ABUBAKAR v. DAUDA & ORS
(2020)LCN/14527(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Monday, July 13, 2020
CA/K/120/2020
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Between
ABUBAKAR MUSA ABUBAKAR APPELANT(S)
And
- ALH. SANI DAUDA 2. MURTALA NASIR ALMISRY (JUDGE SHARIA COURT 2 MAGAJIN GARI) 3. ALH. SHEHU SANI DAUDA 4. ALH. ABDULLAHI KALOMA 5. NASIBA SANI DAUDA 6. ALH. ABDULRAHMAN HARUNA 7. COMMISSIONER OF POLICE, KADUNA COMMAND 8. INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO
WHETHER OR NOT THE ENFORCEMENT OF FUNDAMENTAL RIGHTS IS TO BE BROUGHT BY EAC PERSON SEPERATELY
The provision ofRule 1 of the Fundamental Rights states thus:
“2.-(1) Any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may apply to the Court in the State where the infringement occurs or is likely to occur, for redress.”
The words “any person” clearly refers to “any one person”. It will be extraneous to import plurality of persons into that provision. See the case of Kporharor Vs Yedi & Ors and Archibong Udo Vs Ebanga Udorobson & 4 Ors where the Court held as follows:
“…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… In my humble view, any application filed by more than one person … under the Fundamental Rights Enforcement (Procedure) Rules is incompetent and liable to be struck out”. PER MUKHTAR, J.C.A.
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal recapitulates the ruling of the High Court of Kaduna State delivered on 31st January, 2020 and was initiated by the Notice of Appeal filed on 26th February, 2020.
The action was initiated by the 1st to 6th Respondents jointly by an application, dated 12th November 2019, filed under the Fundamental Rights Enforcement (Procedure) Rules before the High Court of Kaduna State sequel to which the Appellant filed a counter affidavit and written address dated 15 November 2019 with some exhibits.
The Applicants (the 1st to 6th respondents) alleged that their fundamental rights were violated by the Appellant in collaboration with the 7th and 8th Respondents who challenged the application on various grounds, including breach of Section 46 (1) of the Constitution of Federal Republic of Nigeria 1999 (as amended) contending that any person, who alleges that his right has been infringed or is about to be violated must apply separately to High Court for redress. It was further contended that the action could not be maintained against the 7th and 8th Respondents without joining the Nigeria Police
1
Force .
Thereafter, the trial Court delivered its ruling on the 31st January 2020, the subject of this appeal, wherein the Court below granted all the reliefs sought for by the 1st to 6th Respondents. The Notice of Appeal against that decision is predicated on the following seven grounds:
Ground One
The Learned Trial Judge erred in law when she found that the Application of the 1st – 6th Respondents is meritorious without considering the Appellant’s Counter Affidavit in opposition to the 1st– 6th Respondents’ Motion and written address in support of the said Counter Affidavit thereby occasioning miscarriage of justice on the Appellant.
Ground Two
The Learned Trial Judge erred in law when she failed to strike out and or dismiss the Application of the 1st – 6th Respondents, same having been filed by more than one(1) applicant/person contrary to the provisions of Section 46(1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Fundamental Rights Enforcement Procedure Rules and several judicial pronouncements.
Ground Three
The Trial Court erred in law when it
2
refuses to abide itself with the decision of the Superior Courts (Doctrine of State Decisis/Judicial Precedent) in deciding the 1st – 6th Respondents’ Application.
Ground Four
The Learned Trial Judge misdirected herself when she deliberately ventured into making findings on cases that are pending before different Courts and held that the marriage between the Appellant and the 5th Respondent has been dissolved thereby occasioning miscarriage of justice.
Ground Five
The Trial Court erred in law when it held: “This is to say, the Orders of the Upper Sharia Court Kawo no longer stand i.e its findings, rulings and Orders were set aside. This relates to paragraph (a) of Exhibit MKA4. As to paragraph (b) of Exhibit MKA4 the Honourable Grand Kadi’s Order is that the appeal in respect of the case has been transferred to the Upper Sharia Court Daura Road, Kaduna.” Thereby occasioned miscarriage of justice against the Appellant.
Ground Six
The trial Court erred in law when it held that the Appellant along with the 7th – 8th Respondents jointly and severally to pay the sum of Two Million Naira
3
(N2,000,000.00) only as damages and to publish an apology in the two national dailies when the 1st – 6th Respondents have not placed sufficient evidence to show that their rights have been breached upon.
Ground Seven
The decision of the Trial Court is against the weight of evidence.
The learned counsel for the Appellant distilled six issues from the foregoing seven grounds of appeal, thus:
1. Whether the 1st to 6th Respondents can competently and validly file single Application/affidavit for the enforcement of fundamental right considering the provisions of Section 46 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and Order 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. (Distilled from Ground two of the Notice of Appeal).
2. Whether the Appellant’s complaint to the police by exhibit “H” amount to breach of the 1st to 6th Respondents’ Fundamental Human Rights and shall be punished. (Distilled from Ground one of the Notice of Appeal).
3. Whether the trial Court was right when it refuses to abide itself with the decisions of the Superior Courts cited thereby
4
renders nugatory the doctrine of Stare Decisis/Judicial Precedent. (Distilled from Ground Three of Notice of Appeal).
4. Whether the trial Court was right to have arrived at a decision and ventured into making findings on matters of Islamic Personal Law on application for enforcement of fundamental Rights vis-a-vis considering the provision of Section 277 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). (Distilled from Grounds Four and Five of the Notice of Appeal).
5. Whether the 1st – 6th Respondents are entitled to Damages and apology in two National Dailies having not placed before the Court sufficient materials establishing that their Fundamental Rights have been breached by the Appellant. (Distilled from Ground 6 of the Notice of appeal).
6. Whether the decision of the trial Court is against the weight of evidence placed before the Court. (Distilled from Ground 7 of the Notice of Appeal).
The foregoing issues 1, 2 and 3 boil down to the core issue whether the initiating process was competent as it was presented before the lower Court. Firstly, the application for enforcement of fundamental rights was
5
collectively and jointly brought by the 1st to 6th Respondents contrary to the provision of Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 2 Rule 1 of the Fundamental Right (Enforcement Procedure) Rules 2009.
The adjective “any” used in both the Constitution and the Enforcement of Fundamental Rules clearly refers to a single individual as opposed to multiple persons coming together to enforce an alleged breach of their collective fundamental rights. See the case of Kporharor Vs Yedi & Ors (2017) LPELR – 42418 (C.A) and case of Archibong Udo Vs Ebanga Udorobson & 4 Ors (2018) LPELR – 45183 (C.A) where the Court held thus:
“…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 been 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
6
struck out”.
These authorities indicate that enforcement of fundamental right is to be brought by each person separately. These authorities were cited and argued before the lower Court. Thus, the Court below should not have entertained the application from the onset due to the multiplicity of Applicants, which renders the application incompetent and liable to be struck out.
The provision ofRule 1 of the Fundamental Rights states thus:
“2.-(1) Any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may apply to the Court in the State where the infringement occurs or is likely to occur, for redress.”
The words “any person” clearly refers to “any one person”. It will be extraneous to import plurality of persons into that provision. See the case of Kporharor Vs Yedi & Ors and Archibong Udo Vs Ebanga Udorobson & 4 Ors where the Court held as follows:
“…the adjective used in both provisions in qualifying who can apply to a Court to enforce a right is
7
“any” which denotes singular and does not admit pluralities in any form… In my humble view, any application filed by more than one person … under the Fundamental Rights Enforcement (Procedure) Rules is incompetent and liable to be struck out”.
My views are not different. Enforcement of fundamental right must be brought by each person separately and not collectively.
It is also pertinent to observe that in any action against police officers, the Nigeria Police Force as a statutory body must be made a party thereto.
The Appellants being the Inspector General of Police and the Commissioner of Police are mere agents of the Police and the latter is vicariously responsible for the acts of its officers.
Thus, the Appellants being subordinates or agents of the Police, as created under Sections 214 and 215 of the Constitution, the Police is a necessary party in any suit against the operations of its own agents. Therefore, the none inclusion of the Police as a party in this matter, renders same incompetent and the Court below should to have simply strike it out. See Sampsons V Uwak (2017) 10 NWLR (PT.1574) 491 at 504
8
paras F – H.
The crux of case boils down to whether the police who are statutorily charged under Section 4 of the Police Act with the responsibility of investigating the commission of any crime and handle the case according to law, had rightly or wrongly received the Appellant’s complaint alleging that his wife the 5th Respondent was enticed into second marriage with the 4th Respondent and if such conduct constitutes an offence under the law. The Police could only find out the truth of the information after investigation. It suffices if the complaint lodged is prima facie criminal in nature.
Moreover, the Police is undoubtedly a necessary party and failure to join the Police renders the action incompetent. The Supreme Court held in Fawehinmi v. Inspector-General of Police (2002) 23 WRN 1; (2002) 7 NWLR (Pt. 767) 606, that in any suit in which the actions of its operatives is the subject matter, the police must be joined as necessary party. There is also nothing in Section 4 of the Police Act that whittles down the Police discretion to investigate any particular allegation and when they decide to investigate to do so to its logical
9
conclusion. In the lead judgment Uwaifo JSC observed thus:-
“I am satisfied that in the performance of their duty to maintain law and order, to investigate allegations of crime and to arrest, the police have and can exercise some measure of discretion. It all depends on the circumstances of every occasion, the best of their capability, the image of the police force and the overall interest of the society.”
In Sampson Vs Uwak , the Court held thus:
“… By virtue of Ss. 214 & 215 CFRN 1999 (as amended) Ss. 3, 4, 5 Police Act, there is a clear distinction between the Nigeria Police Force as an entity and its functionaries. Accordingly, where the intention is to hold the Nigeria Police Force vicariously responsible for its operatives’ action, it is not negotiable that it must be made a party to the action.”
The action against the 7th and 8th Respondents, in their official as opposed to their private capacities, makes it mandatory for the Nigeria Police Force be joined as a necessary party, and the failure to so do renders the action ab initio incompetent.
The foregoing appraisal focuses my view inevitably to
10
resolving issues 1, 2 and 3 in favour of the Appellant, It also renders the remaining three issues insignificant and merely academic. The appeal is meritorious and same is hereby allowed. Consequently, the Ruling of the Court below delivered on 31st January, 2020 in suit number KDH/KAD/982/2019 is accordingly set aside. In the stead thereof, the action filed at the trial Court is hereby struck-out for incompetence.
There shall be no order as to costs.
OBIETONBARA O. DANIEL KALIO, J.C.A.: I have read the judgment of my learned brother Hussein Mukhtar JCA and I agree with my lords reasoning and conclusion. I wish to make a little contribution on the duty of Courts in relation to the decisions of Courts higher in hierarchy. One of the grounds of appeal in this matter is that the lower Court refused to abide by the decisions of higher Courts. This should not be so. The doctrine of stare decisis is critical to the law and it is not to be treated with levity by any judge as it remains a cornerstone for the maintenance of the rule of law. Judicial precedence is a safeguard against arbitrariness and capriciousness in decision making and makes for certainty of
11
the law. Therefore, where the judgment of a higher Court is cited before a lower Court and is relevant to the matter before that lower Court, that lower Court is not to ignore it but to apply it. If the lower Court finds that it is not quite relevant to the facts of the matter before it, it must still refer to the judgment cited and then distinguish it from the matter before it. Ignoring precedent is not an option. Judges are meant to apply the law and the law is made up of lex scripta or the written law and lex non scripta such as the common law. It is a form of judicial rascality for a judge to deliberately refuse to consider the decision of a higher Court cited before him. As I earlier mentioned, I agree with the judgment of my learned brother. Consequently, the Ruling of the lower Court is set aside. I abide by the consequential orders made by my lord.
SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft the lead Judgment of my lord, HUSSEIN MUKHTAR, JCA and I agree with the reasoning and conclusion that the appeal be allowed. The process which initiated the proceedings for Enforcement of the 1st – 6th respondents’ right under
12
Section 35(1) of the Constitution of the FRN, 1999 (as amended) is fraught with some fundamental irregularities not contemplated by Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) hence this appeal is allowed and the suit initiated at the trial Court, giving rise to this appeal, is struck out.
Ordered accordingly.
13
Appearances:
RILWANU UMAR, ESQ., with him, S. A. MUSTAPHA, ESQ. and S. S. TAMBAI, ESQ. For Appellant(s)
ABDULLAHI BELLO, ESQ. – for the 1st – 6th Respondents
MARTINS D. LEO, ESQ. (DSP) – for the 7th and 8th Respondents For Respondent(s)
