Court to Deliver Judgment March 15, in Suit Seeking Enactment of Disability Law in Nigeria

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Daniel Onwe

A Federal High Court Lagos, has fixed March 15, to deliver judgment in a suit by a physically challenged lawyer, Mr Daniel Onwe, contesting the non-enactment of a disability law in Nigeria.

Onwe, had commenced the suit against the President of the Federal Republic of Nigeria, and the National Assembly in 2014, over alleged failure to enact a law protecting the rights of persons living with disabilities in the country.

The applicant also demands broad interpretation of the constitutional rights to dignity of human person, freedom of expression, Association, and freedom of movement, to accommodate the peculiarities of persons with disabilities.

The court reserved judgment until March 15, after hearing arguments from the applicant as well as a preliminary objection to the suit.

In continuation of his argument to the substantive suit, Onwe said that it was incontrovertible that the absence of a legislation to provide for the peculiar needs of persons with disabilities amounts to a violation of their fundamental rights.

He further argued:

“ It appears  that the fundamental rights as enshrined in chapter IV of the 1999 Constitution may be generally applicable to all, as it presupposes that the playing field is level for all.

“However, for persons living with disabilities, the playing field is by no means level; the truth must be told, and the truth is that by reason of their disabilities, they are put at a disadvantaged position vis a vis other members of the society.

“Yet, they are required to compete for the same limited opportunities in the society; For instance, lets look at a school that has its libraries, lecture and examination halls upstairs, without lift or any other  access facility, which is typical in Nigeria.

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“An ordinary student can go to such library, lecture and exam halls without stress, but to a student with disability confined to a wheelchair or wobbling on crutches, it is a totally different kettle of fish.

“The said example is equally relevant to a scenario where the Applicant, for example, a lawyer with disability would have to ascend flights of steep steps to do a matter in a courtroom upstairs, where there are no lifts or any accessible facility.

“The forgoing instances raises a number of human right issues. One, there is the issue of discrimination, as the person with disability is less advantaged than others, and this runs contrary to the spirit of section 42 of the 1999 Constitution which prohibits discrimination.

“Secondly, should the person with disability dare to ascend the flight of steps, it would be indeed a torturous experience for him, especially like in the case of the applicant who is a lawyer.

“Supposing the person is on a wheelchair, it become even worse, in that he would be bundled upstairs most likely at the full glare of his clients. What a degrading experience.

“This offends section 34 of the Constitution. Persons with disabilities are a class of vulnerable persons; their protection from human rights violation cannot be achieved by default, but by appropriate and specific legislation.

“This has been the practice in other countries across the globe and Nigeria cannot afford to be the odd one out,”

Onwe, therefore, urged the court to grant the reliefs sought in the applicant’s suit.

Meanwhile, counsel to the respondent, Mr H. Shittabay, also argued his preliminary objection, urging the court to dismiss the suit for lack of jurisdiction.

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He argued that the thrust of the applicant’s suit falls within the purview of chapter two of the 1999 constitution rather than chapter four which borders on fundamental human rights.

Citing the provisions of order 4 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, respondent’s counsel, argued that the applicant’s suit ought to have been commenced by an originating motion, instead of a motion on notice.

He argued that the error rendered the suit incompetent and oust the jurisdiction of the court to hear same; he urged the court to decline jurisdiction to hear the suit.

Counsels also adopted their written addresses before the court.

After listening to the submissions of counsel, Justice Ayokunle Faji adjourned the case until March 15 for judgment.

The applicant’s suit was first assigned to Justice Mohammed Yunusa, and later to Justice Jude Dagat after the transfer of Yunusa from the Lagos division of the court.

Again, following the transfer of Dagat out of the Lagos division, the suit was re-assigned to Justice Mohammed Aikawa.

On Feb. 2, 2017, Justice Aikawa struck out the suit after the applicant informed the court that he was withdrawing same.

The applicant’s withdrawal was sequel to a preliminary objection raised by the respondent, that the processes were not properly endorsed for service outside the jurisdiction of the court.

The applicant however, re-filed the suit on Feb. 9, 2017, seeking similar declarative reliefs.

The suit numbered FHC/LA/CS/168/17 was then assigned to Justice Ayokunle Faji.

Onwe argues that the absence of a disability law, amounted to a violation of  the rights of the physically challenged, who he estimates at over 23 million in the country.

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The lawyer is therefore seeking an order, mandating the respondent to immediately enact the necessary laws to protect the rights of persons living with disabilities.

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