Senator Dino Melaye , the immediate past Senator of Kogi West Senatorial District of Kogi State has dragged the Speaker of the House of Representatives, Hon. Femi Gbajabamila, Attorney General of the federation, Abubakar Malami SAN, Inspector General of Police, Mohommed Adamu, The Clerk of the both National Assembly and the House of Representatives to court over the Control of Infectious Diseases Bill 2020 being currently debated at the house.

Senator Dino Melaye Sues of House of Reps

In an application for the enforcement of his fundamental rights, Sen Dino Melaye, through his lawyer, Nkem Okoro Esq, has asked the Federal High Court, to declare the provisions of the Control of Infectious Diseases Bill, as being draconian, authoritarian, undemocratic, unlawful and unconstitutional as the said provisions are likely to breach his fundamental rights

Nkem Okoro Esq, Senator Dino Melaye’s Lawyer

See the suit below;

Dino Melaye drags National Assembly, House Speaker, AGF others to Court Over COVID-19 Vaccine Bill (SEE FULL COURT PAPERS)

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CS/……../2020

——————————————————————————————-

IN THE MATTER OF AN APPLICATION BY SENATOR DINO MELAYE, FOR AN ORDER FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHTS TO THE DIGNITY OF HIS PERSON,PERSONAL LIBERTY, RIGHT TO PRIVATE AND FAMILY LIFE, RIGHT TO FREEDOM OF MOVEMENT AND RIGHT TO OWN IMMOVEABLE PROPERTY IN NIGERIA

———————————————————————————————

BETWEEN

SEN. DINO MELAYE …………. APPLICANT

AND

THE CLERK OF THE NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC OF NIGERIA ….

THE CLERK OF THE HOUSE OF REPRESENTATIVES
THE SPEAKER OF THE HOUSE REPRESENTATIVES
THE ATTORNEY GENERAL OF THE FEDERATION
THE INSPECTOR GENERAL OF POLICE

NOTICE OF APPLICATION

FOR AN ORDER ENFORCING FUNDAMENTAL RIGHTS BROUGHTPURSUANT TO:

SECTIONS 34 (1) 35, 37,38,40, 41 (1),44 AND 46 (1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, AS ALTERED;
ARTICLES 4, 6,7,10,11,12 and 14 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS (RATIFICATION AND ENFORCEMENT) ACT, CAP A9 LAWS OF THE FEDERATION OF NIGERIA 2004;
ARTICLES 2(3),7,8,9,12,17,21 AND 22 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,1976;
ARTICLES 3,5,8,9,10,12,13,17 AND 20 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS,1948;
ORDER 2, RULES 1, 2, 3, 4 AND 5 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009;
AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT AS PRESERVED BY SECTION 6(6A) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, AS ALTERED.

TAKE NOTICE that this Honourable Court shall be moved on ……… the …….. day of……………… 2020, at the hour of9 0’clock in the forenoon or so soon thereafter as counsel to the Applicant shall be heard praying this Honourable Court for the following reliefs on behalf of the Applicant:

A DECLARATION that sections 5(3),6,8,13(1&2),15,16(6),17(7),19,23,24,29(b), 30,44,45 and 47 of the Control of Infectious Diseases Bill 2020, which is currently being debated at the floor of the House of Representatives of the National Assembly, are draconian, oppressive, and authoritarian, and are in breach, and or are likely to breach the fundamental rights of the Applicant as provided for in sections 34,35,37,38 ,40,41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948,and are therefore unconstitutional, illegal, wrongful and amount to flagrant abuse of the fundamental rights of the Applicant.

AN ORDER OF THIS HONOURABLE COURT declaring the provisions of sections 5(3),6,8,13(1&2),15,16(6),17(7),19,23,24,29(b), 30,44,45 and 47of the Control Of Infectious Diseases Bill 2020, currently being debated at the House of Representatives of the National Assembly, as invalid, illegal, unlawful, unconstitutional, null and void and of no effect whatsoever, as same constitute a gross abuse of the fundamental rights of the Applicant and or will likely be infringing upon the fundamental rights of the Applicant if eventually passed into law.

AN ORDER OF THIS HONOURABLE COURT directing the 1^st -4^th Respondents to delete the provisions of sections 5(3),6,8,13(1&2),15, 16(6), 17(7),19,23,24,29(b)30,44,45 and 47of the Control of Infectious Diseases Bill 2020, currently being debated at the House of Representatives of the National Assembly of the Federal Republic of Nigeria, as same are inconsistent with sections 34,35,37,38,40,41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948 and constitute a gross abuse of the fundamental rights of the Applicant if eventually passed into law.

AN ORDER of injunction restraining the Respondents, whether, by themselves, their committees, their agents, employees, servants, privies and or howsoever called, from further proceeding with, or continuing with further debates, or the law-making processes with respect to sections 5(3),6,8,13(1&2),15, 16(6), 17(7),19,23,24,29(b)30,44,45 and 47of the Control of Infectious Diseases Bill 2020, which provisions breaches and or are likely to breach the fundamental rights of the Applicant as provided for sections 34,35,37,38,40,41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948.

AND FOR SUCH FURTHER OR OTHER ORDERS as the Honourable Court may deem fit to make in the circumstance.

AND TAKE FURTHER NOTICE that at the hearing of this Application, the said Applicant will rely on the affidavit in support ofthis application.

…………………………

REGISTRAR

Dated this 4^thday of May 2020.

……………………….

Okoro Nkemakolam S.C Esq

Moses BisallaBature Esq

Enoch UchennaIbe Esq

BofedeOkporu Esq

Meindinyo Nimi Esq

Hadiza Mohammed (Miss)

Counsel to the Claimant

Suite F37 Melita Plaza

Area 11, Garki,Abuja

For Service on:

The 1^st, 2^nd and 3^rd Respondents,

The National Assembly Complex

Three Arms Zone

Abuja,

The 4^th Respondent

The Attorney General of the Federation

Federal Ministry of Justice

Abuja.

The 5^th Respondent

The Inspector General of Police,

Nigeria Police Force,

Force Head Quarters,

Louis Edet House,

Abuja.

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CS/……../2020

BETWEEN

SEN. DINO MELAYE …………. APPLICANT

AND

THE CLERK OF THE NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC OF NIGERIA

THE CLERK OF THE HOUSE OF REPRESENTATIVES
THE SPEAKER OF THE HOUSE REPRESENTATIVES
THE ATTORNEY GENERAL OF THE FEDERATION
THE INSPECTOR GENERAL OF POLICE

STATEMENT IN SUPPORT OF THE APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS PURSUANT TO ORDER 2 RULE 3 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009.

NAMES AND DESCRIPTION OF THE APPLICANT

The Applicant is by name, Senator Dino Melaye, a Nigerian, a Politician of high repute and former Distinguished Senator of the Federal Republic of Nigeria, of No 11 Sangha Street, Maitama, Abuja.

RELIEFS SOUGHT

A DECLARATION that sections 5(3), 6, 8, 13(1&2), 15, 16(6), 17(7), 19, 23, 24, 29(b), 30,44,45 and 47 of the Control of Infectious Diseases Bill 2020, which is currently being debated at the floor of the House of Representatives of the National Assembly,are draconian,ruthless, oppressive, and authoritarian, and are in breach, and or are likely to breach the fundamental rights of the Applicant as provided for in sections 34,35,37,38 ,40,41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948, and are therefore unconstitutional, illegal, wrongful and amount to flagrant abuse of the fundamental rights of the Applicant.

AN ORDER OF THIS HONOURABLE COURT declaring the provisions of sections 5(3), 6, 8, 13(1&2), 15, 16(6), 17(7), 19, 23, 24, 29(b), 30, 44, 45 and 47 of the Control Of Infectious Diseases Bill 2020, currently being debated at the House of Representatives of the National Assembly, as invalid, illegal, unlawful, unconstitutional, null and void and of no effect whatsoever, as same constitute a gross abuse of the fundamental rights of the Applicant and or will likely be infringing upon the fundamental rights of the Applicant if eventually passed into law.

AN ORDER OF THIS HONOURABLE COURT directing the 1^st -4^th Respondents to delete the provisions of sections 5(3),6,8,13(1&2),15, 16(6), 17(7),19,23,24,29(b)30,44,45 and 47 of the Control of Infectious Diseases Bill 2020, currently being debated at the House of Representatives of the National Assembly of the Federal Republic of Nigeria, as same are inconsistent with sections 34,35,37,38,40,41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948 and constitute a gross abuse of the fundamental rights of the Applicant if eventually passed into law.

AN ORDER of injunction restraining the Respondents, whether, by themselves, their committees, their agents, employees, servants, privies and or howsoever called, from further proceeding with, or continuing with further debates, or the law-making processes with respect to sections 5(3),6,8,13(1&2),15, 16(6), 17(7),19,23,24,29(b)30,44,45 and 47 of the Control of Infectious Diseases Bill 2020, which provisions breaches and or are likely to breach the fundamental rights of the Applicant as provided for sections 34,35,37,38,40,41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948.

AND FOR SUCH FURTHER OR OTHER ORDERS as the Honourable Court may deem fit to make in the circumstance.

GROUNDS FOR THIS APPLICATION

The Applicantwasa former Senator of the Federal Republic of Nigeria, has been vociferous in the condemnation poor governance and acts that infringe on his fundamental rights and indeed that of fellow Nigerians.

The Respondents, especially the Respondents, commenced the process of amending the Quarantine Act CAP Q2 LFN 2004, through a Bill introduced by the Speaker of the House of Representatives, Hon Femi Gbajiabiamila.

The said bill passed the 1^st and 2^nd reading at the House of Representative of the National Assembly of Nigeria on Tuesday 28^th April 2020, with unimaginable speed, despite the lockdown and thereisno known emergency which its provisions are intended to cure, in view of the fact that the Federal Government is already relaxing the lockdown.

By the provisions of the proposed bill, the fundamental rights of the Applicant, as provided for in sections 34,35,37,38,40,41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948 are breached and or are likely to be breached.

Sections 5(3),6,8,13,15,16(6),17(7),19,23,24,30 and 47 of the Control of Infectious Diseases Bill 2020, are in breach and or are likely to breach the fundamental rights of the Applicant as provided for in sections 34,35,37,38,40,41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948.

Except by the intervention of this honourable court, through this application for the enforcement of the fundamental rights of the Applicant, the fundamental rights of the Applicant would be breached if the offending provisions of the bill are not deleted before the passage of the Bill by the National Assembly of the Federal Republic of Nigeria.

The Applicant is a law-abiding citizen who has great respect for law and order and would not do anything to undermine the law, hence this application for the enforcement of his fundamental rights.

The Applicant further adopts the averments in the affidavit in support of this application as part of the grounds upon which this application is brought.

PERSONS DIRECTLY AFFECTED BY THIS APPLICATION

The Applicant

Senator Dino Melaye,

C/O His Counsel,

Nkem Okoro Esq.

Suite F37 Melita Plaza

Area 11, Garki, Abuja

The1st Respondent,

The Clerk of the National Assembly

National Assembly Complex

Three Arms Zone, Abuja

The 2^nd Respondent,

The Clerk of the House of Representatives

Of the National Assembly

National Assembly Complex

Three Arms Zone, Abuja

The 3rd Respondent,

The Speaker of the House of Representatives

of the National Assembly

National Assembly Complex

Three Arms Zone, Abuja

The 4^th Respondent,

The Attorney General of the Federation

Federal Ministry of Justice

Abuja.

The 5^th Respondent,

The Inspector General of Police,

Nigeria Police Force,

Force Head Quarters,

Louis Edet House,

Abuja.

Dated this 4^thday of May 2020.

……………………….

Okoro Nkemakolam S.C Esq

Moses BisallaBature Esq

Enoch UchennaIbe Esq

BofedeOkporu Esq

Meindinyo Nimi Esq

Hadiza Mohammed (Miss)

Counsel to the Claimant

Suite F37 Melita Plaza

Area 11, Garki,Abuja

FOR SERVICE ON THE RESPONDENTS

The 1^st, 2^nd and 3^rd Respondents,

The National Assembly Complex

Three Arms Zone

Abuja,

The 4^th Respondent

The Attorney General of the Federation

Federal Ministry of Justice

Abuja.

The 5^th Respondent

The Inspector General of Police,

Nigeria Police Force,

Force Head Quarters,

Louis Edet House,

Abuja.

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CS/……../2020

BETWEEN

SEN. DINO MELAYE …………. APPLICANT

AND

THE CLERK OF THE NATIONAL ASSEMBLY …. RESPONDENTS

OF THE FEDERAL REPUBLIC OF NIGERIA

THE CLERK OF THE HOUSE OF REPRESENTATIVES
THE SPEAKER OF THE HOUSE REPRESENTATIVES
THE ATTORNEY GENERAL OF THE FEDERATION
THE INSPECTOR GENERAL OF POLICE

AFFIDAVIT IN SUPPORT OF MOTION

I, Sen Dino Melaye, adult, male, Christian, Nigerian citizen of No 11, Sangha Street,Maitama, Abuja, do hereby make Oath and state as follows:

That I am the Applicant in this suit by virtue of which, I am conversant with the facts and circumstances of this case.

That I know as a matter of fact, that on 28^th of April 2020, the Control of Infectious Diseases Bill 2020, which is intended to amend the Quarantine Act of 1926, was introduced by the Speaker of the House of Representatives, Hon Femi Gbajiabiamila.

That the said bill passed the 1^st and 2^nd readings before the House of Representatives on the said 28^th of April 2020. A copy of the Bill is attached herewith as Exhibit DM1.

That I know as a matter of fact, that most of the provisions of the said Bill constitute a flagrant breach of my fundamental rights and or, are likely to breach my fundamental rights.

That I know as a matter of fact that section 5(3) of the Bill, which empowers the Director-General of the Nigerian Center for Disease Control, to compel any person suspected by him, of having an infectious Diseases, to take a medical examination or any test theDirector-General of the National Center for Diseases Control, prescribes and which also allow the DG to forcefully take blood or other samples from the person for purposes of public health surveillance, is in breach and or likely to breach my fundamental rights to privacy and right to respect of the dignity of my human person.

That I also know as a matter of fact, that this section, like the other provisions of this Bill, has nothing to do with whether there is a public health emergency or not.

That I know as a matter of fact that the said section is meant to be a permanent provision of the law, exercisable at any time at the whims of the DG, NCDC, in contravention of my fundamental human rights.

That I know as a matter of fact that section 8 of the said Control of Infectious Diseases Bill, which makes it obligatory for health personnel treating anybody to release to the DG of NCDC,the patient’s medical details and records,is a gross breach of my fundamental rights to dignity of the human person and privacy.

That I know as a matter of fact that my medical records are private to me and should not be published to anyone else whomsoever without my consent.

That the said section 8 of the Bill, which provides for the forceful release of medical records, is likely to breach my fundamental rights to dignity of the human person, and privacy.

That I also know as a matter of fact that section 13 of the said Bill,which empowers the DG of NCDC, to upon mere suspicion, that a person is infected with an infectious Diseases, and or recovered from an infectious Diseases, to arrest the person and detain him for as long as he deems necessary without a warrant or court order at any isolation centre of his choice breaches my fundamental rights liberty and dignity of the human person.

That I know as a matter of fact, that there is every likelihood that I might be a victim of such arrest, and there is every likelihood that my fundamental rights might be breached by the said provision.

That I know as a matter of fact that section 15 of the Bill, which empowers the Minister of Health, to declare any premises whether public or private as an isolation centre without the payment of compensation, infringes or is likely to infringe upon my right to own properties in Nigeria.

That I know as a matter of fact that there is every likelihood that I might be a victim of such arrest and there is every likelihood that my fundamental rights might be breached by the said provision

That I also know as a matter of fact that sections 16(6) and 17(7) of the Control of Infectious Diseases Bill,which makes the decision of the Minister of Health final, infringes upon my fundamental rights to access to the court.

That I know as a matter of fact that sections 16 and 17 of Control of Infectious Diseases Bill, by which the Director-General of NCDC, can declare any building or gathering as overcrowded, and to without any court order or warrant, enter the premises using such force as he deems necessary to disperse the group and close the building, amount to infringement or is likely to infringe upon my rights to freedom of association and privacy.

That I also know as a matter of fact, that section 19(5) of the Bill which makes the decision of the Minister of health final, directly deprives me of the right of access to the court of justice, contrary to the provisions of Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004.

That I know as a matter of fact that section 23 of the Bill, which authorizes or empowers the DG of NCDC, or an enforcement officer of his agency or police, to seize anybody walking on the street whom he merely suspects of having an infectious Diseases, without any warrant is likely to infringe upon my fundamental rights to the dignity of the human person and freedom of movement as provided for in the Constitution of the Federal Republic of Nigeria.

That I also know as a matter of fact that section 30 of the said Bill, which makes vaccination, for no known specific Diseases, compulsory without my consent when I am either leaving or arriving in Nigeria, is likely to infringe upon my fundamental rights to privacy and dignity of the human person as provided for in sections 34 and 37 of the 1999 Constitution of the Federal Republic of Nigeria as amended.

That I know as a matter of fact that section 47 of the Control of Infectious Diseases Bill, whichempowers the DG of NCDC, to direct compulsory vaccination in an outbreak or a suspected outbreak is in breach of, and or likely to breach my fundamental rights to dignity of the human person and privacy.

That I know as a matter of fact, that except this honourable court intervenes, the Control of Infectious Diseases Bill if eventually passed to law, will gravely affect my fundamental rights.

That it shall be in the best interest of justice if this Application is granted as prayed.
That I know as a matter of fact, that the grant of this application shall in no way prejudice the interest of the Respondents.
That I make this solemn declaration conscientiously believing same to be true and in accordance with the Oaths Act, LFN, 2004.

……………….. DEPONENT

Sworn to, at the Registry of the Federal High

Court, Maitama, Abuja, this 4^th day of May,

2020.

BEFORE ME

COMMISSIONER FOR OATHS

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CS/……../2020

BETWEEN

SEN. DINO MELAYE …………. APPLICANT

AND

THE CLERK OF THE NATIONAL ASSEMBLY …. RESPONDENTS

OF THE FEDERAL REPUBLIC OF NIGERIA

THE CLERK OF THE HOUSE OF REPRESENTATIVES
THE SPEAKER OF THE HOUSE REPRESENTATIVES
THE ATTORNEY GENERAL OF THE FEDERATION
THE INSPECTOR GENERAL OF POLICE

WRITTEN ADDRESS IN SUPPORT OF THE APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS

INTRODUCTION

This is a motion on notice brought pursuant to the provisions of Order 2 Rules (1), (2), (3), (4) and (5) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, sections 34,35,37,38,40,41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948, andunder the inherent jurisdiction of this Honourable Court.

The motion which is for the enforcement of the Applicant’s fundamental rights prays this Honourable Court for the reliefs as contained on the face of the motion paper.

In compliance with the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the motion is supported by a statement setting out the name and description of the Applicant, the reliefs sought and the grounds upon which the reliefs are sought. In support of the motion also is a 24 paragraph

This written address is in support of the motion by the Applicant for the enforcement of his fundamental rights.

BACKGROUND FACTS

For the background facts of this case, the Applicant relies on the facts as copiously contained in the affidavit in support of the motion.

2.0. ISSUE FOR DETERMINATION

2.1. The Applicant formulates for the determination of this Honourable Court one sole issue, to wit:

Whether the Applicant’s fundamental rights have been breached and or are likely to be breached by the provisions of the Control of Infectious Diseases Bill 2020, such as will entitle the Applicant to the grant of the reliefs sought from this Honourable Court.

LEGAL ARGUMENTS

It is humbly and respectfully submitted on behalf of the Applicant, that he is entitled to the grant of the reliefs sought from this Honourable Court following the wanton breach, continuing breach and further likely breach of his fundamental rights by the provisions of the Control of Infectious Diseases Bill, 2020.

By virtue of the provisions of section 46(1) of the Constitution of the Federal Republic of Nigeria 1999, the Applicant is seeking for the enforcement of his fundamental rights. Section 46(1) of the Constitution provides as follows:

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.(Emphasis supplied)

We humbly submit that fundamental rights and its nature was described in the case of IGWE V EZEANOCHIE (2009) LPELR-11885 (CA) thus:

“What is a fundamental right? It is a right derived from natural or fundamental, or Constitutional law. See; Blacks Law Dictionary, 8th Edition, page 692. In this country, the fundamental rights of the citizens though acquired naturally, are constitutionally guaranteed. Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria clearly provides for the Fundamental Rights, see; Chief (Dr) O. Fajemirokun vs. Commercial Bank Nig. Ltd. Anor, (2009) 2 SCM 55 at 71, (2009) 37 NSCQR 1 at 27, (2009) 5 NWLR (Pt.1132) 588 at 611.”

The meaning and nature of fundamental human rights was also decided in the case of NIGERIA CUSTOMS BOARD V MOHAMMED (2015) LPELR-25938(CA) thus:

“Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people.

In the case o Ransome-Kuti vs. Attorney General of the Federation (1985) 2 NWLR (Pt.6) 211 at 230 Eso, JSC stated that a fundamental right

“is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”.

It is our respectful submission that fundamental rights are rights derived from natural or fundamental law – IgweVEzeanochie(supra). They are rights that attach to particular individuals who can invoke them, they are of high priority, and compliance with them is mandatory rather than discretionary. Human rights are things which are owed to man because of the very fact that he is a man and are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt. 1389) 607.

The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what is called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights Igwe vs Ezeanochie(supra).

Further on the meaning of fundamental rights, the Supreme Court in the case of RANSOME-KUTI & ORS v. AG FEDERATION &ORS(1985) LPELR-2940(SC), held as follows:

“…what is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitution since independence, starting with the Independence Constitution that is: the Nigeria (Constitution) Order in Council 1960 up to the present Constitution that is the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself. It is not in all countries that the Fundamental Rights guaranteed to the citizen are written into the Constitution. For instance, in England, where there is no written constitution, it stands to reason that a written code of fundamental rights could not be expected. But notwithstanding, there are fundamental rights. The guarantee against inhuman treatment, as specified in Section 19 of the 1963 Constitution would for instance, appear to be the same as some of the fundamental rights guaranteed in England contained in the Magna Carter 1215 – Articles 19 and 40 which provide – “no freeman may be taken or imprisoned, or disused of his freehold or liabilities in free customs or be outlawed or exiled or in any way molested nor judged or condemned except by lawful judgment or in accordance with the law of the land and the crown or its ministers may not imprison or coerce the subject in an arbitrary manner” (Underlining mine) In the United States, the Eighth Amendment to the United States Constitution provides – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

Per ESO ,J.S.C ( Pp. 33-34, paras. B-C )

We humbly refer this honourable court to the Preamble 3 (b) to the Fundamental Rights (Enforcement Procedure) Rules, 2009 which provides follows:

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 rightscited 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;
The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights system,
The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system.
- By the provisions Preamble 3 (b) to the Fundamental Rights (Enforcement Procedure) Rules, 2009, this honourable court is further empowered to respect the provisions of the International Covenant on Civic and Political Right and Universal Declaration of Human Rights which are all cited before this honourable court. We humbly refer this honourable court to the case of CHAIRMAN, LAGOS EXECUTIVE DEVELOPMENT BOARD v. JAMIL SAID &ORS(1967) LPELR-25335(SC), where the apex court held as follows:

”… A preamble may of course be included in an Act so as to make clear the object of the legislature and if there is a preamble, that can be looked at as a guide to the intention of the Legislature if the wording of a provision of the Act itself creates doubt as to what is its meaning, but there is no legal requirement to incorporate a preamble in an Act, be it altering the Constitution or otherwise.” Per LEWIS ,J.S.C ( Pp. 7-8, paras. D-A )

The rights which the Applicant is seeking to enforce before this honourable court are rights as contained in sections 34,35,37,38 ,40 41(1) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement) Act, Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948.
It is our respectful submission that the rights above are likely to be breached by the provision of the Control of Infectious Disease Bill if it eventually passed into law.

We respectfully submit that sections 5(2b) 30,44,45 and 47 of the Control of Infectious Diseases Bill, which provides for compulsory vaccination of individuals, infringes or is likely to infringe on the Applicants dignity as a human person, his right to private and family life and his right to freedom of thought and conscience.

My Lord, with respect to the dignity of human person,we shall be relying on the provision of Section 34(1a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides as follows:

Every Individual is entitled to respect for the dignity of his person, and accordingly;

No person shall be subjected torture, or to inhuman or degrading treatment

We further refer this honourable court to Articles 4 and 5 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, which provides as follows:

Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade,torture,cruel, inhuman or degrading punishment and treatment shall be prohibited.

Article 7 of the International Covenant on Civic and Political Rights provides as follows:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 5 of the Universal Declaration of Human Rights provides as follows:

No one shall be subjected to torture or tocruel, inhuman or degrading treatmentor punishment.

With respect to rights to privacy and freedom of thought and conscience, we most humbly refer my Lord to sections 37 and 38 of the Constitution of the Federal Republic of Nigeria which provides as follows:

The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.

Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

We further refer this honourable court to Articles Articles 8 of the African Charter on Human and Peoples’ Right, which provides as follows:

Freedom of conscience, the profession and free practise of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms

Article 12 of the Universal Declaration of Human Rights provides as follows:

No one shall be subjected to arbitraryinterference with his privacy, family,home or correspondence, nor to attacksupon his honour and reputation. Everyonehas the right to the protection of thelaw against such interference or attacks.

We will further reproduce the provisions of the Infectious Diseases Bill, which provides for forceful medical examination and vaccination of individuals, forceful provision of the medical examination records of an individual, which are all in breach or are likely to breach the fundamental rights of the Applicant as follows:

Section 5(2b) of the Control of Infectious Diseases Bill provides as follows:

For the purpose of any public health surveillance programme, epidemiological investigation or survey under subsection (1), the Director-General may require any person —

to submit to a medical examination at the times the Director-General specifies.

Section 8 of the Control of Infectious Diseases Bill provides as follows:

(1) The Director General may, for the purpose of investigating into any outbreak or suspected outbreak of an infectious Diseases, preventing the spread or possible outbreak of an infectious Diseases, or treating any person who is, or is suspected to be, a case or carrier or contact of an infectious Diseases —(a.) require any healthcare professional to obtain from his patient such information as the Director General may reasonably require for that purpose and transmit such information to the Director General; and(b.) with the approval of the Minister, prescribe by order any general or specific measures or procedures for that purpose for compliance by any healthcare professional, hospital, medical clinic, clinical laboratory or healthcare establishment.(2) Any person who fails to comply with a requirement or an order referred to in subsection (1) shall be guilty of an offence. (3) A patient of a healthcare professional who fails to provide the healthcare professional or a person acting on his behalf with any information sought from the patient pursuant to a requirement under subsection (1)(a) that is within the patient’s knowledge shall be guilty of an offence.(4) A healthcare professional shall comply with a requirement under subsection (1)(a) to transmit information to the Director General notwithstanding any restriction on the disclosure of information imposed by any written law, rule of law, rule of professional conduct or contract; and he shall not by so doing be treated as being in breach of any such restriction notwithstanding anything to the contrary in that law, rule or contract.

Section 30 of the Control of Infectious Diseases Bill provides as follows:

Vaccination and other prophylaxis(1) Every person on an international voyage whether leaving or arriving in Nigeria shall —(a.) have undergone vaccination or other prophylaxis against all or any of the Diseasess as may be prescribed; and(b.) produce valid international certificates of vaccination or other prophylaxis to a Port Health Officer.(2) Notwithstanding subsection (1)(b), a Port Health Officer may require such person to undergo vaccination or other prophylaxis and may subject him to isolation or surveillance for such period as the Port Health Officer thinks fit.(3) The Port Health Officer may, in his discretion, return any person, not being a citizen of Nigeria, who arrives in Nigeria in contravention of subsection (1), to his place of origin or embarkation at the expense of the owner or agent of the vessel by which he arrived in Nigeria.(4) The owner, master or agent of any vessel shall ensure compliance with subsection (1) in respect of any person on board his vessel.

3.25. Section 44 of th Control of Infectious Diseases Actprovides s follows: (1) The Director General may, for the purpose of preventing the spread or possible outbreak of any infectious Diseases in Nigeria, by written order, require all or any persons arriving in Nigeria to undergo any medical examination specified in the order.(2) Any person given an order under subsection (1) who, without reasonable excuse, refuses or fails to comply with the order shall be guilty of an offence.3.26. Section 45 of th Control of Infectious Diseases Actprovides s follows:

(1) During a public health emergency relating to an outbreak of an infectious Diseases declared under section 3(1), the Minister may, for the purpose of preventing the spread of that infectious Diseases out of Nigeria, by written order, require all or any persons leaving Nigeria to undergo any medical examination specified in the order.(2) Any person given an order under subsection (1) who, without reasonable excuse, refuses or fails to comply with the order shall be guilty of an offence.(3) Notice of the Minister’s written order must be published in the Gazette for general information.

Section 47 of th Control of Infectious Diseases Act provides s follows:

In an outbreak or a suspected outbreak of any infectious Diseases in any area in Nigeria, the Director General may by order direct any person or class of persons not protected or vaccinated against the Diseases to undergo vaccination or other prophylaxis within such period as may be specified in the order.
In addition to the power conferred by subsection (1), where it appears to the Director that —
an outbreak of an infectious Diseases in any area in Nigeria is imminent; and
it is necessary or expedient to do so for the securing of public safety, the Director may by order direct any person or class of persons not protected or vaccinated against that infectious Diseases to undergo vaccination or other prophylaxis within such period as may be specified in the order.

It is our respectful submission that subjecting individuals, of which the Applicant is likely to be a victim, to the forceful and compulsory medical examination and vaccination, and also forcefully directingmedical care givers to produce the medical records of individuals of which the Applicant is likely to be a victim, as provided for in sections 5(2b),8, 30,44,45 and 47 of the Control of Infectious Diseases Bill, is a violation and or is likely to violate the fundamental rights of the Applicant as provided for in sections 34, 37 and 38 of the Constitution of the Federal Republic of Nigeria, Articles 4 5 and 8 of the African Charter on Human and Peoples Right, Article 7 of the International Covenant on Civic and Political Rights,and Article 5 of the Universal Declaration of Human Rights. This honourable court is most humbly urged to so hold.
We most humbly refer this honourable court to the case of MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL v. OKONKWO(2001) LPELR-1856(SC),where the apex court held as follows:

“The patient’s Constitutional right to object to medical treatment or, particularly, as in this case, to blood transfusion on religious grounds is founded on fundamental rights protected by the 1979 Constitution as follows: (i) right to privacy: Section 34; (ii) right to freedom of thought, conscience and religion: Section 35. All these are preserved in Sections 37 and 38 of the 1999 Constitution respectively. The right to privacy implies a right to protect one’s thought, conscience or religious belief and practice from coercive and unjustified intrusion; and, one’s body from unauthorised invasion. The right to freedom of thought, conscience or religion implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary to one’s religious belief. The limits of these freedoms, as in all cases, are where they impinge on the rights of others or where they put the welfare of society or public health in jeopardy. The sum total of the rights of privacy and of freedom of thought, conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary. Law’s role is to ensure the fullness of liberty when there is no danger to public interest. Ensuring liberty of conscience and freedom of religion is an important component of that fullness.”

Per EMMANUEL OLAYINKA AYOOLA ,J.S.C ( Pp. 45-46, paras. G-F )

The Supreme Court further held as follows in the case of MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL v. OKONKWO(Supra);

“I am completely satisfied that under normal circumstances no medical doctor can forcibly proceed to apply treatment to a patient of full and sane faculty without the patient’s consent, particularly if that treatment is of a radical nature such as surgery or blood transfusion. So the doctor must ensure that there is a valid consent and that he does nothing that will amount to a trespass to the patient. Secondly, he must exercise a duty of care to advise and inform the patient of the risks involved in the contemplated treatment and the consequences of his refusal to give consent: see Sidaway v. Board of Governors of Bethlem Royal Hospital (1985) 1 A. C. 871.”

Per SAMSON ODEMWINGIE UWAIFO ,J.S.C ( Pp. 70-71, paras. D-A )

It is respectfully submitted that the provisions of sections 5(2b),8 30, 44, 45 and 47 of the Control of Infectious Diseases Bill, which conflicts with the provisions of sections 34,37and 38 of the Constitution of the Federal Republic of Nigeria, and which constitute a breach or are likely to breach the fundamental rights of the Applicant as provided in those sections be declared null and void and of no effect whatsoever. This honourable court is most respectfully urged to so hold.

It is our respectful submission that section 23 of the Control of Infectious Diseases Bill 2020, which did not make provision for how to determine that a person is suffering from infectious Diseases before the person is taken to a hospital.Section 23 of the Control of Infectious Diseases Bill provides as follows:

An enforcement officer, police officer or any authorized officer may apprehend and take, any person suffering from any infectious Diseases whom the officer finds on any street, public, place, shop or public transportation to a hospital.

It is our respectful submission that sections 13(1&2) and 23 of the Control of Infectious Diseases Bill, amounts or is likely to infringe upon the fundamental rights of the Applicant to the liberty of the dignity and liberty of his person and freedom of movement provided for in sections 34, 35 and 40 of the Constitution of the Federal Republic of Nigeria, Articles 4,5,6,10and 12 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act.

Section 13(1&2) of the Control of Infectious Diseases Bill further provides as follows:

(1) The Director General may order any person who is, or is suspected to be, a case or carrier or contact of an infectious Diseases to be detained and isolated in a hospital or other place for such period of time and subject to such conditions as the Director General may determine.(2) The Director General may order any person who is, or is suspected or continues to be suspected to be, a case or carrier or contact of an infectious Diseases, or who has recently recovered from or been treated for such Diseases, to remain and to be isolated and (if necessary) be treated, in his own dwelling place — (a) for such period of time as may be necessary for the protection of the public; and (b) subject to such conditions as the Director General may consider necessary for this purpose.

We respectfully submit My Lord, that section 13(1&2) and 23 of the Control of Infectious Diseases Bill,which empowers the Director-General for Nigerian Center for Diseases Control, upon mere suspicion, that a person is infected with an infectious Diseases and or recovered from an infectious Diseases, to arrest the person and detain him for as long as he deems necessary without a warrant or court order at any isolation centre of his choice, is an infringement or is likely to infringe
upon the fundamental rights of the Applicant to the dignity of his human person, right to freedom of movement and right to the liberty ofhuman person as provided for in sections 34,35 and 41 of the Constitution of the Federal Republic of Nigeria 1999, Articles 3,5,9,12,13 of the Universal Declaration of Human Rights, Articles 7,9,17,18 of the International Covenant on Civic and Political Rights, Articles 4, 5,6,10,12 of African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act.

We respectfully refer this honourable court to the case of COMPTROLLER OF NIGERIAN PRISONS VS. ADEKANYE (1999) 10 NWLR (PT. 623) PG. 400., the Court of Appeal held thus:

“Freedom is no doubt the greatest gift of heritage of man. Omnipotent created man and accorded him with divine freedom. Men are born free with liberty to think what he will to say what he will and to go where he likes; all in a lawful manner, without let or hindrance from any other person, private or government authorities, It therefore follows that, generally, detention of a man by a fellow man is a violation of the law of God and man. I am not oblivious of the fact that there are checks and balances to the series of freedom given to do his exercise of the freedom of another man, his own freedom is limited……..”

It is further our respectful submission that sections15 of the Control of Infectious Diseases Bill 2020, whichempowers the Minister of Health, to declare any premises whether public or private as an isolation centre without the payment of compensation for the compulsory acquisition of such property,is an infringement or is likely to infringe upon the fundamental rights of the Applicant, as provided for in section 44 of the Constitution, Article 17 of the International Covenant on Civic and Political Rights and Article 14 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act.

It is also our respectful submission that sections 16 of the Control of Infectious Diseases Bill 2020, by which the Director-General of the Nigerian Center for Diseases Control, can declare any building or gathering as overcrowded and without any court order or warrant, enter the premises using such force as he deems necessary to disperse the group and may also close the building, amounts to a violation or is likely to violate the fundamental rights of the Applicant as provided for in section 40 of the constitution of the Federal Republic of Nigeria, Article 17 of the International Covenant on Civic and Political Rights, Articles 12,20 of the Universal Declaration of Human Rights, Article 10 and 11 of the African Charter on Human and Peoples’ Right.

It is further submitted that section 16(6), 17(7) of the Control of Infectious Diseases Bill, which makes the decision of the Minister of Health on the issue of closure of premises, directly oust the jurisdiction of the court, and undermines the principles of separation of powers in a federal system of government. The said section 16(6) and 17(7) of the Control of Infectious Diseases Bill 2020, also infringesupon or likely to infringe upon the right to access to a court by the Applicant as provided for in Article 7 of the African Charter on Human and People’s Rights.

We submit with the greatest respect to this honourable court, that the provisions of the Bill for the Control of Infectious Diseases, 2020 if allowed to be passed into law, will breach and or are likely to breach the fundamental rights of the Applicant as provided for in Chapter IV of the Constitutionof the Federal Republic of Nigeria, International Covenant on Civic and Political Rights, African Charter on Human and Peoples’ Rights, and Universal Declaration on Human Rights.

By virtue of the provisions of section 46(1) of the Constitution of the Federal Republic of Nigeria, the Applicant needed not to wait for the actual breach to occur before approaching this honourable court for redress. Section 46(1) of the Constitution provides as follows

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.(Emphasis supplied)

We further refer this honourable court to Order 2 Rule 1 of the Fundamental Rights Enforcement Procedure Rules, which also provides as follows:

Any person who alleges that any of the fundamental rights provided for in the constitution or African Charter on Human ad Peoples’ Rights(Ratification and Enforcement) Act, and to which he is entitled, has been,ie being,or is likely to beinfringed, may apply to the cout in the state where the infringement occurs or is likely to occur,for redress.

It is our respectful submission that the provisions of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act, International Covenant on Civic and Political Rights, Universal Declarations of Human Right, are coated with international flavour consequent upon which they enjoy special recognition far above local legislation or proposed local or municipal law as in this case. This honourable court is respect urged to so hold.

We refer this honourable court to the case of ABIODUN V. AG FEDERATION (2007) LPELR-8550(CA)( Pp. 53-54, paras. D-F) where the intermediate court held as follows:

“The final issue to be considered is whether by virtue of the ouster clause in Section 11 of the Special Tribunal (Miscellaneous Offences) Tribunal Decree, 1984 and Section 2 of the Public Officers Protection Act, 1990, the lower Court lacked jurisdiction. It has since been settled that where there is a conflict between a statute and the provisions of the African Charter, which is a statute with international flavour, its provisions will prevail over those of the other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation. See Abacha v. Fawehinmi (2000) FWLR (Pt.4) 545-546. Article 7 of the African Charter on Human and People’s Rights (Rectification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria, 1990, relevant to this suit stipulates thus: “1. Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.” I therefore agree with learned Counsel that the Appellants’ right of appeal against the judgment of the Tribunal is extant and is no way abrogated by any real or imagined ouster clause. Indeed, the days of submitting helplessly and surrendering wordlessly to draconian laws fashioned for inhabitants of a barracks are happily behind us. Democracy has dawned in Nigeria, and the rule of law prevails where citizens’ right are respected and laws are obeyed. The suit of the Appellants is therefore not caught by the said ouster clause, and I do so find.” Per SANKEY, JCA.(Emphasis supplied)

My Lord, we further respectfully rely on the provisions of section 46(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

“46(1) “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.”

While Section 46 (2) of the same Constitution provides as follows:

“46(2) “subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provision of this section and may make such Orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who made this application may be entitled under this Chapter.

Respectfully, My Lord we submit that the combined effect of the provisions of Section 46 (1) and (2) stated above, empowers this Honourable to entertain this matter and grant the reliefs sought by the Applicant.

Following from the above, we respectfully rely on the case of the Governor of Borno v. BukarGadangari (2016) 1 N.W.L.R (Pt 1493) Page 396 at 417 Paras F-G,where the Court of Appeal held as follows:

“Where any person alleges that any of the provision of Chapter 4 of the Constitution (supra) has been, is being or likely to be contravened in any state in relation to him, may apply to the Federal High Court or a High Court in the State for redress…”

My Lord, we humbly submit that by virtue of Section 6(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that gives unlimited powers of adjudication to the Judiciary, this Court is statutorily empowered to look into the case of the Applicant herein. We humbly refer this honourable court to the case of AHMAD VS. S.S.H.A (2002) 15 NWLR at Page 546, the Court of Appeal held as follows:

“By virtue of Sub-Sections (1) and (2), the Constitution recognizes the inherent powers of the Court. There is no provision in this Constitution similar to these sub-sections in respect of the other branches of Government; that is the legislature and the executive.”

Similarly, we rely on the case of OJUKWU VS. GOVERNOR OF LAGOS STATE (1996) 1 NWLR (Pt. 18) 621 wherein Obaseki JSC held as follows:

“…The Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion to the case in hand, the rule of law means that disputes as to legality of acts of government are to be decided by judges who are wholly independent of the executive. See wade on Administrative Law 5^th Edition P.22-27. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree NO.1 of 1984 and No.17 of 1985.

The Judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigerian. The law should be even-handed between the government and citizens”

We can see that the objective of the rule of law is to balance the powers of Government and its Agencies and the rights of its citizens and between the arms of Government. It is evergreen. It does not change. It does not fade nor wane.

The facts before the Court as deposed to, in the Applicant’s Affidavit show that aside from the fact that the Respondents are likely to be in flagrant breach of Sections 34, 35, 37 and 40(1) of the Constitution of the Federal Republic of Nigeria 1999, and the provisions of the African Charter on Human and Peoples’ Right(Ratification and Enforcement) Act, their actions are also likely to infringe upon the fundamental rights of the Applicant herein.

It is our humble submission that the Applicant having established that hisfundamental rights are likely to be breached by the conducts of the Respondents,he is entitled to the redress in the terms claimed. This honourable court is most respectfully urged to so hold.

Following from the foregoing, it is the duty of this Honourable Court to prevent the infringement or the likely infringement of the fundamental rights of the Applicant herein. In Adeleke Vs. O.S.H.A (2006) 16 NWLR (Pt. 1006) 608 at 670 paras F – H, 671, Ogebe JCA observed as follows:

“A Court of law cannot close its eyes to the infringement of the Constitution. It is the primary custodian of the Constitution and if any arm of the government, including the Court itself, acts unconstitutionally, the Court has inherent power under section 6(6) of the 1999 Constitution to intervene”.

CONCLUSION

We urge and pray your lordship to hold that the Applicant has supplied enough factual materials for the grant of the reliefs sought before this honourable court.
We respectfully urge your lordship to grant all the reliefs sought.

We are most obliged.

LIST OF CASES

TERIBA VS. ADEYEMO (2010) ALL FWLR (PT. 533) @ 1869 PAR. 18773 RATIO 9

EKANEM VS. AKPAN (1991) 8 NWLR (PT. 211) 616;

ADEDEJI VS. NATIONAL BANK (NIG) LTD (1989) 1 NWLR (PT. 96) 212;

IBEKWE VS. MADUKA (1995) 5 NWLR (PT. 392) 716;

FBN PLC VS. MAY MED CLINICS AND DIAGNOSTIC CENTRE LTD (1996) 9 NWLR (PT.471) 195;

SERIKI VS. ARE (1999) 3 NWLR (PT. 595) 469

OYEWOLE FASHAWE VS. ATTORNEY GENERAL OF THE FEDERATION & 3 ORS (2007) CHR 80 @ 100 PARAS C-D.

JOHNSON VS. LUFADEJU & ANOR. (2002) 8 NWLR (PT. 768) @ 192.

AHMAD VS. S.S.H.A (2002) 15 NWLR pg 546

MUSKRAT VS. UNITED STATES, 219 U.S; 346 @ 361 (1911)

UZOUKWU VS. EZEONU II (1991) 6 NWLR (PT. 200) 708 @ 761-763

FCDA VS. JOSHUA GYUHU SULE (1994) 3 NWLR (PT. 332) 257,

BELLO VS. THE DICESEAN SYNOD OF LAGOS (1973) 3 E.C.S.C.R (PT. 2) 330 @ 334.

FAJEMIROKUN VS. CB (C.L.) NIG LTD (2002) 10 NWLR (PT. 774) C.A.AS @111-112 per J.G.C;

EJIOFOR VS. OKEKE (2002) 7 NWLR (PT. 665) 363

COMPTROLLER OF NIGERIAN PRISONS VS. ADEKANYE (1999) 10 NWLR (PT. 623) PG. 400

Dated this 4^th day of May 2020

……………………….

Okoro Nkemakolam S.C Esq

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