Some Fundamental Rights Can Be Enforced Against Government Only While Others Against Both The Government And Private Individuals By O. G. Chukkol

It is important to state as a prefatory remark that the rights
under chapter IV of the Nigerian constitution are titled
“fundamental rights”, not “fundamental human
rights”.

The framers of the constitution in their wisdom deliberately
omitted the word “human” because the rights in the
chapter can also be claimed by artificial persons (example:
companies etc). See the case of ONYEKWULUJE VS. BENUE STATE
GOVT.(2005) 8 NWLR (PART 928) 2 PAGE 646, PARAGRAPHS B –
G. The rights in the chapter can as well be enforced
against an artificial person. See Akwa Savings and Loans
Ltd v. Ime Wilson Udoumana & 2 Others ( 2009)
LPELR-8861.

Over the years academicians have posited that fundamental rights
are enforceable against government only. The statement is not
wholly incorrect anyways having regards to the historical and
political perspective, origin, nature and constitutional status of
a fundamental right action. The words of Karibi-Whyte, JCA (as he
then was) partially reechoed the foregoing opinion because he
stated in MINISTER OF INTERNAL AFFAIRS vs. SHUGABA (1982) 3
NCLR 915 at 976 as follows:

“Finally, it is undoubted relevance [sic] to bear in mind
that the provision was designed to protect the individual against
the coercive and oppressive exercise of governmental authority and
abuse of majority. Hence the rights conferred can be enforced and
avail essentially, if not entirely, against governments acting
through their authorised agents.”

It is obvious from the dictum above that the learned justice
placed emphasis on enforceability of fundamental rights against
government. However, to my mind he never mentioned or impliedly
meant that government is the only party that can be sued in
fundamental right actions. He merely said: “essentially, if not
entirely”.

Besides, the innumerable decided cases on this point are to the
effect that certain rights are truly enforceable against the state
action only but add that it however depends on the wordings of the
right in question. See Kelvin Peterside Vs. International
Bank (Nig.) Ltd (1993) 2 NWLR (Pt.278) 712 at 728 and LOANS LTD. V.
IME WILSON UDOUMANA & 2 ORS (supra)

In AGBENIGA v. ADEJIMIROYE & ANOR (2016)
LPELR-40138(CA) the applicant filed an action for the
enforcement of her rights to life, dignity of human person and
privacy, the action failed. While restating the law as pronounced
in the above cases, it was held as follows:

“the provision of Section 33 of the Constitution cannot be
enforced against individuals because there is a sanction prescribed
in the Criminal Code for whosoever threatened the life of another,
the right to life is only enforceable against the State or any of
its agencies.”

From the above exposition, one can safely conclude that there
are certain fundamental rights that are enforceable against
government only and a right to life is an example. I may also be
correct to add that section 44 of the constitution which provides
for compulsory acquisition of land and or any interest thereof can
be enforced against government only.

THE RIGHTS TO BE ENFORCED AGAINST BOTH GOVERNMENT AND
INDIVIDUALS.

To say that there exist such rights in chapter IV is to state
the obvious.

In Madu v. Onuaguluchi(1985) 6 NCLR 356, the
trial court held that fundamental rights were not enforceable
against private individuals but only against public officials. On
appeal, the Court of Appeal held that such rights were enforceable
against individuals.

The Court of Appeal followed its decision above in Chief
Omu Uzo Ukwu v. Igwe Chukwudebelu Ezike Ezeonu II(1991) 6 NWLR
708,.

Also, in the case of Onwo v. Oko (1996) 6 NWLR
584, the appellant, a Christian of the Assemblies of God
sect had her head shaven forcefully by the Respondents as part of
the ceremony ordered by the native community following the death of
husband. Her claim was that she and her husband had became
Christians and for that reason she was not prepared to mourn her
husband as an unbeliever. But the Respondents would not have any of
that as an excuse. The trial court dismissed her application on the
ground that fundamental rights were not enforceable against
individuals. On appeal, it was held that enforcement of fundamental
rights action can be brought against an individual.

Similarly in BASSEY & ANOR v. AKPAN & ORS (2018)
LPELR-44341(CA), the applicant impregnated the wife of the
Respondent and as a result the husband and his siblings made life
miserable for the Applicant. They stormed the house of the
applicant and carried away many of his properties. After much
pressure, threats and intimidation, the Applicant was forced to
borrow money to meet some of their demands. In other to save
himself from the Respondents, the Applicant approached court and
his rights to personal liberty and dignity of human person were
enforced against them and the judgment was affirmed on appeal.

Even most recently, the Court of Appeal in RAPU v.
IKUEGBOWO & ORS (2018) LPELR-45253(CA) held as
follows:

“Section 46 (1) of the Constitution which confers a right on
a person to seek redress where his fundamental right has been
eviscerated does not stipulate that such redress can only be sought
against the government or agents of State. On the state of the law
therefore, a private individual can be found liable for violation
of the fundamental rights of a person where the facts establish
such infringement.”

In the light of the foregoing, it behoves of a litigant or a
counsel on his behalf to examine the words of a fundamental right
carefully before seeking to enforce it against a private
individual. Though fundamental right actions are heard
expeditiously, It has however been advised in galaxy of judicial
authorities that remedy should be sought under fundamental right
only if doing that cannot be conveniently done under tort. See the
often cited case of Abdulhamid Vs. Akar (2006) All FWLR
(Pt.996) 127 and AGBENIGA v. ADEJIMIROYE & ANOR
(supra) inter alia.

O. G. Chukkol is a student Faculty of Law, ABU,
Zaria. oliverchukkol@gmail.com^[1]
08032470318

Related