Pre- Action Notices And The Challenges Of Fundamental Rights (Enforcement Procedure ) Rules 2009 In Nigeria .

By Paschal Charles  Ifeanyi  Nwosu Esq

Pre-action Notices and the Rules of the fundamental rights ( Enforcement procedure )  Rules are crucial and pivotal mechanisms  that drives  the system of adjudication  and  justice delivery in Nigeria .

The former , ensures  that  appropriate legal notices   are given before the commencement of an action  while  the latter  ensures conformity with procedural strictures protecting the citizens right and access to justice from inhibiting limitations  .

The general rule regarding the law and practice of pre- action  notice requires  that a defendant be served a written notice  before action is commenced against the defendant  .

This  is not just a  mandatory  requirement  under Nigeria’s legal system especially with state agencies which in the event of  default , failure or omission may result in vitiating an action .

In Nigercare Development Co ltd V. Adamawa State water Board (2008)ALL FWLR (PT 422) 102  it was held  that  the ” service of pre-action notice where required by statute is a condition precedent to exercise of jurisdiction  by court , it can be. raised at any time and the failure to plead it does not affect its efficacy .”

The interesting aspect of this requirement is with respect to the effect of  non compliance  with the requirement of service of pre-action notice .

Says the court in Oba and ors V. Fadeyi (2020) LPEL51758 where it was held , ” the submission of the appellants counsel that service of pre-action notice is a condition precedent for instituting a suit and that failure to comply with the requirement is a fundamental omission which renders an action incompetent is correct but only to the extent that the party entitled to the pre-action notice raises the  objection timely  at the trial court .”

While a court cannot expectedly descend into the Arena of conflict to  point out to the parties the fact of non compliance to the requirement of pre-action notice ,” the clear position of the  law is that service of pre-action notice is a personal right which inures only to the party entitled to the pre-action notice .

 Failure to serve pre-action notice is an irregularity which can be waived by the party entitled to pre-action notice .

 Where a party fails to raise  the issue of non- service of pre-action notice at the trial court , he has waived the right .

Query :  Is it a requirement in fundamental rights enforcement procedure rules brought pursuant to Chapter 1V of  the  1999 constitution for a pre-action Notice to be issued to validate an Application  under the fundamental rights (Enforcement procedure) Rules  2009?

There are many  authorities and judicial pronouncement on the question of application of  pre-action Notices in fundamental rights enforcement proceedings .

They all speak with one  voice :

It is now trite that pre-action Notice is not  applicable in fundamental rights Enforcement procedure  by a rash of judicial authorities  .

However the rule is that the mandatory requirement of  pre-action notices apply   in actions with the important exception of fundamental right enforcement proceedings , where infringements to rights are not subject to inhibitions and limitations .

For  instance ,  In Oba & ors V. Fadeyi  ( 2020)LPEL51758 the court held that  non compliance with the rule for service of pre-action notice cannot succeed on enforcement of fundamental rights in the light of s. 46 (1) (2) & ( 3 ) of the constitution  and therefore a clear exception to the requirement of pre-action notices under Nigerian law and practice .

Says the court , ” The submission of the appellants counsel that service of pre-action notice is a condition precedent for instituting a suit and that failure to comply with the requirement is a fundamental omission which tenders  an action incompetent is correct but only to the extent that the party entitled to the pre-action notice raised the objection timeously  at the trial court .”

Thus pre-action Notices  do not apply rightly in the fundamental human rights  Enforcement procedure wherefore  constitutes an exception to the requirement of pre-action notice in Actions.

 Often , actions against governments/  and their agencies  in Nigeria require pre-action notices  by statutory guidelines .

The departure in fundamental rights procedure cases highlights the necessity  for collective action  to protect individual rights against infringements  without inhibitions .

 And more recently to protect family and community rights that show common cause and interests .

This notable exception  is a procedural rule crafted  by the chief justice of Nigeria under s.46(3) to promote the urgency , importance and  redress against infringements on human rights guaranteed under chapter 1V of the 1999 constitution as amended  in a State high  court /  Federal high court, within jurisdiction , without inhibition under any law .

It’s however noteworthy that many  actions that ought to be commenced by writ of summons are increasingly crafted in subterfuges of fundamental rights . This largely amounts to the  abuse of a very unique process that ensures the  validation of constitutional guarantees .

Also , the noteworthy question whether the enforcement of fundamental rights are for personal rights only or whether it transcends family and community units  is hereto  instructive  query ?

The decision of the Supreme court in Total Exploration & production (Nig) ltd V Okwu  LPELR 62623  (SC)  where the Supreme court held that  joint application for fundamental rights Enforcement is permissible and maintainable in so far the applicants share the same cause of action and common interest .

Largely , the procedure remains guiding strictures but the enforceability of court’s decision against governments and their  agencies has created fresh concerns because of government routine  disobedience of court orders .

Nigerian leaders  and law enforcement agencies routinely , breach the fundamental rights of Nigerians , and pick and choose , which court orders to obey , and or enforce ,  more likely that favours them  .  This attitude trivializes the enforcement of fundamental rights Enforcement in the country .

This can only result in judicial anarchy  aided and abetted by conflicting court decisions and judicial activism .

The fundamental rights enforcement procedures rules  serves as a crucial mechanism for the  protection of  Citizens and human rights  and must be accorded more seriousness and weight in Nigeria’s legal system .

Indeed fundamental rights Enforcement procedure in Nigeria   faces  numerous challenges  in it’s framework and implemention designs .And addressing these challenges is crucial to ensuring that fundamental rights enforcement procedures in Nigeria is effective and accessible to the poor and the rich across the jurisdictions .

Some of these challenges faced by fundamental rights enforcement proceedings   pursuant to the rules made by the chief justice under Nigerian constitution   include but not limited to corruption  in the judiciary in the backdrop of lack of fiscal autonomy and  independence of  the judiciary .

It faces  increasing  threats like  political  interferences,  undermining the need for fairness and  impartiality in it’s  proceedings, which  has grown to worrisome concerns . The impact of

 poverty,  a major barrier to access to justice because of limited access to legal representation is  a culprit  .

There’ are often delays in getting matters heard timely with so much backlogs in a judiciary faced with  inadequate staffing , funding ,  inadequate and poorly motivated  judicial officers  and  absence of fiscal autonomy that inhibits the smooth sail of the mechanism for addressing grievances .

 It’s also true that many Nigerians are not sufficiently enlightened and informed to take advantage of the constitutional provisions for redress against  breaches , threatened or real of their  fundamental rights .

Despite these challenges and setbacks , the nigerian judiciary is resilient like it’s struggling peoples and the  downtrodden.

On a lighter note , despite these challenges , the song by Bob Marley,  strikes a responsive note on the need for  perseverance and promotion of human rights to the downtrodden.

Sings ,  Bob Marley :

” Get up , stand up, Stand up for your rights . Get up , stand up , Don’t give up the fight “.

This note of resilience is what the fundamental rights enforcement proceedings are all about .

Like Martin Luther King Jnr . notes , “Injustice anywhere is a threat to justice everywhere .”

Nigeria’s legal system strives to address within it’s limited means , legal frameworks and overwhelming challenges facing the enforcement of fundamental rights applications for redress .

The judiciary is up on its feet even as Bob Marley has stopped singing  and , will keep on fighting  for the poor as the last hope of the common Man .

PCI NWOSU ESQ