & ORS (2017) LPELR-CA/C/20/2014, the court in the case above rightly pointed out that Affidavits are not sworn to in the office of Applicant’s Counsel but in the Court and before the Commissioner for Oaths. In that case, the applicant was alleged to have been far away in Onna and was unable to depose to the affidavit himself, but instructed his attorney to do so on his behalf. The trial court found that the affidavit was grossly defective and runs inconsistently with the provisions of the Evidence Act, 2011. The court of Appeal observed that what is more perplexing to the trial Court is the reason given to explain the inability of the Applicant to depose to his supporting affidavit. It is not that the Applicant was in custody; it is not that Applicant is physically or mentally indisposed. The reason is that Applicant resides in Onna, far away from his lawyer’s office and not readily available at the time the Affidavit was prepared. Summarily, the court of Appeal held that the affidavit is good and therefore found refuge under the copious provisions of Order II Rule 4 of the Fundamental Rights Enforcement Procedure Rules 2009, which is very clear and unambiguous. And provides  clearly as follows: “The Affidavit shall be made by the Applicant, but where the Applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit.”

Can two or more persons validly file an action for the enforcement of their fundamental human rights?

The law is settled in the case of UDO v. ROBSON & ORS (2018) LPELR-45183(CA) where Per ADAH, J.C.A. in (Pp. 13-25, Paras. C-A) held that it  is  not  proper  to  join  several  Applicants  in  one  application  for  the  purpose  of  securing  the  enforcement  of their fundamental rights. In arriving at this conclusion, the court relied on the decision in the case  of  SOLOMON  KPORHAROR  &  ANOR.  VS.  MR.  MICHAEL  YEDI  &  ORS.  (2017) LPELR  –  42418  (CA),  a similar decision  of  the Court of Appeal,  where the court equally held that action by joint applicants for the enforcement of their fundamental human right must fail. The  facts as stated by the court  are  the  1st  and  2nd  Respondents  who  were  Applicants  at  the  trial  Court  sought  against  the  Appellants  and  3rd  to  5th Respondents  the  enforcement  of  their  fundamental  right  over  the  seizure  and  detention  of  their  D7G  bulldozer  plant.  The  lower  Court  ordered  among  others  the  release  of the  said  bulldozer.  Application  was  brought  for  stay  of  the  order  alleging  that  the  application  filed  in  Court  was  incompetent  due  to  the  fact  that  the  application  was  not  filed properly  before  the  Court.  On  appeal  to  the  Court of Appeal,  the  appeal  was  found  meritorious.  The  Court  struck  out  the  application.  Bada,  J.C.A,  who  read  the  lead  judgment  held  inter alia as follows: Under  the  1999  Constitution  of  the  Federal  Republic  of  Nigeria  (as amended)  the  rights  are  preserved  in  Chapter  IV  i.e.  four.  See  –  RAYMOND  S.  DONGTOE  VS.  CIVIL  SERVICE COMMISSION,  PLATEAU  STATE  &  ORS.  (2001)  4  SCNJ  page  131.  The  Fundamental  Rights  (Enforcement  Procedure)  Rules,  1979  created  a  special  procedure  for  proceedings under  this  peculiar  category  of  action.  It  is  only  by  these  procedures  that  an  action  can  be  brought  to  enforce  rights  and  it  is  the  provisions  of  the  1979  Rules  that  guide  the conduct  of  proceedings  of  all  actions  to  enforce  rights.  The  right  to  approach  a  Court  to  enforce  a  Fundamental  Right  is  conferred  by  Section  46(1)  and  (2)  of  the  1999 Constitution  of  the  Federal  Republic  of  Nigeria  (as  amended).  Section  46(1)  of  the  1999  Constitution  provides  thus:-  “Any  person  who  alleges  that  any  of  the  provisions  of this  chapter  has  been,  is  being  or  likely  to  be  contravened  in  any  State  in  relation  to  him  may  apply  to  a  High  Court  for  redress”.  In  this  appeal  under  consideration,  the application  was  brought  by  two  separate  Applicants  (1)  Mr.  Michael  Yedi  and  (2)  Onodje  Yedi  Nig.  Ltd.  The  words  used  under  Section  46(1)  of  the  Constitution  set  out  above is  very  clear.  The  same  provision  is  made  in  Order  1  Rule  2(1)  of  the  Fundamental  Rights  (Enforcement  Procedure)  Rules,  1979.  The  adjective  used  in  both  provisions  in qualifying  who  can  apply  to  a  Court  to  enforce  a  right  is  “any”  which  denotes  singular  and  does  not  admit  pluralities  in  any  form.  It  is  individual  rights  and  not  collective rights   that  is  being  talked  about.  In  my  humble  view,  any  application  filed  by  more  than  one  person  to  enforce  a  right  under  the  Fundamental  Rights  (Enforcement Procedure)  Rules  is  incompetent  and  liable  to  be  struck  out.  The  above  view  is  supported  by  the  case  of  RTFTCIN  VS.  IKWECHEGH  (2000)  13  NWLR  PART  683  AT  PAGE  1, where  it  was  held  among  others  that:-  “If  an  individual  feels  that  his  Fundamental  Rights  or  Human  Rights  has  been  violated,  he  should  take  out  action  personally  for  the alleged  infraction  as  rights  of  one  differs  in  content  and  degree  from  the  complaint  of  the  other  …….  is  a  wrong  joinder  of  action  and  incompetent”.  Also  in  the  case  of OKECHUKWU  VS.  ETUKOKWU  (1998)  8  NWLR  PART  562  PAGE  511,  it  was  held  amongst  others  per  Niki  Tobi,  JCA  (as  he  then  was)  that:-  “As  I  indicated  above,  the Umunwanne  family  is  the  centre  of  the  whole  matter.  A  family  as  a  unit  cannot  commence  an  action  on  infringement  or  contravention  of  Fundamental  Rights.  To  be  specific, no  Nigeria  family  or  any  foreign  family  has  the  locus  to  commence  action  under  Chapter  IV  of  the  Constitution  or  by  virtue  of  the  1979  Rules.  The  provisions  of  Chapter  4 cover  individuals  and  not  a  group  or  collection  of  individuals.  The  expression  “every  individual”,  “every  person”,  “any  person”,  every  citizen”  are  so  clear  that  a  family  unit  is never  anticipated  or  contemplated”.  The  contention  of  learned  Counsel  for  the  Respondents  that  it  is  proper  in  law  for  two  or  more  persons  to  apply  jointly  for  the enforcement of their fundamental rights cannot be sustained.

I think the point established in the case of RTFTCIN  VS.  IKWECHEGH  (supra)  is understandable, actions for enforcement of fundamental human right should be commenced individually since several applicants cannot establish that they have suffered the same degree of injury or infraction.

In line with this view, it is worthy of note that an applicant can proceed against several respondents. Similarly, where several persons allege a breach of their fundamental right, they can apply individually for the enforcement of such right, however, the suit may be consolidated if they are in the same court. Finally, the effect of actions for the enforcement of fundamental rights commenced by several applicants is that the suit is liable to be struck out, in this case, the suit can be re-enlisted, so all hope is not lost. The only thing there is that it might occasion hardship and difficulty in bringing the matter again for re-litigation.

Conclusion

In the enforcement of fundamental human rights procedure, actions may be dismissed or struck out when the provisions of the FREP Rule is not adhered to. It behooves on the applicants or their attorneys to be more meticulous in taking into cognizance those factors which may like destroy their case and take positive steps to remedy them on time.

This article is written by Ekuma, Chinonso G., 08143576372, [email protected] Life intern at St. Sen Solicitors, Abakaliki.