In Ibrahim Rashid & 19 Ors. V. COP (2017) the National Human Rights Commission (NHRC) brought a Fundamental Human Rights action on behalf of Twenty (20) individuals seeking various reliefs. In opposition, the 2nd Defendant filed a preliminary objection challenging the competence of the application on the sole ground: "only one applicant can institute a Fundamental Rights Enforcement Action".
The Honourable trial Court dismissed this objection. This article seeks to address whether it was right in doing so.
In commencing our analysis, it is pertinent to note that the 1999 Constitution of the Federal Republic of Nigeria (as amended) in its magnanimity, provides expressly for the protection and enforcement of the rights it guarantees under Chapter IV in Section 46, which states at subsection 1 that:-
"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 for redress"
The same provision is made in the then Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, (FREP Rules) but what is crucial to understanding the import of this article is their blatant use of the adjective "any" before person. In doing so, both seemingly broad provisions seemingly qualify who can apply to a Court to enforce a right. This is as the word denotes a singular person and does not admit pluralities in any form; thus the provisions seem to be referring to and limiting claims to individual and not collective rights.
This was the basis of the 2nd defendant's objection in the Rashid case, but the Trial court dismissed it on the grounds that:
1. The NHRC, by virtue of the National Human Rights Commission Act 2010. (NHRC Act), has the power to institute any civil action on any matter it deems fit in relation to the exercise of its functions, and;
2. The Court is inclined to encourage and welcome public interest litigation in the human rights field, by virtue of the preamble of the FREP Rules, which also defines applicants to include:
"Anyone acting in his own interest, on behalf of another person, as a member of, or in the interest of a group or class of persons; in the Public Interest; and an association acting in the interest of its members or other individuals or group member of, or in the interest of a group or class of persons."
While I have no objection to the first part of this reasoning, we shall scrutinize whether the mode within which the parties were fashioned on the originating Motion conflicts not only with the clear wording of Section 46 of the Constitution being the grundnorm but also Order 1 Rule 2(1) of the FREP Rules and the intention behind section 3(e) the of the latter's preamble. This is as all the names of the persons involved are listed on the Originating Motion and all ancillary processes filed rather than by the NHRC on their behalf. It raises several concerns such as who will depose to the necessary affidavit?
The appellate Courts have held that, any application akin to the one in the case under reference which is filed by more than one person, to enforce their Constitutional Right(s) should be deemed incompetent and liable to be struck out. Thus in my opinion, the Court ought not to have dismissed the objection.
This view is supported by the Court of Appeal in Udo V. Robson & Ors. (2018) where the Originating Motion was brought by two separate Applicants. In that case, ADAH J.C.A held on this point that it is a wrong joinder of action and incompetent;
"If an individual feels that his Fundamental or Human Rights have been violated, he should take out action personally for the alleged infraction as rights of one differ in content and degree from the complaint of the other."
It was also held in the case of Okechukwu V. Etukokwu (1998) , per Niki Tobi, JCA (as he then was) that:-
"A family as a unit cannot commence an action on infringement or contravention of Fundamental Rights. However as stated by the FREP Rules the applicant in the fundamental rights action ought to be an individual on behalf of the Umunwanne Family."
Akin to the above, we shall proceed to analyse Section 14(b) of the Interpretation Act CAP 123 LFN 2004 vis a vis Ibrahim Rashid & 19 Ors. V. COP (2017) and Udo V. Robson & Ors. (2018). Section 14(b) of the Interpretation Act states as follows:
"Words in the singular include the plural and words in the plural include the singular"
At a joint reading of the decisions of the Court of Appeal we can conclude that the use of "any person" in the FREP Rules will either be in the Singular and or Plural, thus rendering Court of Appeal's decision tantamount to the provision of the Interpretation Act.
To conclude, I opine that Ibrahim Rashid & 19 Ors. V. COP (2017) is indeed good Law and the holding of the Court of Appeal in Udo V. Robson & Ors. (2018), is improper and in fact a fundamentally defective procedure and Judgment.
About the author
Akinola is an Associate in the Arbitration, Corporate & Commercial, Criminal, Employment & Labour, Insolvency and Intellectual Property practice groups of the firm. He approaches complex legal challenges with a determination to succeed and delivers efficient and concise legal services to our clients.
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