NAN-H-92
Law
By Sandra Umeh
Lagos, Jan. 24, 2018 (NAN) A Federal High Court, Lagos, has reserved judgment for March 15 in a suit filed by a physically challenged lawyer, Mr Daniel Onwe, challenging non-enactment of a disability law in Nigeria.
Onwe had in 2014 instituted the suit against the National Assembly over alleged failure to make 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, freedom of movement and association as well as to accommodate the peculiarities of persons with disabilities.
Onwe insisted that the absence of a legislation amounts to a violation of their fundamental rights.
“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.
“For instance, let’s look at a school that has libraries, lecture and examination halls upstairs without a lift or any other access facility, which is typical in Nigeria.
“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 for a matter in a courtroom upstairs, where there are no lifts or any accessible facility.
“The forgoing instances raise a number of human right issues. One, there is the issue of discrimination as the person with disability is less advantaged than others.
“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,” the lawyer said.
Onwe, therefore, urged the court to grant the reliefs sought.
Meanwhile, Counsel to the respondent, Mr H. Shittabay, in his preliminary objection, urged the court to dismiss the suit for lack of jurisdiction.
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 ousts the jurisdiction of the court to hear same and he urged the court to decline jurisdiction to hear the suit.
Counsel also adopted their written addresses before the court.
After listening to the submissions of both counsel, Justice Ayokunle Faji, adjourned the case until March 15 for judgment.
The News Agency of Nigeria (NAN) reports that the case was first assigned to Justice Mohammed Yunusa and later to Justice Jude Dagat following the transfer of Yunusa out of the Lagos.
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 argued that the absence of a disability law amounted to a violation of the rights of the physically challenged, who he estimated are more than 23 million in the country.
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. (NAN)
UNS/BOLA/DA
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Edited by Bola Akingbehin/Dele Akinsola