An action for the enforcement of fundamental rights is normally brought under the Fundamental Enforcement Procedure Rules and such action is peculiar. It is a kind of action which may be considered as “Sui Generis id est, it is a claim in a class of its own though with a closer affinity to a civil action than a criminal action.
Let us drive home a point by making reference to the Kaduna State High Court Civil Procedure Rules 2007. Order 13(1) thereof provides as follows:
“All persons may be joined in one action as Plaintiffs in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Plaintiff(s) as may be found to be entitled to relief and for such relief as the Plaintiff or Plaintiffs may be entitled to, without any amendment.”
The above provision can be found in the Rules of all the High Courts of all the states of the federation. It means you can have more than one plaintiff in a civil action. But such provision is totally missing in the Fundamental Rights Enforcement Procedure Rules of 2009.
Since such provision is absent in the extant Fundamental Rights Enforcement Procedure Rules (was also absent in the former though), does it mean that multiple applicants are not contemplated in Fundamental right enforcement applications?
Let us seek recourse to our Law Reports and make the case of OKECHUKWU VS ETUKOKWU (1998) 8 NWLR Part 562 Page 511 a starting point. In this case it was held that “a family as a unit cannot commence an action on infringement or contravention of Fundamental Rights… The provisions of Chapter 4 cover individuals and not a group or collection of individuals. The expression “every individual”, “every person”, “any person”, every citizen” are so clear that a family unit is never anticipated or contemplated.”
Also in R.T.F.T.C.I.N. VS IKWECHEIGH (2000) 13 NWLR Part 683 at Page 1 joinder was declared to be incompetent in fundamental right actions.
In the recent case of KPORHAROR & ANOR. VS. YEDI & ORS. (2017) LPELR – 42418 (CA), two persons filed an action for the enforcement of their fundamental right over the seizure and detention of their bulldozer plant. They succeeded but on appeal the decision was set aside for being incompetent ab initio since the application was filed by two persons (not one person as it ought to be)
Lastly in the most recent case of UDO v. ROBSON & ORS (2018) LPELR-45183(CA), three (3) persons filed a case for the enforcement of their fundamental rights, they succeeded on appeal the decision was set aside because the case was not filed by a single person.
From the above decisions of courts, it is obvious that several applicants cannot file an application for the enforcement of fundamental rights. It is obvious also that a fundamental right action with several applicants can be a valid ground for appeal.
WHAT THEN SHOULD SEVERAL PERSONS WHOSE FUNDAMENTAL RIGHTS HAVE BEEN INFRINGED DO?
The applicants should file separate applications and then apply that the separate applications be consolidated into a single suit. This is so because Order VII rule 1 provides thus:
“The Judge may on application of the Applicant consolidate several applications relating to the infringement of a particular Fundamental Right pending against several parties in respect of the same matter, and on the same grounds.”
This position was restated in KPORHAROR & ANOR v. YEDI & ORS and UDO v. ROBSON & ORS (supra)
In my view the current position of the law that disallows fundamental right action with multiple applicants is sound. It is also good that FREP Rules allow consolidation of suits. It should be noted that consolidating suits is for the purpose of convenience.
However, I think allowing multiple applicants in a suit is far more convenient. This is because in consolidation there is need for application to be made but if several people are to be allowed to bring a single suit for the ventilation of their grievance, there will be no need for any application.
If I am correct that allowing several applicants in a single suit is more convenient than consolidation, then there is possibility for the interpretation of the Constitution and the FREP Rules to accommodate multiple applicants. Section 318(4) of the constitution is to the effect that the Interpretation Act shall apply for the purpose of interpreting the provision of the Constitution. In giving life to this section, the Supreme Court in the recent case of SARAKI v. FRN (2016) LPELR-40013(SC) held thus:
“The Interpretation Act may be called in aid to determine whether the interpretation given accords with the intention of the lawmakers. The Interpretation Act is an Act of the National Assembly, which has been incorporated by reference, into the Constitution and is applicable to the 5th Schedule…”
In his contribution, Per SANUSI, J.S.C. (Pp. 153-154, Paras. E-A) held that:
“Interpretation Act is always the law to resort to, in order to interpret the provisions of the Constitution or any other statute creating a statutory body.”
Having established authoritatively that Interpretation Act can be used for the interpretation of the constitution, we find section 14 of the Interpretation Act relevant. It provides as follows:
“In an enactment-
(b) words in the singular include the plural and words in the plural include the singular.”
As clear as the law is, how did the justices of the Court of Appeal arrive at their conclusion that constitution and FREP Rules envisage a sole applicant?
I take the liberty to state that authorities are galore and are all substantially ad idem that a narrow interpretation that would do violence to the provisions of the constitution and fail to achieve the goal set by the Constitution must be avoided. Thus, where alternative constructions are equally open, the construction that is consistent with the smooth working of the system, which the Constitution read as a whole has set out to regulate is to be preferred. See Dapianlong v. Dariye (2007) 8 NWLR (pt 1036) 239 and Nafiu Rabiu v. The State (1980) 8-9 SC 130. This approach is consistent with the “living tree” doctrine of constitutional interpretation that the Constitution “must be capable of growth to meet the future. The decision of my noble lords would have been more sound and more in tune with the contemplation of the framers of the constitution of they had allowed several applicants in a fundamental right application.
Be that as it may, the law as it stands today is that if several persons file a fundamental right application in a single suit instead of each separately, such application shall be dead on arrival. Though I would prefer the Supreme Court to set the law aside and allow multiple applicants.
About the author
O. G. Chukkol is a student, Faculty of Law, ABU, Zaria. A renowned legal Researcher and Author. He has several publications to his name.
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