By: Hameed Ajibola Jimoh, Esq.
There have been several cases of some courts’ registrars enlisting fundamental rights suits as being for ‘mention’ when same comes up in court for the first time rather than as being for ‘hearing’. This attitude or error many times defeats the interest of justice which the Fundamental Rights Enforcement Procedure Rules, 2009-herein after referred to as the FREPR- has been made to protect and ensure because, this error always necessitates the presiding Judge to adjourn the matter to another day whereas the Applicant would have to suffer denial of his freedom and or fundamental rights (the subject matter of the suit) without the court of law hearing him. This error in my humble view, is an act or error against the interest of justice, hence, this paper.
First and foremost, the Order IV Rule 1 of the FREPR provides thus ‘1. The application shall be fixed for hearing within 7 days from the day the application was filed.’ Therefore, there is nowhere the matter is to be enlisted for ‘mention’ rather than for ‘hearing’! Therefore, in my humble recommendation, all registrars of courts must be abreast of the provisions of the fundamental rights application filed before the court and desist from making Applicants to suffer as a result of their avoidable errors! In fact, every registrar of court must be made to always go through the case files and always endorse on the front cover/page of a fundamental rights cases that such a matter is for fundamental rights and it should be understood therefrom that it is for ‘hearing’ and not for ‘mention’. What really happens from my observation is that some of these registrars wrongly assume all cases must be under the regular Rules of Court which comes for ‘mention’ at the first time that the matter comes up in court but this is not the same as the fundamental rights application which is ‘sui generis’. In the case of Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A. (delivering the leading judgment), held thus ‘I must start by stating the obvious, that Fundamental Rights Enforcement Procedure is sui generis, being specially and specifically designed with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which actually came to correct some perceived wrongs and hardship which the 1979 Rules (fashioned on the 1979 Constitution) caused to applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications’. The case of Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. is humbly further referred to.
Also, our judicial officers or the presiding judge must not take it lightly whenever this error is made by whatever staff of the court and this is for the judiciary as the protector of the common man to show its abhorrence to the negative effects of such avoidable error. A judge once criticized staff of his court for enlisting fundamental rights applications on the cause list as being for ‘mention’ rather than for ‘hearing’ and I was very pleased and happy though pathetically, the court was left with no other option than to adjourn the case to another day (though the Applicant was not in detention facility of government but this should not matter as such difference was not made under the FREPR)!
Furthermore, I was made to know that there was a Supreme Court of Nigeria’s decision that courts should always act on the cause list of the day. Nevertheless, I am not sure that this decision was made in respect of fundamental rights suit. So, a case is not an authority for all causes! In my humble view, the interest of justice should and ought to supersede the enlistment on the day’s cause list of the court so that even where the case is erroneously enlisted as being for ‘mention’ rather than for ‘hearing’, the trial court should still be empowered and or encouraged to still hear the matter for hearing with an amendment made on the cause list, else, it would be taking technicality too far.
The Court of Appeal in the case of Amadu v Yantumaki (2011) 9 NWLR (part 1251) 161 C.A. (at page 182 para. C-D.) held thus ‘Rules of Court are meant to be obeyed. However, where strict compliance with the rules will lead to injustice, the rules should be abandoned in favour of doing substantial justice because the courts have shifted from technical justice. And this situation affects even area courts’. The Supreme Court of Nigeria, as the apex court in Nigeria, also affirms the shift of courts from technicalities to substantial justice in the case of Maritime Management Associates v National Maritime Authority (2012) 18 NWLR (pt. 1333) 506, SC at page 541, para. C-E; 553 para. G-H) thus ‘The Supreme Court is more interested in substance than technicalities that lead to injustice. Justice can only be done if the substance of the matter is carefully examined’.
The same Supreme Court further held in the case of Offor v State (2012) 18 NWLR (pt. 1333) 421 SC at pages 446, para. E) thus ‘The law does not recognize technicalities as a replacement of substantial justice’. The Supreme Court of Nigeria having held on this position by Per Tobi JSC in Omoju V FRN (2008) 7 (pt.1085) SC, 38 r. 8 at page 57, paras. D-G remarking thus ‘Courts of law have long moved away from the domain or terrain of doing technical justice. Technical justice, according to the legal colossus, is not justice, but a caricature of it. Caricatures are not the best presentations or representations, substantial justice is justice personified and is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding’. More so, the fundamental rights Rules has the flavor of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which overrides all laws and Rules including any contrary decision or holding. More so that the FREPR is made pursuant to the provision of the Constitution. See: the case of Abia State University, Uturu v Anyaibe (1996) 3 NWLR (pt. 439) 646 at 661, per Katsina-Alu, JCA (as he then was). In which case, such a provision has equal force of law as the Constitution itself.
Therefore, it is my humble submission that any law or Rules or legislation that runs contrary and or breaches the FREPR has run inconsistent with the provisions of the Constitution and shall subject to such inconsistency, be declared null and void. See: the provisions of section 1(1) and (3) of the Constitution. The Supreme Court of Nigeria has held in A.C.B. V Losada (Nig.) Ltd. (1995) 7 NWLR (pt.405) 26, thus: ‘It has never been the case in our laws that the provisions of any ordinary statute would render nugatory the relevant provisions of the constitution. Therefore, if any law of the State including a subsidiary legislation… is inconsistent with the provision of the constitution, the provision of the constitution prevails and that State law is to the extent of inconsistency void’. Also see: Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt. 1129) 475. Further see: the case of INEC v Musa (2003) 3 NWLR (pt. 806) 72 SC, page 157, at paras. D-G, (Ayoola, J.S.C).
Therefore, and finally, it is my humble recommendation that the Honourable, the Chief Justice of Nigeria should always request for a quarterly report on all fundamental rights cases or suits in all trial courts with a view to supervising its necessary compliance in the interest of justice. Also, all heads of courts should direct all court’s staff to always enlist fundamental rights enforcement suits for ‘hearing’ whenever it comes up for the first time in court even where the Applicant is not in detention facility of government. I have fundamental rights cases pending in the High Courts for more than two years now and there is no hearing in those cases. This act of nonchalant attitude (with due respect) of some judges really defeats the interest of justice in fundamental rights enforcement proceedings made by the alleging Applicant! There must therefore be a change in this occurrence in the interest of justice.