INTRODUCTION
In our last discourse on this series, we examined the procedure for
enforcement of fundamental rights, including applications for leave; as well
as the substantive application itself and the reactions that follow. Today, we
shall continues from where we stopped with the substantive application
itself and the reactions thereto and later x-ray the applications to squash
proceedings; applications for production and/or release of persons
restrained; orders for bail, production and access to medication. Please
read on.
SUBSTANTIVE APPLICATION: THE MOTION OR SUMMONS
(Continues)
In the case of LAWRENCE OLUSEGUN ADEYEMO V. C.O.P, OYO
STATE ([2021] LPELR-56272(CA)), the applicant requested the court for
a writ of habeas corpus under order 2 of the fundamental Rights
(Enforcement Procedure) rules 1979 which provision enjoined the applicant
to serve all parties who are or might be interested in the proceedings.
Although the affected party had put up appearance, but raised a
preliminary objection to the application for non-compliance with the
statutory conditions. Babalakin. J. (as he then was) struck out the
application on the ground that order 2(1)(4) is mandatory whether the
application is for mandamus, certiorari, or habeas corpus.
However the Supreme Court in recent times in respect of the fundamental
rights enforcements has favourably leaned towards the equitable principle
of “Ubi Jus Ubi remedium”, therefore looking more at the substance
rather than the form. Hence the liberalization of the procedure for the
enforcement of fundamental rights as exposed in the case of ABACHA V.
FAWEHINMI ((2000) 6 NWLR (Pt. 660) 228) and UBI UJONG INAH &
ORS V. MARCUS UKOI ((2001) (CA) 41981.
APPLICATION TO QUASH ANY PROCEEDINGS
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Sometimes it may be necessary for an applicant by way of certiorari to
apply to the court for an order that such proceedings be removed from a
particular court or tribunal to another court for the purpose of being
quashed for lack of power and/or jurisdiction to entertain such proceedings
or make such order.
However, an applicant shall not be able to question the validity of any
order, warrant, commitment, conviction, inquisition or record unless before
the hearing of his application (Motion or summons), he has served a
certified copy (CTC) thereof together with a Copy of the application on the
Attorney-General of the Federation or of the State in which the applicant is
being heard (as the case may be).
The court in granting an application seeking to quash proceedings, shall
direct that the order, proceedings, conviction or the records of an
inquisition be quashed forthwith upon being removed into the court
hearing the application.
APPLICATION FOR PRODUCTION AND/OR RELEASE OF PERSON
RESTRAINED
By virtue of order 4 of the Fundamental Rights (Enforcement Procedure)
Rules, where an applicant complains of wrongful or unlawful detention, the
court or judge to whom the application is made ex-parte may make an
order forthwith for his release from such detention.
The court may also direct that an originating summons (as in form 2) be
issued or that an application therefore be made by notice of motion (as in
form 3). The court may also as it deem fit adjourn the ex-parte application
so that notice thereof may be given to the person against whom the order
for the release of the applicant is sought.
ORDER FOR BAIL, PRODUCTION, AND ACCESS TO MEDICATION
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Pursuant to order 4 of the bail application, the court upon application may
grant to the detainee reliefs including bail, production of the detainee,
access to mediation etc.
The court may grant bail at ex-parte stage, pending the substantive
application. Where an applicant complains of wrongful or unlawful
detention, the court may subject to its discretion order that the person
restrained be produced in court. And where such order is so made, it shall
constitute a sufficient warrant to any superintendent of a prison, police
officer in charge of a police station, police officer in charge of the
complainant or any other person responsible for his detention, to produce
or ensure the production of the person so restrained or detained in court.
For the purpose of enforcing a person’s fundamental rights, no matter
where a detainee is kept he can be allowed access to his personal
physician or medically prescribed drugs.
It suffices to note here, that once an order has been made by the court
pursuant to the Enforcement Rules, and for the purpose of enforcing or
securing the enforcement of any of the fundamental rights provided for in
the constitution, such order must be complied with. Failure to obey or
comply with any order so made by the court under these rules will incur
proceedings for the committal of the party disobeying such an order .
CONCLUSION
Without any controversy, the idea of human rights and personal liberties
has become firm and secured. The universality and immutability of human
rights are now globally accepted. Consequently, any nation that slacks or
shyies away from the diligent protection and enforcement of human rights
stand the precarious risk of being shunned by decent and civilised nations.
The United Nations seems to have captured the importance and primacy of
the issue of human rights and its protection when it poignantly stated as
follows:
“Human Rights and fundamental freedoms
are the birth right of all human beings, their
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protection and promotion is the first
responsibility of Government” (Universal
Declaration of Human Rights (UDHR).
It is the duty of every Government everywhere and every courts of law in
every jurisdiction to promote, protect, uphold, and ensure enforcement of
fundamental Human rights at all times, because these rights encapsulate
the very essence of man. (The end).
THOUGHTS FOR THE WEEK
“Human rights, of course, must include the right to religious freedom,
understood as the expression of a dimension that is at once individual and
communitarian – a vision that brings out the unity of the person while clearly
distinguishing between the dimension of the citizen and that of the
believer”. – Pope Benedict XVI.
“Because no matter who we are or where we come from, we're all entitled
to the basic human rights of clean air to breathe, clean water to drink, and
healthy land to call home”. – Martin Luther King III
“Human rights are not only violated by terrorism, repression or
assassination, but also by unfair economic structures that creates huge
inequalities”. – Pope Francis.