Having painstakingly perused the write-up of the O.G. Chukkol as
published by THE NIGERIAN LAWYER- can-an-application-be-filed-by-two-or-more-persons-for-the-enforcement-of-fundamental-right-by-o-g-chukkol/[1] on the
27th day of November,2018 as touching on the above
captured subject matter, I commend the industry invested in the
research and more particularly his opinion as against his position
to which I intend to react.
His position;
“In my view the current position of the law that disallows
fundamental right action with multiple applicants is sound. It is
also good that FREP Rules allow consolidation of suits. It should
be noted that consolidating suits is for the purpose of
convenience.”
His opinion;
“…However, I think allowing multiple applicants in a suit is
far more convenient. This is because in consolidation there is need
for application to be made but if several people are to be allowed
to bring a single suit for the ventilation of their grievance,
there will be no need for any application.
If I am correct that allowing several applicants in
a single suit is more convenient than consolidation, then there is
possibility for the interpretation of the Constitution and the FREP
Rules to accommodate multiple
applicants.”
Interestingly, the opinion of the writer as stated above was the
reasoning of His Lordship, Hon. Justice Phoebe M.
Ayua Sitting IN THE FEDERAL HIGH COURT OF NIGERIA, IN THE
LOKOJA JUDICIAL DIVISION, HOLEN AT LOKOJA in the case of
GIFTED HANDS INTERIOR & HOME CONSTRUCTIONS AND 1ORS VS. MRS
AMPITAN BOLANLE & 1ORS suit no: FHC/LKJ/CS/07/2018
delivered on the 21st day of September, 2018 wherein my
humble self, represented the Applicants. In that case, the Learned
Counsel to the 2nd respondent raised an objection,
placing reliance also on the case of KPORHAROR & ANOR. VS.
YEDI & ORS. (2017) LPELR – 42418 (CA) that more than one
applicant cannot bring an action for the enforcement of fundamental
rights, and thereby prayed the court to strike out the application
contending that it robs the court jurisdiction to entertain same.
The Learned Trial Judge agreed with my response and resolved the
preliminary issue raised in our favour on the following
grounds;
- That the decision in KPORHAROR & ANOR. VS. YEDI & ORS.
(2017) LPELR – 42418 (CA) took into consideration the
provisions of FUNDAMENTAL RIGHTS (ENFORCEMENT
PROCEDURE) RULES, 1979 in arriving at the decision
that more than one Applicant cannot competently bring and
application under the fundamental rights proceedings. The
provisions of the FUNDAMENTAL RIGHTS (ENFORCEMENT
PROCEDURE) RULES, 1979 were found to be somewhat
restrictive in terms of the procedure to be followed by an
aggrieved person or persons who intend to institute a fundamental
rights application before the High Court, hence the promulgation of
the currently applicable FUNDAMENTAL RIGHTS
(ENFORCEMENT PROCEDURE) RULES,2009. The 2009 rules
brought about procedural changes, one of which is the move away
from the emphasis on procedural technicalities in determination of
fundamental human rights disputes. This point was emphasised by the
same Court of Appeal in the case of UMARU KWAGE & ORS V.
UPPER SHARIA COURT, GWANDU & ORS, (2017) LPELR 42508
(CA).
That the case of UMARU KWAGE & ORS V. UPPER SHARIA
COURT, GWANDU & ORS, (SUPRA) was decided by the Court of
Appeal after the decision in KPORHAROR’s case and
even though there was more than one applicant in that case, it was
not raised as an issue and the proceeding was not nullified
- That considering the provisions of ORDER IX RULE 1
OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE)
RULES,2009, non-compliance with any of the provisions
of the 2009 RULES in any proceeding
should not be interpreted to have the effect of nullifying the
proceeding, except where it concerns an error in the Mode of
commencement of the suit. - That from the totality of the review of the decision of the
Supreme Court in DIAMOND BANK PLC V. H.R.H, EZE (DR.) PETER
OPARA & ORS (2018) and the Court of Appeal decision in the
case of MALLAM UMARU KWAGE & ORS V. UPPER SHARIA COURT,
GWANDU & ORS, (2017) LPELR 42508 (CA), whereby in each of
the two cases mentioned above, there were two or more applicants
who instituted a suit jointly to enforce their fundamental rights,
the use of the phrase “any person” in SECTION
46(1) OF THE 1999 CONSTITUTION and ORDER II RULE1 OF THE FREP
RULES,2009, does not operate to preclude parties who have
grievances, from seeking to secure the enforcement of their
fundamental rights, jointly, in a single suit. - That following the decision of the Supreme Court in
SKYE BANK PLC V. ANAEMEM IWU (2017) LPELR-SC, it
is clear that the phrase “any person” as used in SECTION
46(1) OF THE 1999 CONSTITUTION and ORDER II RULE1 OF THE FREP
RULES,2009, can be interpreted to mean a plurality of
persons as provided in SECTION 14(b) OF THE INTERPRETATION
ACT. See the case of UNILORIN V. ADENIRAN (2007) 6
NWLR (PT. 1031) 498 at 509 F-G (CA), where the Court of
Appeal held that by virtue of SECTION 318 OF THE 1999
CONSTITUTION, the INTERPRETATION ACT shall apply for the
purpose of interpreting the provisions of the Constitution, and
that the said INTERPRETATION ACT is part of the Constitution.
Respectfully, it is in line with the General responsibility of a
lawyer as enshrined in rule 1 of the RULES OF PROFESSIONAL CONDUCT
FOR LEGAL PRACTITIONERS,2007 that I deem it fit to quickly state,
by placing reliance on the above cited authorities, that the
current position is that two or more applicants can file an
application for the enforcement of their fundamental rights in
Nigeria.
OLUWATOSIN DAMILOLA MESE, ESQ is a legal practitioner in Abuja
and Lokoja, Kogi State. Tosindamsam4all@gmail.com[2].08138409651
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