Abuja based lawyer and social commentator, Hameed Ajibola Jimoh has appealed to the Chief Justice of Nigeria, Ibrahim Tanko Muhammad to create a Fundamental Rights’ Judgments (Enforcement) Rules in order to effectively give life to Judgments against fundamental rights breaches.
Mr. Ajibola lamented that the ineffectual enforcement of court orders aimed at redressing fundamental rights violations leading to aggravated injustice.
He urged the Hon. Justice Muhammad, as the principal custodian of the temple of justice, to use his constitutional powers to curb this anomaly in the interest of all citizens. He also called for the establishment of special courts to handle cases of human rights infractions.
Below is a copy of counsel’s letter addressed to the Chief Justice:
23rd May, 2022.
The Honourable, the Chief Justice of Nigeria,
Chambers of the Honourable, the Chief Justice of Nigeria,
Supreme Court of Nigeria’s Complex,
A COMPASSIONATE RECOMMENDATION FOR A ‘FUNDAMENTAL RIGHTS’ JUDGMENTS (ENFORCEMENT) RULES’ FOR ENFORCING FUNDAMENTAL RIGHTS JUDGMENTS IN NIGERIA
- The above subject matter refers, My Lord,
- Respectfully, My Lord, the importance of fundamental rights enforcement in Nigeria to the Nigerian citizens cannot be overemphasized. Notwithstanding the objectives of the Fundamental Rights (Enforcement Procedure) Rules, 2009,-herein after referred to as the FREPR-, as stated in its introductory part, when courts (whether as the court of first instance or an appellate court) of law decides fundamental rights matters in favour of the applicant who is a victim of violation by the Government’s agency concerned, or sometimes too, a private person, the enforcement of such judgment renders the decision of the court useless and of no effect due to the cumbersome nature of the judgment enforcement procedures as legislated under the Sheriffs and Civil Process Act and the Judgment Enforcement Rules made thereunder, especially money judgment and therefore, the ‘spirit’ of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution in Section 35(6) and (7) on ‘compensation’ would not be fulfilled, as it is always very difficult if not impossible for the Applicant to recover such compensation or damages awarded in his favour by the Court of law thereby subjecting the court of law, most respectfully My Lord, to a situation ‘no effect’! Therefore, for many years after obtaining judgment in court in his favour, the Applicant is engaged in another greater litigation that lasts for years either in Garnishee proceedings or under other enforcement of judgment procedures. This then means that justice has not been served in the part of the Applicant or the victim of the violation of human rights despite what he had suffered in the hands of the alleged violator. This indeed is very unfortunate and hence this recommendation to Your Lordship, to make provisions for specific Rules on the enforcement of fundamental rights judgment so that justice would not only be done in the case of the Applicant and or the victim of the fundamental rights violation but would also be seen to have been done and to ensure that the ‘spirit’ of the Constitution in Section 35(6) and (7) is fulfilled, hence, this paper humbly appeals (on a compassionate ground) and recommend to My Lord (since Your Lordship has been saddled with the defence and or protection of the fundamental rights of Nigerian citizens) to make a ‘Fundamental Rights’ Judgments (Enforcement) Rules, for enforcing fundamental rights judgments in Nigeria, in the interest of justice, more so, since, the protection of fundamental rights or human rights of the Nigerian citizens by our Nigerian Courts is non-negotiable.
- My Lord, it is my considered view that a situation where an Applicant whose right or rights conferred on him under the Chapter IV of the Constitution and who has utilized the rights of seeking redress as conferred on him by the Constitution which 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 in that State for redress’, and complying with the FREPR, and having secured compensation in his favour but despite that, will be required and or mandated to seek consent of his opponent or the AGF or the AGS (where applicable) on the ground of the provisions of section 84 of the SCPR and other Rules subsidiary thereto, is in a way allowing the provisions of a statute to override the provisions of the Constitution and rendering the provisions of the Constitution (which confers the right of redress and compensation on the Applicant) nugatory and compromising the entitlement of the Applicant to enjoy the judgment sum is a great injustice! The Supreme Court of Nigeria has held on interpretation of the provisions of the Constitution, while laying down the guidelines for a court of law to follow when it held in Registered Trustees, A.O.N. V N.A.M.A. (2014) 8 NWLR (pt. 1408)1 SC. (pg. 61-62, H-B) thus ‘In the interpretation of any provisions of the Constitution, not only the letters, but also the spirit behind the provision must be taken into consideration’. Noteworthy also is the decision of the Court of Appeal of Nigeria in the case of Okungbowa v Gov. Edo State (2015)10 NWLR (pt. 1467) 257 C.A. (page 298, paragraphs B-C) which prohibits compromising the fundamental rights provisions under the Constitution thus ‘In the interpretation of any provisions of the Constitution, not only the letters but also the spirit behind the Constitution must be taken into consideration. In the determination of a person’s rights provisions and obligations, fundamental human rights provisions under the Constitution cannot be compromised’. (Underlining is mine for emphasis).
- Furthermore, and like I have stated in the above paragraphs, in my course of seeking a way out of all these restrictions in enforcing the judgment sum by an Applicant, who is left with no opportunity of enjoying the fruits of his judgment by the requirement of seeking the consent of the AGF or the AGS, I considered the provisions of the Section 46(3) of the Constitution which confers powers on Your Lordship 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.’. In my humble submission, the Chief Justice of Nigeria (as he then was) having by this section of the Constitution, made the FREPR, My Lord (as the Chief Justice of Nigeria) also has the incidental powers to make Rules and Procedures (to give effect to same) for the enforcement of the judgment of the High Court which have been decided pursuant to the Chapter IV of the Constitution, other international statutes on human rights and the FREPR. I further humbly submit that in considering whether Your Lordship has the incidental powers to make the Fundamental Rights Judgment (Enforcement) Rules and departing from the provisions of the SCPA and its subsidiary(ies) for the enforcement of judgment in fundamental rights litigation, I place reliance on the provisions of section 318(4) of the Constitution which adopts the provisions of the Interpretation Act. The said section 318(4) of the Constitution provides thus (4) The Interpretation Act shall apply for the purposes of interpreting the provisions of this Constitution.’ Also, the Interpretation Act provides in section 10 for statutory powers and duties while section 12 provides on Construction of statutory powers and duties thus ‘10. (1) Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires. (2) An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.’ I also rely on Section 12 and 19 of the Interpretation Act.
- Furthermore, it is my humble submission that the Constitution is the enabling law pursuant to which the FREPR was made by the Honourable, the Chief Justice of Nigeria (as he then was), as a subsidiary law. Therefore, I humbly submit that the FREPR only derives its source of powers from the Constitution. And My Lord, the Chief Justice of Nigeria (as he then was) too only derives his powers to make the FREPR from the Constitution just as the National Assembly derives its powers to make the SCPA. I rely on the case of: Abia State University, Uturu v Anyaibe (supra).
- From the above arguments and submissions, what I am submitting is that Your Lordship has the Constitutional powers to make 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. Section 46(2) of the Constitution has also conferred on the High Courts, such powers of making orders, judgment, etc., as follows: ‘(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.’ My Lord, HON. JAMES ABIODUN FALEKE V. INEC & ORS. (2016) 18 NWLR (PART 1543) 61 AT 117 F–H per KEKERE-EKUN, JSC, who said: “The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided.’
- I therefore, hereby humbly urge Your Lordship to utilize Your Lordship’s 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 SCPA and its subsidiary especially the careless provisions of requirement for consent of the AGF or the AGS and to make a ‘Fundamental Rights’ Judgements (Enforcement) Rules’ being recommended by this paper.
- Finally, I therefore humbly recommend the following recommendations to My Lord, (since My Lord has been saddled with such powers in regard to fundamental rights pursuant to Section 46(3) of the Constitution, in promoting the fundamental rights of Nigerian citizens), that My Lord should:
- Immediately set up a committee to make a draft of the ‘Fundamental Rights’ Judgements (Enforcement) Rules’ being recommended by this paper;
- establishment of special panel courts in High Courts in Nigeria to hear fundamental rights enforcement cases;
- pass 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 (even though Nigerian courts are recently departing from this issue of ‘no consent of the Attorney-General’ i.e. by making the ‘Fundamental Rights Judgments (Enforcement) Rules; this in my humble submission, is in line with the spirit behind the provision of section 46(3) of the Constitution which must be taken into consideration;
- there should be a quarterly monitoring of the implementation of the FREPR by My Lord, so as to affirm to the common man and everyone having roles to play in regard to fundamental rights enforcement (including Nigerian courts) that protection of fundamental rights is never negotiable!
Hameed Ajibola Jimoh Esq.
Sole Practitioner/Principal Counsel/Human Rights Activist.
Supreme Court of Nigeria’s Enrolment Number: SCN094209.