PRACTICE AND PROCEDURE - FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES.

 

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C.K. ANYANWU

(Secretary YLF)

NBA ABA BRANCH.

UMEKWE & ANOR v. TASIE & ORS

(2021)

LPELR-55487(CA)

Principle:

PRACTICE AND PROCEDURE - FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES

Whether the Fundamental Right (Enforcement Procedure) Rules allows for the filing of further affidavits and further counter affidavits

"...The second of the cases, is that of CHIMA V. FBN (2017) LPELR-43652(CA) decided on 12/7/2017, wherein this Court stated thus:- "The Fundamental Rights Enforcement is a constitutional issue. Rules were made to facilitate the hearing of such issues of infraction with dispatch or minimum delay. This informed the laying out of the overriding objectives of the said Enforcement Rules in preamble 3 to the Fundamental Rights (Enforcement Procedure) Rules 2009. Overriding objective (g) is helpful. It reads: (g). Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the Applicant or any person, the case shall be treated as an emergency. This then gives the Court the enablement to fast track proceedings in right enforcement at every level. This objective to fast track notwithstanding, the rules must be obeyed and followed because the Court is the home of due process and justice must be dispensed according to the law. 

The integrity of our proceedings is majorly judged by the much of due process we deploy into it. Under the 2009 Rules for Enforcement of Fundamental Rights Order 4 deals with how to take steps for enforcement of a fundamental right. Order II can be captured for us to see clearly and perceive both the letters and the spirit of the law. It runs thus: ORDER II - COMMENCEMENT OF ACTION 1. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and peoples' Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress: provided that where the infringement occurs in a state which has no Division of the Federal high Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. 

Form No. 1 in the Appendix may be used as appropriate. 2. An application for the enforcement of the fundamental right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rule, lie without leave of Court. 3. An application shall be supported by a statement setting out the name and description of the Applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made. 4. The affidavit shall be made by the Applicant, but where the Applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit. 5. Every application shall be accompanied by a Written Address which shall be succinct argument in support of the grounds of the application. 6. Where the Respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit. 7. The Applicant may on being served with the Respondent's Written Address, file and serve an address on points of law within 5 days of being served, and may accompany it with a further affidavit. 

The Rules set down the steps to be taken for the hearing of the application. The Respondents under the Rules have no right of further reply after filing their counter affidavits. The 1st and 2nd Respondents in the instant case put in their counter affidavit which the Appellant responded to by the further affidavits at the lower Court. It is the further affidavit of the Appellant that the Respondents were replying to in their further counter-affidavits. There is nowhere the Rules permit this so those two processes and the backup addresses are not known to the Rules. They are both incompetent and ought to be and are hereby struck out." Per AYOBODE OLUJIMI LOKULO-SODIPE, JCA (Pp 26 - 29 Paras B - D)