Category: Law

Humans rights are rights that every individual is entitled to irrespective of background, sex, colour, religion, etc. In Nigeria, these rights are well enshrined in sections 33-46 of the Constitution. The Fundamental Rights Enforcement Procedure Rules (hereinafter referred to as FREP Rules) is the principal mechanism of enforcing human rights claims in Nigeria. 

Under the old law of the 1979 FREP Rules, the principle of law was that only the aggrieved party whose right has been violated or is likely to be violated can maintain an action for the enforcement of his human rights. As such, this rule resulted in substantial justice being undermined by legal technicalities and was highly detrimental to public interest litigation.

To ameliorate the situation, Lord Kutigi, the then Chief Judge of Nigeria, acting on the power conferred on him by Section 46(3) of the 1999 Constitution made the 2009 FREP Rules. One of the progressive provisions of this new law is that it encourages public interest litigation. In other words, it widens the scope of people who can maintain an action for human rights violations. 

Under Public Interest Litigation, it is not necessary that the Applicant has suffered some injuries of his own or has had a personal grievance to litigate. As such, third parties like NGOs, can maintain an action for an aggrieved party.

The preamble of the FREP Rules 2009 states that an 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 person. Anyone acting in the public interest and Association acting in the interest of its members or other individuals or groups.

Having laid the foundation, the legal question then is, can the constitutional right to life of a dead person be enforced by his dependents? The courts have in a plethora of cases held in affirmative.

In Shobayo v COP Lagos State, (Suit No.ID/760m/2008), the applicant who was the wife of the deceased succeeded in an action brought against the torture, detention, and unlawful killing of her husband by some police officers. The Court gave an elaborate dictum thus:  “Insisting that only the citizen subject of an infringement can approach the court when such a right is violated would create an absurdity. This would imply the non-realisation of a fundamental right expressly created by the Constitution. This is more so in relation to the right to life when already contravened, for in this case, the citizen victim of the deprivation would have been dead. Restricting redress for violation of the fundamental right to life is antithetical to the letters of the Constitution and to avoid this anomaly, the next of kin of such deceased citizens must be permitted to enforce the right so allegedly deprived. The depositions before the Court indicate that the Applicant was the wife and next of kin of the deceased, who reportedly died in custody of the Respondent. Denying her the right to maintain the action would create a situation never contemplated by the framers of the Constitution, as an unenforceable right would thus have been created. The Applicant without contradiction was the wife of the deceased, a relationship not too distant to fathom. That she will be affected by the deprivation of life of her husband goes without saying. The wife of a deceased whose right was supposedly violated would naturally be affected by the violation and comes within the purview of persons affected by the infraction who, pursuant to Section 46(1) of the Constitution, approach the Court for redress.”

Orjieh V. The Nigerian Army & Ors is another case, where the principle that the constitutional right of a dead person could be enforced, was also reaffirmed. In that case, the Applicant prayed the Federal High Court for a declaration inter alia that the fatal shooting and killing of her husband by a soldier, was a gross violation of the deceased fundamental rights to life and dignity of his human person “contrary to Sections 33 (1) and 34(1) (a) of the 1999 Constitution and Articles 4 and 5 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, LFN 2004, and therefore, unconstitutional and illegal”. The Court entered judgment in favour of the Applicant and awarded her N300million as general and/or exemplary damages/compensation for the breach of her deceased husband’s Fundamental Right to life and dignity of his person.

Other judicial decisions that reiterated this principle are Omonyahuy v IGP &Ors (2015) LPELR-CA/L/493/13 and a 2022 case of NSCDC, Benue State Command & Anor v Samuel (2022) LPELR-56933(CA). From these cases, the established patterns seem to be that these unlawful deaths resulted from the hands of law enforcement officers.

Nevertheless, it is pertinent to state that in order to sustain an action for the enforcement of Fundamental Rights, the main or principal claim in an applicant’s process must be hinged on breach of any of the Fundamental Right as guaranteed by the 1999 Constitution. It must not be an ancillary claim else such action will be deemed as being outside the scope of the Fundamental Right proceedings and therefore incompetent as held in WAEC VS AKINKUNMI (2008) 9 NWLR (PT 1091) 151; TUKUR VS GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT.510) 549.

In conclusion, the change brought by the 2009 FREP Rules is a progressive one and reflects the modern trends in human rights actions. In addition, the kind of hooge monetary compensation awarded by the Court to the dependents is also commendable to cushion the absence of the deceased. Relying on the old FREP rules would have worked hardship on every dependent who would be left with no compensation save from the criminal action instituted by the state which itself is not a personal remedy.

Thank you for reading. See you next week.

In law, suspension and termination of employment are two clear distinct terminologies. One cannot be a substitute or synonymous with the other. In Esiaga v  University of Calabar (1999) 4 NWLR (502) 719, 723,  the Court held that “the word suspension cannot be construed to mean “terminate”, “extinguish”, or “bring to an end”. It means, “To cause to abate for a while or halt midway but not to bring to an end”. It always connotes a state of affairs that should wait until a certain event takes place.“

Also in Longe vs. FBN Plc. (2006) 3 NWLR (Pt. 967)228, the court held that “the word “suspension” means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure that keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline.”

The legal question which arises is that, is a suspended employee entitled to wages during the period of suspension? This question is fundamental as it concerns the status of an employee who has been suspended from his employment either for a fixed term or indefinitely, as the Respondent in this appeal. This question came up for determination in a 2022 recent case of Globe Motors Holdings (NIG) LTD v Oyewole (2022) LPELR-56856(CA).  

The fact of the cases are as follows:

The Respondent was employed by the Appellant on 2nd September 1999 as an auto mechanic and the appointment was confirmed on 19th January 2001. He was appointed as foreman of the Honda section of the Appellant on 1st March 2005 but was placed on indefinite suspension via a letter served on him on 11th September 2007. He was neither recalled from the indefinite suspension nor his appointment formally terminated by the Appellant. 

He decided to approach the Citizens Mediation Centre of the Lagos State Ministry of Justice with his complaint on 25th October 2011. The Centre’s invitation to the Appellant was not responded to. Earlier on 5th September 2011, he sought the legal assistance of the Office of Public Defender where he sent a Petition against the indefinite suspension. On 1st March 2012, the Office of Public Defender invited the Managing Director of the Appellant for a meeting but the meeting did not yield any result. 

This prompted the filing of the action at the lower Court by the Office of Public Defender in which the Respondent as Claimant sought the following reliefs:

1. Salary arrears for September 2007 – September 2011: N1,680,000.00 (One Million Six Hundred and Eighty Thousand Naira only).

2. General damages: N200,000.00 (Two Hundred Thousand Naira only).

Aggrieved by the decision of the lower court, the appellant appealed to the Court of Appeal.

On this issue, the Court of Appeal held that pending an employee’s recall or dismissal, a suspended employee is entitled to his wages or salary during the period of suspension unless the terms of the contract of employment or the letter of suspension itself are specific that the suspended employer will not be paid salaries during the period of suspension. The rationale behind this principle is that since suspension is not a termination of the employment contract nor a dismissal of the employee, then an employee is still in continuous employment of the employer until he is recalled or formally terminated or dismissed. As such, like every other worker, a suspended worker is entitled to his wages. See also Bamidele v NJC (2012) LPELR-8381(CA)

In addition, once the contract of employment is silent on the payment of salary during the period of suspension, the law would infer the presumption of emolument in favour of the worker. However, where such a clause exists, then, it takes preeminence. This is as a result of the fact that parties are prima facie bound by the terms of their agreement.

Furthermore, the right to wages is the most important right of an employee which should not be affected by the indefinite suspension. However, due to the disequilibrium of power between employers and employees in Nigeria, the former tend to deprive the latter of this right. In most instances, the former would intentionally choose not to get back to the affected workers. This has subsequently worked hardships on the workers.

In conclusion, this decision is in sync with rational thinking and it is a progressive one from the Court of Appeal which aims to limit the unequal power that an employer has over his employees and protect the dignity of workers in Nigeria. And it is pertinent to state that until and unless this principle is changed by the Supreme Court, this remains the law in Nigerian Labour Jurisprudence.

Thank you for reading. See you next week.🥰  

Simply put, family land is a land which belongs to the family as a whole with no member having a separate claim to the property. Family land was defined by the Supreme Court in the case of Olowosago v. Adebanjo (1988) NWLR Part 88 Page 275 at 287 Para A-B per Karibi-Whyte JSC as: “the concept of family property is original to our indigenous society, and is the bedrock of our law of inheritance. It is regarded correctly as the cornerstone of our indigenous land law.“

Furthermore, the management and control of anything relating to the family land are usually vested in the family head and principal members of the family. The questions then become: can the family head sell the family land without recourse to the family members and can any member of the family transfer the ownership in the land to a another party without the consent of the family head and principal members? 

On the first question, there are two legal consequences: one, when a family head misrepresented the family land as his property, such a sale is void abinitio. The rationale behind this is that the property doesn’t belong to him and as such, he can’t transfer ownership. This principle received a judicial blessing in Solomon & Ors v Mogaji & Ors (1982) 11 S.C. 1. 

On the second legal consequence, if the family head sells the family land on behalf of the family, such a sale is voidable, that is, valid until being rejected. In Okonkwo v Okonkwo (1998) LPELR-SC.44/1992, the Court held that: the law is that a sale of family land which the head of the family carries out as such head of family, without some principal members of the family is only voidable but not void at the instance of the non-consenting principal members of the family provided such non-consenting members acted timeously and are not caught by laches.

In addition, in Salako v Dosunmu (1997) 12 NWLR (pt. 531) 56, the Court held that: “it is, therefore, the law that where the head of a family alone sells family land without the consent of the principal members of the family, the sale is not void but prima facie voidable. Such sale can therefore be set aside at the instance of the family”. 

From this, it is evident that a sale of family land by the family head would amount to either void or voidable depending on the capacity in which he represented himself.  On the distinction between voidable and void sale of family land, Oputa JSC (as he then was) in Adejumo v. Ayantegbe (1989) 3NWLR (Pt.110) Pg 417 at 451 Para. E held as follows: the distinction between a transaction which is void and one which is only voidable is that if a transaction is void, it is in law a nullity, not only bad but incurably bad and nothing can be founded on it, for having no life of its own, it cannot vivify anything. But if a transaction is voidable, it has some life and it remains good until set aside.

Moving on to the second leg of the question, it is pertinent to state that any member of the family does not have the authority, whether in the personal or official capacity, to sell a family land. Such a sale is always void abinitio. On this principle, there have been a plethora of decisions. In Fayehun v Fadoju (2000) 6 NWLR (pt 661) 378  the Supreme Court, per Karibi-Whyte (as he then was) page 404 had this to say: “a sale of family land by a member of the family without the consent of the Chief or head of the family is void ab initio. It is an essential customary element that the head of the family must join in the sale of family property together with the principal members of the family for such transaction to become valid.”

Hence, in a 2019 case of Offodile v Offodile & Ors (2019) LPELR-SC.318/2009, the disputed land comprises the 25 plots which were sold to the 6th defendant/respondent without the consent of the plaintiff/appellant, the only surviving direct son of Chief Ozo Offodile, who is the head of the said Chief Ozo Offodile family in accordance with the Awka native law and custom. The Supreme Court, overturning the decision of the High Court and Court of Apeal, held that the sale was void abinitio. 

In conclusion, the family head is the caretaker and not the owner of the family property. Bearing in mind that ownership doesn’t reside in him, he cannot transfer such to another party by acting arbitrarily or with selfish interest. Also, any member of the family doesn’t have any right to sell the family property. Thank you for reading. See you next week.