Fundamental Rights Suits: Whether Application For Extension Of Time And Payment Of Default Fee Are Still The Law?!

By Hameed Ajibola Jimoh Esq.

In the litigation practice in Nigeria, applications are filed in court for an extension of time by a party who is out of time to file or respond or take any step provided to be taken by the Fundamental Rights (Enforcement Procedure) Rules, 2009-herein after referred to as the FREP Rules. The provisions as to payment of default fee under the regular Rules of Court are also applied to such application for extension of time where such party would be made to pay default fee per day he is in default. This paper is a question as to ‘whether the application for extension of time and payment of default fee under the regular Rules of Court are still applicable to the proceedings under the FREP Rules’, having regard to certain decisions of the appellate Court on the subject matter. Hence, this topic.

First and foremost, I humbly submit that there is no such provision under the FREP Rules that provides for such application for extension of time and default fee. Such provisions are only under the regular Rules of Court, therefore, such provisions in the regular Rules of Court cannot and should not be made to override the clear provisions of the FREP Rules! Therefore, I humbly submit that only the fees provided in the Schedule to the FREP Rules shall be paid by an Applicant in any fundamental rights enforcement suit and not the fees provided under the regular Rules of Court.

Furthermore, it is important for me to state here that the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-hereinafter referred to as the Constitution- has laid down the Rules for enforcing the rights guaranteed under Chapter IV of the Constitution respectively and or jointly (as the case might be) and the Rules laid down are codified and named Fundamental Rights (Enforcement Procedure) Rules, 2009 (supra), which is made pursuant to the Constitution. 

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 this case, such a provision has an 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) known as the ‘Fundamental Rights (Enforcement Procedure) Rules, 2009’ (supra). 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 hardships 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 humbly referred to.

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 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 rights 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.

Also, it is my understanding and submission that it is not the intendment of the Constitution that the provisions of any statute (or and or including the Rules of Court) would render its (i.e. the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the Constitution) 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 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’.

The Constitution thus provides in section 46(1) 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’. In Okereke V. Yar’Adua (2008) 34 NSCQR (Pt.11) 1370; Per Onnoghen, JSC; emphasized the need for strict compliance with statutory provisions when he held on page 1403 that:

“It is settled that where legislation lays down a procedure for doing a thing there should be no other method of doing it.”

See further MV Arabella V. NAIC (2008) 34 NSCQR (Pt.11) 1091 at 1116 Per Ogbuagu, JSC who held that the cardinal principle of law in the interpretation of Statutes is that where the words of the Statute are clear, the Court should give them their ordinary meaning without resort to any internal or external aid. Ojokolobo & Ors. V. Alamu & Anor (1987) 7 S.C.N.J. 98; Obomhense V. Erhahon (1993) 7 SCNJ 479; Fawehinmi V. I.G.P. & 2 Ors. (2002) 5 SCNJ 103, Ibrahim V. Ojoimo & 3 Ors. (2004) 4 NWLR (Pt 862) 89; all referred.

Furthermore, I humbly submit that the Rules of Court cannot even be used to supersede or override the clear provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009. In the case of ‘Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) on Page 12-15, Para. D-B’, Abiru JCA said as follows:

‘It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) & NWLR (Pt.979) 302.’.

Furthermore, the issue of application for extension of time and requirement for payment of default fee in a fundamental rights suits were considered in the case of ANOLIEFO V ANOLIEFO (2019) LPELR 47247 CA and the appellate Court held thus

‘In Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) at Page 12-15, Para. D-B, My Learned Brother, Abiru JCA said as follows:

“It is not in contest that the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009 give a respondent desirous of filing a response to a Fundamental Right application, either by way of address, counter affidavit or notice of preliminary objection, a period of five days to do so. 

There is no provision in the Fundamental Rights (Enforcement Procedure) Rules, 2009 for seeking either extension of time to file processes or leave to file processes out of time. It is correct that Order 15 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 says that where in the course of Human Rights proceedings any situation arises for which there are no adequate provisions in the Rules, the Civil Procedure Rules of the Court shall apply and it is also correct that High Court of Kaduna State Civil Procedure Rules contains, the provision requiring leave to file an affidavit out of time and for extension of time to file processes.

 It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) NWLR (Pt.979) 302. The Fundamental Rights (Enforcement Procedure) Rules, 2009 states clearly what the effect of failure to file processes within the time stipulated in the Rules should be.

Its Order 9 reads: “Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to: i. Mode of commencement of the application; ii. The subject matter is not within Chapter 4 of the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.” 

In other words, by the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a Court is enjoined to treat failure to file a process within the time allowed by the Rules as an irregularity, and not as a nullifying factor, except it relates to the commencement of the application, or that the subject matter is not within Chapter 4 of the Constitution.’. (Underlining is mine for emphasis).

Therefore, in answer to the question posed or raised by this paper on the topic, ‘WHETHER APPLICATION FOR EXTENSION OF TIME AND PAYMENT OF DEFAULT FEE ARE STILL THE LAW?’, I humbly submit and answer in the ‘NEGATIVE’! My Legal authorities are the following case laws:

1. ANOLIEFO V ANOLIEFO (2019) LPELR 47247 CA;
2. Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA);

• Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635;

302. Chukwuogor vs Chukwuogor (2006) NWLR (Pt.979) 302.

Finally, it is therefore hoped that our various Presiding Judges of the various Courts (most respectfully) would take cognizance of the above-cited case laws and that the Registries of the various courts would no more strike out party’s court processes or refuse the same respectively relying on the provisions of the regular Rules of Court in requesting for application of extension of time and payment of default fee once a party is out of time to do any act required of him under the FREP Rules! I humbly submit that this law is clear and there is no need to await any Practice Direction to this exclusion of the Fundamental rights suits from the application of extension of time and payment of default fee!

Email: hameed_ajibola@yahoo.com