UDO v. ROBSON & ORS

CITATION: (2018) LPELR-45183(CA)

In the Court of AppealIn the Calabar Judicial Division

Holden at Calabar

ON FRIDAY, 20TH JULY, 2018Suit No: CA/C/302/2013

Before Their Lordships:

IBRAHIM MOHAMMED MUSA SAULAWA Justice, Court of AppealSTEPHEN JONAH ADAH Justice, Court of AppealJOSEPH OLUBUNMI KAYODE OYEWOLE Justice, Court of Appeal

BetweenMR. ARCHIBONG TOM UDO - Appellant(s)

And1. MR. IBANGA UDO ROBSON2. MR. JOHN UDO ROBSON3. MRS. ELIZABETH UDO ROBSON4. MR. ESEME (SARS) I. P. O.5. COMMISSIONER OF POLICE

- Respondent(s)

RATIO DECIDENDI

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1. CONSTITUTIONAL LAW - ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Proper Court with jurisdiction to entertain any suit for enforcement of fundamentalrights"It is of cognitive relevance to note in this case under hand that the cause before the Court below was that of infraction of the fundamental right of the 1st to 3rdRespondents. The jurisdiction for the hearing of the fundamental rights causes was prescribed by Section 46(1)-(3) of the 1999 Constitution as follows:46. - (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a HighCourt in that State for redress.2. Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisionsof this Section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcementwithin that State of any right to which the person who makes the application may be entitled under this Chapter.3. 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.The original jurisdiction for the hearing of any fundamental rights causes is resided in a High Court in the State where it occurs. The Supreme Court of Nigeria in the case ofADETONA VS. IGELE GENERAL ENTERPRISES LTD. (2011) 7 NWLR (PT. 1247) 535 has given an analysis of what the law is on this issue. I. T. Muhammed, JSC held:"Although, unlike the 1979 Constitution, Section 318(1) of the present Constitution does not define "High Court", there is no doubt that the term carries the same meaningas given by Section 277(1) of the 1979 Constitution to mean Federal High Court or the High Court of a State. Therefore, it is my understanding that where a person'sfundamental right is breached, being breached or about to be breached, that person may apply under Section 46(1) to the Judicial Division of the Federal High Court in theState or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about to occur. This is irrespective of whether theright involved comes within the legislative competence of the Federation or the State or the Federal Capital Territory. See the case of MINISTER OF INTERNAL AFFAIRS VS.SHUGABA (1982) 3 NCLR 915. It has to however be noted that the exercise of this jurisdiction by the Federal High Court is where the Fundamental Right threatened orbreached falls within the enumerated matters on which that Court has jurisdiction. Thus, Fundamental Rights arising from matters outside its jurisdiction cannot be enforcedby the Federal High Court. See TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 3 NSCC 225. Equally, a High Court of a State shall lack jurisdiction to entertain mattersof Fundamental Rights, although brought pursuant to Section 46(2) of the Constitution where the alleged breach of such matters arose from a transaction or subject matterwhich fall within the exclusive jurisdiction of the Federal High Court as provided by Section 251 of the Constitution". (Underlining and highlight mine) From this decision, thelaw as it is now is that the Federal High Court has jurisdiction to hear any case where there is infraction of fundamental right but that the Federal High Court has jurisdictiononly where the infractions are connected to the primary jurisdiction of the Federal High Court as listed in Section 251(1) of the Constitution. In the instant case, the reliefssought have to do with arrest, detention, harassment and torture. This is a personal claim; it has nothing to do with the primary jurisdiction of the Federal High Court. So, theFederal High Court has no jurisdiction. I therefore agree fully with the learned Counsel for the Respondents that it is the State High Court that has jurisdiction in thiscase."Per ADAH, J.C.A. (Pp. 9-12, Paras. A-B) - read in context

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2. CONSTITUTIONAL LAW - ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether an application can be filed by more than one person to enforce a right underthe Fundamental Rights (Enforcement Procedure) Rules"Fundamental right enforcement has a special procedure enthroned under the Constitution of the Federal Republic of Nigeria 1999 to facilitate the exercise of one's right asdispensed under Chapter IV of the Constitution. The rights themselves are the basic and fundamental human rights which inhere in every human being. These rights are inplace because of the elevated nature of human beings above other creatures occupying the earth. Eso, JSC in RANSOME-KUTI VS. THE ATTORNEY GENERAL FEDERATION(1985) 2 NWLR (PT. 6) 211, said:"... It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilizedexistence".The actions allowed to be enforced under the Fundamental Rights (Enforcement Procedure) Rules are those in Chapter IV of the 1999 Constitution. An action under theFundamental Enforcement Procedure Rules is a peculiar action. It is a kind of action which may be considered as "sui generis" i.e. it is a claim in a class of its own thoughwith a closer affinity to a civil action than a criminal action. The available remedy by this procedure is to enforce the Constitutional Rights available to citizens which hadbeen contravened by another person or persons. Fundamental Rights are so basic and inalienable to every man that they have to be enshrined directly in the Constitution.The advent of aggressive enforcement of fundamental rights in Nigeria under civilian administration has witnessed two Enforcement Procedure Rules. The first is that of1979 under the 1979 Constitution of the Federal Republic of Nigeria. The second is that of 2009 which came under the regime of the 1999 Constitution of the FederalRepublic of Nigeria. The 2009 Rules liberalised in many ways the enforcement procedure of fundamental rights. The preamble to the 2009 Rules gave the overridingobjective of the Rules in paragraph 3 as follows:a. The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realisingthe rights and freedoms contained in them and affording the protections intended by them.b. For the purpose of advancing but never for the purpose of restricting the Applicant's rights and freedoms, the Court shall respect municipal, regional and internationalbills of rights cited to it or brought to its intention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documentslike constitutions. Such bills include:i. The African Charter on Human and Peoples' Rights and other instruments (including protocols) in the African regional human right system.ii. The Universal Declaration of Human Rights and other instruments (including Protocols) in the United Nations Human Rights System.c. For the purpose of advancing but never for the purpose of restricting the Applicant's rights and freedoms, the Court may make consequential orders as may be just andexpedient.d. The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, theincarcerated, and the unrepresented.e. The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locusstandi. In particular, human rights activists, advocates or groups as well as any non-governmental organisations, may institute human rights application on behalf of anypotential Applicant. In human rights litigation, the 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 persons;iv. Anyone acting in the public interest, andv. Association acting in the interest of his members or other individuals or groups.f. The Court shall in a manner calculated to advance Nigeria democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement andrealisation of human rights.g. Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the Applicant or any person, the case shall be treated as anemergency.The way the 2009 Enforcement Procedure Rules introduced liberality must be the focus of the Court to enable us adopt purposive interpretation of the Rules and advancethe interest of justice to the victims of fundamental right violations in Nigeria. In the instant case, the 1st, 2nd and 3rd Respondent were the Applicants at the Court below.The 1st Respondent deposed to a 26 paragraph affidavit in support of their application for the enforcement of their fundamental rights to liberty. The 1st Respondentdeposed in paragraphs 8, 9, 10, 11, 12, 13 and 14 materially as follows:8. That in the night of 2nd March, 2011, we all slept in our compound, when it was around 12.30am of 3rd March, 2011 when we saw policemen from SARS Ikot Akpanabiawho entered our house and quickly arrested myself and my brother the second Applicant on record, they were seriously looking for my mother as well who was fortunate notto be around on that fateful day.9. that, that midnight myself and my junior brother were taken to Ikot Akpanabia in our night wears and that when we got to Ikot Akpanabia, we were told that the 1stRespondent wrote a petition against us that we set fire on his house and on his palm tree.10. That I implored the Investigating Police Officer in the person of Mr. Eseme to please allow us to visit the scene and check my boundary and the 1st Respondent'sboundary and to see whether indeed I set fire to the house of the 1st Respondent and whether of a truth the palm tree that I set fire on the leaves is the property of the 1stRespondent.11. That the 2nd Respondent told me not to teach him his work he quickly carried me and my brother and dumped us in the cell, that when we've spent 21 days in the cellhe carried us to our village and he found out that the house of the 1st Respondent was not set on fire by me and my household and that the palm tree that was even set onfire is my late father's property which is within our boundary.12. That 1st and the 2nd Applicants were detained without any justifiable cause. That the 1st Respondent is a member of our Village Council who surreptitiously and withoutany justifiable cause invited the policemen from SARS to arrest and detain myself, the 2nd Applicant and seeking to arrest and detain my aged mother.13. That police officers including the 2nd Respondent came from SARS with myself and the 1st Applicant to conduct search and for investigation but they could not see anyburnt house but having collected huge sum of money from the 1st Respondent in order to mutilate, harass, detain, dehumanize and terminate our lives for the 1stRespondents to take over my late father's properties and pieces of lands left for us as our inheritance.14. That at the behest and instigation of the 1st Respondent I and the second Applicant were arrested and detained from 3rd March, 2011 till 30th March, 2011 that so manypeople from our village came for our bail application and the IPO refused bluntly to release us on bail. The story of the 1st to 3rd Respondents here shows clearly that theviolation of their right as alleged took place in one place at the same time and in the same circumstance. In all the civil procedure Rules of the High Courts in Nigeria,provision is made for persons in civil claim to claim jointly or severally. For example Order 13 Rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009. TheRules therein provide:All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such one ormore of the Claimants as may be found to be entitled to relief and for such relief as her or they may be entitled to, without any amendment.This type of provision helps to minimise pluralism of actions and save both the parties the cost and the Court to inconvenience of dealing with multiple suits in respect ofone fault or line of claim. In the 2009, Fundamental Rights (Enforcement Procedure) Rules, there is no joinder provision. What we have is consolidation of separate suitsfiled. The focus may be that fundamental rights are personal rights and cannot be fought together as right varies from one person to the other. But in a situation such as inthe instant case, the act complained of is the act of arrest and detention without bail and without an arraignment in Court for any known offence I still believe in thecircumstance that the Court in the interest of justice and convenience can allow the parties to file their complaint together for the enforcement of their fundamental rights.Since this provision is not in the rules the Courts are having it difficult to take it up. In the case of SOLOMON KPORHAROR & ANOR. VS. MR. MICHAEL YEDI & ORS. (2017)LPELR - 42418 (CA), a decision of this Court, the facts are the 1st and 2nd Respondents who were Applicants at the trial Court sought against the Appellants and 3rd to 5thRespondents the enforcement of their fundamental right over the seizure and detention of their D7G bulldozer plant. The lower Court ordered among others the release ofthe said bulldozer. Application was brought for stay of the order alleging that the application filed in Court was incompetent due to the fact that the application was not filedproperly before the Court. On appeal to this Court, the appeal was found meritorious. The Court struck out the application. Bada, JCA who read the lead judgment held interalia as follows:Under the 1999 Constitution of the Federal Republic of Nigeria (as amended) the rights are preserved in Chapter IV i.e. four. See - RAYMOND S. DONGTOE VS. CIVIL SERVICECOMMISSION, PLATEAU STATE & ORS. (2001) 4 SCNJ page 131. The Fundamental Rights (Enforcement Procedure) Rules, 1979 created a special procedure for proceedingsunder this peculiar category of action. It is only by these procedures that an action can be brought to enforce rights and it is the provisions of the 1979 Rules that guide theconduct of proceedings of all actions to enforce rights. The right to approach a Court to enforce a Fundamental Right is conferred by Section 46(1) and (2) of the 1999Constitution of the Federal Republic of Nigeria (as amended). Section 46(1) of the 1999 Constitution provides thus:- "Any person who alleges that any of the provisions ofthis chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court for redress". In this appeal under consideration, theapplication was brought by two separate Applicants (1) Mr. Michael Yedi and (2) Onodje Yedi Nig. Ltd. The words used under Section 46(1) of the Constitution set out aboveis very clear. The same provision is made in Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The adjective used in both provisions inqualifying who can apply to a Court to enforce a right is "any" which denotes singular and does not admit pluralities in any form. It is individual rights and not collectiverights that is being talked about. In my humble view, any application filed by more than one person to enforce a right under the Fundamental Rights (EnforcementProcedure) Rules is incompetent and liable to be struck out. The above view is supported by the case of RTFTCIN VS. IKWECHEGH (2000) 13 NWLR PART 683 AT PAGE 1,where it was held among others that:- "If an individual feels that his Fundamental Rights or Human Rights has been violated, he should take out action personally for thealleged infraction as rights of one differs in content and degree from the complaint of the other ....... is a wrong joinder of action and incompetent". Also in the case ofOKECHUKWU VS. ETUKOKWU (1998) 8 NWLR PART 562 PAGE 511, it was held amongst others per Niki Tobi, JCA (as he then was) that:- "As I indicated above, theUmunwanne family is the centre of the whole matter. A family as a unit cannot commence an action on infringement or contravention of Fundamental Rights. To be specific,no Nigeria family or any foreign family has the locus to commence action under Chapter IV of the Constitution or by virtue of the 1979 Rules. The provisions of Chapter 4cover individuals and not a group or collection of individuals. The expression "every individual", "every person", "any person", every citizen" are so clear that a family unit isnever anticipated or contemplated". The contention of learned Counsel for the Respondents that it is proper in law for two or more persons to apply jointly for theenforcement of their fundamental rights cannot be sustained.The decision of this Court in KPORHAROR case (supra) is the current decision of this Court. By the doctrine of stare decisis I am bound by the earlier decision of this Court. Icannot in anyway deviate from it. I hold in the circumstance that it is not proper to join several Applicants in one application for the purpose of securing the enforcement oftheir fundamental rights. This issue is resolved in favour of the Appellant."Per ADAH, J.C.A. (Pp. 13-25, Paras. C-A) - read in context

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STEPHEN JONAH ADAH, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the

judgment of the High Court of Akwa Ibom State sitting at

Eket in Suit No. HEK/29/2011 delivered on 4th day of

March, 2013 by Theresa I. Obot, J. The decision was sequel

to an application filed at that Court by the 1st, 2nd and 3rd

Respondents in this appeal against the Appellant and the

4th and 5th Respondents for the enforcement of their

fundamental rights. The reliefs sought in the application

are:(1) A DECLARATION that the arrest, detention,

harassment and torture of the 1st and 2nd Applicants from

the 3rd day of March, 2011 to the 30th day of March,

2011 at the behest and instigation of the 1st Respondent

and at the 2nd and 3rd Respondents cell from 12:30am on

the 3rd day of March, 2011 to 30th day of March, 2011 is

illegal, unlawful, unconstitutional, null and void.

(2) A DECLARATION that seeking to arrest and the

continuous invading of the compound of the Applicants at

Ikot Obioro Okon, Eket in an attempt to arrest, detain and

torture MRS. ELIZABETH UDO ROBSON the aged

widow and mother of the 1st and 2nd Applicants at the

behest and

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instigation of the 1st Respondent is unconstitutional and

amount to infraction of or infringement of the Applicants

human rights as provided for the guaranteed under Section

34(1), 35(1), 37 and 41(1) of the Constitution of the Federal

Republic of Nigeria 1999 and Articles 4, 5, 6 and Article 12

paragraph 1 of the African Charter on Human and Peoples,

Rights (Ratification and Enforcement) Act and therefore

illegal and or wrongful.

(3) AN ORDER for payment of N10,000,000.00 (Ten

Million Naira) only, compensation or damages jointly and

severally against the Respondents and in favour of the

Applicants for the violation or infraction of or infringement

on the Applicants fundamental and Human Rights as

aforesaid is illegal and unconstitutional.

(4) AN ORDER directing the 2nd Respondent to refund the

sum of N70,000.00 (Seventy Thousand Naira) only,

collected from the 1st and 2nd Applicants and their surety

as bail fee on the 30th day of March, 2011, 1st April, 2011,

8th April, 2011 and 18th April, 2011, respectively.

(5) AN ORDER FOR THE RESPONDENTS to tender public

apology to the Applicants for the violation of their

fundamental and or Human Right as aforesaid.

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(6) AN ORDER of perpetual injunction restraining the

Respondents by themselves and or their servants, agents or

privies, their supervisor and successors in office however

called from further infringement, violation or infraction on

the Applicants fundamental and or Human Rights to

movements and dignify of their persons as provided for

under Section 34, 45 and 41 of 1999 Constitution of the

Federal Republic of Nigeria and in particular from further

intimidation, harassment, embarrassment and detention.

The Application was heard by the Court below and at the

end judgment was entered in favour of the Applicants who

are the 1st, 2nd and 3rd Respondents in this appeal with

most of the reliefs granted. Being dissatisfied with the

decision, the Appellant filed this appeal on 23rd of May,

2013. This notice of appeal was amended with the leave of

this Court and an amended notice of appeal was filed on

13th day of November, 2015. The record of appeal was

transmitted on the 17th day of November, 2015 but

deemed on 9th April, 2018 as properly transmitted and

filed.

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The Appellant filed his brief on 13th November, 2015 but

deemed properly filed and served on 9th April, 2018. The

1st to 3rd Respondents filed their joint brief on 21st

January, 2016 but deemed duly filed and served on 5th

April, 2018. The Appellants filed a reply brief on 16th day

of May, 2016. The 4th and 5th Respondents did not file any

brief.

On the 7th day of May, 2018 when this appeal was argued

in Court, the learned Counsel for the Appellant, Mr. R. A.

Manga was in Court but the Counsel for the Respondents

were not in Court in spite of the fact that they were duly

put on notice for the hearing. The Court therefore heard

the Appellants’ appeal and deemed the brief filed by the 1st

to 3rd Respondents duly argued under Order 19 Rule 9(4)

of the 2016 Rules of this Court.

The learned Counsel for the Appellant adopted his brief of

argument and urged the Court to grant this appeal and set

aside the decision of the Court below.

In this appeal, four (4) issues were submitted by the

Appellant for determination while the 1st to 3rd

Respondents in their brief distilled also four (4) issues

which were differently worded but have the same content

with the issues framed by the Appellants. The four (4)

issues

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framed by the Appellant are worded as follows:

(1) Whether the High Court of Akwa Ibom State or the

Federal High Court had jurisdiction to hear and determine

1st – 3rd Respondents application? (Ground 1).

(2) Whether it is proper to join several Applicants in one

application for the purposes of securing the enforcement of

their fundamental rights as the 1st – 3rd Respondents did

at the trial Court if not whether the Respondents

application was competent before the trial Court?

(3) Whether the Appellant’s liability can be premised on the

liability of the 4th and 5th Respondents at the trial Court

who were not properly sued? (Ground 3).

(4) Whether the trial Court was right to hold that the 1st –

3rd Respondents had proved their case and the Appellant

properly said to be liable? (Grounds 4, 5 and 6).

The issues framed by the 1st to 3rd Respondents are

worded as follows:

(1) Whether the High Court of Akwa Ibom State does not

have original jurisdiction to hear, entertain and determine

the 1st – 3rd Respondents’ application in respect of issues

that happened in Eket, Akwa Ibom State and

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which does not fall within the competence/jurisdiction of

the Federal High Court at all?

(2) Whether the 1st – 3rd Respondents’ (mother and her

adult children) with the same complaints/cause of actions

are not right to bring their application together, although

with their names differently written on the processes filed?

(3) Whether the Appellant’s liability cannot be premised on

the liability of the 4th and 5th Respondents who were

properly sued and whom the Appellant instigated to deal

brutally with the 1st – 3rd Respondents’ for 28 days in their

cell at the State CID, Uyo, without any justifiable cause?

(4) Whether the trial Court was not right to hold that the

1st – 3rd Respondents’ indeed proved their case by

awarding damages/compensation against the Appellant and

the 4th and 5th Respondents jointly and severally.

Having carefully gone through the amended notice of

appeal, any of the issues framed by the parties can fix the

complaint in this appeal. I use the issues as framed by the

Appellant as a flag for the consideration of this appeal. I

start with the first issue.

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ISSUE ONE

This issue is on whether it is the Akwa Ibom State, High

Court or the Federal High Court that has jurisdiction over

this matter?

The learned Counsel for the Appellant submitted that by

Section 46 of the 1999 Constitution of the Federal Republic

of Nigeria 1999 as amended, every victim of fundamental

rights violations is empowered to seek redress in a High

Court located in any state of the federation where the right

has been contravened. That under Order 1 Rule 2 of the

Fundamental Rights (Enforcement Procedure) Rules 2009,

High Court means the Federal High Court, the High Court

of a state or the High Court of the Federal Capital

Territory, Abuja.

He canvassed that the 4th and 5th Respondents are agents

and officials of the Federal Government. That only the

Federal High Court has jurisdiction over this case. He

relied on the cases of OMOSOMWAN VS. CHIDOZIE

(1998) 9 NWLR (PT. 566) 477; ZAKARI VS. IGP (2000)

6 NWLR (PT. 607) 66 and GRACE JACK VS.

UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 14

WRN 91, 103.

The learned Counsel canvassed that the action brought by

the Respondents before the Court below, fell squarely

within

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the provision of Section 251 of the 1999 Constitution. That

Section 251 of the said Constitution has completely taken

away the jurisdiction of the State High Court in respect of

action in which the Federal Government or any of its

agencies is a party. He cited the cases of NEPA VS.

EDEGBERO & ORS. (2002) 18 NWLR (PT. 798) 79;

NDIC VS. OKEM ENTERPRISES LTD. (2004) 10 NWLR

(PT. 880) 107, 182.

For the 1st to 3rd Respondents, their Counsel in the Brief

canvassed that the Fundamental Rights enforcement

procedure is sui generis being specially and specifically

designed with its own Rules by the 1999 Constitution. That

challenging the jurisdiction of the State High Court is

misconceived. That the infraction of right occurred in Eket.

That the reliefs claimed does not fall within the jurisdiction

of the Federal High Court. That the 4th and 5th

Respondents are working within the State to maintain

security and public order in the State. That the 4th and 5th

Respondents are not agents of the Federal Government for

this purpose. That the learned trial Judge was right to

assume jurisdiction in this case. He urged the Court to

resolve this issue in favour of the Respondents.

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It is of cognitive relevance to note in this case under hand

that the cause before the Court below was that of infraction

of the fundamental right of the 1st to 3rd Respondents. The

jurisdiction for the hearing of the fundamental rights

causes was prescribed by Section 46(1)-(3) of the 1999

Constitution as follows:

46. – (1) Any person who alleges that any of the

provisions of this Chapter has been, is being or likely

to be contravened in any State in relation to him may

apply to a High Court in that State for redress.

2. Subject to the provisions of this Constitution, a

High Court shall have original jurisdiction to hear

and determine any application made to it in

pursuance of the provisions of this Section and may

make such order, issue such writs and give such

directions as it may consider appropriate for the

purpose of enforcing or securing the enforcement

within that State of any right to which the person who

makes the application may be entitled under this

Chapter.

3. 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.

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The original jurisdiction for the hearing of any fundamental

rights causes is resided in a High Court in the State where

it occurs. The Supreme Court of Nigeria in the case of

ADETONA VS. IGELE GENERAL ENTERPRISES LTD.

(2011) 7 NWLR (PT. 1247) 535 has given an analysis of

what the law is on this issue. I. T. Muhammed, JSC held:

“Although, unlike the 1979 Constitution, Section

318(1) of the present Constitution does not define

“High Court”, there is no doubt that the term carries

the same meaning as given by Section 277(1) of the

1979 Constitution to mean Federal High Court or the

High Court of a State. Therefore, i t is my

understanding that where a person’s fundamental

right is breached, being breached or about to be

breached, that person may apply under Section 46(1)

to the Judicial Division of the Federal High Court in

the State or the High Court of the State or that of the

Federal Capital Territory in which the breach

occurred or is occurring or about to occur. This is

irrespective of whether the right involved comes

within the legislative competence of the Federation or

the State or the Federal Capital Territory. See the

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case of MINISTER OF INTERNAL AFFAIRS VS.

SHUGABA (1982) 3 NCLR 915. It has to however be

noted that the exercise of this jurisdiction by the

Federal High Court is where the Fundamental Right

threatened or breached falls within the enumerated

matters on which that Court has jurisdiction. Thus,

Fundamental Rights arising from matters outside its

jurisdiction cannot be enforced by the Federal High

Court. See TUKUR VS. GOVERNMENT OF GONGOLA

STATE (1989) 3 NSCC 225. Equally, a High Court of a

State shall lack jurisdiction to entertain matters of

Fundamental Rights, although brought pursuant to

Section 46(2) of the Constitution where the alleged

breach of such matters arose from a transaction or

subject matter which fall within the exclusive

jurisdiction of the Federal High Court as provided by

Section 251 of the Constitution”. (Underlining and

highlight mine)

From this decision, the law as it is now is that the Federal

High Court has jurisdiction to hear any case where there is

infraction of fundamental right but that the Federal High

Court has jurisdiction only where the infractions are

connected to the primary jurisdiction of the Federal High

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Court as listed in Section 251(1) of the Constitution.

In the instant case, the reliefs sought have to do with

arrest, detention, harassment and torture. This is a

personal claim; it has nothing to do with the primary

jurisdiction of the Federal High Court. So, the Federal High

Court has no jurisdiction.

I therefore agree fully with the learned Counsel for the

Respondents that it is the State High Court that has

jurisdiction in this case. Issue one therefore is resolved

against the Appellant.

ISSUE TWO

This issue is whether it is proper to join several Applicants

in one application for the purposes of securing the

enforcement of their fundamental rights like the 1st to 3rd

Respondent did at the trial Court.

The Appellant argued that 1st to 3rd Respondents failed to

bring their application in a representative capacity or

separately. That the right violated is personal to every

individual. That this is fatal to the Respondents application

at the Court below and further that it makes the application

to be incompetent. He relied on the case of J.B.N. PLC VS.

T.R.C. BANK LTD. (2010) ALL FWLR (PT. 552) 17, 65.

He urged the Court to strike out this case.

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The 1st to 3rd Respondents in their Brief contended that

the applications of the Applicants can be looked into

together by the Court and that it will be cumbersome to

expect each to file separate complaints. That the word

“person” in Section 46(1) (2) of the 1999 Constitution

includes “persons”. He relied on the case of UZOUKWU

VS. EZEONU II (1991) 6 NWLR (PT. 200) 708. He

urged the Court to resolve the issue in favour of the 1st to

3rd Respondents.

Fundamental right enforcement has a special procedure

enthroned under the Constitution of the Federal Republic

of Nigeria 1999 to facilitate the exercise of one’s right as

dispensed under Chapter IV of the Constitution. The rights

themselves are the basic and fundamental human rights

which inhere in every human being. These rights are in

place because of the elevated nature of human beings

above other creatures occupying the earth. Eso, JSC in

RANSOME-KUTI VS. THE ATTORNEY GENERAL

FEDERATION (1985) 2 NWLR (PT. 6) 211, said:

“... It is a right which stands above the ordinary laws

of the land and which in fact is antecedent to the

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political society itself. It is a primary condition to a

civilized existence”.

The actions allowed to be enforced under the Fundamental

Rights (Enforcement Procedure) Rules are those in Chapter

IV of the 1999 Constitution. An action under the

Fundamental Enforcement Procedure Rules is a peculiar

action. It is a kind of action which may be considered as

“sui generis” i.e. it is a claim in a class of its own though

with a closer affinity to a civil action than a criminal action.

The available remedy by this procedure is to enforce the

Constitutional Rights available to citizens which had been

contravened by another person or persons. Fundamental

Rights are so basic and inalienable to every man that they

have to be enshrined directly in the Constitution.

The advent of aggressive enforcement of fundamental

rights in Nigeria under civilian administration has

witnessed two Enforcement Procedure Rules. The first is

that of 1979 under the 1979 Constitution of the Federal

Republic of Nigeria. The second is that of 2009 which came

under the regime of the 1999 Constitution of the Federal

Republic of Nigeria. The 2009 Rules liberalised in many

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ways the enforcement procedure of fundamental rights.

The preamble to the 2009 Rules gave the overriding

objective of the Rules in paragraph 3 as follows:

a. The Constitution, especially Chapter IV, as well as

the African Charter, shall be expansively and

purposely interpreted and applied, with a view to

advancing and realising the rights and freedoms

contained in them and affording the protections

intended by them.

b. For the purpose of advancing but never for the

purpose of restricting the Applicant’s rights and

freedoms, the Court shall respect municipal, regional

and international bills of rights cited to it or brought

to its intention or of which the Court is aware,

whether these bills constitute instruments in

themselves or form parts of larger documents like

constitutions. Such bills include:

i. The African Charter on Human and Peoples’ Rights

and other instruments (including protocols) in the

African regional human right system.

ii. The Universal Declaration of Human Rights and

other instruments (including Protocols) in the United

Nations Human Rights System.

c. For the purpose of advancing but never for the

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purpose of restricting the Applicant’s rights and

freedoms, the Court may make consequential orders

as may be just and expedient.

d. The Court shall proactively pursue enhanced access

to justice for all classes of litigants, especially the

poor, the illiterate, the uninformed, the vulnerable,

the incarcerated, and the unrepresented.

e. The Court shall encourage and welcome public

interest litigations in the human rights field and no

human rights case may be dismissed or struck out for

want of locus standi. In particular, human rights

activists, advocates or groups as well as any non-

governmental organisations, may institute human

rights application on behalf of any potential

Applicant. In human rights litigation, the 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 persons;

iv. Anyone acting in the public interest, and

v. Association acting in the interest of his members or

other individuals or groups.

f. The Court shall in a manner calculated to advance

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Nigeria democracy, good governance, human rights

and culture, pursue the speedy and efficient

enforcement and realisation of human rights.

g. Human rights suits shall be given priority in

deserving cases. Where there is any question as to the

liberty of the Applicant or any person, the case shall

be treated as an emergency.

The way the 2009 Enforcement Procedure Rules introduced

liberality must be the focus of the Court to enable us adopt

purposive interpretation of the Rules and advance the

interest of justice to the victims of fundamental right

violations in Nigeria. In the instant case, the 1st, 2nd and

3rd Respondent were the Applicants at the Court below.

The 1st Respondent deposed to a 26 paragraph affidavit in

support of their application for the enforcement of their

fundamental rights to liberty. The 1st Respondent deposed

in paragraphs 8, 9, 10, 11, 12, 13 and 14 materially as

follows:

8. That in the night of 2nd March, 2011, we all slept

in our compound, when it was around 12.30am of 3rd

March, 2011 when we saw policemen from SARS Ikot

Akpanabia who entered our house and quickly

arrested myself and my brother the second Applicant

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on record, they were seriously looking for my mother

as well who was fortunate not to be around on that

fateful day.

9. That, that midnight myself and my junior brother

were taken to Ikot Akpanabia in our night wears and

that when we got to Ikot Akpanabia, we were told that

the 1st Respondent wrote a petition against us that

we set fire on his house and on his palm tree.

10. That I implored the Investigating Police Officer in

the person of Mr. Eseme to please allow us to visit the

scene and check my boundary and the 1st

Respondent’s boundary and to see whether indeed I

set fire to the house of the 1st Respondent and

whether of a truth the palm tree that I set fire on the

leaves is the property of the 1st Respondent.

11. That the 2nd Respondent told me not to teach him

his work he quickly carried me and my brother and

dumped us in the cell, that when we’ve spent 21 days

in the cell he carried us to our village and he found

out that the house of the 1st Respondent was not set

on fire by me and my household and that the palm

tree that was even set on fire is my late father’s

property which is within our boundary.

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12. That 1st and the 2nd Applicants were detained

without any justifiable cause. That the 1st

Respondent is a member of our Village Council who

surreptitiously and without any justifiable cause

invited the policemen from SARS to arrest and detain

myself, the 2nd Applicant and seeking to arrest and

detain my aged mother.

13. That police officers including the 2nd Respondent

came from SARS with myself and the 1st Applicant to

conduct search and for investigation but they could

not see any burnt house but having collected huge

sum of money from the 1st Respondent in order to

mutilate, harass, detain, dehumanize and terminate

our lives for the 1st Respondents to take over my late

father’s properties and pieces of lands left for us as

our inheritance.

14. That at the behest and instigation of the 1st

Respondent I and the second Applicant were arrested

and detained from 3rd March, 2011 till 30th March,

2011 that so many people from our village came for

our bail application and the IPO refused bluntly to

release us on bail.

The story of the 1st to 3rd Respondents here shows clearly

that the violation of their right as alleged took place in

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one place at the same time and in the same circumstance.

In all the civil procedure Rules of the High Courts in

Nigeria, provision is made for persons in civil claim to

claim jointly or severally. For example Order 13 Rule 1 of

the Akwa Ibom State High Court (Civil Procedure) Rules

2009. The Rules therein provide:

All persons may be joined in one action as Claimants

in whom any right to relief is alleged to exist whether

jointly or severally and judgment may be given for

such one or more of the Claimants as may be found to

be entitled to relief and for such relief as her or they

may be entitled to, without any amendment.

This type of provision helps to minimise pluralism of actions

and save both the parties the cost and the Court to

inconvenience of dealing with multiple suits in respect of

one fault or line of claim. In the 2009, Fundamental Rights

(Enforcement Procedure) Rules, there is no joinder

provision. What we have is consolidation of separate suits

filed. The focus may be that fundamental rights are

personal rights and cannot be fought together as right

varies from one person to the other. But in a situation such

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as in the instant case, the act complained of is the act of

arrest and detention without bail and without an

arraignment in Court for any known offence I still believe in

the circumstance that the Court in the interest of justice

and convenience can allow the parties to file their

complaint together for the enforcement of their

fundamental rights. Since this provision is not in the rules

the Courts are having it difficult to take it up. In the case of

SOLOMON KPORHAROR & ANOR. VS. MR. MICHAEL

YEDI & ORS. (2017) LPELR – 42418 (CA), a decision of

this Court, the facts are the 1st and 2nd Respondents who

were Applicants at the trial Court sought against the

Appellants and 3rd to 5th Respondents the enforcement of

their fundamental right over the seizure and detention of

their D7G bulldozer plant. The lower Court ordered among

others the release of the said bulldozer. Application was

brought for stay of the order alleging that the application

filed in Court was incompetent due to the fact that the

application was not filed properly before the Court. On

appeal to this Court, the appeal was found meritorious. The

Court struck out the application.

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Bada, JCA who read the lead judgment held inter alia as

follows:

Under the 1999 Constitution of the Federal Republic

of Nigeria (as amended) the rights are preserved in

Chapter IV i.e. four. See – RAYMOND S. DONGTOE

VS. CIVIL SERVICE COMMISSION, PLATEAU STATE

& ORS. (2001) 4 SCNJ page 131. The Fundamental

Rights (Enforcement Procedure) Rules, 1979 created

a special procedure for proceedings under this

peculiar category of action. It is only by these

procedures that an action can be brought to enforce

rights and it is the provisions of the 1979 Rules that

guide the conduct of proceedings of all actions to

enforce rights. The right to approach a Court to

enforce a Fundamental Right is conferred by Section

46(1) and (2) of the 1999 Constitution of the Federal

Republic of Nigeria (as amended). Section 46(1) of

the 1999 Constitution provides thus:- “Any person

who alleges that any of the provisions of this chapter

has been, is being or likely to be contravened in any

State in relation to him may apply to a High Court for

redress”. In this appeal under consideration, the

application was brought by two separate Applicants

(1) Mr. Michael Yedi and (2) Onodje Yedi

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Nig. Ltd. The words used under Section 46(1) of the

Constitution set out above is very clear. The same

provision is made in Order 1 Rule 2(1) of the

Fundamental Rights (Enforcement Procedure) Rules,

1979. The adjective used in both provisions in

qualifying who can apply to a Court to enforce a right

is “any” which denotes singular and does not admit

pluralities in any form. It is individual rights and not

collective rights that is being talked about. In my

humble view, any application filed by more than one

person to enforce a right under the Fundamental

Rights (Enforcement Procedure) Rules is incompetent

and liable to be struck out. The above view is

supported by the case of RTFTCIN VS. IKWECHEGH

(2000) 13 NWLR PART 683 AT PAGE 1, where it was

held among others that:- “If an individual feels that

his Fundamental Rights or Human Rights has been

violated, he should take out action personally for the

alleged infraction as rights of one differs in content

and degree from the complaint of the other ....... is a

wrong joinder of action and incompetent”. Also in the

case of OKECHUKWU VS. ETUKOKWU (1998) 8

NWLR

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PART 562 PAGE 511, it was held amongst others per

Niki Tobi, JCA (as he then was) that:- “As I indicated

above, the Umunwanne family is the centre of the

whole matter. A family as a unit cannot commence an

action on infringement or contravention of

Fundamental Rights. To be specific, no Nigeria family

or any foreign family has the locus to commence

action under Chapter IV of the Constitutionor by

virtue of the 1979 Rules. The provisions of Chapter 4

cover individuals and not a group or collection of

individuals. The expression “every individual”, “every

person”, “any person”, every citizen” are so clear that

a family unit is never anticipated or contemplated”.

The contention of learned Counsel for the

Respondents that it is proper in law for two or more

persons to apply jointly for the enforcement of their

fundamental rights cannot be sustained.

The decision of this Court in KPORHAROR case (supra)

is the current decision of this Court. By the doctrine of

stare decisis I am bound by the earlier decision of this

Court. I cannot in anyway deviate from it. I hold in the

circumstance that it is not proper to join several Applicants

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in one application for the purpose of securing the

enforcement of their fundamental rights. This issue is

resolved in favour of the Appellant. With this major issue

resolved in favour of the Appellant the remaining two

issues, issues 3 and 4 have become academic and they are

hereby discountenanced.

With this main issue resolved in favour of the Appellant, the

appeal is already spent. The judgment of the lower Court

which was based on an incompetent application cannot

stand. The appeal is therefore allowed.

The judgment of the Court below delivered on 4th day of

March, 2013 in Suit No. HEK/29/2011 is set aside. The suit

before the trial Court is struck out. No costs awarded.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I

concur with the view ably expressed in the judgment just

delivered by Adah, JCA, to the effect that the decision of the

Court below is predicated upon an incompetent application.

Accordingly, the appeal being meritorious, is equally

hereby allowed by me on the terms of the judgment herein.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had

the

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privilege to read the draft of the lead judgment just

delivered herein by my learned brother STEPHEN JONAH

ADAH, JCA and I totally endorse the reasoning and

conclusions therein.

The earlier position of this Court is that fundamental rights

accrue to citizens individually and by lumping the

applications together, the Respondents rendered their

application incompetent.

For the more detailed reasoning in the lead judgment, I

equally find merit in this appeal and I accordingly allow it.

I adopt the consequential orders in the lead judgment.

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Appearances:

R. A. Manga, Esq. with C. E. Asuquo-Tishion,Esq.and N. A. Osim For Appellant(s)

For Respondent(s)

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