Judicial Attitude to Individual or Fundamental Human Rights in Nigeria



Judicial Attitude to Individual or Fundamental Human Rights in Nigeria

The striking features of fundamental rights provision in the Constitution is that they provide a just balance between the rights of the subject on the one hand and that of the government or state on the other (per Idigbe J.S.C, in the” All Nigeria Judges Conference in 1982).

Thus to the great jurist, “human rights” is more of an earthly concept. In Saude V Abdullahi (1989) 4 NWLR (pt 116) 32 at 418 – 419, the court said: “I regard them as not just mere rights. They are fundamental. They belong to the citizen.

These rights have always existed even before orderliness prescribed rules for manner they are to be sought. “Indeed, human rights have to stand above the ordinary laws of the land. They are antecedent to the political society itself.

Human Rights are and must be a primary condition to a civilized society. Thomas Paine one of the greatest thinkers of rights of man vilified governments without constitutions for the reason that the Laws of such governments would be irrational and tyrannical. He said of the British system of government - “one of the vitest that can be set up”

He went on: - “Government without a Constitution for the want of a constitution in England to restrain and regulate the wild impulse of power, many of the laws are irrational and tyrannical and the administration of them vague and problematical.

The concept of “remedies” is clearly related to the concept of “right”, as well expressed in the Latin maxim Ubi ius ubi remedium or “a remedy accrues only where there is a right Remedy “is the means employed to enforce or redress an injury.”

In this article you should be able to explain what Human Rights are, their origin and the remedies for the breach of the rights and differentiate between rights that are enforceable and the ones that cannot be enforced in the law court.


Also read: What are the Consequences of Disobedience

Constitutional Construction

Judicial attitude to individual rights in the 1999 Constitution is dictated by the principles which the courts do or should follow in the interpretation and construction of the provisions of the Constitution. Sir Udo Udoma JSC, said in Nafiu Rabiu V The State (1981) 2 NCLR 293 at 326 that: “the function of the Constitution is to establish a framework and principle of government, broad and general in the terms intended to apply to the varying conditions which the development of our several communities must involve.

Ours being a plural dynamic society, and therefore, more technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principle of government enshrined in the Constitution…this court should whenever possible and in response to the demands of justice, team to the broader interpretation.

It is my view that the approach of this court to the construction of the Constitution should be and so it has been one of liberalism, probably a variation on the theme of the general maxim ut, res magis valeat quam pereat.

I do not conceive it to be the duty of this court so as to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provision will serve to enforce and protect such ends”.

Nnamani, JSC followed suit in Bronik Motors Ltd V Wema Bank Ltd (1983) 6SC 158 that: “….a constitutional instrument should not necessarily be construed in a manner and according to rules which apply to Acts of Parliament.

Although the manner of interpretation of a Constitutional instrument should give effect to the language used, recognition should also be given to the character and origins of the instrument. These I believe should be the approach of the courts in construing all the provisions of the Constitution which entrenched individual rights.


Rights Entrenched in the 1999 Constitution

The rights entrenched in the 1999 Constitution, just like those entrenched in the 1979 constitution, can be grouped under two broad headings, namely, those which appertain to every person within our borders, and those claimable as of right by citizen. All these rights come under chapter IV of the constitution sections 32, 33(1) 34, 35, and  36,37,38,39,40,41,42.

All the rights stated in those eleven sections are assured to all citizen of this country.

Section 33)1) says that every person within our borders has the right to his life, while section 34 assures every such individual respect for the dignity of his person etc.


Also read: Right to life Human Rights

Samples of Judicial Attitude

The examination of this heading should begin by recalling the dictum of Eso JSC in Ariori & Ors V Elemor&ors (1983) ANLR I at 19 where he said:

“Having regard to the nascence of our Constitution, the comparative educational backwardness, the socio-economic and cultural background of the people of this country and the reliance that is being placed and necessarily have to be placed, as a result of this background on the courts, and finally the general atmosphere in the country, I think the supreme court has a duty to safeguard the fundamental rights in this country, which from its age and problems that are bound to associate with it, is still having an experiment democracy”.

The following cases serve as a clear testing of attitude of the Supreme

Court to the entrenched provision of the Rights to life:

In Aliu Bello V Attoney-General of Oyo State, the Oyo State Ministry of Justice sanctioned the execution of the appellant convicted of armed robbery but whose appeal was pending in the court of appeal. Aniagoli UJSC gave vent to his deep annoyance at such flagrant breach of the Constitutional Provision when he said (at pg 860).

“This is the first case in this country of which I am aware in which a legitimate Government of this country – past or present, Colonial or indigenous- hastily and illegally snuffed off the life of an appellant whose appeal had vested and was in being, with no order of court upon the appeal, and with a reckless disregard for the life and liberty of the subject and the principle of the rule of law. The brutal incident has bespattered the face of the Oyo State Government with the paint-brush of shame”.

These are strong words, but they indicate the abhorrence which the Supreme Court has against the illegal taking of life of any person within our borders outside the provisions of the Constitution and outside the procedural rules laid down.

In the Governor of Lagos State V. Chief - Odumegwu Ojukwu & Anor. (1997) INWLR (pt 482) 429.

The Supreme Court castigated the executive Lawlessness displayed by the Military Administration and authority in ejecting the Respondent forcefully and unlawfully from his residence; it was disrespect for the Rule of law which they (the military) claimed to be cornerstone of their administration.

This made Oputa, JSC to observe as follows:

The rule of Law presupposes:

1. That the state including Lagos State Government is subject to the Law.

2. That the judiciary is a necessary agency of the rule of law.

3. That the government including the Lagos State Government should respect the right of individual citizens under the rule of law.

“I can safely say that here in Nigeria even under military Government the Law is no respecter of persons, principalities, government or powers and that courts stand between the citizens and government alert to see that the state or government is bound by the Law and respect the Law”.

Whilst Eso JSC, who wrote the erudite lead judgment in Ojukwu’s case stated about the rule of law in these terms. “The essence of rule of law is that it should never operate under the rule of force or fear, to use force to effect an act and while under the marshal of that force seek the court’s equity is an attempt to infuse timidity into court and a sabotage of the cherished rule of law.

It must never be”. Another case that demonstrates the court’s high regard for entrenched provision of the Constitution on the liberty of citizens is the case of Hon.

Justice Nwachukwu. Nwachukwu was a High Court judge in Imo State. He was appointed Chairman of a commission of inquiry to look into certain contracts awarded by the government between 1979 and 1983. In the course of the proceedings of the commission Hon. Justice Nwa- Nwachukwu received a letter to which he took objection. Without making an investigation whatsoever he ordered the arrest of one Dickson Ikonne. 

There had been a long history of mutual animosity between the two men, which had nothing to do with the proceedings or the subject of the commission. Ikonne applied to a High Court to quash the warrant of arrest, which the court did.

Subsequently, Hon Justice Nwa-Nwachukwu obtained leave to appeal against the order of the judge Ikonne then appealed to the Supreme Court. Aniagolu JSC in Dickson Ikonne V Commissioner Of Police And Hon Nanna Nwa_Nwachukwu (1986) NWLR 473 at 496 said

“it is clear from the facts of this matter on appeal that the judge, the Hon Justice Nnanna Nwa-Nwachukwu; had no valid legal reasons for issuing the warrant of arrest complained of in his appeal. T

he issue of the warrant of arrest was, in the circumstances of this matter on appeal, an abuse of legal process, an abuse of judicial authority, it is particularly painful that I should come to this conclusion concerning a judge of the High Court, but the conclusion is inevitable having regards to the facts and circumstances of this matter on appeal.

“The conduct of the judge in issuing the warrant of arrest upon what was obviously a fictitious reason, had the undesirable effect of derogating the judiciary in the eye of the public and eroding the confidence of people in judicial process and the rule of law”.

There is plethora of decided cases on the attitude of the court to individual rights or civil rights of individual entrenched in the 1999 constitution.


Also read: Right to Life, It’s the Scope and the Limit of Exercise of Police Powers

Conclusion on Judicial Attitude to Individual or Fundamental Human Rights in Nigeria

The position of the judiciary in any community is of immeasurable importance. A good, efficient and incorruptible judiciary sets the pace for the happiness and orderliness of society.

However, in the last two decades question of civil rights have come prudently within the focus of international communities.

For that reason, domestic courts in many countries including Nigeria have started to expand their vista and to look at fundamental rights as rights which must be accorded universal recognition and in a very expansive area covered by international entreaties, conventions and international Law.

If you have comprehended this post, you should now be able to explain what the judicial attitude of Nigeria court is to fundamental Human Rights and the relationship of Domestic Courts to international law, Convention and Treaties.

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