10th September 2019
Hon. Justice Ibrahim Tanko Mohammed, CJN
The Chief Justice of Nigeria
Supreme Court Complex
Three Arms Zone
THE URGENT NEED TO REVIEW THE FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE RULES (FREP RULES) 2009
Before I delve into the crux of this letter, may I respectfully congratulate your lordship on your lordship’s substantive appointment to the exalted office of the Chief Justice of Nigeria. I pray wisdom, uncommon strength and courage shall be your lordship’s companions throughout this journey.
My Lord, I am a Lagos-based legal practitioner with modest bias for fundamental rights enforcement proceedings which practice area makes me frequently consult and cite the provisions of the extant FREP Rules 2009.
Your Lordship will agree with me that, since 2009, when the extant FREP Rule were made by I. L. Kutigi (As he then was), many things have changed and new issues introduced into fundamental rights enforcement proceedings and it is my respectful opinion that, the extant FEP Rules earnestly beg for a review in order to provide answers to the numerous contemporary questions that arise daily from the subject matter.
For the purpose of accuracy, I will cite a few examples of new issues that need to be addressed by the rules (if reviewed) as follows:
My Lord, it is worthy of note that Respondents continue to file preliminary objections to joint applications by Applicants who suffer common grievance on the ground that Order 2 Rule 1 of the FREP Rules simply refers to “Anyone”. It is further interesting that the Court of Appeal has agreed with them in the decision in Opara v S.P.D.C. Ltd (2015) 14 NWLR (Pt. 1479) 307 at 350.
It is my humble opinion that the relevant provision need to amended to clear any further doubt in this regard.
Amendment of the Originating Application
It is also instructive that the provision of Order 5 Rule 2 of the FREP Rules makes allusion to amendment of statement and conspicuously omitted the other processes. This has given a leeway to some, with respect, opportunistic Respondents to object to any attempt by Applicants to amend the originating application.
The FREP Rules is silent on default fees, yet some courts continue to impose default fees by relying on the provisions of Order 15 Rule 4 FREP Rules by considering such omission as a lacuna and applying the civil procedure rules of the relevant court on default fees.
National Industrial Court
My Lord, section 46(3) of the Constitution empowers your lordship to make procedural rules for enforcement of fundamental rights in the High Court. Order 1 Rule 2 defines court to mean High Court and Federal High Court but upon the enactment of Third Alteration Act, 2010, the National Industrial Court was given same powers as High Court with respect to fundamental right applications (see section 254(1) (c). The Court of Appeal has decided in the case of S.S.A.U.T.H.R.I.A.I v Olotu (No. 2) (2016) 14 NWLR (Pt. 1531) 18 that the National Industrial Court lacks the jurisdiction to hear and determine applications for enforcement of fundamental rights.
My Lord, the above issues are by no means, exhaustive of the numerous nagging issues that require intervention of the FREP Rules. Hence, it is my belief that if it pleases your Lordship to review the extant rules, an invitation for memoranda will bring all other issues to the fore.
Should your lordship require further clarification, I am more than happy to provide same upon request sir.
I thank your lordship with the assurance of my best regards.
Olumide Babalola Esq