Lagos Court Order Restraining Protesters is Unenforceable & Problematic – Festus Ogun, Esq

1. A Lagos High Court has granted an exparte application filed by the State’s Attorney General, Lawal Pedro SAN seeking to restrict the proposed August 1 nationwide protest, in Lagos to the Gani Fawehinmi Freedom Park in Ojota and the Peace Park in Ketu from 8:00pm to 6:00pm. Listed as defendants are Adamma Ukpabi and Tosin Harsogba (for Active Citizens Group); Comrade Juwon Sanyaolu and Hassan Soweto (for Take it Back Movement); Persons unknown and Commissioner of Police, Lagos State.
2. We have seen and read the granted reliefs sought with complete understanding and we are of the modest view that the said court order is clearly problematic, nebulous and unenforceable.
3. First, the Court Order is yet to be served on the listed Defendants either personally or vide substituted means. How would the Defendants get to have knowledge of the Order without it being served on them? Expecting compliance with an unserved Court Order is clearly a legal day dream. An order not served on the Defendants cannot command compliance.
4. Aside the non-service of the Court Order, the nebulous nature of the Court Order justifies why it cannot be binding on citizens tired of hardship and oppression caused by the government. Fundamental rights are individual rights and the Court Order may only be binding on the four individuals named as Defendants (assuming the bearer of the names exist).
5. We are still at loss as to the enforcement of a Court Order granted against “unknown persons”. Who is an “unknown persons”? How is an “unknown person” going to have knowledge that the said court order is in existence and that compliance is expected? Who defines “unknown persons”? The position of the law is that an order of court can only be made against juristic persons that is a party to the instant action, save for in land matters. With respect, a Court Order in this instance against “unknown persons” can only be binding on persons that are unknown, particularly when fundamental rights proceedings are sui generis. To our knowledge, protesters that will storm the streets of Lagos and all other states are well known. Consequently, this order cannot be binding on well known Nigerians who are not a party to the Suit.
6. That said, expecting the courageous protesters to travel from one part of Lagos to the other for the sole purpose of exercising their fundamental rights is by itself an infringement of the constitutional rights of our people. Considering the fact that some impoverished Nigerians cannot even afford daily bread, how are they expected to transport themselves to Freedom Park or Peace Park? Imaging a suffering Nigerian in Badagry having to travel to Ojota just because he wants to exercise his rights? What a perilous precedent!
7. It remains to add that the fundamental rights freely given to Nigerians by the Constitution can only be derogated from vide a law validly enacted by either the National or State Assembly and that law shall be reasonably justifiable in a democratic society. There is no such law in place that restricts the right of protesters to public and peacefully air their grievances. There is equally no law that empowers the government of Lagos State to prescribe the place and mode of exercising fundamental rights. Even if such a law exists, it cannot be reasonably justifiable in a democratic society. Curiously, under Section 45(1) of the 1999 Constitution, the derogation from exercising fundamental rights does not include court orders. The operative word in the section is a “law”. Express mention of a thing is to the exclusion of all others.
8. Nigerians have the right to exercise their rights anywhere and everywhere. The fundamental rights to protest freely given under Sections 39, 40 and 41 of the Constitution cannot be taken away by imposing designated places where citizens can express themselves and assemble. The same authorities that impoverished our people are still dictating when, how and where to exercise fundamental rights? Nothing can be more contemptuous.
9. We will resist every attempt to stop our people from demanding a better country, within the bounds of law. August 1-10 protest is non-negotiable. No earthly force can stop an idea whose time has come.

Festus Ogun, Esq
FOLEGAL Castle
Ikeja, Lagos
July 31, 2024