Legal Validity Of The FHC Practice Direction Introducing Payment Of “Default Fees” in Fundamental Rights Enforcement Matters

The Federal High Court of the Federal Republic of Nigeria has reportedly, issued a new Practice Direction reviving payment of monetary claims and default fees in cases bordering on fundamental human rights. The new Practice Direction which was issued and came into force on 26 October 2021, reads, “In exercise of the powers conferred on me by Order 57 Rule 3 of the Federal High Court (Civil Procedure) Rules 2019, I, John Terhemba Tsoho, The Honourable, The Chief Judge of the Federal High Court of Nigeria hereby make the following Practice Directions for the Federal High Court of Nigeria for matters pertaining to or arising from default in filing of processes under the Fundamental Rights (Enforcement Procedure) Rules 2009″. ORDER II Rule 1 of the New Practice Directions, dealing with “PAYMENT OF DEFAULT FEES” provides as follows: “Any process filed outside the time provided for in the Fundamental Rights (Enforcement Procedure) Rules, 2009, shall be liable to default fees as provided in Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2019”. (See: “Federal High Court Rescinds Practice Direction, Revives Payment Of Default Fees In FREP Cases in Thenigerialawyer of 28 October 2021).

Now, during LDP-Discussions of/on the said new practice direction, a question struck me as very vital. Asked by a great LPDite (member, Legal Practice Discourse) and former AG of Oyo State Nigeria, Michael Lana, Esq, the question reads: “Does the CJ of FHC possess the necessary vires to issue practice direction on a matter on which he has no right to make rules?”.
This question is the most apt because, as I said earlier, “An ultra vires act is going to be totally void and it’ll not bind anyone; is not enforceable. Besides, any person with requisite locus standi (legal standing) may commence a legal action either for an injunction to restrain a planned ultra vires act or to nullify an act taken or law made ultra vires the person making the law or doing the act”. (See: Udemezue, S.C., “The Federal High Court (Federal Inland Revenue Service) Practice Directions, 2021 and Questions of (Dis)Respect for Rule of Law, Human Rights and Access to Justice” (Law Breed Blog, June 14, 2021) https://lawbreed.blog/the-federal-high-court-federal-inland-revenue-service-practice-directions-2021-and-questions-of-disrespect-for-rule-of-law-human-rights-and-access-to-justice/ accessed October 29, 2021). Further, the question by the learned former AG calls to mind some other questions all of which bother also on validity or otherwise of the said new Practice Directions of the FHC

First, section 46(3) Constitution of the Federal Republic of Nigeria, 1999, places the power to make rules on practice and procedure in re Fundamental Rights Enforcement matters exclusively on the Chief Justice of Nigeria (CJN): “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”.

However, a counter question may be asked as to whether Order 17 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules (FREP Rules), 2009 may be of help to save, or make applicable/valid, the said Practice Directions on Default Fees made on 26 October 2021 by the Chief Judge (CJ) of the Federal High Court in re FREP Proceedings: “Where in the course of any Human Rights proceedings, any situation
arises for which there is or appears to be no adequate provision in these Rules,
THE CIVIL PROCEDURE RULES of the Court for the time being in force shall apply”. Recall that Order 1 Rule 2 of the FREP Rules 2009 defines court to include the Federal High Court: “Court” means the Federal High Court or the High Court of a State or the
High Court of the Federal Capital Territory, Abuja”. See also
GRACE JACK v UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 14 WRN 91; (2004) 5 NWLR (pt 865) 208.

Unfortunately, however, Order 17 Rule 4 FREP Rules only permits (makes reference to) the application of “CIVIL PROCEDURE RULES of the Court” (and not Practice Directions) in such circumstances of lacunae in the FREP Rules 2009. Or, could interpretation of Order 17 Rule 4 FREP Rules be validly extended to include application/relevance of Practice Directions where, for example, both the FREP Rules and the relevant “CIVIL PROCEDURE RULES” do not have any (or do not make adequate) provisions on such areas as payment of DEFAULT FEES? Or, would/does the rule of statutory interpretation, “exclusio unius est exclusio alterius”, apply to forbid the relevance/application of any Practice Directions in such a case/scenario, especially because Order 17 Rule 4 FREP Rules specifically/expressly refers to “the CIVIL PROCEDURE RULES of the Court” and does not make mention or nor permit any recourse to Practice Directions: the express mention of one or more things of a particular class may be regarded as impliedly excluding others?

This is not even the end of discussion. A final question is then thrown up: assuming without conceding that the CJ of the FHC has powers to make Practice Directions in the circumstances, can a Practice Direction validly prescribe default fees that are not already/earlier provided for in either a statute or in a Rules of Court? This question appears to be at the very root of all other issues. And towards addressing same, may I respectfully refer to my earlier suggestion on the meaning, nature, and scope of a Practice Direction:
“I doubt some of the heads of our courts and their advisors truly appreciate the exact limitations of Practice Directions as a source of Civil or Criminal procedure. The way I see it (unless I am wrong; after all, I am not all-knowing), a Practice Direction does no more than provide guides on how to comply with existing Rules of Court (Rules made by the person issuing the Practice Direction), or on implementation of the rules or any aspect thereof. In UNILAG v AIGORO b(1984) 11 SC 152 at 159, the Supreme Court of Nigeria defined Practice Direction as ‘a direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed or obeyed”. In Nwoko v. Nzekwo (2012) 12 NWLR (PT 1313 160 at 175, the Court of Appeal stated thus: ‘A Practice Direction is a written explanation or guideline on how to proceed in a particular area of law or court…. Practice Directions have the force of law and parties must adhere to it’. It could be seen from the above that a practice direction is merely a supplemental protocol to rules of civil and criminal procedure in the courts, a sort of device to regulate minor procedural matters on matters already provided for by existing Rules/law. (See: ; NAA v Okoro (1995) 7 SCNJ 292 at 301). Besides, some advisory pronouncements by courts of law, providing guides on practice and procedure have also been equated or described as Practice Directions (See Abubakar v Wada). See also Nwankwo v. Yar`adua (2010) 12 NWLR (Pt 1209) 518 to appreciate the status of Practice Direction in Election Cases as well as the effect of non-compliance therewith.Although Practice Directions are treated as law or as having the force of law, they nevertheless come/rank last in the hierarchy of laws in Nigeria (See Buhari v. INEC (2008) 19 NWLR (pt 1120) 236 at 341-342). Further, Practice Directions lack the capacity to establish a court or to make substantive provisions hitherto not provided in any law…. It’s obvious from the pronouncement of the Supreme Court in UNILAG v. AIGORO that a Practice Direction has no power to introduce a new provision not contained in the Rules; cannot introduce a provision inconsistent with the Rules (or with any law) and cannot give provisions or explanations on a new subject not contemplated by the Rules or other existing law” (Udemezue, Op. Cit.). To be continued.
Respectfully,
Sylvester Udemezue (udems).
29 October 2021.