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Saturday 31 May 2014

FUNDAMENTAL RIGHTS ENFORCEMENT IN NIGERIA



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
            AND
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
            AND
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
            AND
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
            AND
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
            AND
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.

1 comment:

Anonymous said...

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