Can the Fundamental Rights of a Deceased be Enforced in Nigeria? – Balogun Sofiyullahi

Balogun Sofiyullahi

“Now, it is a juristic truism that courts exist for the purpose of dispensing justice to all manner of persons. Thus, litigants who beseech this temple with supplications, do so in the hope of encountering justice, which is: elevated on her proud and lofty throne, [where] she sits visibly elegant and dignified, a comfort and an asylum to the oppressed, a sure and guaranteed hope for the innocent.” (Justice Centus Nweze)

Besides ,  the Courts of Law are adorned and respected not only because they are considered as the bulwark of the citizens’ fundamental rights or as a result of the inherent powers they possessed but more importantly, because “the respect extended to the courts , said Nweze, is an outward expression of the continuing fidelity to the pact embodied in the social contract, when the citizens conceded substantial parts of their sovereignty to government”.

In the legal hemisphere however, the notoriety of the terminology “person” is beyond speculation that it means a natural person (human being) and juristic person (artificial person i.e., companies, corporations etc.) but the question (to be answered later)  if I may pause to ask is: does the terminology ‘person’ (in law)  admit of a ‘deceased’ within the purview of enforcement of fundamental rights under the Nigerian Constitution, so as to give the Courts the power to do ‘justice’ to the deceased ?

However, before the thrust of this paper is delved into, this writer intends to take (as his own)  the liberty of the words of Lord Denning M. R in “Personal Freedom”  that: “I have come…to speak as it were, to the common people of [Nigeria]…and to further amongst them,  the knowledge of their laws, so that they may realize their privileges and likewise their responsibilities. So if I refer to matters which you know full well,  I hope you will forgive me”.

The Concept of Fundamental Human Rights in Nigeria

The fundamental rights/bill of rights provision is found in chapter IV of the 1999 Constitution of the Federal Republic of Nigeria which they have been guaranteed as inviolable. The Supreme Court brought to limelight the importance of its preservation in the Constitution, in the case of Ransome-Kuti v. A.-G. Fed. (1985) NWLR (Pt.6) 211 where Justice Kayode Eso (as he then was)  held that :

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 civilised 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.”

However,  this is not to posit that there are no other Human Rights international instruments that had been validly domesticated into Nigerian Law like the African Charter On Human And Peoples’ Rights (Ratification And Enforcement) Act, Child Rights Act, 2003 amongst others. But the basic distinction is just that the rights contained in the Constitution are regarded as being” fundamental” while those ones contained in other enactments are regarded as “human rights”, simpliciter. The basic similarities in the rights, notwithstanding.

Fundamental Rights Enforcement

In order to ensure and guarantee the enforcement of those rights, Section 46(1) of the 1999 Constitution provides:

ALSO READ   A Critique of Pro-bono Services in the Administration of Criminal Justice in Nigeria Ifeanyi Agwuncha

“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 for redress”. See also Order II Rule 1 of the Fundamental Rights Enforcement Procedure Rules, 2009.

It is pertinent to observe that the above provision merely recognizes a single individual (by employing words like ‘any person’, ‘alleges’ and , ‘to him’) as being the only person that can bring an application for the enforcement of his fundamental rights, notwithstanding the fact that circumstances abound wherein rights of more than one person could be violated at a time.

In the case of KPORHAROR & ANOR v. YEDI & ORS (2017) LPELR-42418(CA), it was held:

“The adjective used in both provisions in qualifying who can apply to a Court to enforce a Right is “any” which denotes singular and does not admit pluralities in any form. It is individual rights and not collective rights that is being talked about. In my humble view, any application filed by more than one person to enforce a right under the Fundamental Rights(Enforcement Procedure) Rules is incompetent and liable to be struck out.”

See also R.T.F.T.C.I.N. VS IKWECHEIGH (2000) 13 NWLR Part 683 at Page 1; OKECHUKWU VS ETUKOKWU (1998) 8 NWLR Part 562 Page 511. Consolidation of similar applications may however be ordered pursuant to a Court order, as a condition precedent. See Order VII of the Enforcement Rules, 2009.

However, to further facilitate the speedy realization of the enforcement of those rights,  section 46(3) further provides :

“The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.”

It is sequel to the above provision that the Fundamental Rights Enforcement Procedure Rules, 2009 (as amended)  came into being till today. The intricate issue of law however is that the Supreme Court had held in a host of cases like WAEC v. Akinkumi(2008)9 NWLR (pt. 1091)151 SC; (2008)LPELR-SC.337/2002   that :

“The law on the point , is well settled, is that only actions founded on a breach of any of the fundamental rights guaranteed in the constitution can be enforced under the Rules(FREP Rules). It is also a condition precedent to the exercise of the court’s jurisdiction that the enforcement of fundamental right or the securing of the enforcement should be the main claim and not an accessory claim.(underlining and emphasis mine) .

See also Tukur v. Govt. of Taraba State(1997) 6 NWLR (pt.510)549; FBN PLC v. AG Federation(2014)12 NWLR (pt. 1422)470;Obiegue v. AG Fed(2014)5 NWLR (pt.1399)171; Sea Trucks (Nig)Ltd v. Anigboro(2001)2 NWLR (pt. 696)159; Egbuonu v. Bonjo Radio Television Corporation(1997) 12 NWLR (pt.531)29;Okechukwu v. EFCC(2015)18 NWLR pt.1490 pg 1.

Can The Fundamental Rights of a Dead Person be Enforced  ?

Generally speaking,  the law is tolerably settled (as stated earlier) that fundamental rights can be enforced by both natural persons (I. e human beings) and juristic persons (companies, corporations etc). See the cases of  Onyekwulujue v Benue State Government (2005) 8 NWLR (Pt 928) 614.See also the Indian cases of  Chitranjit Lal Chowduri v. The Union Of India And Others 1951 AIR 41, Jupiter General Insurance Company v. Rajagopalan and Anothers AIR 1952 P H 9 and the famous United States of America Supreme Court case of Santra Clara County v. Southern Pacific Railroad 118 U.S. 394 (1886)

 A line must be drawn  that there are some specific rights that can only be enforced by human beings  like ‘right to life’, ‘personal liberty’ etc. See the Supreme Court of Indian decision  in State Trading Corporation of India Ltd & others v. The commercial tax officer, Visakhapatnam and others 1963 AIR 1811. It is modestly submitted that the position in United States of America and India is much more the same like in Nigeria.

ALSO READ   On the March to 2018 NBA Election - PAU Goes to School

However,  the simple but vexed question of seeming forensic disputation is whether a dead person’s fundamental rights can be enforced. It is firmly submitted that the answer is in the affirmative.

At this point,  a critical appraisal of some provisions in the Fundamental Rights Enforcement Procedure Rules,2009  is of considerable significance bearing in mind that it has a strong force of law because it derives validity from the Supreme law of the country.  See Trade Bank Plc. v. Lagos Island Local Government Council(2003) FWLR (pt. 161)@1734

The Preamble to the Fundamental Rights Enforcement Procedure Rules ,2009 provides in part:

3(a) :The Constitution especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them

(e) The Court shall encourage and welcome public interest litigations in the Human rights field and no human rights case may be dismissed or stuck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organisation, may institute human rights application on behalf of any Applicant. In human rights litigation the Applicant may include any of the following –

(i) Anyone acting in his own interest

(ii) Anyone acting on behalf of another person.

(iii) Anyone acting as a member of, or in the interest of a group or class of persons

(Iv) Anyone acting in the public interest and Association acting in the interest of its members or other individuals or groups.(emphasis mine)

In DILLY v. I.G.P & ORS (2016) LPELR-41452(CA), the mother of the deceased person sought before the High Court to enforce the ‘right to life’ of her son who died in police custody. The trial High Court dismissed her application for want of ‘locus standi’ and that only a ‘living’ can enforce the rights under the Constitution. Happily on an appeal, the decision of the High Court was upturned.

At this point,  I humbly crave to quote in extenso from the decision of the Court of Appeal in the recent case of DILLY v. I.G.P & ORS (supra), where Justice Nimpar (JCA)  held :

If therefore public interest litigation is now allowed under the extant rules and no application should fail for want of locus standi,on what basis can the application by the Appellant fail on the ground that the mother of the deceased lacks the locus standi to make the application? Would the fact that the victim is deceased deny his next of kin the right to litigate the breach of that right to life? …Indeed, rights are personal but in enforcing the said right, a busy body is welcomed with open arms by the extant rules made by the Chief Justice of Nigeria in 2009. Public litigation and representative action is allowed and therefore the trial judge erred in this regard.”(underlining mine)

His Lordship continued:

“One might ask if representation is not allowed how then can violations to right to life be redressed when the victim of the deprivation would have been dead? Right to life is in a class of its own because its violations range from attempt which is a process before full violation occurs which is when violation is completed. Before completion, the person can act for himself. When, however, such violation has gone to the irreversible stage such as death, then, such can only be litigated by a next of kin. Failure to accommodate this special class of right and its peculiarities will be against the grain of the Constitution because that is the only right that can be redressed in the absence of the possessor of the right. The right to life of a dead person can be litigated in the Court. Failure to address such violations will create a monstrous situation where infractions will continue unabated and without redress thereby reducing such fundamental right to chasing shadows or holding the wind. And definitely, it will be contrary to the constitutionally guaranteed right to life, the African Charter on Human Rights and United Nations Universal Declaration of Human Rights, 1948 too. No Court should be part of such retrogressive jurisprudence of human rights.”

The learned Law Lord expressed the view that he was persuaded by the decision of OYEWOLE, J (as he then was) in the case of SHOBAYO V. C.O.P., LAGOS STATE in Suit No. ID/760M/2008 delivered on the 15/1/2010, wherein a similar decision was given by the High Court of Lagos State.

ALSO READ   Court of Law Must Not Always Refuse a Claim on Plea of 'Illegality'

It is humbly submitted that the reasoning of the Court of Appeal is to my mind completely unassailable because if compared with the position of the Supreme Court in the case of ALIU BELLO & ORS V. ATTORNEY-GENERAL OF OYO STATE(1986) LPELR-SC.104/1985, where Justice Karibi Whyte JSC (as he then was)  took a similar stance that :

 “… action will lie for the violation of the right to life in Section 30 by or on behalf of any person who has an interest in the continued existence of the deceased. It is a cause of action separate and distinct from the cause of action that might have vested in the deceased himself or onhis estate.”

Based on the foregoing discourse, the inevitable conclusion is that the fundamental rights of a dead person can be enforced and it is submitted that this is a good law.


The purposive interpretation given to the provision of section 46(1) of the 1999 Constitution by our Courts in order to give ‘life and effect’ to the rights sought to be guaranteed by accommodating the enforcement of the fundamental rights of a dead person is indeed commendable.

It is submitted that Lord Denning’s profound dictum that “I do not have patience with ultra legalistic interpretation” seems to have laid down a purposive judicial approach to the interpretation of statutes which the (judicial activism) trend, had been long accepted by our Courts in Nigeria. See Nafiu Rabiu v. Kano State(1980)8-11 SC

Finally, it is the considered but settled view of this writer that the position on the purposive and liberal interpretation of section 46(1) of the Constitution as we had examined above, is unassailable because viewed from the eloquent dictum in the case of Minister of Home Affairs v. Fishers (1980) AC 319  where it was stated that :

The judicial activism approach or ideology found solid anchorage on the principle that recognizes the character and origin of the Constitution as the fundamental law of a State.  It takes guidance from the principle of giving full effect and recognition to those fundamental rights and freedoms with a statement of which the Constitution commences.”

Balogun Sofiyullahi writes from Faculty of Law, Ahmadu Bello University, Zaria. Email:




Please enter your comment!
Please enter your name here