Fundamental Rights Enforcement: Procedure Notes for the Young Advocate

The Fundamental Rights (Enforcement Procedure) Rules 2009 were drafted to remove technical obstacles from rights litigation. They largely succeed. Yet applications continue to fail on points that have nothing to do with the merits.

Jurisdiction and venue

An application is brought in the High Court of the State, the Federal High Court or the High Court of the Federal Capital Territory in which the breach occurred, is occurring, or is likely to occur. The choice between the State High Court and the Federal High Court turns on the identity of the respondent and the subject matter. Where the respondent is an agency of the Federal Government and the complaint concerns the exercise of federal executive power, the Federal High Court is the safer forum. Filing in the wrong court is the most common fatal error.

No leave required

Order II rule 1 makes clear that no leave is required to bring an application. An applicant proceeds directly by originating motion, originating summons, or any other originating process accepted by the court. Practitioners who still apply for leave waste time and invite an objection.

The supporting documents

An application comprises a statement setting out the applicant's name and description, the reliefs sought and the grounds; an affidavit in support setting out the facts; and a written address. The written address is mandatory, not optional. Where the facts are contested, exhibit the documents rather than describing them.

Main relief versus ancillary relief

The rule from Sea Trucks Nigeria Ltd v. Anigboro survives the 2009 Rules: the alleged breach of fundamental right must be the principal complaint, not an incident of some other cause of action. A wrongful-dismissal claim dressed as a rights application will be struck out. Where the substance is a contractual or tortious dispute, the ordinary writ procedure is the proper route, even where a right is incidentally engaged.

Limitation

Order III abolishes the previous limitation period. An application for the enforcement of a fundamental right shall not be affected by any limitation statute. This is a significant advantage, particularly in cases of prolonged detention or continuing breaches, and it should be pleaded expressly where a respondent raises delay.

Standing

The preamble to the Rules directs courts to adopt an expansive approach and expressly contemplates applications brought by human rights activists, advocates and NGOs on behalf of victims. Where the applicant is not the direct victim, explain the relationship and the reason the victim cannot sue in person.

Remedies

The court may grant declarations, injunctions, orders of release, and compensation, including public apology where appropriate. Compensation should be pleaded with a figure and supported by material justifying it. Courts are reluctant to award substantial damages on a bare request.

Conclusion

Fundamental rights procedure rewards preparation and punishes shortcuts. Get the forum, the framing and the supporting documents right, and the Rules will carry the application a long way.