Someone has been in a cell for eleven weeks and has never been taken before a court. A bank account has been frozen on the strength of a letter, and no order was ever made. A woman has been driven off land she farmed for twenty years because a decision was taken at a meeting she was not told about. These are not always the largest matters a practice handles, and they are frequently matters in which the person affected cannot pay. That is the reason this area is listed here separately rather than folded into the others.
The law
What the law provides
Chapter IV of the Constitution guarantees a set of fundamental rights directly enforceable by the courts — the right to life, to dignity of the human person, to personal liberty, to fair hearing, to private and family life, to freedom of thought, conscience and religion, to freedom of expression, to peaceful assembly and association, to freedom of movement, to freedom from discrimination, and to acquire and own immovable property. Section 46 gives any person who alleges that one of those rights has been, is being, or is likely to be contravened in relation to them the right to apply to a High Court in that State for redress.
The African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act domesticates the Charter, and its provisions are enforceable in Nigerian courts alongside Chapter IV. The Charter covers ground that Chapter IV does not, and it is frequently pleaded together with it.
The Fundamental Rights (Enforcement Procedure) Rules 2009 govern how such applications are made, and they were written to remove obstacles rather than create them. The Rules direct courts to constantly and conscientiously pursue the expansion of the frontiers of fundamental rights; they provide that no application is to be dismissed for want of locus standi; they permit human rights activists and organisations to act on behalf of persons whose rights are threatened; and they disapply limitation periods to applications brought under them. An application is made by originating motion supported by a statement, an affidavit and a written address.
Two further avenues exist. The Legal Aid Council of Nigeria, established under the Legal Aid Act, provides legal assistance to persons who cannot afford it in the categories of matter the Act covers. The ECOWAS Community Court of Justice hears human rights applications from within member states and does not require domestic remedies to be exhausted first.
On fees, the position is stated plainly: pro bono work is work done without charge. Where the firm accepts a matter on that basis it is recorded in writing at the outset, and the fact that no fee is charged makes no difference to the standard of the work or to the duties owed.
The process
What happens in practice
An application for the enforcement of fundamental rights is commenced in the High Court of the State in which the breach occurred, or in the Federal High Court where the respondent is a federal agency and the subject matter falls within its jurisdiction. It is brought by originating motion supported by a statement setting out the applicant's name and description, the reliefs sought and the grounds, together with an affidavit setting out the facts and a written address.
Where liberty is in issue the matter is urgent in the proper sense, and an application may be made for an order producing the detained person before the court. The respondent files a counter-affidavit and written address; the applicant may reply. Fundamental rights applications are determined on affidavit evidence and argument, which is one reason they move faster than an ordinary suit, and the Rules require the court to hear them expeditiously.
Reliefs commonly sought include a declaration that the right was contravened, an order releasing the person detained or unfreezing the account, an injunction restraining repetition, a public apology, and compensation.
Where the matter is taken without charge, the terms are put in writing at the outset — what the firm will do, what it will not, and what disbursements, if any, the client is responsible for. Where the firm cannot take a matter, it says so promptly and, where it can, points to the Legal Aid Council or to another practitioner.
Nothing in this description should be taken as an indication of the outcome or duration of any particular matter.
Our role
How the firm acts
We act in applications for the enforcement of fundamental rights under Chapter IV of the Constitution, the African Charter and the Fundamental Rights (Enforcement Procedure) Rules — in particular in cases of unlawful arrest and prolonged detention without arraignment, detention in respect of civil debts, the freezing of accounts without an order, the seizure of property, and the denial of a fair hearing.
We accept a limited number of matters each year without charge. Requests are assessed on the nature of the matter and the applicant's means, and the firm's capacity to take on a matter at any given time is finite. Where the firm cannot act, it says so promptly rather than leaving the request unanswered.
We also act in proceedings before the ECOWAS Community Court of Justice where the circumstances of a matter make that forum available.
Questions
Questions clients commonly ask
What is a fundamental rights application?
It is an application to the High Court under section 46 of the Constitution and the Fundamental Rights (Enforcement Procedure) Rules, made by originating motion, by a person alleging that a right in Chapter IV has been, is being, or is likely to be contravened in relation to them. It is decided on affidavit evidence and argument rather than by full trial.
How long do I have to bring one?
The Fundamental Rights (Enforcement Procedure) Rules provide that no application brought under them is to be affected by a limitation statute. That said, delay is never an advantage: evidence deteriorates, witnesses become harder to find, and the practical position on the ground hardens.
Can somebody bring an application on behalf of another person?
Yes. The Rules expressly permit human rights activists, advocates and organisations to act on behalf of persons whose rights are threatened, and provide that no application is to be dismissed for want of locus standi. This matters most where the person affected is in detention and cannot approach a court themselves.
Can the police detain someone over a debt?
A debt is a civil matter. The use of arrest and detention to compel payment of a civil obligation has repeatedly been held to be a contravention of the right to personal liberty, and it is one of the more common grounds on which fundamental rights applications succeed.
How do I ask the firm to take a matter without charge?
Write to the office setting out what has happened, when, who is involved, and what documents you hold, and say that you are asking for the matter to be taken without charge. Requests are assessed on the nature of the matter and on means, and capacity is limited, so the firm cannot undertake to accept every request.
What is the Legal Aid Council?
It is a federal body established under the Legal Aid Act which provides legal assistance to persons who cannot afford it, in the categories of matter set out in the Act. It has offices in the states and is a proper first port of call where a matter falls within its scheme.
Please do not send confidential or sensitive information through this website. Contacting the firm does not create a lawyer–client relationship, and no such relationship exists until the firm has confirmed in writing that it is able to act for you.