1999 CONSTITUTION OF NIGERIA (PART 3)

INTRODUCTION

Last week’s installment examined amongst others, the features of what
constitutes violation of fundamental rights and posed the question- whether
enforcement of such rights is restricted to the mechanism of the FREP
Rules? This week contuse the same theme by discussing the procedure for
enforcing fundamental rights, including applications for leave; the
substantive application itself and the reactions thereto. Please read on.
PROCEDURE FOR ENFORCEMENT (Continues)

Furthermore, the Court of Appeal (Benin Division) dilated on the procedure
in the case of N.U.T Vs. COSST ((2007) 23 E-WRN / 03 (CA).), thus:
“By virtue of Order 1 rule 2(2) of the Fundamental
Rights (Enforcement Procedure) Rules, no
application for an order enforcing or securing the
enforcement within that state of any such rights shall
be made unless leave therefore has been granted in
accordance with the rules. Thus, while an applicant
can approach the High Court in a state where the
infringement of his rights occurs or is likely to occur
for redress he has to obtain leave of the appropriate
High Court before he can apply to enforce his rights.
In the instant case, even if the case was a
fundamental right case the suit was not commended
by due process, as the respondents approached the
court by way of originating summons contrary to the
provision of Order 1 rule 2(2) of the Fundamental
Right (Enforcement) Rules.

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GOOD GOVERNANCE IN SUB-SAHARAN AFRICA: A RECIPE FOR
POVERTY REDUCTION AND DEVELOPMENT (PART 4)

INTRODUCTION

The last instalment of this treatise dealt with corruption as the
enemy of good governance through the prism of centralized state
take over; the cult of personality complex and fairness in rules of
engagement. This week, we shall continue with the connection
between good governance, leadership and poverty reduction.
Thereafter, we shall explore the evolution of good governance as a
key policy tool. Enjoy.

GOOD GOVERNANCE, LEADERSHIP AND POVERY REDUCTION
According to Dr Pikay Richardson in his Article titled: Good
Governance: The Challenge of Leadership in Africa, being a paper
delivered at the Nigeria Institute of Management International
Management Conference 2008 (retrieved from
http://www.managementnigeria.org/images/governanceandleaders
hip.pdf on 17-6-2011) the main ingredient of good governance is
principled-centered leadership. “Governance” derives from the
word “govern”, which means; to rule a country, to control or direct
the public affair of a city, control, influence something or somebody
and to determine something. Governance is the activity or manner
of governing. In a similar vein, “leadership” derives from the word
“leader”, which means, someone who shows people or something,
the way to follow, especially by going in the front, to hold and
guiding someone or a group of people to a particular direction.
From these meanings, it is obvious that governance and leadership
point to the same thing and that direction and leading. While there
can be no progress without good governance, leadership is the pivot
around which good governance revolves. Leaders are people who
develop visions of future progress, develop strategies and align
people behind them to achieve the visions. A good leader must be
able to render selfless service and desist from selfishness; he must
make provision for training and empowering his people and

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An application for the enforcement of fundamental right becomes
incompetent if the main claim does not fall within the ambit or precinct of
chapter IV of the Constitution. Any claim that falls outside chapter IV of the
Constitution becomes ancillary claim. Therefore, for an applicant for
enforcement of fundamental rights to be competent, it must be within the
provisions of chapter IV of the Constitution.
This point reverberated in W.A.E.C Vs. Akinwumi, (2008) JELR 49485
(SC), where the Supreme Court succinctly held that:

“In ascertaining the justicieability or competence of a
suit commenced by way of application under the
Fundamental Rights (Enforcement Procedure) Rules,
1979, the court must ensure that the enforcement of
the fundamental rights under chapter IV of the
Constitution is the claim and not ancillary claim.
Where the claim is not the enforcement of a
fundamental right, the jurisdiction of the court cannot
be said to be properly invoked, and the action is
liable to be struck out on ground of incompetence.”

Also, in Unilorin Vs. Oluwadare (2008) JELR 55842 (CA), the court
adumbrated the point as follows, when it held that:

“When an application is brought under the
Fundamental Rights (Enforcement Procedure) Rules,
1979, a condition precedent to the exercise of the
court’s jurisdiction is that the enforcement of
fundamental rights or the securing of the enforcement
thereof should be the main claim and not an
accessory claim. Enforcement of fundamental right or
securing the enforcement thereof should, from the
appellant’s claim as presented, be the principal or
fundamental claim as presented, and not accessory
claim. However, where the main claim or principal
claim is not the enforcement or securing the
enforcement of a fundamental right, the jurisdiction of
the court cannot be properly exercised as it will be
incompetent. In the instant case, the respondent’s

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claim, being a challenge to his expulsion as a student
from the 1 st Appellant institution, is not one of those
claims/reliefs envisaged by the Fundamental Rights
(Enforcement Procedure) Rules.

See also Gafar Vs. Govt., Kwara State, (2007) JELR 53915 (SC); Unical
Vs. Ugochukwu 2007-LD-CA-232.
It is important to note that an applicant seeking redress for the infringement
of his Fundamental Rights shall in addition to declaratory and injunctive
orders also be entitled to an award of damages. This is because in
fundamental right cases, the law presumes that damages flow naturally
from the injury suffered by the victim as a result of the violation of the
rights.

APPLICATION FOR LEAVE

By virtue of Judgment (Enforcement) Rules in Nigeria, no application for an
order enforcing or securing the enforcement within a state, of any such
rights shall be made unless leave therefore has been granted in
accordance with these rules. Also, any application for such leave must be
made ex-parte to the appropriate court and must be supported by a
statement setting out the name and description of the applicant, the relief
sought, and grounds on which it is sought and by an affidavit verifying the
facts relied on.
The deadline for filling an application for leave is not later than 12 (twelve)
Months after the date of the happening of the event complained of, unless
the judge is satisfied that extenuating circumstances exist. In case of
ongoing act, an action can be brought after 12 Months deadline, at any
point during the continuation of the wrong. An applicant must however file
the application for leave not later than the day preceding the date of
hearing. The court may in granting leave to the applicant impose such
terms and condition as it may deem fit, as security for cost.
It is to be noted that leave once granted, shall operate as a stay of all
actions relating to or connected with a complaint which forms the subject
matter of the application until the determination of the substantive suit.

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The ex-parte application for leave must specify the provisions of the
enforcement procedure Rules under which it is brought, the precise content
of the relief to be requested once the application for leave has been
granted and cursory reference to relevant laws. This must be accompanied
by an affidavit verifying relevant facts to be relied on.
The deadline for filing an application for leave is not later than 12(twelve)
months after the date of the happening of the event complained of, unless
the judge is satisfied that extenuating circumstances exist. In cases of
ongoing act, an action can be brought after 12month deadline, at any point
during the continuation of the wrong. An applicant must however file the
application for leave not later than the day preceding the date of hearing.
The court may in granting leave to the applicant impose such terms and
conditions as it may deem fit, as security for cost.
It is to be noted that leave once granted, shall operate as a stay of all
actions relating to or connected with a complaint which forms the subject
matter of the application until the determination of the substantive suit.
The ex-parte application for leave must specify the provisions of the
enforcement procedure Rules under which it is brought, the precise content
of the relief to be requested once the application for leave has been
granted and a cursory reference to relevant laws. This must be
accompanied by an affidavit verifying relevant facts to be relied on.

SUBSTANTIVE APPLICATION: THE MOTION OR SUMMONS
After obtaining leave, the applicant can apply for an enforcement order by
way of NOTICE OF MOTION (as in form 1) or ORIGINATING SUMMONS
(as in form 2). In the celebrated case of SHUGABA, A. DARMAN V.
MINISTER OF INTERNAL AFFAIRS & ORS. ((1981) 2 NCLR 459). It was
held inter-alia that the proper procedure to be followed in an application for
enforcement or securing the enforcement of fundamental rights and
redress for violation of same is guided by the fundamental Rights
(Enforcement Procedure) Rule 1979 which requires that where leave has
been granted to apply for the order being asked the application for, such
order must be made by notice of motion or originating summons to the
appropriate court.

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The motion or summons, together with a copy of the statement submitted in
conjunction with the application for leave, must then be served on all
persons directly affected. Unless the court directs otherwise, there must be
at least 8 clear days between service of the motion or summons and the
date fixed for hearing.
A substantive application either by motion or summons seeking for
substantive reliefs, remedies or orders may include such prayers as:
a. Unconditional release of the detainee
b. Payment of a certain sum of money as compensation in the event of
the arrest and detention being illegal, unwarranted, null and void.
The court may equally make any other ancillary order after hearing
argument from counsel on all sides based on the affidavit and counter-
affidavit.
It should be noted that failure to adhere to the procedure laid down by the
Enforcement Rules may lead to the entire proceedings being nullified. The
court shall upon objection being raised for non-compliance with the rules
strike the entire proceedings out. (To be continued).
THOUGHT 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.