WHETHER AN APPLICATION CAN BE FILED BY MORE THAN ONE PERSON TO ENFORCE A RIGHT UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES

Fundamental right enforcement has a special procedure enthroned under the Constitution of the Federal Republic of Nigeria 1999 to facilitate the exercise of one’s right as dispensed under Chapter IV of the Constitution. The rights themselves are the basic and fundamental human rights which inhere in every human being.

These rights are in place because of the elevated nature of human beings above other creatures occupying the earth. Eso, JSC in RANSOME-KUTI VS. THE ATTORNEY GENERAL FEDERATION (1985) 2 NWLR (PT. 6) 211, said: “… It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence”.

The actions allowed to be enforced under the Fundamental Rights (Enforcement Procedure) Rules are those in Chapter IV of the 1999 Constitution.

An action under the Fundamental Enforcement Procedure Rules is a peculiar action. It is a kind of action which may be considered as “sui generis” i.e. it is a claim in a class of its own though with a closer affinity to a civil action than a criminal action.

The available remedy by this procedure is to enforce the Constitutional Rights available to citizens which had been contravened by another person or persons.

Fundamental Rights are so basic and inalienable to every man that they have to be enshrined directly in the Constitution. The advent of aggressive enforcement of fundamental rights in Nigeria under civilian administration has witnessed two Enforcement Procedure Rules.

The first is that of 1979 under the 1979 Constitution of the Federal Republic of Nigeria. The second is that of 2009 which came under the regime of the 1999 Constitution of the Federal Republic of Nigeria.

The 2009 Rules liberalized in many ways the enforcement procedure of fundamental rights. The preamble to the 2009 Rules gave the overriding objective of the Rules in paragraph 3 as follows:

a. The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them.

b. For the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its intention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include: i. The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human right system. ii. The Universal Declaration of Human Rights and other instruments (including Protocols) in the United Nations Human Rights System.

c. For the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.

d. The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.

e. The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential Applicant. In human rights litigation, the Applicant may include any of the following:

i. Anyone acting in his own interest;

ii. Anyone acting on behalf of another person;

iii. Anyone acting as a member of, or in the interest of a group or class of persons;

iv. Anyone acting in the public interest, and

v. Association acting in the interest of his members or other individuals or groups.

f. The Court shall in a manner calculated to advance Nigeria democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realisation 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.

The way the 2009 Enforcement Procedure Rules introduced liberality must be the focus of the Court to enable us adopt purposive interpretation of the Rules and advance the interest of justice to the victims of fundamental right violations in Nigeria. In the instant case, the 1st, 2nd and 3rd Respondent were the Applicants at the Court below. The 1st Respondent deposed to a 26 paragraph affidavit in support of their application for the enforcement of their fundamental rights to liberty.

The 1st Respondent deposed in paragraphs 8, 9, 10, 11, 12, 13 and 14 materially as follows:

8. That in the night of 2nd March, 2011, we all slept in our compound, when it was around 12.30am of 3rd March, 2011 when we saw policemen from SARS Ikot Akpanabia who entered our house and quickly arrested myself and my brother the second Applicant on record, they were seriously looking for my mother as well who was fortunate not to be around on that fateful day.

9. that, that midnight myself and my junior brother were taken to Ikot Akpanabia in our night wears and that when we got to Ikot Akpanabia, we were told that the 1st Respondent wrote a petition against us that we set fire on his house and on his palm tree.

10. That I implored the Investigating Police Officer in the person of Mr. Eseme to please allow us to visit the scene and check my boundary and the 1st Respondent’s boundary and to see whether indeed I set fire to the house of the 1st Respondent and whether of a truth the palm tree that I set fire on the leaves is the property of the 1st Respondent.

11. That the 2nd Respondent told me not to teach him his work he quickly carried me and my brother and dumped us in the cell, that when we’ve spent 21 days in the cell he carried us to our village and he found out that the house of the 1st Respondent was not set on fire by me and my household and that the palm tree that was even set on fire is my late father’s property which is within our boundary.

12. That 1st and the 2nd Applicants were detained without any justifiable cause. That the 1st Respondent is a member of our Village Council who surreptitiously and without any justifiable cause invited the policemen from SARS to arrest and detain myself, the 2nd Applicant and seeking to arrest and detain my aged mother. 13. That police officers including the 2nd Respondent came from SARS with myself and the 1st Applicant to conduct search and for investigation but they could not see any burnt house but having collected huge sum of money from the 1st Respondent in order to mutilate, harass, detain, dehumanize and terminate our lives for the 1st Respondents to take over my late father’s properties and pieces of lands left for us as our inheritance. 14. That at the behest and instigation of the 1st Respondent I and the second Applicant were arrested and detained from 3rd March, 2011 till 30th March, 2011 that so many people from our village came for our bail application and the IPO refused bluntly to release us on bail. The story of the 1st to 3rd Respondents here shows clearly that the violation of their right as alleged took place in one place at the same time and in the same circumstance.

In all the civil procedure Rules of the High Courts in Nigeria, provision is made for persons in civil claim to claim jointly or severally. For example Order 13 Rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009. The Rules therein provide: All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such one or more of the Claimants as may be found to be entitled to relief and for such relief as her or they may be entitled to, without any amendment. This type of provision helps to minimise pluralism of actions and save both the parties the cost and the Court to inconvenience of dealing with multiple suits in respect of one fault or line of claim. In the 2009, Fundamental Rights (Enforcement Procedure) Rules, there is no joinder provision. What we have is consolidation of separate suits filed. The focus may be that fundamental rights are personal rights and cannot be fought together as right varies from one person to the other. But in a situation such as in the instant case, the act complained of is the act of arrest and detention without bail and without an arraignment in Court for any known offence I still believe in the circumstance that the Court in the interest of justice and convenience can allow the parties to file their complaint together for the enforcement of their fundamental rights. Since this provision is not in the rules the Courts are having it difficult to take it up. In the case of SOLOMON KPORHAROR & ANOR. VS. MR. MICHAEL YEDI & ORS. (2017) LPELR – 42418 (CA), a decision of this Court, the facts 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 this Court, the appeal was found meritorious. The Court struck out the application. Bada, JCA 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.

The decision of this Court in KPORHAROR case (supra) is the current decision of this Court. By the doctrine of stare decisis I am bound by the earlier decision of this Court. I cannot in anyway deviate from it. I hold in the circumstance that it is not proper to join several Applicants in one application for the purpose of securing the enforcement of their fundamental rights. This issue is resolved in favour of the Appellant.”

Per ADAH ,J.C.A ( Pp. 13-25, paras. C-A )

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ABDUALRAZAQ MUSA VS MAMUDA ABDULLAHI MAFIA & ANOR

suit no: CA/YL/152/2019

Legalpedia Electronic Citation: (2020) Legalpedia (CA) 11011