The rule against instigating litigation under rule 47 of the RPC, 2007: whether fundamental rights matters are exempted by H. A. Jimoh Esq


Under the Rules of Professional Conducts for Legal Practitioners, 2007-herein after referred to as RPC-, there is a provision in Rule 47 which prohibits a lawyer from instigating litigation. Nevertheless, considering the sui generis nature of suits or litigation bothering on enforcement of fundamental rights, this paper considers whether fundamental rights matter is an exception to that Rule of RPC?

For instance, the said Rule 47(1) of the RPC provides thus …..‘A lawyer shall not forment, strife or instigate litigation and, except in the case of close relations or trust, he shall not, without being consulted, proffer advice or bring a law suit’.

First and foremost, with due respect to the maker of the RPC, it is the submission of the writer of this paper that the basis of enforcement of fundamental rights suits is the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- and public interest.

 

Section 46 of the Constitution provides 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’. Also see Order II Rule I of the Fundamental Rights (Enforcement Procedure) Rules, 2009-herein after referred to as FREPR. (Underlining is the writer of this paper’s for emphasis).

Also, the provisions of the preamble to the FREPR provides for the overriding objectives of the FREPR which the Court shall give effect to thus

1. ‘The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given to it by these Rules or any other law and whenever it applies or interprets any rule. 3. The overriding objectives of these Rules are as follows: (a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them. (b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include; (i) The African Charter on Human and Peoples’ Rights and other Instruments (including protocols) in the African regional human rights system, (ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system, (c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient. (d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented. (Underlining is the writer of this paper’s for emphasis).

 

More so, applicant’s locus standi under the FREPR has been expanded by Rule 3 (e) to the Preamble of the FREPR which provides thus ‘The Court shall encourage and welcome public interest litigation in the human rights field and no human rights case may be dismissed or struck out for want of locus standi.

In particular, human rights activists, advocates or groups as well as non-governmental organisations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following;

i. Anyone acting in his own interest;

ii. Anyone acting on behalf of another person;

iii. Anyone acting as a member of, or in the interest of a group or class of persons;

iv. Anyone acting in the public interest; and v. Association acting in the interest of its members or other individuals or groups’.

More so, the RPC was made two years before the FREPR was made in 2009, so, it is submitted that the provisions in Rule 47(1) and the entire provisions of the Rule 47, RPC, can no more stand as a restrictive law when human rights matters are contemplated.

Furthermore, considering the trite position of law that fundamental rights matters are sui generis, as held by the Court 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 hardship 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.

Also, the Supreme Court in the case of Odogwu v A.G. of the Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6, had defined fundamental human rights thus

…..‘A fundamental human right is a 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’.

The emphasis laid down by the Supreme Court of Nigeria in the case of A.C.N. V I.N.E.C.(2013)13 NWLR (pt. 1370) 161 SC, is very noteworthy where the Supreme Court held thus …..‘Without law and its rules regulating the enforcement and enjoyment of rights under the law, chaos will reign supreme, with every man pursuing and enjoying his real or perceived rights without regard to the rights of others, and organised society may come to an end’.

 

More so that the FREPR is made pursuant to the provision of the Constitution. In the case of Abia State University, Uturu v Anyaibe (1996) 3 NWLR 9pt. 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 which case, such a provision has equal force of law as the Constitution itself.

Therefore, it is submitted that any law or Rules or legislation that runs contrary and or breaches the FREPR has run inconsistent with the provisions of the Constitution and shall subject to such inconsistency, be declared null and void. See: the provisions of section 1(1) and (3) of the Constitution.

Furthermore, human rights activists are their brothers’ keepers and that is why it becomes necessary that human rights lawyers/activists instigate litigation for and or on behalf of a victim of human rights violation in order to secure justice against an oppressor and or an unjust fellow, as many times, those victims do not have the required courage, confidence and finance to pursue such redress in court.

Therefore, it is the humble submission of the writer of this paper that fundamental rights matters are exceptions to the provisions of Rule 47 of the RPC (supra). To that extent, it is the submission of the writer of this paper that a lawyer is clothed by the Constitution and the FREPR to instigate litigation, encourage victims of human rights to seek redress in the appropriate courts against such alleged violation of any of their human rights etc. and in deserving situations, a human rights lawyer, advocate, activist or non-governmental organisation may stand in the position of an applicant to institute such an action in court even though, he is not the victim or the victim’s relative and even if he is not consulted and may seek victims either by using any means of communication.

Finally, the writer of this paper thereby submits that it is a wrong notion and a misconception of law to hold or submit that a lawyer who instigates or encourages a victim of violation of human rights to seek redress in court has committed a misconduct and has breached the provision of Rule 47 of the RPC, and is thereby subjected to disciplinary measures laid down by the Legal Practitioners Act, 2004 (as amended).

The writer can be reached on hameed_ajibola@yahoo.com



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