In human rights litigation, there has always been the hurdle of
execution and or enforcement of judgment/judgment sum by the
Judgment creditor, especially in the case of judgment in favour of
the Applicant which is to be enforced against government or any of
its ministries, agencies or departments, as it has always been the
case that the government or the Central Bank of Nigeria –herein
after referred to as the CBN- against whom garnishee
proceedings have been instituted to enforce the
judgment sum, always engage the victim of fundamental rights
violation in another battle of a second litigation by raising an
objection that the Applicant has not sought the consent of the
Attorney-General of the Federation-hereinafter referred to as AGF
or of the State-herein after referred to as the AGS- before he
could garnish the account of the government., relying on the
provisions of section 84 of the Sheriffs and Civil
Process Act, 2004, which is a law enacted during the
military regime.
Truly, I am of the humble submission that this is a great
frustration to the enforcement of fundamental rights and against
the intendment of the Constitution. This paper is a research work
which I have carried out on the likely constitutional powers of the
Chief Justice of Nigeria-herein after referred to as the CJN- to
make special Rules and Procedures on enforcement of compensatory
Judgment/awards in fundamental rights cases. In my findings and
submissions, I am of the humble view and submission that the
Honourable, the CJN actually has the constitutional powers to
depart from the provisions of the Sheriffs and Civil
Process Act-herein after referred to as the SCPA-,
which is an Act of the National Assembly made during the military
regime, though as an existing law under section 315 of
the Constitution of the Federal Republic of Nigeria-herein after
referred to as the Constitution, the fundamental
rights suits being sui generis and having
the force of the Constitution, as the Constitution itself.
First and foremost, it is my humble submission that fundamental
rights suits initiated pursuant to the Fundamental
Rights Enforcement (Procedure) Rules-herein after referred to as
the FREPR- derive their powers pursuant to the
provision of the Constitution, since the rights contained in
Chapter IV of the Constitution are constitutional
provisions and override the provisions of any other
enactment to the contrary, including enactment of the National
Assembly or an existing law, such as the SCPA. In the case of
Abia State University, Uturu v Anyaibe (1996) 3 NWLR
(pt. 439) 646 at 661, per Katsina-Alu, JCA (as he then
was) held that the Fundamental Rights
(Enforcement Procedure) Rules made pursuant to the Constitution,
have the force of law as the Constitution itself; and overrides the
provisions of any other enactment to the contrary. In which case,
such a provision has equal force of law as the Constitution
itself.
Furthermore, I humbly submit that fundamental rights suits are
sui generis (i.e. of their own Rules and
Procedures). The following cases are noteworthy: in
the case of Enukeme v Mazi (2015)17 NWLR (1488)411 C.A.
at page 434 paras. A-C, Mbaba, J.C.A. (delivering the leading
judgment), held thus ‘I must start by
stating the obvious, that Fundamental Rights Enforcement Procedure
is sui generis, being specially and specifically designed with its
own unique rules by the Constitution, to address issues of
fundamental rights of persons protected under the Constitution. Of
course, consideration of issues founded on breaches of fundamental
rights in this case must be handled within the exclusive confines
of the Fundamental Rights (Enforcement Procedure) Rules, 2009,
which actually came to correct some perceived wrongs and hardship
which the 1979 Rules (fashioned on the 1979 Constitution) caused to
applicants seeking enforcement of their fundamental rights,
especially in the areas of adherence to undue technicalities and
delays in determining applications’. The case of Loveday v
Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. is
humble referred to. Also, Furthermore, the Supreme
Court of Nigeria in the case of Odogwu v A.G. of the
Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6,
also defined fundamental human rights thus ‘A
fundamental human right is a right guaranteed in the Nigerian
constitution and it is a right which every person is entitled to,
when he is not subject to the disabilities enumerated in the
constitution to be enjoyed by virtue of being a human being. They
are so basic and fundamental that they are entrenched in a
particular chapter of the constitution’.
Furthermore, the Supreme Court of Nigeria has held in the case
of Jim-Jaja v C.O.P. Rivers State (2013)6 NWLR (Pt.
1350) 225 SC. (page 254 paragraphs E-F and F-G) on the objectives
of the procedure of fundamental human right thus
‘The procedure for the enforcement of the Fundamental
Human Right was specifically promulgated to protect the Nigerian’s
fundamental rights from abuse and violation by authorities and
persons. When a breach of the right is proved, the victim is
entitled to compensation even if no specific amount is claimed’.
(Underlining is mine for emphasis). The question that
I ask myself is ‘of what benefit or use or importance
is a judgment that is not enforceable or that keeps hanging till
eternity for an Applicant?!’.
Also, it is my understanding and submission that it is not the
intendment of the Constitution that the provisions of any statute
such as the SCPA would render its provisions nugatory and
unrealistic. The Supreme Court of Nigeria has held in
A.C.B. V Losada (Nig.) Ltd. (1995) 7 NWLR (pt.405)
26 thus: ‘It has never been the case in
our laws that the provisions of any ordinary statute would render
nugatory the relevant provisions of the constitution. Therefore, if
any law of the State including a subsidiary legislation… is
inconsistent with the provision of the constitution, the provision
of the constitution prevails and that State law is to the extent of
inconsistency void’. It was also held in
Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt.
1129) 475, where the court held thus:
‘The provisions of an ordinary statute would not render
nugatory the relevant provisions of the
constitution’.
It is my considered view that a situation where an Applicant
whose right or rights conferred on him under the
Chapter IV of the Constitution and who
has utilized the rights of seeking redress as conferred on him by
the Constitution which provides thus ‘Any person who
alleges that any of the provisions of this Chapter has been, is
being or likely to be contravened in any State in relation to him,
may apply to a High Court in that State for redress’,
and complying with the FREPR, and having
secured compensation in his favour but despite that, will be
required and or mandated to seek consent of his opponent or the AGF
or the AGS (where applicable) on the ground of the provisions of
section 84 of the SCPR and other Rules subsidiary
thereto, is in a way allowing the provisions of a
statute to override the provisions of the Constitution and
rendering the provisions of the Constitution (which confers the
right of redress and compensation on the Applicant) nugatory and
compromising the entitlement of the Applicant to enjoy the judgment
sum. The Supreme Court of Nigeria has held on
interpretation of the provisions of the Constitution, while laying
down the guidelines for a court of law to follow when it held in
Registered Trustees, A.O.N. V N.A.M.A. (2014) 8 NWLR (pt. 1408)1
SC. (pg. 61-62, H-B) thus ‘In the
interpretation of any provisions of the Constitution, not only the
letters, but also the spirit behind the provision must be taken
into consideration’. Noteworthy also is the decision
of the Court of Appeal of Nigeria in the case of
Okungbowa v Gov. Edo State (2015)10 NWLR (pt. 1467) 257
C.A. (page 298, paragraphs B-C) which prohibits compromising the
fundamental rights provisions under the Constitution
thus ‘In the interpretation of any provisions of the
Constitution, not only the letters but also the spirit behind the
Constitution must be taken into consideration. In the determination
of a person’s rights provisions and obligations, fundamental human
rights provisions under the Constitution cannot be compromised’.
(Underlining is mine for emphasis).
Furthermore, and having said all the above, in my course of
seeking a way out of all these restrictions in enforcing the
judgment sum by an Applicant, who is left with no opportunity of
enjoying the fruits of his judgment by the requirement of seeking
the consent of the AGF or the AGS, I considered the provisions of
the Section 46(3) of the Constitution
which confers powers on the CJN to make Rules and Procedures in
relation to the provisions of the Chapter IV of the
Constitution, which provides thus ‘(3)
The Chief Justice of Nigeria may make rules with respect to the
practice and procedure of a High Court for the purposes of this
section.’. In my humble submission, the CJN having by
this section of the Constitution, made the FREPR, the CJN also has
the incidental powers to make Rules and Procedures for the
enforcement of the judgment of the High Court which have been
decided pursuant to the Chapter IV of the Constitution,
other international statutes on human rights and the
FREPR. I further humbly submit that in considering
whether the CJN has the incidental powers to make the Judgment
Enforcement Rules and departing from the provisions of the SCPA and
its subsidiary(ies) for the enforcement of judgment in fundamental
rights litigation, I place reliance on the provisions of
section 318(4) of the Constitution which
adopts the provisions of the Interpretation Act. The said
section 318(4)
of the Constitution provides thus
(4) The Interpretation Act shall apply for the purposes of
interpreting the provisions of this Constitution.’ Also, the
Interpretation
Act provides in section 10 for statutory powers and duties while
section 12 provides on Construction of statutory powers and duties
thus ‘10. (1) Where an enactment confers a power
or imposes a duty, the power may be exercised and the duty shall be
performed from time to time as occasion requires.
(2) An enactment which confers power to do
any act shall be construed as also conferring all such other powers
as are reasonably necessary to enable that act to be done or are
incidental to the doing of it.’ And by Section 12 of the
Interpretation Act, ‘12. (1) Where an Act confers a power to make a
subsidiary instrument, proclamation or notification, the power
shall include- (a) power to make different provision for different
circumstances; (b) power, exercisable in
the like manner and subject to the like consent and conditions (if
any), to vary and revoke the instrument, proclamation or
notification; (c) in the case of a subsidiary instrument, power to
prescribe punishments for contravention of provisions of the
instrument, not exceeding as respects a particular contravention-
(i) in the case of rules of court imprisonment for a term of three
months or a fine of fifty naira or both, (ii) in any other case,
imprisonment for a term of six months or a fine of one hundred
naira or both. (2) A contravention of a provision of a subsidiary
instrument may be prosecuted in a summary manner.’. Also, by
section 19 of the Interpretation Act, additional provision on
interpretation of a subsidiary instrument is provided for thus ‘19.
(1) An expression used in a subsidiary instrument has the same
meaning as in the Act conferring power to make the instrument. (2)
In a subsidiary instrument, the expression ‘the Act’ instruments
means the Act conferring power to make the
instrument.’
Furthermore, it is my humble submission that the Constitution is
the enabling law pursuant to which the FREPR was made by the
Honourable, the then CJN, as a subsidiary law. Therefore, I humbly
submit that the FREPR only derives its source of powers from the
Constitution. And the CJN too only derives his powers to make the
FREPR from the Constitution just as the National Assembly derives
its powers to make the SCPA. I rely on the case of:
Abia State University, Uturu v Anyaibe
(supra).
Also noteworthy is the law that the SCPA is within the
legislative competence of the National Assembly as an Act,
pursuant to Section 4 of the Constitution and item 57
of the Part I of the 2nd Schedule to the
Constitution, which provides thus 4.—(1)
The legislative powers of the Federal Republic of Nigeria shall be
vested in a National Assembly for the Federation which shall
consist of a Senate and a House of Representatives.(2) The National
Assembly shall have power to make laws for the peace, order and
good government of the Federation or any part thereof with respect
to any matter included in the Exclusive Legislative List set out in
Part I of the Second Schedule to this Constitution.’. and by Part I
of the Second Schedule to the Constitution, item 57 provides thus
‘Service and execution in a State of the civil and criminal
processes, judgments, decrees, orders and other decisions of any
court of law outside Nigeria or any court of law in Nigeria other
than a court of law established by the House of Assembly of that
State.’.
From the above arguments and submissions, what I am submitting
is that the CJN has the Constitutional powers to make Rules and
Procedures on the Service and execution in a State or
High Court of the fundamental rights processes, judgments, decrees,
orders and other decisions of any court of law outside Nigeria or
any court of law in Nigeria so far it pertains to the fundamental
rights enforcement suits. Section 46(2) of the
Constitution has also conferred on the High Courts,
such powers of making orders, judgment, etc., as follows:
(2) Subject to the provisions of this Constitution, a
High Court shall have original jurisdiction to hear and determine
any application made to it in pursuance of the provisions of this
section and may make such orders, issue such writs and give such
directions as it may consider appropriate for the purpose of
enforcing or securing the enforcement within that State of any
right to which the person who makes the application may be entitled
under this Chapter.’
Furthermore, it is very surprising that despite the decision of
the Supreme Court of Nigeria in the case of C.B.N. V
Interstella Comm. Ltd. (2018)7 NWLR (pt. 1618)294 SC (which is a
2018 decision) specifically at page 346,
paragraphs: D-H, where Ogunbiyi J.S.C. held thus ‘…. In other words
and as rightly argued by 1st and 2nd
respondents’ counsel, the appellant is not a public officer in the
context of section 84 SCPA where regard is had to the history of
this appeal. Section 84 has been reproduced earlier in the course
of this judgment. It is apparent herein, on the facts of this case
that the CBN acts as a banker to the Federal Government Funds with
respect to government funds in its custody. Section 2(e) of the CBN
Act provide thus: ‘Act as a banker and provide economic and
financial advice to the Federal Government’ Section 36 of the CBN
Act also provides:- ‘the bank shall receive and disburse Federal
government money’s and keep accounts thereof’. The appellant does
not stand as public officer in this situation. Therefore, it
follows that the need to seek the consent of the Attorney-General
of the Federation does not arise’. (Underling is that of the
Respondent for emphasis), among other decisions held in that
case, the CBN or the government has not stop
challenging Applicants who are judgment creditors from attaching
government’s accounts in the custody of the CBN on the bases of
consent of the AGF or where applicable, the AGS.
Therefore, I am of the humble views and submissions that where
the Honourable, the CJN utilizes his powers conferred on him
pursuant to the section 46(3) of the
Constitution and other enabling sections of the
Constitution and the Interpretation Act, by making and or amending
the provisions of the current FREPR or by passing a Practice
Direction on Rules and Procedures on the Service and
execution in a State or High Court of the fundamental rights
processes, judgments, decrees, orders and other decisions of any
court of law outside Nigeria or any court of law in Nigeria so far
it pertains to the fundamental rights enforcement
suits, the human rights enforcement of Nigerians will
be easily attainable, the courts being the last hope of the common
man. More so, there are several judgments in favour of judgment
creditors in fundamental rights enforcement proceedings, which have
not been enforced till date due to the consent of the AGF or AGS
mantra.
I therefore, hereby humbly urge the Honourable, the CJN to
utilize his powers pursuant to the section 46(3) of the
Constitution and other enabling sections of the
Constitution and the Interpretation Act, by making and or amending
the provisions of the current FREPR or by passing a Practice
Direction on Rules and Procedures on the Service and
execution in a State or High Court of the fundamental rights
processes, judgments, decrees, orders and other decisions of any
court of law outside Nigeria or any court of law in Nigeria so far
it pertains to the fundamental rights enforcement
suits, which will depart from the provisions of the
SCPA and its accompanying subsidiary especially the careless
provisions of requirement for consent of the AGF or the AGS. I also
call on the National Human Rights Commission, Nigerian Bar
Association, human rights activists, non-governmental organizations
protecting the human rights of Nigerian citizens to also use their
influence in ensuring that the Honourable, the CJN utilizes these
his powers in the interest of justice and that of the public. It is
specifically recommended that the Nigerian Bar Association should
set up a Committee to immediately consider and make further
recommendations for the implementation of this research work to the
Honourable, the CJN.
Finally, I shall conclude my submissions with the
good counsel of the Supreme Court of Nigeria on the importance of
law and applicable rules to specifically regulate the enforcement
and enjoyment of fundamental rights under the law and the negative
consequences of the lack of such law and rules as held in the case
of A.C.N. V I.N.E.C.(2013)13 NWLR (pt. 1370) 161 SC, thus ‘Without
law and its rules regulating the enforcement and enjoyment of
rights under the law, chaos will reign supreme, with every man
pursuing and enjoying his real or perceived rights without regard
to the rights of others, and organised society may come to an end’.
(Underlining is mine for emphasis).
e-mail: hameed_ajibola@yahoo.com[1]
References
- ^
hameed_ajibola@yahoo.com
(nairalaw.com)
I Did Not Endorse Buhari-Osinbajo Ticket- Awolowo
Dosumu
My attention has been drawn to political campaign posters in
circulation and on some online platforms, purportedly printed,
courtesy of myself, in endorsement of the Buhari/Osinbajo ticket
ahead of the presidential election coming up on Saturday, February
16, 2019.
Whereas, it is my right to endorse candidates for political
offices based on my conviction, this inalienable right is not
transferable. I, therefore, consider this attempted blackmail
utterly preposterous and I totally reject it.
I do not belong to any political party. I restate my commitment
to the sustenance and promotion of the legacy of Chief Obafemi
Awolowo and his Jewel, Yeye Oodua H. I. D. Awolowo, in every
detail. I note the emerging consensus that Awo’s prescriptions
continue to be the unassailable strategies for development in this
country.
I remain convinced that Awo was translated from a partisan
politician to a universal ideal on May 9, 1987. It is on the basis
of this principle, therefore, that I have piloted the Obafemi
Awolowo Foundation for the past 25 years and, lately, the HID
Awolowo Foundation as strictly non-partisan institutions, for the
incisive interrogation of issues that impact on the Nigerian people
and their development.
Finally, let me state in unequivocal terms that I, Ambassador
(Dr) Olatokunbo Awolowo Dosumu, never commissioned any person(s) to
print posters with my photograph endorsing any candidates for any
elections. Any publication to that effect is fraudulent and should
be dismissed in its entirety.
Ambassador Olatokunbo Awolowo Dosumu