FUNDAMENTAL RIGHTS
ENFORCEMENT
This is the
procedure for the enforcement of fundamental human rights provided for in
Chapter IV of the 1999 Constitution comprising of sections 33 – 44.
In an effort to
ensure that these rights can be enforced and to create easier access to courts,
the Constitution empowers the Chief Justice of Nigeria to make rules for the
practice and procedure in respect of matters specified in Chapter IV of the
Constitution.
Pursuant to the
above, the Fundamental Rights (Enforcement Procedure) Rules, 1979 was made. It
should however be noted that there is a recent one which was made in 2009.
COURTS WITH JURISDICTION
The courts that
has jurisdiction on matters of fundamental rights enforcement are –
1.
State High Courts; and
2.
Federal High Courts.
Section 46(1) of the 1999 Constitution provides thus –
“Any person who alleges that any of the provisions of
this Chapter [Chapter IV of the 1999 Constitution] 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.”
It should be
noted that the above provision only relates to ‘High Court’. However, the 1999 Constitution
does not define what High Court means, but, section 277 of the 1979
Constitution defines the ‘High Court’ to mean the ‘Federal High Court or the
High Court of a State”. Order 1 Rule
1(2) of the Fundamental Rights (Enforcement Procedure) Rules in support of
section 277 of the 1979 Constitution, defines a ‘Court’ to mean ‘Federal High
Court or High Court of a State’.
Accordingly, section 46(2) of the 1999 Constitution provides
thus –
“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 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 the chapter”.
The above section provides that
jurisdiction is limited by or confined within those matters in which the two courts (Federal High Court and
High Court of a State) are vested with jurisdiction under the Constitution in
respect of fundamental rights enforcement. Thus, the Federal High Court, for
instance, can only exercise jurisdiction over fundamental rights enforcement in
respect of matters in which it is vested with jurisdiction under section 251 of
the 1999 Constitution. In the same manner, the State High Court shall also be
mindful of the provisions of section 251 to which its jurisdiction is made
subject to the Constitution.
The
Supreme Court has also decided in Grace Jack v. University of
Agriculture, Makurdi (UNAM) (2004) 5 NWLR (Pt. 865) 208, that by
virtue of section 42(1) of the 1979 Constitution (now section 46(2) of the 1999
Constitution), both Federal High Court and State High Court have concurrent
jurisdiction on fundamental human rights enforcement cases irrespective of
section 230 of the 1979 Constitution (now section 251 of the 1999
Constitution).
Although,
in Inah
v. Ukori (2002) 9 NWLR (Pt. 773) 563, the Court of Appeal struck out
the matter brought before the Federal High Court in respect of fundamental
rights because none of the matters in the Federal High Court fell within
section 251 of the 1999 Constitution.
MODES/PROCEDURE FOR APPLICATION
This
involves three steps namely –
1. Application seeking for leave to apply for enforcement of
fundamental rights – Order 1 Rule 2;
and
2. Substantive application by way of motion on notice or
originating summons – Order 2 Rule 2(3)
and (4); and
3. Hearing and determination of the application based on
affidavit evidence and argument thereon.
APPLICATION
SEEKING FOR LEAVE
This is the first step in
the enforcement of fundamental rights which is used to enforce the breached or
threatened right.
Under the Rules, an
application for the enforcement of fundamental rights shall not be made unless
leave to apply for the enforcement of the fundamental rights has been granted
by the court – Order 1 Rule 2(2) of the
Rules; NUT v. COSST (2006) 5 NWLR (Pt
974) 590 at 610. Such an application is to be made by motion ex-parte,
and to be supported by –
1. A statement of
facts setting out the name and description of the applicant;
2. The relief sough,
and the grounds on which it is sought; and
3. An affidavit
verifying the facts relied on – Order 1
Rule 2(3) of the Rules.
The rationale for this step
was clearly put in Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797, per Uwais, JSC (as he then was), as the
need to determine preliminary matters such as whether prima facie, a ground
exists on which it can be assumed that the Applicant’s rights has been violated
and as such to put the respondent on notice so that the court can consider, in
detail, the complaint of the Applicant after hearing both sides to the dispute.
It does not call for the consideration of issues in the substantive
application.
The application for leave
must also be filed at least a day preceding the day the application is to be
heard. The applicant is also required to lodge with the court enough copies of
the statement and affidavit for service on any party that the court may order –
Order 1 Rule 2(4) of the Rules.
It should be noted that the
judge in granting the leave may direct that the grant of such leave shall
operate as a stay of all matters or actions relating or connected with the
complaint pending the determination of the substantive application or until the
Court or Judge orders otherwise – Order
1 Rule 2(6) of the Rules. And, if there is no such direction, the grant of
leave does not, ipso facto, act as a
stay – Lekwot v. Judicial Tribunal on Civil and Communal Disturbances in
Kaduna State (1993) 2 NWLR (Pt. 276) 410. In granting leave, the Court
or Judge may require that the applicant give security as to cost.
SUBSTANTIVE
APPLICATION
Order
2 Rule 1 of the Rules states thus –
“(1) When the leave has been granted to apply for
the order being asked for, the application for such order must by notice of
motion or by originating summons to the appropriate court and unless the Court
or Judge granting leave has otherwise directed, there must be at least eight
(8) clear days between the service of the motion and the day named therein for
the hearing.
(2) The motion or summons must be entered for
hearing within fourteen (14) days after such leave has been granted.”
This means that after
the court has granted leave, the applicant is required to file an application
for the enforcement of right or rights infringed upon or threatened to be
infringed upon. The application shall be by way of motion or originating
summons in FORM 1 and FORM 2 respectively in the Appendix to the rules to the
appropriate court.
Although Rule 2 of the Rules
provide that the application shall be by way of motion or originating summons,
which indicates that an applicant may pick and choose either of the two, it is
submitted that the choice of the process used will depend on the facts relied
on in support the application.
The Court of Appeal held in Minister
of Internal Affairs v. Shugaba (1982) 3 NCLR 915 at 965, per Uche Omo JCA (as he then was), that
–
“Form 1 contemplates
mainly the use of affidavit evidence which may very well and often does contain
contentious issues of fact which have to be resolved. Form 2 on the other hand,
gives notice to the defendant inter alia that the plaintiff seeks the
determination by the court of the following questions namely: This therefore
contemplates an originating summons as under the ordinary procedure involving
the determination of questions or interpretation of documents whereof the facts
are largely settled and/or are not in contention.”
It could be inferred from
the above case that if the facts relied on are contentious or likely to be
disputed by the respondent, it would be advisable for the applicant to apply
for application by way of motion on notice in Form 1. On the other hand, if the
facts are not contentious and the issue at stake borders only on the
construction or interpretation of the Constitution or other document, it would
be advisable for the applicant to apply for application by way of summons in
Form 2. Also, it was held in Doherty v. Doherty (1968) NMLR 241; NBN v.
Alakija (1998) 9 – 10 SC 59, that an originating summons is not a
proper procedure where contentious issues of fact are to be resolved by the
court.
There must be at least eight
(8) clear days between the service of the motion and the day fixed for hearing,
unless the court directs otherwise. However, failure to comply with this
requirement may not prove fatal to the application. In Uzoukwu v. Ezeonu II (1991) 6
NWLR (Pt. 200) 708, the Court of Appeal held that although there was
shortage of the eight days required by the Rules, there was no miscarriage of
justice as the respondents were neither taken by surprise nor prevented from
proving their case.
The originating summons or
motion must be entered for hearing within fourteen (14) days of the hearing of
the court granting leave and must be accompanied by copies of then statement of
fact originally filed with the ex parte application
for leave. The courts will not allow any ground in support of the relief sought
except the grounds set out in the statement. The court however, reserves the
power on the hearing of the summons to allow the statement to be amended.
The originating summons or
motion shall also be accompanied by an affidavit which shall set out the names
and addresses of all persons who have been served with the originating summons
or motion and the date of such service, else the summons shall not be listed
for hearing – Order 2 Rule 1(4) of the
Rules. In Onyemaizu v. Ojiako (2000) 6 NWLR (Pt. 695) 25, the court held that
it is the duty of the party to file the verifying affidavit and not that of the
bailiff of the court.
Every party must give to the
other party copies of the affidavit which he proposes to use at the hearing – Order 2 Rule 2 of the Rules.
There is, however,
dissenting views on what ‘entered for hearing’ as used in Order 2 Rule 2 as
stated above means but majority believes it means that the application must be
filed within the stated period. In Inah v. Ukoi (2002) 9 NWLR (Pt. 773) 563 at
569 per Edozie JCA (as he then
was), it was held that entering a motion for hearing in the context of
Order 2 Rule 2 of the Rules can only mean, filing the motion for it to be fixed
for hearing. In A-G Federation v. G.O.K Ajayi (2000) 12 NWLR (Pt. 682) 509, the
Court of Appeal reasoned that once the application has been filed within the
prescribed period, the applicant has complied with the provisions of the Rule,
as fixing of the application for hearing is the exclusive function of the
officials of the court over which the applicant has no control. In Monye
v. Presidential Task Force on Trade Malpractices (2002) 15 NWLR (Pt. 789) 209
at 222 – 223; per Oguntade JCA observed
thus –
“The Court below was
in effect saying albeit unwittingly that an applicant who through no fault of
his has his suit which he has brought under the Fundamental Rights (Enforcement
Procedure) Rules adjourned more than fourteen (14) days after the grant of
leave, must abandon such proceedings and commence another. That in my view
cannot be right. It will amount to manifest injustice and absurdity in the
relevant procedural law.”
From the above cases, one
could infer that the Rules could not have intended to punish an applicant for
not having his application determined within fourteen (14) days of the grant of
leave. The power to hear and determine the application vests absolutely with
the Judge; and the applicant has no power to compel the Judge to sit, hear and
determine an application filed before the court.
In circumstances where an
applicant fails to file his motion or summons within fourteen (14) days of the
grant of leave, the leave granted ex
parte would have lapsed. Accordingly, the motion or summons filed, pursuant
to such expired leave will be void too. Though, the applicant does not lose the
right to enforce the alleged violated rights by the reason of failure to file
the substantive application within fourteen (14) days of grant of leave – Ezechukwu
v. Maduka (1997) 8 NWLR (Pt. 518) 625 at 670.
It should be noted that
fundamental rights provisions are enforceable against the government,
functionaries and individuals – Theresa Onwo v. Nwafor Oko (1996) 6 NWLR
(Pt. 456) 584; and ACB v. Okonkwo (1997) 1 NWLR (Pt. 480) 194.
However, companies can also commence proceedings to enforce a fundamental
right – Onyekwuluje v. Benue State Government (2005) 8 NWLR (Pt. 928) 614.
HEARING
AND DETERMINATION OF THE APPLICATION BASED ON AFFIDAVIT EVIDENCE AND ARGUMENT
THEREON
Under Order 2 Rule 3 of the Rules, every party to the application must
supply to any other party copies of the affidavit which he proposes to use at
the trial and once this is done, the application on notice will be heard and/or
determined on the affidavit in support of the application.
The applicant should,
however be consistent with the form or mode of application he uses, that is, he
should stick to motion if he starts with it, or with summons if that is what he
prefers and starts with. Though, the above stated options are not applicable to
the application for leave which must be by motion ex parte. They are valid only after leave has first been applied
for and granted by the court – Oruk-Anam L. G v. Ikpa (2003) 12 NWLR (Pt.
835) 558 at 577 – 578.
LIMITATION
PERIOD FOR APPLICATION FOR LEAVE
The time within which an
applicant is to apply for leave is stated in the Rules, which provides that
such an application shall not be granted except where the application for leave
is made within twelve (12) months of the happening of the event, matter or act
complained of or such other period as may be prescribed by any enactment – Order 1 Rule 3(1) of the Rules. In Abia
State University v. Anyaibe (1996) 3 NWLR (Pt. 439) 646, it was held
that the Fundamental Rights Rules has the force of law as the constitution
itself such that it will override any other enactment. The provision of Order 1
Rule 3(1) prescribing twelve (12) months was held to override the provision of
section 22 of the State Edict that prescribed three (3) months within which to
apply for leave. Thus any statute prescribing a shorter time other than that
allowed under the rules will be invalid.
The court also has the power
to extend the time for making an application so long as the applicant can
satisfy the court why there was a delay – Abbas Tafida v. Sa’ adu Abubakar (1992) 3
NWLR (Pt. 230) 511.
The essence of the
limitation period is to preserve the application for leave, so it will not be
filed outside the limitation period; and so that such an application may not be
regarded as an abuse of court process.
In practice, the leave may
be granted but a stay of proceedings may be ordered pending the determination
of the appeal or the expiry of time within which to appeal – Madiebo
v. Nwankwo (2001) 29 WRN 137.
REMEDIES
There are several remedies
(also called reliefs) that are available to an applicant. They include though
not limited to –
1. Bail
2. Prerogative writs
and orders like habeas corpus, mandamus, certiorari, etc.
3. Injunctions and
declarations.
4. Release.
5. Production.
6. Access to
medication.
7. Damages.
Section
42(2) of the 1979 Constitution (now section 46(2) of the 1999 Constitution) provides that the
court upon hearing an application for the enforcement of fundamental rights.
Has the power to make such orders, issue writs and give such directions as it
may consider appropriate for the purpose of enforcing or securing the
enforcement within the State of any right to which an applicant may be entitled
under Chapter IV of the Constitution. This is also similar to what is provided
for under Order 6 Rule 1 of the Rules.
In interpreting the above
provision, the court in Minister of Internal Affairs v. Shugaba
Darman (1982) 3 NCLR 915 at 994, per
Karibi-Whyte JCA (as he then was) observed thus –
“In my opinion, the
Rules here provided which are exhaustive as to the remedies contemplated in
section 42(2) include provisions to quash any proceedings and applications for
production and or release of persons restrained in Order 3 and 4 respectively.
In these remedies, the orders of certiorari, mandamus, prohibition, habeas
corpus, declaration, injunctions, requisite and relevant to redress the
infraction of the fundamental right are available and can be obtained.”
It should be noted that
under Order 4 of the Rules, where
there is an application to enforce a fundamental right to liberty and the
applicant complains of wrongful or unlawful detention, the Court or Judge may
on hearing the ex parte application
order his immediate release from such detention. This release may be in form of
Bail or an unconditional release. In Fela Anikulapo Kuti v. NDLEA Unreported Suit
No. FHC/L/CS/540/97 of 15/4/97, the court ordered the unconditional
release of the applicant at the ex parte application
stage.
The Court may also instead
of ordering an immediate release order that the substantive application by
origination summons or motion be filed or that the ex parte application be served on the person against whom the order
if release is sought. In Fawehinmi v. Abacha (1998) 1 HRLRA 623; and Adebayo
v. Kolawole (1985) 6 NCLR 709, it was stated that the courts are more
likely to grant bail to the applicant pending the determination of the motion
or summons.
The court may also on
hearing an application for enforcement of fundamental rights order that the
person detained be granted access to proper medication and his lawyers. In Fawehinmi
v. Abacha (supra) at 665, the Federal High Court granted the applicant
access to his wife and medical doctor in order to make his special drugs
available to him as he was hypertensive.
The court may also order
that a detained person be produced in court and such order shall constitute a
sufficient warrant for the production of any such detained person by the person
or persons responsible for his detention or any person in charge of the
applicant – Abiola v. Abacha Suit No. FHC/L/CS/548/94. It should be noted
that where an order for production is made, the Judge shall give direction as
to the court or judge, and date before whom the detained person is to be
produced.
Damages may also be awarded
to an applicant wherever necessary under the Rules. Also, section 35(6) of the 1999 Constitution (formerly section 32(6) of the
1979 Constitution) provides that a person who is unlawfully detained shall
be entitled to compensation and public apology from the appropriate authority
or person. It should be noted that compensation used in this section can be
referred to as damages. In Minister of Internal Affairs v. Shugaba
Darman (supra) at 953, per Coker
JCA observed thus –
“That the
Constitution specifically provides for compensation only under section 32(6)
[of the 1979 Constitution] does not in my view exclude the right to claim
damages in respect of invasion of any other rights.”
The Court further held that
damages could be awarded for infringement of the right of a citizen even where
it is not expressly provided for in section 32(6) of the Constitution.
EFFECT
OF DISOBEDIENCE OF ORDERS OR DIRECTIONS MADE UNDER THE RULES
A disobedience to any order
or direction made by the court in pursuance of an application under the Rules
shall be punishable with contempt – Order
6 Rule 1(2) of the Rules.
However, the Rules are
silent on the procedure to be followed in enforcing an order made under it.
When such a situation arises, recourse will be made to the appropriate
procedure under the various High Court Rules, the Sheriffs and Civil Process
Act, and Judgment Enforcement Rules.
In Bonnie v. Gold (1986) 8 NWLR (Pt.
465) 230, it was held that the person in disobedience of the court
order must have been served with the order in the appropriate form before he
can be said to be in disobedience. And if such has been done, then an application
to commit such a person for contempt will be proper and lawful.
STRICT
ADHERENCE TO THE ENFORCEMENT PROCEDURES
The procedure set out under
the Fundamental Rights (Enforcement Procedure) Rules is only permissible and
not mandatory. Thus, an applicant may enforce his rights through other legally
recognised remedies like the prerogative writs already discussed above. In Ogugu
v. The State (1994) 9 NWLR (Pt. 366), the Supreme Court held that the
procedure under the Rules is merely permissible and does not constitute a
monopoly for the enforcement of rights. It held further, that the object of the
Rules was to provide a simple and effective process as against the cumbersome
procedures and technicalities for enforcement at common law and statutes.
However, in Dangote
v. Civil Service Commission (2001) 19 WRN 125 at 147, it was held that
non-compliance with or departure from the procedure under the Rules is fatal to
an application for enforcement of fundamental rights in the society, the
authorities that suggest that the mode of application is irrelevant seem to be
more reasonable. It would cause grave hardship if one’s rights are infracted
and left without a remedy just because the applicant came by a procedure other
than provided under the Rule.
JUDICIAL
REVIEW
This can be defined as the
power of the courts to declare executive and/or legislative acts null and void
and of no effect on grounds of illegality and/or unconstitutionality.
Judicial review procedures
are found under the various High Court Rules; and the relief sought are either
an order of mandamus, prohibition or certiorari. Such reliefs are veritable
methods of enforcing fundamental rights and complement the provisions under the
Fundamental Rights (Enforcement Procedure) Rules.
The exercise of power
operates within the judiciary itself against the conducts of inferior courts or
tribunals.
Order
3 of the Rules provides thus –
1. In the case of an
application for an order to remove any proceedings for the purpose of their
being quashed, the applicant may not question the validity of an order,
warrant, commitment, conviction, inquisition or record unless before the
hearing of the motion or summons he had served a certified copy thereof
together with a copy of the application on the Attorney-General of the
Federation or the State in which the application is being heard as the case may
be, or accounts which the application is being heard as the case may be, or
accounts for his failure to do so to the satisfaction of the court or judge
hearing the motion or summons.
2. Where an order to
remove any proceedings for the purpose of their being quashed is made in any
such case, the order shall direct that the proceedings shall be quashed
forthwith on their removal into the court which heard the application.
This means that an applicant
may not question the validity of an order as regards to an application for an
order to remove any proceedings for purpose of being quashed unless he had
served a certified copy together with a copy of the application on the
attorney-General of the Federation or the Attorney-General of the State before
the hearing of the motion or summons.
SIMILARITIES
OF JUDICIAL REVIEW AND FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES
1. Judicial Review requires leave; and Fundamental Rights (Enforcement Procedure)
Rules also requires leave.
2. Judicial Review is commenced by motion exparte; and Fundamental Rights (Enforcement Procedure) Rules also commences by motion ex parte.
3. Judicial Review is used to seek prerogative
orders like certiorari, prohibition, habeas corpus, mandamus, etc; and Fundamental Rights (Enforcement Procedure)
Rules is also used to seek the same prerogative orders.
DIFFERENCES
OF JUDICIAL REVIEW AND FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES
1. Judicial Review is limited to prerogative
orders; whilst Fundamental Rights
(Enforcement Procedure) Rules can be used for other reliefs aside
prerogative orders.
2. Judicial Review is limited to administrative
actions, and decisions of inferior courts; whilst Fundamental Rights (Enforcement Procedure) Rules is not so limited.
3. Judicial Review is not used for enforcement
of fundamental rights; whilst Fundamental
Rights (Enforcement Procedure) Rules is basically used for enforcement of
fundamental rights.
SANCTIONS
Sanction is a law or rule that leads to a penalty being imposed when it
is disobeyed. That is, a punishment as a result of breaking a law or rule.
Order 35 Rule 1, Lagos provides that the Judge shall, at the pre-trial conference or after
trial, deliver judgment in open court, and shall direct judgment to be entered.
Order 41 Rule 1, Abuja provides that the power of a
Court to punish for contempt may be exercised by an Order of committal.
COSTS
Litigation
involves expenses by both parties. There are various court fees paid for filing
processes and other documents and for their preparation, the amount spent in
summoning the witnesses, and paying them allowances in certain case, and of
course, the legal practitioner’s fees where one is engaged.
Costs are meant
to compensate one of the parties, most often the successful party, for expenses
he has occurred in the litigation. Thus, the court orders the other party to
pay him a certain sum of money awarded for such purpose by the court.
Order 49 Rule 1(1) of the High Court of Lagos State
Civil Procedure Rules, 2004 states thus –
“In fixing the
amount of costs, the principle to be observed is that the party who is in the
right is to be indemnified for the expenses to which he has been necessarily
put in the proceedings, as well as compensated for his time and effort in
coming to court. But the Judge may take into account all the circumstances of
the case.”
In any cause or
matter in which security for costs is required, the security shall be of such
amount and be given at such times and in such manner and form as the judge
shall direct – Order 49 Rule 2, Lagos.
TYPES OF ORDERS AS TO COSTS
1. Order as to Costs of Action – An order as to
Costs of Action is generally made at the end of the entire proceedings whereby
one party is ordered to pay costs to indemnify the other party for his expenses
on the basis of party to party costs.
2. No Order as to Costs – When a court makes no order
as to costs, it means that each party should bear his own costs. None has to
compensate the other for the expenses incurred by that other in the
application. Both should bear their respective expenses. This may also be made
at the conclusion of the trial as the substantive order on costs.
3. Costs in the cause - This order is made in
interlocutory proceedings. It means that the party who at the end of the
substantive trial is ordered to pay the costs of the action shall also pay the
costs of the interlocutory proceedings. It is an award that leaves the quantum
of such costs to be decided at the end of the action in favour of either the
plaintiff or the defendant depending on who wins the case eventually.
4. Costs in any event – This is also an order made
in interlocutory proceedings. It is made where a party, as a result of his
failure to comply with the rules, has to bring an application in order to
rectify his mistake. The party may then be ordered to pay costs in any event.
5. Application dismissed with costs – This is
self-explanatory and means that the party whose application is dismissed also has
to pay his opponent’s costs of the application.
CIVIL
PROCEEDINGS SANCTIONS AND COSTS (COMPOSITE TABLE)
NO
|
SUBJECT
|
LAGOS
|
ABUJA
|
1.
|
Effect
of Non-compliance
|
O.
5 R. 1. Shall nullify the proceedings.
|
O.
2 R. 1. Shall not nullify the proceedings.
|
2.
|
Costs
|
O.
49 R. 9. Costs when ordered becomes payable and shall be paid within 7 days
of the order.
|
Not
specified.
|
3.
|
Late
Appearance
|
O.
9 R. 5. A defendant shall pay an additional N200 for each day of default of
late appearance.
|
Not
specific but general costs under O. 52. May apply.
|
4
|
Forms
and Commencement of Actions
|
O.
3 R. 2(2). Where a claimant defaults in complying, his originating process
shall not be accepted for filing by the Registry
|
O.
1 R. 2. Not specified.
|
(sample
of ex parte motion)
IN THE HIGH COURT OF LAGOS
STATE OF NIGERIA
IN THE LAGOS JUDICIAL
DIVISION
HOLDEN AT LAGOS
SUIT
No.....................
IN
THE MATTER OF AN APPLICATION FOR REDRESS FOR THE INFRINGEMENT OF FUNDAMENTAL
RIGHTS
IN
THE MATTER OF:
CHIEF
AKO ......................................................................................... APPLICANT
1. ZAR
LAM (D.P.O OGUI POLICE STATION)
.................. RESPONDENTS
2.
PETER NEMI (I.P.O OGUI POLICE STATION)
MOTION
EX PARTE
BROUGHT
PURSUANT TO ORDER 1 RULE 2(1), (2) & (3) OF THE FUNDAMENTAL RIGHTS
(ENFORCEMENT PROCEDURE) RULES
TAKE
NOTICE that this Honourable Court will be moved on ...........................
day of ....................... 20.... at the hour of 9 O’ Clock in the forenoon
or so soon thereafter as counsel on behalf of the Applicant can be heard
praying this Honourable Court for the following orders:
1. A declaration
that the detention of the applicant at Ogui Police Station, Lagos from Saturday
13th March, 2010 to Tuesday 22nd March, 2010 without an
order of court and torture constitutes an infringement of the applicant’s
fundamental rights guaranteed and protected by sections 34(1)(a), and 35(1),
(4) and (5) of the 1999 Constitution.
2. A declaration
that the continued detention of the applicant at Ogui Police Station, Lagos
since the 22nd of March, 2010 without an order of court and torture
constitutes an infringement of the applicant’s fundamental rights guaranteed
and protected by sections 34(1)(a), and 35(1), (4) and (5) of the 1999
Constitution.
3. An order
directing the respondents to release the applicant from detention forthwith.
4. N10,000,000.00
(Ten million naira) against the Respondents jointly and/or severally on the
footing of exemplary damages for the unwarranted infringement of the
Applicant’s fundamental rights.
5. A mandatory order
commanding the Respondents jointly and/or severally to deliver an apology in
writing to the Applicant for the unwarranted infringement of his fundamental
rights.
6. Such further
order or others as this Honourable Court may consider just and appropriate to
make in the circumstance for the redress of the infringement of the Applicant’s
fundamental rights.
DATED this 23rd
day of March, 2010
_____________________
Counsel
to the Applicant
Zubaiski Dise
Embe
Chambers
No. 8 Abi Estate
Lagos.
(sample of statement)
IN THE HIGH COURT OF LAGOS STATE
OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT
No.....................
IN THE MATTER OF AN APPLICATION FOR REDRESS FOR THE INFRINGEMENT OF
FUNDAMENTAL RIGHTS
IN THE MATTER OF:
CHIEF AKO
......................................................................................... APPLICANT
1. ZAR LAM (D.P.O OGUI POLICE STATION) .................. RESPONDENTS
2. PETER NEMI (I.P.O OGUI POLICE STATION)
STATEMENT
BROUGHT PURSUANT TO ORDER 1 RULE 2(3) OF THE FUNDAMENTAL RIGHTS
(ENFORCEMENT PROCEDURE) RULES
1. NAMES AND DESCRIPTION OF THE APPLICANT: CHIEF AKO, business man, No. 15
Abi Soki Estate, Lagos.
2. RELIEFS SOUGHT:
a) A
declaration that the detention of the applicant at Ogui Police Station, Lagos
from Saturday 13th March, 2010 to Tuesday 22nd March,
2010 without an order of court and torture constitutes an infringement of the
applicant’s fundamental rights guaranteed and protected by sections 34(1)(a),
and 35(1), (4) and (5) of the 1999 Constitution.
b) A
declaration that the continued detention of the applicant at Ogui Police
Station, Lagos since the 22nd of March, 2010 without an order of
court and torture constitutes an infringement of the applicant’s fundamental
rights guaranteed and protected by sections 34(1)(a), and 35(1), (4) and (5) of
the 1999 Constitution.
c) A
mandatory order directing the respondents to release the applicant from
detention forthwith.
d)
N10,000,000.00 (Ten million naira) against the Respondents jointly and/or
severally on the footing of exemplary damages for the unwarranted infringement
of the Applicant’s fundamental rights.
e) A
mandatory order commanding the Respondents jointly and/or severally to deliver
an apology in writing to the Applicant for the unwarranted infringement of his
fundamental rights.
3. GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT:
a) The Applicant
is a businessman residing in Lagos.
b) The 1st
Respondent is the Divisional Police Officer in charge of Ogui Police Station,
Lagos and the 2nd Respondent is an Investigating Officer at Ogui
Police Station, Lagos.
c) On
the 13th of March 2010 at about 7:00am, the 2nd
Respondent in the company of about five other policemen came to the Applicant’s
residence at No. 15, Abi Soki Estate Lagos and forcefully arrested the
Applicant on the pretext that there was a petition against the Applicant for
unlawful importation of firearms.
d) After
interrogating the Applicant for more than five (5) hours at Ogui Police
Station, Lagos by the 2nd Respondent on the 13th March,
2010, the 1st Respondent ordered the detention of the Applicant and
the defendant was consequently detained in an overcrowded cell.
e) On
the 14th March, 2010, the Respondents took out the Applicant from
the cell and further interrogated him for about two (2) hours and generally
insisted that the Applicant should give information with regards to the storage
of the alleged unlawful imported firearms with a threat that if the Applicant
did not co-operate they would use the cell inmates to inflict pain on the
Applicant. Which they eventually did, and for the next nine (9) days, the
Applicant underwent the routine of daily interrogation and threat of torture by
the Respondents and actual torture in the cell as instructed by the
Respondents.
g) The
respondents refused to take the Applicant before any Court and no Court order
was obtained for the detention of the Applicant in spite of the fact that
Magistrate Courts and High Courts are located within a distance of one
kilometre from Ogui Police Station.
h) The
torture meted out to the Applicant resulted into chest pains for the Applicant.
And the Respondents have refused to allow the Applicant to receive medical
treatment till date.
i) The
Applicant did not import any firearms but yet the Applicant is still
languishing at Ogui Police Station cell, Lagos without any form of court order
till date.
WHEREFORE THE APPLICANT SEEKS RELIEF ON THE FOLLOWING GROUNDS:
a)
That the arrest and detention of the applicant at Ogui Police Station, Lagos
from Saturday 13th March, 2010 to Tuesday 23rd March,
2010 without an order of court and torture is humiliating and constitutes an
infringement of the Applicant’s fundamental rights guaranteed and protected by
sections 34(1)(a), and 35(1), (4) and (5) of the 1999 Constitution.
b) That
the continued detention of the applicant at Ogui Police Station, Lagos since
the 22nd of March, 2010 without an order of court and torture constitutes
an infringement of the applicant’s fundamental rights guaranteed and protected
by sections 34(1)(a), and 35(1), (4) and (5) of the 1999 Constitution.
c) That
it is unlawful to use the machinery of the Police by the Respondents for the
purpose of harassment and intimidation of innocent citizens.
d) That
the conduct of the respondents is arbitrary, illegal, harsh, oppressive,
unconstitutional, and therefore void.
DATED this 23rd
day of March, 2010
_____________________
Counsel
to the Applicant
Zubaiski Dise
Embe
Chambers
No. 8 Abi Estate
Lagos.
(sample
of verifying affidavit)
IN THE HIGH COURT OF LAGOS STATE
OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT
No.....................
IN THE MATTER OF AN APPLICATION FOR REDRESS FOR THE INFRINGEMENT OF
FUNDAMENTAL RIGHTS
IN THE MATTER OF:
CHIEF AKO
......................................................................................... APPLICANT
1. ZAR LAM (D.P.O OGUI POLICE STATION) .................. RESPONDENTS
2. PETER NEMI (I.P.O OGUI POLICE STATION)
AFFIDAVIT OF CHIEF AKO VERIFYING
THE FACTS RELIED ON IN SUPPORT OF THE APPLICATION UNDER ORDER 1 RULE 2(3) OF
THE FUNDAMENTAL RIGHTS (ENFORCEMENT) PROCEDURE RULES
I, Chief Ako, Male, Christian, 35,
Nigerian Citizen, businessman of No. 15 Abi Soki Estate, Lagos, do hereby make
oath and state as follows:
1. That I am the Applicant in this
application before this Honourable Court and by virtue of which I am familiar
with the facts of this case.
2. That I consulted and instructed
Zubaiski Dise of Embe Chambers (legal practitioners) to file this application
on my behalf.
3. That I have carefully read over
the motion paper and statement of facts accompanying the motion paper and I
confirm and verify that the motion paper represents my instructions and I also
verify the facts set out in the statement of facts as true and correct as the
basis of my application.
4. That I swear to this affidavit in
good faith conscientiously believing the contents to be true and in accordance
with the Oaths Act.
____________________
Deponent
Sworn
to at the High Court Registry, Lagos.
DATED this 24th Day of March, 2010.
BEFORE ME
______________________
COMMISSIONER FOR OATHS.
(sample of motion on notice)
IN THE HIGH COURT OF LAGOS STATE
OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT
No.....................
IN THE MATTER OF AN APPLICATION FOR REDRESS FOR THE INFRINGEMENT OF
FUNDAMENTAL RIGHTS
IN THE MATTER OF:
CHIEF AKO ......................................................................................... APPLICANT
1. ZAR LAM (D.P.O OGUI POLICE STATION) .................. RESPONDENTS
2. PETER NEMI (I.P.O OGUI POLICE STATION)
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 2 RULE 2(1) OF THE
FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES
TAKE NOTICE that
this Honourable Court will be moved on the ................... day of
................... 20......... at the hour of 9 O’ Clock in the forenoon or so
soon thereafter as counsel on behalf of the Applicant can be heard praying this
Honourable Court for:
1. An order for redress for the
infringement of the fundamental rights of the applicant in terms of the relief
set out in paragraph 2 of the statement accompanying the application for leave,
served along with this application.
2. AND FURTHER TAKE NOTICE that at
the hearing of this application, the Applicant will rely on the statement
supporting the application for leave and on the affidavit verifying the said
statement all served along with this application.
3. AND for such order or further
orders this Honourable Court may deem necessary in the circumstances.
DATED this 23rd
day of March, 2010
_____________________
Counsel
to the Applicant
Zubaiski Dise
Embe
Chambers
No. 8 Abi Estate
Lagos.
(sample of affidavit
in support of motion)
IN THE HIGH COURT OF LAGOS STATE
OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT
No.....................
IN THE MATTER OF AN APPLICATION FOR REDRESS FOR THE INFRINGEMENT OF
FUNDAMENTAL RIGHTS
IN THE MATTER OF:
CHIEF AKO
......................................................................................... APPLICANT
1. ZAR LAM (D.P.O OGUI POLICE STATION) .................. RESPONDENTS
2. PETER NEMI (I.P.O OGUI POLICE STATION)
AFFIDAVIT IN SUPPORT OF MOTION ON
NOTICE
I, Chief Ako, Male, Christian, 35,
Nigerian Citizen, businessman of No. 15 Abi Soki Estate, Lagos, do hereby make
oath and state as follows:
1. That I am the Applicant in this application
before this Honourable Court and by virtue of which I am familiar with the
facts of this case.
2. That on the 24th day of
March, 2010, this Honourable Court granted me leave to bring this application.
A copy of the order granting leave is attached hereto and marked EXHIBIT ‘A’.
3. That my motion for leave, the
statement in support of the application for leave together with the relief
sought, the accompanying verifying affidavit thereto used by me in the
application for leave is attached hereto jointly as EXHIBIT ‘B’.
4. That I swear to this affidavit in
good faith conscientiously believing the contents to be true and in accordance
with the Oaths Act.
____________________
Deponent
Sworn
to at the High Court Registry, Lagos.
DATED this 24th Day of March, 2010.
BEFORE ME
______________________
COMMISSIONER FOR OATHS.
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1 comment:
A FUNDAMENTAL ERROR IN THIS PIECE IS THE ASSERTION OF THE WRITER THAT THE FIRST STEP BY APPLICANT IN FUNDAMENTAL RIGHTS ENFORCEMENT PROCEEDINGS IS APPLICATION FOR LEAVE OF THE COURT. IN FACT, THERE IS EXPRESS EXCLUSION OF REQUIREMENT OF LEAVE OF COURT BY ORDER 2 RULE 2 OF THE FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE RULES 2009. THE ORDERS YOU CITED SUPPORTING THE ASSERTION DO NOT SAY SO EITHER. ALL OPINION WITH DUE RESPECT, I STAND TO BE PUT RIGHT THOUGH.
MAMAH, COSMOS ESQ
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