Analysis of Section 42 of the 1979 Constitution and Section 45 of the 1989 Constitution

Section 42 of the 1979 Constitution provides:

"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."

The chapter in focus deals with Fundamental Rights. From this section, a person has the right to go to a High Court for redress where there is an apprehension that his right may, has been or is being trampled upon. In furtherance of this objective, section 42(2) of the constitution provides:

"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 direction as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person who makes the application may be entitled under this chapter."

Sub-section (3) of this section empowers the Chief Justice of Nigeria to make rules with respect to the practice and procedure of a High Court for the purposes of this section. In line with this, the Fundamental Rights (Enforcement Procedure) Rules, 1979 were made. Its date of commencement was put at 1st January, 1980.

The Rules contain the requisite procedure for the enforcement of one's Fundamental Rights under the Constitution. For example, Order 1 Rule- l requires that leave of the court must first be sought by an ex parte application to the appropriate court. This must be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds on which it is sought and supported by an affidavit verifying the facts relied on.

The court may impose such terms as to giving security for costs as it or he thinks, fit. The granting of leave under this rule shall operate as a stay of all actions or matters relating to or connected with the complaint until the determination of the application or until the court or judge otherwise ordersl.

In the language of Order I Rule 3(1):

"Leave shall not be granted to apply for order under these Rules unless the application is made within twelve months from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the court or judge to whom the application for leave is made."

After leave has been granted to apply for the order being asked for, the application for such order must be made by notice formulation or by originating summons to the appropriate court. Unless the court or judge granting leave has otherwise directed. There must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing. In the motion must be contained an affidavit giving the names and addressee of, and the place and date of service on, all persons who have been served with the motion or summons. This must be filed before the motion or summons is listed for hearing, and, if any person who ought to have been served has not been served, the affidavit must state the fact and the reason why service has not been effected, and the said affidavit shall be before the Court or judge on the hearing motion or summons.

There are other provisions in the Rules relating to enforcement of fundamental rights.

As stated above, the constitutional remedies usually asked for are Prohibition, certiorari, mandamus, habeas corpus, injunction and declarations. Notwithstanding the fact that these remedies are not specifically mentioned, they could be made use of In Burma v. Usman Sarki, Udo-Udoma pointed out that:

".In the absence of a prescribed procedure for attacking the exercise of powers by a Minister, the normal civil processes and the principles of general law, including the prerogative orders, are of course, available to be invoke to advantage by any aggrieved person whose rights have been in fringed.

These remedies will now be examined.

Prohibition and Certiorari

These two remedies are of great constitutional importance. The orders of Prohibition and certiorari could be discussed together. Prohibition can be used as a way of preventing the performance of an administrative action which is judicial in nature. Certiorari enables a superior court or

tribunal to call upon an inferior court or tribunal to certify the record upon which the inferior court or tribunal based its decision of a judicial or quasi-judicial nature. In R. v, Electricity Commissions Ex parte London Electricity Joint Committee CO. Lord Atkin held:


"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the Queen's Bench Division exercised in the writs."

Thus where the act complained of is judicial in nature certiorari or prohibition can be made use of. Where the act has not been concluded or where a decision has not been reached, prohibition is the appropriate remedy to ask for. In the case of a concluded act, certiorari is the appropriate remedy. Adeoba J. explaining when certiorari will lie as a remedy held in Owolabi & 2 Ors. v. Permanent Secretary, Ministry of Education thus

1.  If the respondent has authority to determine the issue and also  has a duty to act judicially in coming to a decision then an order  of certiorari will lie against the respondent if it exceeded itsjurisdiction or acted contrary to the rules of natural justice. 
2.  It is essential that the person or body to whom the order is to be directed must have authority to determine the issue i.e. it must be  a tribunal.
3. If the body is held to be a tribunal the question arises as to whether the tribunal is bound to act judicially.
4.  If the body or person is bound to act judicially, if it exceeds its  authority then its act can be removed by an order of certiorari for  the purpose of having it quashed.

In the Queen Ex Parte Ojiegbo Ikoro of Ngodo V. The Governor Eastern Region & 5 Anor, in 1955, a Native Court presided over by a District Officer, gave judgment against the respondent declaring the appellant to be the owner of certain land and granting him an injunction. The appeal from that decision was heard by a senior officer, who varied the judgement by dividing the land between the parties and by enjoining each party against trespass on the other's land as divided.

The Senior District Officer had no jurisdiction to hear an appeal from a Native Court which had been presided over by a District Officer. The governor dismissed an appeal from the Senior District Officer's

decision. The appellant instituted proceedings in the High Court; Eastern Region for an order of certiorari for the purpose of bringing into court the judgements of the Senior District Officer and of the Governor and having them quashed.


The High Court refused to make the order nisi absolute, upon the ground, the Senior District Officer having no jurisdiction to hear the appeal, the proceedings were an absolute nullity and certiorari does not lie in such circumstances, The appellant appealed to the Federal Supreme Court. Before the Federal Supreme Court the respondent contended that as the appellant had submitted to a hearing by the Senior District Officer he could not object later to his want of jurisdiction to hear the appeal or, alternatively, that the court, in its discretion, should refuse the order of certiorari. The Court held that certiorari could lie to quash a decision of a Senior District Officer, who without jurisdiction heard an appeal from a native court. The Court also held that the governor’s confirmation of the decision of a senior district officer without jurisdiction was liable to being quashed by certiorari.

In the Queen: Ex Parte Laniyan Ojo ll. Governor-in-Council Western Region, one Lawani Kehinde was appointed to chaplaincy which came within the provisions of Part N of the Western Nigeria Chiefs Law, 1957, which appointment was approved by the Governor-in-Council by Notice dated July 20th 1959, published in the Gazette of 6th August, 1959. The appellant applied to the High Court for an order of certiorari against the (Governor-in-Council for the purpose of quashing the approval of the appointment of Lawani Kehinde. The application was made on the ground:

1. that the Governor-in-Council had no jurisdiction to grant  approval to the said appointment which was made without  complying with section 11 of the Chiefs Law 1917, and

consequently not an "appointment" within the Chiefs Law 1957; (ii) that before granting the said approval and recognition the  Governor-in-Council failed to act judiciary by failing to consider  a petition protesting against the Iid "appointment" forwarded to  the Governor-in-Council as soon as the Labebe Ruling House  knew of Lawani Kehinde's recommendation for approval. The  court held inter alia that despite express words taking away  certiorari, the court issued. It for manifest defect of jurisdiction in  the tribunal which made the order under review.

Dr. Smith' has rightly highlighted the grounds for awarding certiorari and prohibition. They are: (a) Lack of jurisdiction

(1) Breach of the rules of natural justice or in relation to Nigeria, non observance of the provision of section 33 of the 1979  Constitution.

(c) Error of law on the face of the record. (d) Fraud or collusion.

Mandamus

The essence of the order of mandamus is the need to secure judicial enforcement of public duties. In R. v Lord Mansfield, it was held that: "it was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where justice and good government there ought to be done."

In Banjo & Ors. v. Abeokuta Urban District Council, section 3(1) of the Abeokuta District Council (Control of Traffic) Bye Laws provided thus: "no person shall operate or cause to be operated any stage or hackney carriage within the area of the jurisdiction of the Council save under and in accordance with a permit issued by the Council."

The applicants who were taxi owners, applied to the respondent council for permits to operate their taxi cabs in the area of jurisdiction of the Council. They paid necessary fees and filled the required forms. The Secretary to the Council replied that in view of the large number of taxis operating in the Council's area of jurisdiction, no further permits would be issued.

In an application in the High Court for an order of mandamus to be directed against the respondent council to compel the Council to issue the permits to the applicants, it was on behalf of the .applicants that section 3(1) of the Abeokuta Urban District Council (Control of Traffic) Bye Laws gave the respondent council no discretionary power as they were bound to· issue taxi permits and had no discretion to refuse after necessary fees had been paid and required forms filled. It was held that the power of the High Court to grant an order of mandamus was discretionary and that it could only be granted against a person bound to perform a duty of a public nature. The Court laying down a general rule in this respect held further that if a body against whom an order of mandamus is sought is shown to have departed strictly from the conditions laid down in the law empowering that no body to perform its public duty, an order of mandamus would lie against it to compel it to act according to law. The court reached a similar decision in The Queen, Ex Parte Chief Sunday Odje & Ors v. Western Urhobo Rating


Authority to. The applicants had appealed against a tax assembly by the respondents. They subsequently brought this application asking for leave of the court to apply for an order of mandamus to compel the respondents to grant a stay of execution i.e. not to collect income taxes from the applicants until their appeals against assessments are heard. It was argued for the applicants that by virtue of section 51 (I) (b) of the Western Region Income Tax Law, Western Region Cap 48, a stay of collection, was automatic once an appeal against an assessment of tax had been lodged~ that the application was for an order of mandamus to compel the respondents to grant the stay of collection and not merely an application for such a stay. The court held inter alia that the power to make an order of mandamus is a discretionary one which will not be exercised by the court unless there is imposed upon the person against whom the order is sought a public duty to do the act sought to be compelled to be done. The court further held that an order of mandamus will not lie to compel a person to do an act which is in his general discretion to do or to refrain from doing.

 Habeas Corpus

Section 32 of the 1979 Constitution provides that:

"Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:

1.  in execution of the sentence or order of a court in respect of a  criminal offence of which he has been found guilty;
2.  by reason of his failure to comply with the order of a court or in  order to secure the fulfillment of any obligation in posed upon  him by law:
3.  for the purpose of bringing him before a court in execution of the  order of a court upon reasonable suspicion of his having  committed a criminal offence, or to such extent as may be  reasonably necessary to prevent his committing a criminal  offence;
4.  in the case of a person who has not attained the age of 18 years,  for the purpose of his education or welfare;
5. in the case of a person suffering from infectious or contagious  disease, persons of unsound mind, persons addicted to drugs or  alcohol or vagrants for the purpose of their care or treatment or  the protection of the community; or
6. for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other  lawful removal from Nigeria of any person or the taking of proceedings relating thereto  Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a person longer than the maximum period of imprisonment prescribed for the offence".

Thus, where a person is kept in an unlawful custody, he has the right to ask for his personal liberty. The appropriate remedy to seek in this regard is a writ of habeas corpus. Lord Birkenhead describing this order in Secretary of State for Home Affairs VS. 0' Brien held:

"It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It has through the ages been jealously maintained by courts of Law as a check upon the illegal usurpation of power by the executive at the cost of the liege."

De Smith 2 described the writ of habeas corpus as a renown contribution of the English common law to the protection of human liberty. The writ of habeas corpus is also of great constitutional importance in Nigeria. In Chief Alhaji Agbaje v. C 0.P, on the application of Chief Abdul Mojeed Mobolanle Agbaje, the High Court, Ibadan caused a writ of habeas corpus to issue on 12 June, 1969 on the Commissioner of Police, Western State.

The Substance of the applicant's complaint was that he was unlawfully detained in the police station, Ibadan by the Commissioner of Police as from 31 May, 1969 to 12 June, 1969 when his application was heard by the High Court. He swore to an affidavit deposing that he repeatedly demanded the reason or authority for his detention at the police station, but no one answered him. He wrote letters to the same effect but he got no reply. Instead, he claimed to have been treated rather roughly. The Commissioner of Police filed a return to the writ. In it, he admitted detaining the applicant as aforesaid, and based his authority for so doing, under Orders Exits 1 and 2, said to have been made by the Inspector-General of Police, who it was said, acted under and by virtue of powers vested in the Inspector-General of Police by section 3(1) of the Armed Forces and Police (Special Powers) Decree No. 24 of 1967. The Court in delivering its judgement held that the writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or

unjustifiable detention when in prison or in private custody and that it is applicable as a remedy in all cases of wrongful deprivation of personal liberty. The court cited with approval the Halsbury's Laws of England 3rd Edition and R. v. Governor of Brixton Prison, Ex Parte Sarno. It also quoted with approval the case of Singh v. Delhi where the court held that "This court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the dis- charge of what they consider to be their duty, must strictly and scru- pulously observe the forms and rules of the law". The court held that the detention of the applicant under the circumstances of this case was unlawful. The court reached a similar conclusion in the case of Re Mohammed Olayori.

 Injunction

An Injunction is an equitable remedy. There are many variants of this remedy. One may have in view prohibitory or mandatory Injunction, preliminary interlocutory. What is certain is that whatever variant one- bosom view, 'its usefulness lies in the fact that it is an order of court addressed to a Party with the aim of refraining him from doing or compelling him to do a particular act. A perpetual Injunction gives a definite order for a durable period when used in contradistinction to an interlocutory Injunction. One advantage an injunction has over other remedies is the flexibility of its application and grounds that judge may consider before; granting an order of injunction. The cow explaining the meaning and grounds for granting an interim, and interlocutory order of injunction in Kotoye vs. Central Bank of Nigeria & 7 Ors. made the following points.

1.  "Ex parte" in relation to injunctions is properly used to  contradistinction to "on notice" and both expressions which are  mutually exclusive, more strictly rather refer to the manner in  which the application is brought and the Order procured:
2.  An applicant for a non-permanent injunction may bring the  action ex parte that is without notice to the other side as  appropriate. By their very nature injunction granted on ex parte  applications can only be properly interim in nature. They are  made, without notice to the other side, to keep matters in status  quo to a named date, usually not more than few days, or until the  Respondent can-be put on notice.
3. What is contemplated by the law is urgency between the  happening of the event, which is sought to be restrained by  injunction and the date the application could be heard if taken  after due notice to the other side.
4. The court also held in this case that application for interlocutory injunction are properly made on notice to the other side to keep matters in status quo until the determination of the suit. The issues which a court will consider in granting an interlocutory injunction, after avoiding controversial issues of fact are:

(i) The strength of the applicant’s, case. What needs be shown is  only a real possibility, not a probability of success at the trial,  that there is a serious question to be tried.
(ii) Once the applicant gets over the initial handle of showing that  there is a serious question to be tried he must show that the  balance of convenience is on his side that is that mere justice,  will result in granting the application than in refusing it, the onusof proving that the balance is on his side is that of the applicant.
(iii) The applicant, to succeed, even if he had shown that he has a good case and that the balance of convenience is on his side,  must furthermore show that damages cannot be an adequate  compensation for his damage, if be succeeds at the end of the
day.
(iv) Conduct of the parties – For example, in bringing the application  will defeat it ~se su~ a delay postulates there is no urgency in the

matter and destroys the very basis for a prompt relief by way of  interlocutory injunction and, in any opinion, rightly made, as to  the 'rights 'of the parties under contracts, without waiting for  some event to happen, as, for instance, for a ship to arrive at its  destination, in order to determine the result, of the contracts and  with the exact causes of action might be. In my opinion under  order XXV rule 5, the power of the court to make a declaration where it is a question of defining the rights of two parties, is
 almost unlimited; I might say only limited by its own discretion.  The discretion should of course be exercised judicially, but it  seems to me that the discretion is very wide. "

Where an individual claims that his right has been trampled upon by any person or agency, be it private or public he has the right to apply to court for a declaration or for a demotion and an injunction. Where the, right that is sought to be asserted is a public wrong, the person seeking the declaration must show that he has suffered damages over and above that of any other person. In Hope Harriman v. Mobolaji Johnson the court quoted with approval the statement in the Halsbury's Laws of England Vol. 22 that the court will not make a declaratory judgement where the" trisection raised is purely academic or the defamation would be or embarrassing.

The court in Hope Harrison v. Col. Mobolaji Johnson held, thus: .' ..... no court exists for the purposes of indigenous what from the start would be a completely wasteful and useless exercise. All courts in every part of the civilized world are jealous of their jurisdiction as well as their powers and as such are unwilling to indulge in any exercise which will bring about principle of contempt. The granting of a declaratory right offering is discretionary and it must always be exercised within the care, caution and judicially. ..... "

A Court will therefore not give a declaratory the issue to decided is purify, or A declaratory order may be an effective remedy. It is however usual to couple it with an order for an injunction.