The term “fundamental rights”, as elucidated by Black’s Law Dictionary, 7th Edition, is an intrinsic facet of natural or fundamental law. Within the Nigerian legal framework, neither the 1979 Constitution nor the 1999 Constitution of the Federal Republic of Nigeria, as amended, explicitly defined the term “fundamental rights”. An attempt at defining what the term connotes was made in the Fundamental Rights Enforcement Procedure Rules (FREP Rules) in accordance with Subsection 42(3) of the 1979 Constitution and Section 46(3) of the 1999 Constitution, which posit that “fundamental rights” mean “any of the rights provided for in Chapter IV of the Constitution and includes any of the rights stipulated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.[i]

These rights, held sacrosanct by individuals, derive their sanctity from their incorporation into a country’s constitution and are impervious to diminishment or disregard, whether by individuals or governmental entities. In Nigeria, these sets of rights find their preserve in Chapter IV of the 1999 Constitution (as amended), which includes, inter alia, the right to life[ii], dignity of the human person[iii], personal liberty[iv], fair hearing[v], private and family life[vi], freedom of thought[vii], conscience and religion[viii], peaceful assembly and association[ix], freedom of movement[x], and the right to acquire and own immovable property anywhere in Nigeria[xi].

In addition to their enshrinement in the Nigerian Constitution, these rights also find expression in international charters and conventions to which Nigeria is a signatory, such as the African Charter on Human and Peoples’ Rights, adopted in Banjul on January 19, 1981, and domesticated into law through the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Importantly, it is worth noting that the rights embedded in the African Charter extend beyond those provided in the Constitution, encompassing principles such as non-discrimination on the basis of color, race, religion, ethnic group, sex, language, political or other opinion, national or social origin, and protection against exploitation as well as degrading treatment.[xii]

Crucially, the pursuit of redress, protection, and enforcement of these rights before the courts is not contingent solely upon their actual violation. Even when there exists a perceived threat of infringement, individuals can invoke the legal machinery to safeguard their rights. To this end, the proper procedures must be meticulously observed by the applicant.

Procedure for Claiming Damages in Fundamental Human Rights Violations

Any individual alleging a breach or potential infringement of any Fundamental Right enshrined in the Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act may seek recourse through the court in the state where the violation is transpiring or is likely to occur. It is important to state that the principal redress in fundamental human rights actions is a claim seeking to enforce the fundamental human rights of an applicant. See Abdulhamid v Akar.[xiii]

Without such a principal relief endorsed on the face of the reliefs sought, the court will lack jurisdiction to entertain the claim. See Sea Trucks (Nig) Ltd. v. Anigboro.[xiv]

The application for the enforcement of fundamental rights can be initiated through any originating process recognized by the court. The FREP Rules explicitly define “Court” as the Federal High Court, the High Court of a State, or the High Court of the Federal Capital Territory, Abuja. Hence, the courts vested with jurisdiction over fundamental rights enforcement matters are the Federal High Court and the High Court of a State or the Federal Capital Territory (FCT), Abuja. It is pertinent to note that these courts can only exercise jurisdiction over fundamental rights enforcement-related matters that the Constitution has imbued them with. Additionally, some proponents argue that the National Industrial Court may also possess jurisdiction over matters relating to the interpretation and application of Chapter IV of the Constitution concerning employment, labor, industrial relations, trade unionism, and employer’s associations.

While the FREP Rules afford flexibility in the choice of originating processes, it is a prevailing practice to employ Originating Motions or Summons. This inclination is rooted in the exigencies frequently associated with fundamental rights cases, as well as the fact that Originating Summons and Motions are predicated on affidavit evidence. Often, these cases revolve around applicants who are incarcerated, have reason to believe their rights will be violated, or are constantly harassed by law enforcement officers. Initiating such cases via a Writ or Petition could prove counterproductive due to potential delays stemming from the contentious nature of matters commenced through these processes.

Therefore, the application filed under the FREP Rules must compulsorily be accompanied by a Statement outlining the applicant’s name, description, relief sought, grounds for relief, and supported by an affidavit detailing the facts underpinning the application. Ideally, while the affidavit should be deposed to by the aggrieved person, however, if the applicant is unable to do so, a person with firsthand knowledge of the facts or one informed by the applicant may depose to the affidavit, attesting to the applicant’s incapacity to personally execute it.[xv]

Upon being served with the application and supporting documents, the Respondent, the party accused of violating the applicant’s fundamental rights, is obliged to file a Counter-Affidavit and a Written Address within five days. Subsequently, the applicant has an identical timeframe to file further affidavits and a Reply on Points of Law if deemed necessary.[xvi]

Limitation Period for Enforcement of Fundamental Rights

Under the current legal framework, unlike the previous FREP Rules regime where any action seeking to enforce fundamental rights must be initiated within a strict time frame of 12 months from the date of the rights violation or the act in question, an action seeking to enforce fundamental rights shall not be affected by any limitation Statute. Importantly, the prevailing legal stance, especially with the advent of the FREP Rules 2009, asserts that the enforcement of fundamental rights remains unaffected by any provision of the FERP Rules or any other statutory provision.[xvii]

Hearing of the Fundamental Rights Application

Pursuant to the FREP Rules, the hearing of a fundamental rights application is to be carried out within a period of 7 days from the date of filing.[xviii] Nevertheless, adjournments in the hearing of the application may be granted based on the unique circumstances of each case or in accordance with terms stipulated by the court, always bearing in mind the urgency of the application.

The court, when convinced that exceptional hardship may befall the applicant before the formal service of the application, especially in cases concerning the life or liberty of the applicant, may entertain an ex-parte application. This allows the court to grant interim relief as deemed just and equitable under the circumstances. The ex-parte application necessitates the submission of an affidavit outlining the grounds on which any delay in hearing the application may result in exceptional hardship. Furthermore, a written address, containing arguments and evidentiary facts supporting the ex-parte application’s prayers, may be submitted.

In cases where interim relief is sought through ex-parte proceedings, the court is empowered to issue several orders, including:[xix]

a. Granting bail or ordering the release of the applicant from detention pending the hearing of the substantive application.

b. Mandating notice to be served on the respondent against whom the applicant seeks release, with an abbreviated timeline for the hearing of the substantive application.

c. Ordering the production of the applicant on the date fixed for the hearing, especially in cases of unlawful detention.

d. Granting an injunction to restrain the respondent from taking further actions in connection with the matter, preserving the status quo, or staying all actions pending the determination of the application.

e. Any other order that the court deems necessary in the interest of justice.

If an order is issued by the court through an ex-parte motion, the respondent or the affected party has a window period of 7 days from the date of service of the order to apply to the court to vary or discharge the order. The court retains the discretion to either refuse to vary or discharge the order, with or without imposing conditions such as costs or security, as it deems just in the interest of justice.

Jurisdictional Disputes and Preliminary Objections

In situations where a respondent disputes the court’s jurisdiction to adjudicate on the matter of enforcing fundamental rights, he may file a preliminary objection. The preliminary objection application is typically heard concurrently with the substantive application. The court can make either of the following orders:

a. Striking out the application due to a lack of jurisdiction, and

b. Setting aside the service of the originating process.[xx]

In cases where the court determines that it has jurisdiction, it shall proceed to adjudicate on the substantive application.

Service of Process

The service of originating processes holds paramount importance in establishing the court’s jurisdiction. Therefore, service of the application must be effected on all parties personally unless it can be demonstrated that service on the respondent’s agent is tantamount to personal service on the respondent. In instances where direct personal service cannot be accomplished, substituted service may be employed as an alternative method of effecting service.

Consolidation of Applications

Under the prevailing Rules, the courts wield the authority to consolidate disparate applications and adjudicate them collectively or separately, contingent upon whether these applications pertain to the violation of a specific fundamental right within the context of the same issue and on identical grounds. This prerogative extends even when such applications are concurrently pending against multiple individuals.

This consolidation process exemplifies the judiciary’s commitment to efficiency and equity in dealing with fundamental rights cases. When applications that share substantial commonalities are consolidated, it streamlines proceedings, reduces duplicative efforts, and facilitates a comprehensive examination of the underlying issues. Such consolidation ensures that the court can deliver judicious and consistent rulings, thus upholding the principles of fairness and expediency in the enforcement of fundamental rights.

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Orders Issued by the Court

In the pursuit of preserving or enforcing an applicant’s fundamental rights or compensating for their violation, the courts have issued a variety of orders, including but not limited to:

a. Injunctions and declarations

b. Release

c. Damages

d. Public apology

e. Production

f. Access to medication

g. Prerogative writs and orders such as habeas corpus, mandamus, prohibitions, and certiorari.

Conclusion

In conclusion, the procedure for claiming damages in cases of fundamental human rights violations in Nigeria is a vital aspect of the legal framework aimed at safeguarding the sanctity of these rights. The Nigerian legal system, fortified by the Constitution and the Fundamental Rights Enforcement Procedure Rules, provides a robust avenue for individuals to seek redress, protection, and enforcement of their fundamental rights when infringed upon. The procedure for claiming damages in cases of fundamental human rights violations in Nigeria is, therefore, not merely a legal formality but a robust mechanism that underscores the nation’s commitment to protecting and upholding the fundamental rights of its citizens.

For the effective representation of your legal interests, it is judicious to engage the services of a legal practitioner who can assist in navigating the complexities of enforcing human rights violations or their perceived violations.

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[i] Order 1 of the Fundamental Human Rights Enforcement Procedure Rules 2009 (FREP RULES).  See Fajemirokun v. Commercial Bank of Nigeria Limited (2009) LPELR – 1231

[ii] Section 33 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

[iii] Section 34 ibid.

[iv] Section 35 ibid.

[v] Section 36 ibid.

[vi] Section 37ibid.

[vii] Section 38 ibid.

[viii] Section 38 ibid.

[ix] Section 40 ibid.

[x] Section 41 ibid.

[xi] Section 43 ibid.

[xii] Article 2 and 5 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

[xiii] (2006) LPELR – 24 (SC).

[xiv] (2001) 2 NWLR (Pt.696) 159.

[xv] Order II, Rule 3 and 4 of the FREP Rules

[xvi] Order II, Rules 5, 6, and 7 of the FREP Rules

[xvii] Order III, Rule 1 of the FREP Rules

[xviii] Order IV Rule 1

[xix] Order IV, Rule 4 (C) of the FREP Rules

[xx] Order VIII Rule 5

Written by Emmanuel Oguntimehin for The Trusted Advisors

Email us: info@cms.trustedadvisorslaw.com

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