BOOK REVIEW
TITLE: Fundamental Rights (Enforcement Procedure) Rules, 2009: Practice, Procedure, Forms and Precedents.
AUTHOR: CHIEF OGWU J. ONOJA, SAN.
PUBLISHER: BAR & BENCH PUBLISHERS LIMITED.
VOLUMES: 1 AND 11
PAGES: 1046 PAGES.
COVER PRICE: N50,000
YEAR OF PUBLICATION: 2020.
DATE OF PUBLIC PRESENTATION: 19th MARCH, 2021.
ISBN NO: 978-978-985-403-5.
REVIEWER: PROF. OFFORNZE D. AMUCHEAZI, SAN, FCArb, FICIARB .
INTRODUCTION
It is indeed a great honour and privilege to be invited to review the book written by my learned colleague and an outstanding leading legal practitioner, Chief Ogwu J. Onoja, SAN. The book titled “Fundamental Rights (Enforcement Procedure Rules), 2009” which we gather to witness its public presentation is largely unrivalled by any work on human rights in Nigeria.
The book analyzes and simplifies fundamental issues relating to procedures, proceedings, jurisdiction and enforcement of fundamental rights in Nigeria and applicability of international instruments on human rights in Nigeria. It is remarkable for its clarity, rigorous analysis and examination of complex issues involved in human rights. His writing style is simple and easy to comprehend.
Chief Onoja is a fine legal mind. He has the inestimable advantages of a committed scholar – fine and brilliant legal mind, the facility of language and the ability to raise and explore fundamental issues that other writers often fail to consider. He examines issues with a combination of sophistication and dexterity rare to find among lawyers in litigation. Clearly evident all through the book is the resourcefulness, vitality, and enthusiasm of an enquiring scholar deeply committed to the task of using the law to make society better.
The book, Fundamental Rights (Enforcement Procedure) Rules, Practice, Procedure, Forms and Precedents, is an assemblage of a richly researched work and I commend the author for the painstaking and diligent research he has put into this work. As the Chief Justice of Nigeria, Hon. Dr. Justice Ibrahim Tanko Muhammad, CFR, stated in his foreword,
“This book is both engrossing and handy. The book in its experimental and expository sense is a model text on the subject of procedure for the enforcement of human rights. It is recommended as a reference material and ready companion for practicing lawyers, the law enforcement agents, academics, law students and persons interested in advancing the course of human rights”
The book is divided into two volumes of three parts.
PART I
DISCUSSIONS
Part 1 contains in-depth discussions on the Preamble and fifteen (15) Orders of the FREP Rules, 2009.
PREAMBLE
The inclusion of Preamble in the FREP Rules, 2009 is the first major difference with the 1979 Rules. The preamble, though not forming part of the Rules, encapsulates the principles and general intendment of the fundamental rights enforcement rules. It urges the courts (and equally admonishes parties and their representatives to assist the courts) in giving full effect to the overriding objectives of the Rules. Part of the overriding objective of the Rule is an expansive and purposeful interpretation of Chapter 4 of the 1999 Constitution and the African Charter on Human Rights. The objective also includes respecting municipal, regional and international instruments on human rights.
This preamble established the essence of the Fundamental Rights Enforcement Procedure (FREP) and x-rays the duties of stakeholders (the court, practitioners and the parties) in realizing the objectives of the FREP. The author painstakingly examines the duties of the lawyer to the court, as ministers in the temple of justice, using the provisions of the Rules of Professional Conduct, 2007, particularly, section 30 & 32 to drive home his point.
ORDER I – Application & Interpretation
The author in analyzing Order 1 of the FREP Rules, 2009 reminded Lawyers and courts on the use of rules of interpretation and the need to always resort to case laws, in interpreting its provisions where the need arises in FREP application.
ORDER II – Commencement of Action
The author brought his legal prowess to bear in his expository of the provisions of Order II of FREP. The book enumerated with the help of case laws what amounts to cause of action by FREP and what ought not to be included as a cause of action.
The book focuses more on the inclusion and applicability of the provisions of the African Charter on Human and Peoples’ Rights (Ratification & Enforcement) Act, Universal Declaration on Human Rights and a host of other international instruments on human rights. The author explicitly outlines what constitutes a cause of action and stated thus; P. 59, paragraph 2. –
“thus, it is respectfully submitted that the right of action available under the FREP rules, 2009 are as sanctioned by the provisions of Chapter IV of the 1999 Constitution, the African Charter on Human and Peoples’ Rights… the various international protocols on human rights of which Nigeria is a signatory and the case laws which are the decisions of superior courts on cases on fundamental rights in Nigeria”.
He went on to enumerate rights protected under the 1999 constitution, rights protected under the African Charter, etc using the appropriate sections and articles for easy reference.
ORDER III – Limitation of Action
The book highlights a major difference between the FREP Rules, 1979 and FREP Rules, 2009 which is the expulsion of time limitation for instituting an action under the FREP Rules, 2009.
The author notes that “under Order II Rule I of the annulled 1979 FREP rules, time was a limitation period of twelve months from the occurrence of the breach complained of within which an applicant could bring an application for leave to enforce his fundamental rights, except the delay could be explained to the satisfaction of the court, the right to institute and action would be extinguished”.
ORDER V – Service of Court Process
The author elucidated on the issue of service of court process and application for substituted service of court processes as provided by the FREP Rules, 2009. Even though the FREP, Rules, 2009 does not provide for electronic service of court process, the author makes a compelling analogy on the use of electronic means of service using the provision of various court Rules.
ORDER VI – Deals with Amendment of Statement & Affidavits.
ORDER VII – Consolidation of Several Applications Relating to the same Infringement.
This order deals with procedures for making an application for consolidation. The author examines the conditions that must be met by the applicant before an order for consolidation may be made or granted. This part of the book is a compelling manual for any applicant or respondent rooting for consolidation. It is a guide to lawyers and saves the time of the court, lawyers and litigants.
ORDER VIII – Notice of Preliminary Objections Disputing the Courts Jurisdiction.
In discussing Order VIII of FREP, 2009, the author examines the conditions that have to be fulfilled before a preliminary objection is granted or refused.
ORDER IX – Effect of Non-Compliance
Order ix is at variance with the provisions of the 1979 FREP rules which allowed technicalities to be used to strike out an application based on non-conformity with the rules. Under the 2009 rules, non-conformity does not go to the root of the application as it is seen as a mere irregularity
ORDER X – Application to Quash Proceedings
The book, with the help of decided cases, explains and expatiates on the essence and meaning of order X and the rule therein.
ORDER XI – Order which the Court May Make.
The orders which a court may make are discussed here. These include an order of injunction, Habeas Corpus, Mandamus etc.
ORDER XII – Hearing of the Application.
The Order dealt extensively on written address, adoption of same, oral arguments and content of written addresses. It is a comprehensive guide for Lawyers before and after filing a fundamental right application.
ORDER XIII – Right of any Person or Body to be Heard
This Order is a class departure from the provisions of FREP rules, 1979. The FREP rules, 2009 expanded the category of persons and bodies that can be heard whether they filed processes or not. The capacity to appear on behalf of a person, group/class is also energized by this order. This includes provisions for the appearance or presentation of Amici Curiae in fundamental right cases.
ORDER XIV – Committed for contempt
ORDER XV – Transitional provisions.
PART II
This part deals with contemporary issues of enforcement of fundamental rights. It provided materials and guides on the use of Garnishee Proceedings in the enforcement of FREP Rules, 2009. It further discussed issues such as:
- Derogation and limitation of fundamental rights under the 1999 constitution.
- Power of the Police, EFCC and other law enforcement agencies to investigate and prosecute crimes.
- virtual or remote proceedings
- Covid-19 practice directions and guidelines
- Ruling on mock virtual court proceedings.
Part two of the book depicts the entire book as a compendium on application and adjudication of Fundamental Human Rights applications with the inclusion of the following:
- a complete sample of FREP application,
- Chapter IV of the 1999 Constitution as amended
- Fundamental Rights (Enforcement Procedure) Rules, 2009
- African Charter on Human and Peoples’ Rights
- Universal Declaration of Human Rights.
PART III
Part three of the book presents us with the opportunity of reading the mind of the court through a replication of Federal and State High Courts judgements/rulings on FREP applications.
CONCLUSION
The learned author has presented before us with a series of in-depth analysis and a working manual for both lawyers and the court on Fundamental Rights Enforcement in Nigeria. The end product, of course, is a timely, innovative and insightful work of very high academic quality that is conceptually and empirically rich and well researched. It is my hope that this book will prove to be of great significance to the legal community. It is therefore for this reason that I recommend this book to academics, judges and legal practitioners with an interest in human rights.
Thank you for your kind attention. God bless.
