How to Draft a Fundamental Rights Enforcement Application

How to Draft a Fundamental Rights Enforcement Application in Nigeria: A Comprehensive Guide

The protection and enforcement of fundamental human rights are cornerstones of any democratic society. In Nigeria, these rights are enshrined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended), alongside the African Charter on Human and Peoples’ Rights, which has been domesticated into Nigerian law. When these sacrosanct rights are violated or threatened, the law provides a robust mechanism for redress: the Fundamental Rights (Enforcement Procedure) Rules, 2009 (hereinafter referred to as “the FREP Rules” or “the Rules”).

This comprehensive guide aims to demystify the process of drafting a Fundamental Rights Enforcement Application in Nigeria, providing a step-by-step approach to ensure your application is not only well-structured and articulated but also leaves no blind spots, maximizing the chances of a successful outcome.

1. Understanding Fundamental Rights and Their Enforcement in Nigeria

Before delving into the drafting process, it’s crucial to grasp the essence of fundamental rights and the legal framework for their enforcement in Nigeria.

1.1 What are Fundamental Rights?

Fundamental rights are inherent rights that all individuals possess by virtue of being human. They are considered inalienable and are protected by law to ensure human dignity, liberty, and a fair society. In Nigeria, these rights include, but are not limited to:

• Right to Life (Section 33): No one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.
• Right to Dignity of Human Person (Section 34): Every individual is entitled to respect for the dignity of his person, and accordingly, no person shall be subjected to torture or to inhuman or degrading treatment.
• Right to Personal Liberty (Section 35): Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in accordance with a procedure permitted by law. This is one of the most frequently enforced rights, particularly in cases of unlawful arrest and detention.
• Right to Fair Hearing (Section 36): In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
• Right to Private and Family Life (Section 37): The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.
• Right to Freedom of Thought, Conscience and Religion (Section 38): Every person shall be entitled to freedom of thought, conscience and religion.
• Right to Freedom of Expression and the Press (Section 39): Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
• Right to Peaceful Assembly and Association (Section 40): Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union or any other association for the protection of his interests.
• Right to Freedom of Movement (Section 41): Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.
• Right to Freedom from Discrimination (Section 42): No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
• Right to Acquire and Own Immovable Property Anywhere in Nigeria (Section 43): Every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.
• Right to Prompt Payment of Compensation for Compulsorily Acquired Property (Section 44).

It is important to note that not all rights are fundamental rights enforceable under the FREP Rules. Only rights explicitly listed in Chapter IV of the Constitution and those in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act are enforceable through this procedure.

1.2 The Fundamental Rights (Enforcement Procedure) Rules 2009

The FREP Rules 2009 replaced the earlier 1979 Rules, aiming to provide a more liberal and expeditious framework for the enforcement of fundamental rights. Key objectives of the 2009 Rules include:

• Advancement of Rights: To ensure the advancement and not restriction of applicant’s rights and freedoms.
• Proactive Access to Justice: To 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.
• Priority and Urgency: To ensure that human rights suits are given priority, especially cases involving the liberty of the applicant, which are to be treated as emergencies.

1.3 Jurisdiction of Courts

Section 46 of the 1999 Constitution vests original jurisdiction for the enforcement of fundamental rights in the High Courts. The FREP Rules clarify that “Court” means the Federal High Court, the High Court of a State, or the High Court of the Federal Capital Territory.

While both State and Federal High Courts have concurrent jurisdiction, it’s crucial to understand the nuances:

• State High Court: Generally has jurisdiction over fundamental rights cases arising from matters within its general civil and criminal jurisdiction.
• Federal High Court: Has jurisdiction over fundamental rights cases that arise from matters within its exclusive jurisdiction as provided by Section 251 of the 1999 Constitution. For instance, if the breach of fundamental right is connected to a federal enactment or a matter listed under Section 251, the Federal High Court would be the appropriate ask.
• National Industrial Court: May also have jurisdiction in certain instances, particularly where the fundamental right issue arises from an employment or labour-related dispute.

Crucial Point on Jurisdiction: The main or principal claim in the application must be the enforcement of a fundamental right. If the fundamental rights claim is merely ancillary to another cause of action (e.g., a contractual dispute), the court may strike out the application for lack of jurisdiction under the FREP Rules. The court will examine the reliefs sought and the grounds upon which they are sought, as well as the supporting facts, to determine if the suit is truly a fundamental rights action.

2. Preliminary Considerations Before Drafting

Before putting pen to paper (or fingers to keyboard), several preliminary considerations are vital:

2.1 Identifying the Specific Right Violated or Threatened

Pinpoint the exact fundamental right(s) that has been, is being, or is likely to be infringed. This requires a thorough understanding of Chapter IV of the Constitution and the facts of your case. For instance, is it unlawful detention (Right to Personal Liberty)? Denial of access to a lawyer during interrogation (Right to Fair Hearing)? Or the demolition of property without due process (Right to Acquire and Own Immovable Property)?

2.2 Ascertaining the Perpetrator(s) of the Violation

Identify all individuals, government agencies, or private bodies responsible for the infringement. These will be the Respondents in your application. Ensure you name them correctly and completely. For instance, if it’s police brutality, name the specific officers involved (if known) and the Nigeria Police Force and the Inspector-General of Police.

2.3 Gathering Evidence

Evidence is paramount in fundamental rights enforcement cases. The burden is on the applicant to establish the breach or threatened breach with sufficient evidence. This typically includes:

• Affidavit Evidence: This is the primary mode of proving facts in fundamental rights cases. All facts relied upon must be deposed to in the affidavit.
• Documentary Evidence: Any relevant documents, such as police reports, medical reports, letters, photographs, videos, or audio recordings, should be exhibited to the affidavit.
• Oral Evidence: While applications under the FREP Rules are primarily heard on affidavit evidence and written addresses, the court may, in exceptional circumstances, direct oral evidence to be taken, especially to resolve material conflicts in affidavits.

2.4 Locus Standi (Standing to Sue)

Under the FREP Rules, any person who alleges that a fundamental right to which they are entitled has been, is being, or is likely to be infringed, may apply to the court. This is a liberal provision, allowing not only the direct victim but also those acting in their interest (e.g., a guardian for an infant, an association for its members). However, the applicant must demonstrate a sufficient interest in the matter.

2.5 Time Limit for Application

The FREP Rules do not specify a strict time limit for commencing an action for fundamental rights enforcement. However, it is advisable to commence the action as soon as possible after the infringement occurs or becomes likely. While there is no statutory limitation, undue delay may be viewed unfavorably by the court. In certain old cases, a twelve-month period was mentioned, but the 2009 Rules aim for a more flexible approach, emphasizing urgency. Where there is a delay, a satisfactory explanation may be required.

2.6 Selecting the Appropriate Court

Based on the nature of the right violated and the identity of the perpetrator, determine whether to file in the Federal High Court, State High Court, or National Industrial Court. Remember the jurisdictional nuances discussed earlier.

3. Structure of a Fundamental Rights Enforcement Application

A Fundamental Rights Enforcement Application is typically commenced by way of an Originating Motion or Originating Summons, supported by a Statement of Facts and an Affidavit in Support. A Written Address by counsel is also mandatory.

Here’s a detailed breakdown of each component:

3.1 The Originating Motion/Summons

While both are permissible, the Originating Motion is more commonly used in fundamental rights enforcement applications. It is a formal request to the court, initiating the proceedings.

Key elements of an Originating Motion:

• Heading: Clearly state the court (e.g., “IN THE HIGH COURT OF LAGOS STATE, LAGOS JUDICIAL DIVISION”) and the suit number (e.g., “SUIT NO: LD/______/2025”).
• Parties: Clearly identify the Applicant(s) and the Respondent(s).
• Motion Paper: This is the formal document. It usually begins with: “TAKE NOTICE that this Honourable Court will be moved on the …… day of ………, 2025 at 9 o’clock in the forenoon or so soon thereafter as counsel may be heard, by counsel on behalf of the Applicant for the following reliefs:”
• Reliefs Sought: This is a critical section. Here, you clearly articulate the specific orders and declarations you seek from the court. These must flow directly from the facts presented and the rights alleged to have been violated. Common reliefs include:
  • Declarations: e.g., “A DECLARATION that the arrest and detention of the Applicant by the 1st and 2nd Respondents from [Date] to [Date] without a valid court order constitutes a breach of the Applicant’s fundamental right to personal liberty as guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Article 6 of the African Charter on Human and Peoples’ Rights.”
  • Orders: e.g., “AN ORDER of this Honourable Court directing the Respondents to immediately release the Applicant from unlawful detention.”
  • Injunctions: e.g., “AN ORDER of perpetual injunction restraining the Respondents, their agents, servants, or privies from further harassing, intimidating, arresting, or detaining the Applicant concerning the facts of this application.”
  • Damages/Compensation: e.g., “AN ORDER of this Honourable Court directing the Respondents to pay to the Applicant the sum of N50,000,000.00 (Fifty Million Naira) as general and exemplary damages for the unlawful breach of the Applicant’s fundamental rights.”
  • Public Apology: In appropriate cases, an order for a public apology may be sought.
  • Any other orders: A general prayer for “AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances” is usually included.

3.2 The Statement of Facts

This document accompanies the Originating Motion/Summons and provides a concise summary of the case. It sets out the core information required by the FREP Rules.

Key elements of the Statement of Facts:

• Heading: Same as the Originating Motion.
• Name and Description of the Applicant: Full name, address, occupation, and any other relevant identifying details.
• Relief(s) Sought: Reiterate the reliefs sought, exactly as they appear in the Originating Motion.
• Grounds Upon Which the Reliefs are Sought: This is where you concisely state the legal bases for your application, linking the facts to the specific constitutional provisions or articles of the African Charter that have been violated. Examples:
  • “The Applicant’s fundamental right to personal liberty, as guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), has been flagrantly violated by the Respondents.”
  • “The Respondents’ actions amount to an infringement of the Applicant’s right to dignity of human person under Section 34 of the 1999 Constitution.”
  • “There is a real and imminent likelihood of the Respondents further infringing on the Applicant’s right to freedom of movement.”
• Facts Upon Which the Application is Made: A brief, chronological narration of the key facts leading to the alleged violation. This should be a summary, with the full details contained in the accompanying affidavit.

3.3 The Affidavit in Support of the Originating Motion/Summons

This is the most crucial evidential document. All facts relevant to the application MUST be deposed to in this affidavit. It must be sworn to by the Applicant or someone with personal knowledge of the facts (e.g., a legal practitioner in certain circumstances, but direct personal knowledge is always preferred).

Key elements of the Affidavit in Support:

• Deponent’s Details: Full name, address, occupation, and a statement confirming that the deponent is a Nigerian citizen (if applicable) and has the consent of the Applicant to depose to the affidavit (if not the Applicant directly).
• Verifying Facts: Each paragraph should clearly state facts within the deponent’s personal knowledge or facts they believe to be true and the grounds for that belief.
• Chronological Narration: Present the facts in a clear, concise, and chronological order, detailing how the fundamental right(s) was violated or is likely to be violated.
• Specifics of the Violation: Provide precise details of the acts or omissions constituting the infringement, including dates, times, locations, and names of individuals involved.
• Exhibits: Attach all relevant documentary evidence as exhibits. These should be clearly labelled (e.g., “Exhibit ‘A'”, “Exhibit ‘B'”). Each exhibit must be properly described in the affidavit and referred to at the relevant paragraphs. For instance, “A copy of the police invitation letter is hereby attached and marked as Exhibit ‘A’.”
• Sufficiency of Evidence: Ensure the affidavit contains all the necessary facts to establish the alleged violation. Remember, cases are largely decided on affidavit evidence.
• No Legal Arguments: Avoid making legal arguments or submissions in the affidavit. The affidavit is for facts only. Legal arguments belong in the written address.

Example Paragraphs in an Affidavit:

• “That I am the Applicant in this suit and by virtue of this, I am conversant with the facts of this case.”
• “That on the 1st day of June, 2025, at about 10:00 AM, I was at my residence at No. 123, Freedom Street, Pakuro, Ogun State, when two individuals, identifying themselves as police officers from the State Criminal Investigation Department (SCID), burst into my home without a warrant.”
• “That they immediately handcuffed me and dragged me into their unmarked vehicle, without informing me of the reason for my arrest.”
• “That I was taken to the SCID office and detained in a cell for 72 hours without charge or access to my lawyer or family, despite my repeated requests.”
• “That during my detention, I was subjected to intense interrogation and denied food and water for a period of 24 hours.”
• “That the said police officers informed me that I was being arrested on the instructions of the 3rd Respondent, Mr. John Doe, over a purely civil land dispute.”
• “That a copy of my medical report detailing the injuries sustained during my arrest is hereby attached and marked as Exhibit ‘B’.”

3.4 The Written Address

The Written Address is where your legal arguments are presented, demonstrating how the facts deposed in the affidavit establish a violation of the applicant’s fundamental rights and why the reliefs sought should be granted.

Key elements of the Written Address:

• Introduction: Briefly introduce the application and the parties.
• Issue(s) for Determination: Formulate clear and concise legal issues that the court needs to resolve. These issues should encapsulate the core legal questions arising from the facts and reliefs sought.
• Summary of Facts: Briefly summarize the relevant facts as contained in the affidavit, without repeating every detail.
• Argument on Issue(s): This is the core of the written address. For each issue, present your legal arguments, citing relevant constitutional provisions, statutes, and judicial precedents (case law).
  • Constitutional Provisions: Directly refer to the sections of Chapter IV of the 1999 Constitution and articles of the African Charter that protect the rights you are seeking to enforce.
  • Case Law: Cite relevant Nigerian Supreme Court and Court of Appeal decisions that support your arguments. Show how the facts of your case align with the principles established in these precedents. For instance, if arguing unlawful detention, cite cases that define what constitutes lawful arrest and detention.
  • Application of Law to Facts: Crucially, apply the law to the specific facts of your case. Explain how the Respondents’ actions constitute a breach of the identified fundamental rights based on the evidence presented in the affidavit.
  • Refuting Counter-Arguments (if any): If the Respondents have filed a counter-affidavit, address their arguments and provide legal reasons why their position is untenable.
• Conclusion: Summarize your main arguments and reiterate your prayers, urging the court to grant all the reliefs sought.
• List of Authorities: Provide a comprehensive list of all cases, statutes, and other legal authorities cited in your written address.
• Counsel’s Details: Name, signature, and stamp of the legal practitioner.

4. The Filing Process

Once the application is drafted, the next step is filing it at the appropriate court.

4.1 Number of Copies

Prepare sufficient copies of all documents (Originating Motion/Summons, Statement of Facts, Affidavit in Support, Exhibits, and Written Address) for the court, all Respondents, and your own file.

4.2 Payment of Filing Fees

Filing fees are relatively modest for fundamental rights applications under the FREP Rules (e.g., N500 for the application, N100 for a motion, N50 for an affidavit, N100 for a written address, and N100 for any other process, as per the 2009 Rules). However, these fees can vary slightly across different High Courts.

4.3 Assignment to a Judge

After filing, the application will be assigned to a judge.

4.4 Service of Processes

The Originating Motion/Summons, Statement of Facts, Affidavit in Support, and Written Address must be served on all the Respondents. Proper service is critical for the competence of the suit. The court rules on service must be strictly adhered to.

5. What Happens After Filing?

5.1 Response by Respondents

The Respondents, upon being served, are expected to file a Counter-Affidavit and a Written Address in opposition to the application. The Counter-Affidavit will present their version of events and facts.

5.2 Applicant’s Reply

The Applicant may then file a Further Affidavit and a Reply on Points of Law to address new matters raised in the Respondents’ counter-affidavit and written address.

5.3 Hearing and Determination

Fundamental rights applications are typically heard expeditiously. The hearing will usually involve counsel adopting their written addresses, after which the court will set a date for judgment.

• Urgency: The FREP Rules emphasize the urgent nature of fundamental rights cases, especially those involving liberty. The court is expected to give priority to such cases and avoid frivolous adjournments.
• Consolidation: Where there are multiple applications relating to the infringement of a fundamental right(s) against several parties on the same grounds and issues, the court may consolidate the actions.

5.4 Judgment

The court will deliver judgment, either granting the reliefs sought, granting some modified reliefs, or dismissing the application.

6. Post-Judgment Considerations

6.1 Enforcement of Orders

If the court grants the reliefs, the Applicant will need to take steps to enforce the orders. This might involve applying for writs of execution or other enforcement mechanisms.

6.2 Appeals

Either party dissatisfied with the judgment of the High Court can appeal to the Court of Appeal and, subsequently, to the Supreme Court. However, the unique nature of fundamental rights cases, particularly those involving liberty, often necessitates swift resolution, and appeals, while allowed, may further delay the enforcement of justice. The FREP Rules were designed to reduce such delays.

7. Common Pitfalls and How to Avoid Them

Even with a detailed guide, certain pitfalls can derail a fundamental rights enforcement application. Awareness of these can help in effective drafting and prosecution:

• Mischaracterizing the Claim: This is perhaps the biggest pitfall. If the court finds that the main or principal claim is not truly a fundamental rights issue, but rather a civil or criminal matter disguised as one, the application will likely be struck out for lack of jurisdiction. Ensure the breach of a fundamental right is the main plank of your claim.
• Insufficient Evidence: Simply alleging a violation is not enough. The affidavit must contain clear, cogent, and verifiable facts, supported by exhibits where necessary, to prove the infringement.
• Lack of Specificity: Vague allegations or general complaints will not suffice. Be precise about what happened, when, where, how, and by whom.
• Improper Parties: Ensure all necessary and proper parties are joined as Respondents. Omitting a crucial party or joining an unnecessary one can cause issues.
• Delay in Filing: While not a strict limitation period, excessive delay without a satisfactory explanation can weaken your case.
• Technicalities vs. Substantive Justice: While the FREP Rules aim to reduce technicalities, basic procedural requirements (like proper heading, service, and clear reliefs) must still be met. However, the courts are encouraged to prioritize substantive justice over mere technicalities in fundamental rights cases.
• Seeking Unenforceable Rights: Only rights under Chapter IV of the Constitution and the African Charter are enforceable under the FREP Rules. Do not attempt to enforce economic, social, or cultural rights (which are often aspirational) under this procedure unless they are explicitly incorporated into Chapter IV or the African Charter.
• Failure to Link Facts to Rights: Ensure a clear nexus between the facts deposed in your affidavit and the specific fundamental rights you claim have been violated. The argument in your written address must explicitly demonstrate this link.
• Lack of Clarity in Reliefs: The reliefs sought must be clear, unambiguous, and flow logically from the alleged violations.

8. Conclusion

Drafting a Fundamental Rights Enforcement Application in Nigeria requires meticulous attention to detail, a thorough understanding of the law, and a strategic approach. It is a powerful tool for safeguarding the liberties and dignity of individuals against infringement by state actors or private entities.

While this guide provides a comprehensive overview, the complexities of legal practice necessitate engaging a qualified legal practitioner. A seasoned lawyer will not only navigate the intricacies of drafting and procedure but also provide invaluable advice, ensuring that your application is robust, well-argued, and stands the best chance of securing justice for the violated fundamental rights. The ultimate goal is to ensure that the Nigerian legal system remains a vigilant guardian of its citizens’ fundamental freedoms, upholding the principles of justice and human dignity for all.