HUMAN RIGHTS & EMPOWERMENT PROJECT LTD/GTE v. PRESIDENT OF FRN & ORS
(2022)LCN/16807(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, July 15, 2022
CA/E/363/2018
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Between
HUMAN RIGHTS AND EMPOWERMENT PROJECT LTD/GTE APPELANT(S)
And
1. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA 2. ATTORNEY GENERAL OF THE FEDERATION 3. INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON LOCUS STANDI
Generally, in law locus standi denotes the right standing of a person to sue over a wrong allegedly done to him. It is the totality of the right conferred on a person who approaches a Court to seek remedy to have the right standing to seek particular remedy. It is for this reason that in law a person without the requisite locus standi, no matter the colossal nature of the injury or damages allegedly done or suffered, cannot sue or have the right standing in a Court of law to seek redress over such an alleged injury or damage done in which he has no or cannot show his locus standi to sue. Such a person can simply or safely be described as a meddlesome interloper. See Adesanya V. President, Federal Republic of Nigeria (2001) FWLR (Pt. 46) 859. See also Rangk Ltd & Ors V. AMCON & Anor (2017) LPELR-49979(CA) per Sir Biobele Abraham Georgewill JCA; Owodunni V. Regd. Trustees, Celestial Church of Christ (2009) FWLR (Pt. 9) 1488; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) All FWLR (Pt. 362) 1855; MTN Nig. Communications Ltd V. Musical Copyright Society of Nig. Ltd/Gte (2017) LPELR-50121(CA) per Sir Biobele Abraham Georgewill JCA. PER GEORGEWILL, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
My Lords, it is the settled law that jurisdiction is the life wire of any adjudication and that issues of jurisdiction can be raised at any stage of a proceedings either by the parties or even suo motu by the Court, but once an issue is raised suo motu by the Court, the general position of the law is that the Court is under a duty to call on the parties to address it before it can validly resolve such an issue raised suo motu by it. See Gbagbarigha V. Toruemi (2013) 6 NWLR (Pt. 1350) 289 AT P. 310. See also Council for the Regulation of Engineering in Nigeria V. Registered Trustees of Licensed Electrical Contractors Association of Nigeria & Ors (2022) LPELR – 56795 (CA) per Sir Biobele Abraham Georgewill JCA; Mutual Benefit Assurance Plc V. Access Bank Plc (2021) LPELR – 52746 (CA) per Sir Biobele Abraham Georgewill JCA.
However, it is now trite law that an issue of law and or jurisdiction can be raised suo motu by a Court and can be validly determined by the Court without calling on the parties to address it. This is because an issue of jurisdiction is intrinsic to adjudication by the case, and the word ‘intrinsic’ is a word that is synonymous with the word ‘inherent’. It underscores as well as portrays the fact that if a Court has no jurisdiction, the fact that the issue was raised or was not raised would not confer jurisdiction on the Court. In Persons, Names Unknown V. Sahris Int’l Ltd (2019) LPELR – 49006 (SC), the Supreme Court per Eko JSC had, while considering instances where a Court can raise an issue of jurisdiction suo motu and determine it without hearing the parties, stated inter alia thus:
“The Rules of the lower Court empowered it ‘to strike out a Notice of Appeal when the appeal is not competent or for any other sufficient reasons. In addition, the lower Court, within its inherent powers, can raise the point suo motu, as it did; it having a duty to ensure or satisfy itself that the appeal before it was competent. The incompetency of the appeal renders the proceedings on it a nullity, no matter how well conducted. The resultant effect is that the Court would have acted in vain in expending its precious time and resources on a matter that was void ab initio.” PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON COMMENCING AN ACTION FOR THE ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS
In law, for an action to be valid to be commenced by means of an Application for the enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), the principal claim or relief or cause of action must be one founded on or is for the enforcement of any of the fundamental right as guaranteed by Chapter IV of the Constitution of Nigeria 1999 (as amended). It is only and only then that such a claim can be commenced under the Fundamental Right (Enforcement (Procedure) Rules 2009, as anything otherwise such a claim would be incompetent if commenced under the Fundamental Right (Enforcement (Procedure) Rules 2009. See Alhaji Umaru Abba Tukr V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA), Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA). PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON THE JURISDICTION TO HEAR AND DETERMINE ANY CAUSE OF MATTER UNDER THE FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES 2009
In law, the jurisdiction to hear and determine any cause of matter under and by virtue of the Fundamental Right (Enforcement Procedure) Rules 2009, made by the Chief Justice of Nigeria pursuant to the power conferred on him by virtue of Section 46 (3) of the Constitution of Nigeria for the enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), is limited to claims falling under and within any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), and none other. Thus, no matter the guise under which an action is commenced, it is not for the enforcement and or securing the enforcement of any of the fundamental rights as guaranteed under the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), it would be incompetent if commenced as an application or suit or action or claim for the enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009. See Alhaji Umaru Abba Tukr V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA), Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA). PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court of Enugu, Coram: R. O. Dugbo – Oghoghorie J, in Suit No. FHC/EN/CS/59/2015: Human Rights and Empowerment Project Ltd/Gte V. President of the Federal Republic of Nigeria & Ors delivered on 7/12/2017. The claims of the Appellant as Applicant against the Respondents were dismissed.
The Notice of Appeal was filed on 5/3/2018 on three grounds of appeal. See pages 203 – 207 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 15/5/2018. The parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 23/6/2022. The Appellant was represented by F. C. Moneke Esq. The 1st & 2nd Respondents were served on 22/6/2022. The 3rd Respondent was served on 15/6/2022.
By an Originating Notice of Motion filed on 5/5/2016 before the lower Court, the Appellant as Applicant claims against the Respondents the following reliefs, namely:
1. A Declaration that the killings of innocent citizens of Nigeria at Nimbo, Uzouwani Local Government Area, Enugu State by Fulani herdsmen on 25/4/2016 amount to a violation of the right to life of all those who died in that murderous rampage.
2. A Declaration that the failure by the Respondents to protect the lives of innocent victims of Nimbo attack by Fulani herdsmen on 25/4/2016 amounts to a direct liability on the part of the Respondents for the violation of the right to life of the victims guaranteed under Section 33 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
3. An Order of this Court compelling the Respondents to identify all the victims of the Nimbo attack on April 25/4/2016 by Fulani herdsmen for purposes of paying adequate compensation to their families.
4. An Order of this Court compelling the Respondents to pay into a dedicated account to be opened by the Deputy Chief Registrar of this Court, the sum of N100,000,000,000. 00 as compensation to be shared amongst the families of the identified victims of the Nimbo attack by Fulani herdsmen on 25/4/2016.
5. An Order of this Court compelling the Respondents to thoroughly investigate the criminal and murderous attack on Nimbo communities on 25/4/2016 with a view to apprehending and prosecuting the culprits.
BRIEF STATEMENT OF FACTS
The Appellant as Applicant before the lower Court had alleged that on 25/4/2016, numerous armed Fulani herdsmen invaded Nimbo Ngwoko, Ugwuijoro, Ekwuru, Ebor, Enugu – Nimbo, Umuome and Ugwuachara all in Nimbo village of Uzouwani Local Government Area of Enugu State and murdered several residents, including one Mr. Maxwell Eze and over forty other residents and torched several residential houses and public buildings. Prior to this macabre attack, Members of Nimbo community, being apprehensive of an imminent attack, had reported their fears to the Police Authorities, which promptly deployed Police Officers to the area, who were quickly withdrawn despite the plea of the residents. As feared, no sooner had the Police withdrawn than the Community was attacked. On 17/6/2016, about 9 of them were buried by the Community, whilst several other were either buried by their families or are yet to be buried. The Appellant, a Non – Governmental Organization, then instituted this action to enforce the infringement and or violation of the right to life of the victims as a result of extra-judicial killing carried out by the armed Fulani herdsmen for the failure of the Respondents to protect the lives and properties of the victims as well as Residents of Nimo Community.
The Respondents denied the allegations and challenged the competence of the Application filed by the Appellant on several grounds, including lack of locus standi, the reliefs claimed do not fall under the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) but rather fall under the purview of Chapter II of the Constitution of the Nigeria 1999 (as amended), which are not justiciable, and thereby rendered the Appellant’s Suit incompetent. The Appellant joined issues with the Respondents on their preliminary objection as well as their counter-affidavits to the claims.
At the hearing of the application on 4/10/2017, the parties relied upon their various affidavits and counter-affidavits and adopted their respective written addresses, and on 7/12/2017, the lower Court delivered its judgment, in which it upheld the preliminary objection of the 1st – 2nd Respondents challenging the competence of the Appellant’s Suit and thereby dismissed same, hence this appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the three Ground of Appeal, to wit:
1. Whether the lower Court was correct in holding that the Appellant has no locus standi to bring the Application? (Distilled from Ground 1)
2. Whether the lower Court was correct in raising suo motu the issue of the extent of the CJN’s powers to make the Fundamental Rights (Enforcement Procedure) Rules, 2009 and ruling on the same without inviting Counsel to address him on that issue? (Distilled from Ground 2)
3. Whether the lower Court was correct in holding that the Appellant’s claim falls within the prohibited Section of the Constitution which ousts the jurisdiction of the Court? (Distilled from Ground 3)
In the 1st – 2nd Respondents’ brief, two issues were distilled as arising for determination in this appeal, to wit:
1. Whether or not the lower Court was right in its decision that the Appellant as the Applicant in this Suit lacks the locus standi, and by extension a jurisdictional issue, to institute this action brought under the Fundamental Human Rights claim having regards to the reliefs being sought (Distilled from Grounds 1 and 3)
2. Whether or not the lower Court had raised suo motu any issue of law that necessarily requires counsel on both sides to be invited to address it before the determination of or disposal of the case? (Distilled from Ground 2)
I have taken time to consider the Affidavit and Counter-Affidavit evidence of the parties as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court. I am of the firm view that the proper issue for determination in this appeal are the three issues as distilled in the Appellant’s brief, a consideration of which, in my view, would invariably involve a consideration of the two issues as distilled in the 1st – 2nd Respondents’ brief. However, I shall consider issue one first and on its own, and thereafter I shall consider issues two and three together and resolve them in one fell swoop.
ISSUE ONE
Whether the lower Court was correct in holding that the Appellant has no locus standi to bring the Application?
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that in application for the enforcement of fundamental rights of the citizen the issue of locus standi has been done away with and contended that the Appellant, as a human rights Non-Governmental Organization whose core mandate is the promotion, defense and protection of human rights, is by law empowered to institute and maintain this Suit against the Respondent as a Public interest litigation as provided by the Fundamental Rights (Enforcement Procedure) Rules 2009 and urged the Court to hold that the lower Court was wrong when it held, and very perversely, that the Appellant lacked the locus standi to institute and maintain this Suit and to allow the appeal, set aside the perverse decision of the lower Court and proceed to determine the Appellant’s Suit on the merit and grant the reliefs sought against the Respondents. Counsel referred to Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009; Paragraph 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009 and relied on Fawehinmi V. Akilu (1987) 4 NWLR (Pt. 67) 797, Fawehinmi V. The President (2008) 23 WRN 65.
It was also submitted that with the legally expanded frontiers for public interest litigation in the protection and enforcement of the fundamental rights of the Citizen, as in the instant appeal the right to life, the Appellant was not only competent to institute and maintain the Suit against the Respondents but also does not need any express permission, authorization or consent from the relations of the victims of Nimbo Community to apply to enforce the right to life of those who were killed in that community on 25/4/2016 and contended that it was sufficient that the Appellant is acting in the public interest, specifically in the interest of the group of people killed at Nimbo Community and urged the Court to give effect to the liberal provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 and to allow the appeal and set aside the perverse decision of the lower Court dismissing the Appellant’s Suit on grounds of locus standi. Counsel referred to Section 46 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and relied on Omonyahuy & Ors V. IGP & Ors (2015) LPELR – 25581 (CA), Abia State University, Uturu V. Chima Anyaibe (1996) 1 NWLR (Pt. 439) 646 AT PP. 660 – 661, Federal Republic of Nigeria V. Ifegwu (2003) 45 WRN 27 AT p. 69.
1ST – 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review in its entirety, learned counsel for the 1st – 2nd Respondent had submitted inter alia that the lower Court was perfectly right when it held that the Appellant lacked the requisite locus standi to instituted and maintain the Suit against the 1st – 2nd Respondents and contended that in law locus standi of a party is a threshold matter which touches on the jurisdiction of the Court to entertain a mater brought before it for adjudication and urged the Court to hold that since the reliefs claimed by the Appellant border more on enforcement of the provisions of Chapter II of the Constitution of Nigeria 1999 (as amended) and not for the enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), the Appellant lacked the requisite locus standi as in law the provisions of Chapter II of the Constitution of Nigeria 1999 (as amended) are not justiciable and to dismiss the appeal for lacking in merit and affirm the correct decision of the lower Court. Counsel referred to Section 14 (2) (b) of the Constitution of Nigeria 1999 (as amended), and relied on Bello V. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828, Adeleke V. Asani (2002) 7 NWLR (Pt. 768) 26, Alechenu V. Oshoke (2002) 9 NWLR (Pt. 77) 520 AT pp. 535 – 536, Alibo V. Okusi (2002) Vol. 28 WRN 173 AT p. 179.
It was also submitted that the lower Court having rightly found that the Appellant has not shown any interest in the subject matter of the Suit, and therefore, lacks the locus standi, it affects the jurisdiction of the Court to hear and determine the Appellant’s Suit without the requisite locus standi to maintain the Suit and contended that in law a Suit instituted without competence is one which robs the Court of its jurisdiction and therefore, liable to be dismissed and urged the Court to hold that the lower Court was right to have dismissed the incompetent Suit of the Appellant and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Madukolu V. Nkemdilim (1962) All NLR 587 AT p. 589, Emezi V. Osuagwu (2005) 12 NWLR (Pt. 939) 340 AT P. 362.
RESOLUTION OF ISSUE ONE
My Lords, the Appellant is a human right Non – Governmental Organization. It claims that its core mandate is the promotion, defense and protection of human rights. The Respondents did not contest these facts and I take it as duly established. It alleged that on 25/4/2016 some residents of Nimo Village were murdered by armed Fulani herdsmen despite prior protection sought from the Police by the said Community. However, it did not claim to be relatives to any of the victims but claims to seek to protect and enforce the fundamental right to life of the victims. Thus, the only question under issue one for determination is whether or not the Appellant’s Suit to enforce the right to life of the victims as well as the right to security and safety of lives and property of the members and residents of Nimo Village was competent from the standpoint of the concept of locus standi? The lower Court upon considering the written submissions of the parties on the issue of locus standi of the Appellant as challenged by the 1st – 2nd Respondents had, in upholding this ground of preliminary objection, held inter alia thus:
“From the foregoing, the conclusion I have reached has effectively deprived the Applicant the legal result, the legal capacity or locus standi to institute this action having failed to disclose any personal interest or connection with interest to any of the dead person or their [relations or any other person who suffered injury as a result of the death. The total effect of these deficits renders this action fundamentally defective. Accordingly, I hereby uphold this ground of the preliminary objection. Having held that the Applicant has failed to satisfy the requirement of Section 46(1) of the Constitution of the Federal Republic of Nigeria (as amended), thereby failed to disclose sufficient interest in the matter, the proper order to make at this stage is to dismiss the Suit.”
Generally, in law locus standi denotes the right standing of a person to sue over a wrong allegedly done to him. It is the totality of the right conferred on a person who approaches a Court to seek remedy to have the right standing to seek particular remedy. It is for this reason that in law a person without the requisite locus standi, no matter the colossal nature of the injury or damages allegedly done or suffered, cannot sue or have the right standing in a Court of law to seek redress over such an alleged injury or damage done in which he has no or cannot show his locus standi to sue. Such a person can simply or safely be described as a meddlesome interloper. See Adesanya V. President, Federal Republic of Nigeria (2001) FWLR (Pt. 46) 859. See also Rangk Ltd & Ors V. AMCON & Anor (2017) LPELR-49979(CA) per Sir Biobele Abraham Georgewill JCA; Owodunni V. Regd. Trustees, Celestial Church of Christ (2009) FWLR (Pt. 9) 1488; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) All FWLR (Pt. 362) 1855; MTN Nig. Communications Ltd V. Musical Copyright Society of Nig. Ltd/Gte (2017) LPELR-50121(CA) per Sir Biobele Abraham Georgewill JCA.
However, when it comes to the enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), the procedure is specially governed by the Fundamental Rights (Enforcement Procedure) Rules 2009, and therefore, it is to the provisions of these Rules I shall now turn my attention to see the requirement as it relates to locus standi of persons seeking to enforce any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended).
By Paragraph 3 (c) of preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009, which is the Rules made pursuant to Section 46 (3) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“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 organizations, 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 its members or other individuals or groups.”
The Appellant had also claimed to be involved in public interest litigation, part of which it alleged is the Suit it filed before the Court below against the Respondents to enforce the rights to life and of protection of lives and properties of the members and residents of Nimo Village, to which it claimed no relationship.
So, what is public interest within the meaning of the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 and was the Appellant’s Suit one within the contemplation of a ‘public interest litigation’?
By Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, ‘Public Interest’ is defined as including:
“The interest of Nigerian society or any segment of it in promoting human rights and advancing human rights law.”
My Lords, looking at the facts of this case in respect of the capacity and core mandate of the Appellant, which were largely unchallenged, and having considered the succinct provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, and keeping in mind the preamble to the said Rules, it does appear to me, and I so hold, that in application for the enforcement of fundamental rights of the citizen under Chapter IV of the Constitution of Nigeria 1999 (as amended) and by virtue of the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, the general requirement of locus standi has indeed been done away. Thus, the Appellant an undisputed human rights Non – Governmental Organization with the core mandate of promoting, defending and protecting human rights of the citizens of this country, through public interest litigation etc., is in my finding and I so firmly hold, empowered by law pursuant to the provisions of Fundamental Rights (Enforcement Procedure) Rules 2009, to institute and maintain this Suit against the Respondent as a Public interest litigation for the enforcement of the Fundamental rights of the members and residents of Nimo Village. After all for a better society to take root in this country, we must all begin, if we are not yet, to be our brothers and sisters’ keepers! See Fawehinmi V. Akilu (1987) 4 NWLR (Pt. 67) 797, where the Supreme Court per Obaseki JSC, had reiterated succinctly inter alia thus:
“Since we are all brothers in the society, we are our brother’s keepers. If we pause a little and cast our minds to the happenings in the world, the rationale for this rule will become apparent.”
See also Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Paragraph 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009, Fawehinmi V. The President (2008) 23 WRN 65
My Lords, carefully reading through the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, particularly Paragraph 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009, the more it becomes apparent to me that it has in matters of enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) clearly and legally expanded the frontiers of public interest litigation in Nigeria for the protection and enforcement of the fundamental rights of the Citizen. I therefore cannot but agree with the apt and unassailable submission of learned counsel for the Appellant, subject however to my consideration later of the subject matter of the Appellant’s Suit as to whether the claims are founded on alleged infringement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), that in public interest litigation for the enforcement of fundamental rights of the citizen there is in law no longer any need for any express permission, authorization or consent from either the victim of human right abuse or his relatives to validate an application for the enforcement of any of the fundamental rights as constitutionally guaranteed to the citizens. See Section 46 (1 – 3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It is therefore very clear to me, and I so firmly hold, that the lower Court had, despite the clear provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 reducing to non-existence the requirement of locus standi as it operates and governs other civil proceedings in proceedings for enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), unwittingly insisted on the application of the concept of locus standi in proceedings for the enforcement of Chapter IV of the Constitution of Nigeria 1999 (as amended) contrary to the very clear and unambiguous provisions of the governing rules of procedure. I think that was a grave error on the part of the lower Court, and must have resulted from the failure to appreciate that the procedure for enforcement of Chapter IV of the Constitution of Nigeria 1999 (as amended) is a special procedure unique to only this procedure and none other. In other words, the provisions of the Fundamental Rights (Enforcement Rules) 2009 governs exclusively the proceedings in action for the enforcement of Chapter IV of the Constitution of Nigeria 1999 (as amended).
It follows therefore, whatever procedure is validated under the said Rules is valid and should be given effect to by the Court for the enforcement and protection of the fundamental rights of the citizen. The lower Court, regrettably missed this point when it proceeded to dismiss the Appellant’s Suit merely on account of locus standi contrary to the provisions of the said Rules which validates public interest litigation for the enforcement of the fundamental rights of the citizen either by themselves or on their behalf. The Appellant’s Suit was therefore, not rendered incompetent by reason of lack of locus standi as the Appellant is clothed with the requisite locus standi to institute and maintain the Suit against the Respondents.
In the light of all I have found and stated above, issue one is hereby resolved in favor of the Appellant against the Respondents.
ISSUES TWO AND THREE
Whether the lower Court was correct in raising suo motu the issue of the extent of the CJN’s powers to make the Fundamental Rights (Enforcement Procedure) Rules, 2009 and ruling on the same without inviting Counsel to address him on that issue AND whether the lower Court was correct in holding that the Appellant’s claim falls within the prohibited Section of the Constitution which ousts the jurisdiction of the Court?
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on issue two, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that the lower Court was wrong when it raised and determined suo motu the issue of the extent of the powers of the Chief Justice of Nigeria CJN to make the Fundamental Rights (Enforcement Procedure) Rules 2009 without calling on the parties to address it and contended that in law the failure of the lower Court to call upon the parties to address it on the issue raised suo motu by it and proceeding to resolving it also suo motu the lower Court breached the right of the Appellant to fair hearing as constitutionally guaranteed to the Appellant and urged the Court to hold that such a breach rendered the entire judgment of the lower Court a nullity and to allow the appeal and set aside the judgment of the lower Court for being a nullity, it having been reached in clear breach of the Appellant’s right to fair hearing. Counsel relied on Oguebego & Anor V. PDP & Ors (2016) 4 NWLR (Pt. 1503) 446 AT Pp. 482 – 483, Egbuchu V. Continental Merchant Bank Plc & Ors (2016) 8 NWLR (Pt. 1513) 192 AT p. 208.
It was also submitted that the powers of the Chief Justice of Nigeria to make the said Enforcement Procedure Rules of 2009 was not in issue in the Appellant’s Suit and contended that the lower Court in raising it and going ahead to hold that such power of the Chief Justice of Nigeria does not extend to amending, modifying, repealing or extending the limits of any substantive law, the lower Court was merely seeking for an excuse to hold, as it did perversely, that the Appellant lacked the locus standi to instituted and maintain the Suit against the Respondent and urged the Court to hold that this failure rendered the entire judgment of the lower Court a nullity and thus, liable to be set aside, and to allow the appeal and set aside the judgment of the lower Court for being a nullity. Counsel relied on Total Engineering Services Team Inc. V. Chevron Nig. Ltd. (2017) 11 NWLR (Pt. 1576) 187 AT PP. 210 & 213, South Atlantic Petroleum Ltd v. The Minister of Petroleum Resources & Ors (2018) 6 NWLR pt. 1616 pg. 391 AT 408 & 417, Salu V. Egeibon (1994) 6 NWLR (Pt. 348) 23, Adigun V. AG Oyo State (1987) 1 NWLR (Pt. 53) 678.
In his submissions on issue three, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that the reliefs claimed by the Appellant is to hold the Respondents accountable for the violation of the right to life of the victims owing to the flagrant abnegation of their duty to protect the lives of the vulnerable victims of Nimbo Village and contended that in law the duty of Government is to protect every human right of its citizens, which implies a positive obligation on the Authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual and urged the Court to hold that the Appellant proved their claims against the Respondent contrary to the perverse findings of the lower Court since he claims of the Appellant was not predicated on failure of the Respondents to provide security for the victims of Nimbo but failure of the Respondents in their obligation to protect the lives of innocent and helpless citizens resident at Nimbo and to allow the appeal and set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents. Counsel referred to Section 14 (2) and 33 (1) of the Constitution of Nigeria 1999 (as amended); Article 1 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9 LFN 2004 and relied on Hossam Ezzat & Rania Enayet V. The Arab Republic of Egypt (Communication 355/07) AT pp. 126 – 127, SERAC & CESR V. Nigeria (Communication 155/96) AT pp. 43 – 48, Albekov & Ors. V. Russia (ECHR No. 68216/01), Osman V. The United Kingdom (ECHR No. 87/1997/871/083), Abacha V. Fawehinmi (2000) 6 NWLR (Pt. 660) 228, Agbakoba V. DSSS (1994) 6 NWLR (Pt. 351) 1, Inspector-General of Police V. All Nigeria Peoples Party (2008) 12 WRN 65.
1ST – 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
In his submissions on issue two, which I have taken time to review in its entirety, learned counsel for the 1st – 2nd Respondents had submitted inter alia that contrary to the contentions by the Appellant, the lower Court did not raise and determine any issue suo motu that necessarily require the parties to be invited to address it and contended that in law the need to invite parties to address a Court on issue raised suo motu relates to issue of facts and not of law and urged the Court to hold that all that the lower Court did was to interpret the provisions of Section 46 (1) – (3) of the Constitution of Nigeria 1999 (as amended), which is the enabling substantive law for the initiation of fundamental rights action and is thus a matter of pure law for which no invitation of the parties to address it was required and which occasioned no miscarriage of justice and to dismiss the appeal for lacking in substance and to affirm the decision of the lower Court. Counsel referred to Section 122 (2) (a) of the Evidence Act 2011, Almanac of Contemporary Judicial Restatement with Commentaries, Vol. I, Practice and Procedure by Lia Oshinkunbo Oshisanya, AT page 966, published by Spectrum Books Limited, Reprinted 2010 – 2011, and relied on Andrew Mark Macaulay V. Raiffeisen Zentral Bank (2003) 16 INSCQR 120 AT p. 130, Effiom V. CRSIEC (2010) 14 NWLR (Pt. 1213) 106 AT pp. 133 – 134, Imah V. Okegbe (1993) 9 NWLR (Pt. 316) 159, Olubode V. Salami (1985) 2 NWLR (Pt. 7) 282, United Agro Ventures Ltd. V. FCMB Ltd ( 1998) 4 NWLR (Pt. 547) 551 AT p. 564.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that the Appellant commenced the Application at the lower Court by Originating Motion, being the permissible mode of commencement of actions under the Fundamental Rights (Enforcement Procedure) Rules 2009 and contended that the issue of whether the action was commenced wrongly was not an issue joined by the parties before the lower Court and is therefore, merely academic in this appeal and urged the Court to hold that it constitutes a fresh issue, which having not been raised before the lower Court cannot be raised in this appeal without the leave of this Court and urged the Court to discountenance same. Counsel relied on Njoku V. State (2013) 2 NWLR (Pt. 1339) 548.
It was also submitted that since the lower Court was not called upon by the parties to determine the extent of the powers of the Chief Justice of Nigeria to make Rules for the enforcement of fundamental rights and or to interpret the provisions of Section 46 of the Constitution of Nigeria 1999 (as amended), the issue raised and determined suo motu by the lower Court was evidently a fresh issue and contended that in law the issue so raised being a serious constitutional issue, the failure to invite the parties to address it amounted to a clear breach of the Appellant’s right to fair hearing and urged the Court to hold that such a breach was fatal to the validity of the decision of the lower Court and to allow the appeal, set aside the judgment of the lower Court for being a nullity. Counsel relied on Odedo V. Oguebego (2015) 13 NWLR (Pt. 1476) 229, Egbuchu V. FCMB Plc (2016) 8 NWLR (Pt. 1513) 192, Mainstreet Bank Ltd V. Binna (2016) 12 NWLR (Pt. 1526) 316, Mabamije V. Otto (2016) 13 NWLR (Pt. 1529) 171, Adetula V. Akinyosoye (2017) 16 NWLR (Pt. 1592) 492 AT Pp. 517-518, Atago V. Nwuche (2017) 1 NWLR (Pt. 1545) 147 AT P. 172, SCC Ltd V. Kingston (2016) 4 NWLR (Pt. 1501) 172 AT p. 189.
RESOLUTION OF ISSUES TWO AND THREE
My Lords, going by the affidavit, counter-affidavit, further affidavit, preliminary objections and the avalanche of submissions before the lower Court as in the Record of Appeal this Suit was hotly contested before the lower Court and issues two and three for determination in this appeal deal with the crucial issues of validity of the judgment of the lower Court as well as the merit or otherwise of the case of the Appellant. See pages 2 – 25 of the Record of Appeal for the Originating Notice of Motion filed on 5/5/2016. See pages 71 – 94 of the Record of Appeal for the 1st – 2nd Respondents’ Counter-Affidavit filed on 6/6/2016. See pages 96 – 108 of the Record of Appeal for the 1st – 2nd Respondents’ Notice of Preliminary Objection filed on 6/6/2016. See page 109 of the Record of Appeal for the 3rd Respondent’s Notice of Preliminary Objection filed on 20/6/2016. See pages 110 – 120 for the 3rd Respondent’s Counter-Affidavit filed on 20/6/2016. See pages 121 – 140 of the Record of Appeal for the Appellant’s Further – Affidavit filed on 22/6/2016. See pages 141 – 148 of the Record of Appeal for Appellant’s Counter-Affidavit to the 1st and 2nd Respondents’ preliminary objection filed on 22/6/2016. See pages 155 – 171 of the Record of Appeal for the Appellant’s Further Affidavit to the 3rd Respondent’s counter-affidavit filed on 28/6/2016. Then see pages 181 – 183 of the Record of Appeal for the hearing of both the Substantive Application and Notices of Preliminary Objections by the lower Court on 4/10/2017, and see pages 185 – 202 of the Record of Appeal for the judgment of the lower Court delivered on 7/12/2017.
Now, by a Notice of Preliminary Objection filed on 6/6/2016 before the lower Court, the 1st – 2nd Respondents had challenged the competence of the Appellant’s Suit on the grounds that the Appellant lacks the requisite locus, an issue which has already been resolved under issue one in this appeal in favor of the Appellant against the 1st – 2nd Respondents, that the lower Court lacks the jurisdiction to entertain the Appellant’s Suit in view of the provisions of Section 6(6)(c) of the Constitution of Nigeria 1999 (as amended), that the subject matter of the Appellant’s Suit falls strictly within the provision of Section 14 (2) (b) of the Constitution of Nigeria 1999 (as amended), and consequently, under Chapter II of the said Constitution providing for the Fundamental Objectives and Directive Principles of State policy, which are not justiciable.
Upon a thorough review of the written submissions of the parties as in the Record of Appeal, the lower Court had in its judgment delivered on 7/12/2017, held and stated inter alia as follows:
“On ground two (2) that the complaint alleged against the 1st and 2nd Respondents centered on the failure by the Respondents to provide security for the residents of Nimbo, Uzouwani Local Government Area of Enugu State which claim relates to Section 14(2) (b) Chapter II and Section 6(6) (C) of the 1999 Constitution which ousted the jurisdiction of this Court. I am respectfully of the opinion that a policy is a guide to the achievement of an objective. By constitutional policy, it means the principles and objective set out in the 1999 Constitution…From the foregoing, I hold after perusing the claim of the Plaintiff and the applicable law that the claim of the Applicant fall within the prohibited Section of the Constitution which ousted the jurisdiction of this Court to entertain matters that falls within Section 6(6) (C) of the Constitution and or Chapter II of the Constitution… Consequently, this suit is hereby dismissed.” See pages 185 – 202 of the Record of Appeal.
My Lords, it is the settled law that jurisdiction is the life wire of any adjudication and that issues of jurisdiction can be raised at any stage of a proceedings either by the parties or even suo motu by the Court, but once an issue is raised suo motu by the Court, the general position of the law is that the Court is under a duty to call on the parties to address it before it can validly resolve such an issue raised suo motu by it. See Gbagbarigha V. Toruemi (2013) 6 NWLR (Pt. 1350) 289 AT P. 310. See also Council for the Regulation of Engineering in Nigeria V. Registered Trustees of Licensed Electrical Contractors Association of Nigeria & Ors (2022) LPELR – 56795 (CA) per Sir Biobele Abraham Georgewill JCA; Mutual Benefit Assurance Plc V. Access Bank Plc (2021) LPELR – 52746 (CA) per Sir Biobele Abraham Georgewill JCA.
However, it is now trite law that an issue of law and or jurisdiction can be raised suo motu by a Court and can be validly determined by the Court without calling on the parties to address it. This is because an issue of jurisdiction is intrinsic to adjudication by the case, and the word ‘intrinsic’ is a word that is synonymous with the word ‘inherent’. It underscores as well as portrays the fact that if a Court has no jurisdiction, the fact that the issue was raised or was not raised would not confer jurisdiction on the Court. In Persons, Names Unknown V. Sahris Int’l Ltd (2019) LPELR – 49006 (SC), the Supreme Court per Eko JSC had, while considering instances where a Court can raise an issue of jurisdiction suo motu and determine it without hearing the parties, stated inter alia thus:
“The Rules of the lower Court empowered it ‘to strike out a Notice of Appeal when the appeal is not competent or for any other sufficient reasons. In addition, the lower Court, within its inherent powers, can raise the point suo motu, as it did; it having a duty to ensure or satisfy itself that the appeal before it was competent. The incompetency of the appeal renders the proceedings on it a nullity, no matter how well conducted. The resultant effect is that the Court would have acted in vain in expending its precious time and resources on a matter that was void ab initio.”
Earlier in Effiom V. CRSIEC (2010) All FWLR (Pt. 552) 1610 AT p. 1634, the Supreme Court per Tobi JSC (God bless his soul) had set out succinctly the exception to the rule against a Court raising and determining an issue suo motu inter alia thus: “The principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of facts. In some circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing from the parties decide upon it.”
See also Ogar & Ors. V. Igbe & Ors. (2019) LPELR – 48998 (SC), Williams Angadi V. Peoples Democratic Party and Ors (2018) LPELR – 44375 (SC).
It follows therefore, once an issue is one of jurisdiction and or competence, it can be raised and determined even suo motu by a Court of law, including the lower Court, and this Court as well as the Apex Court, or any other Court of law for that matter, without the need for calling on the parties to address it. After all, it is often said, and indeed it is very true, that the law lies in the bosom of the Courts. See Christopher Obueke & 3 Ors V. Nsude Nwankwo Nnamchi & 2 Ors (2006) All FWLR (Pt. 313) 195. See also David Adetona Famadewa V. FAAN & Anor 2021 LPELR – 54543(CA) per Sir Biobele Abraham Georgewill JCA, Mutual Benefit Assurance Plc V. Access Bank Plc (2021) LPELR – 52746 (CA) per Sir Biobele Abraham Georgewill JCA, Joseph V. Hunpe & Ors (2019) LPELR – 47525(CA) per Sir Biobele Abraham Georgewill JCA.
I cannot therefore see or find any error in the lower Court considering and interpreting the provisions of Section 46 (1) – (3) as to the extent of the powers of the Chief Justice of Nigeria to make Rules for the enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), and issue which was purely one of law and which can be raised and determined, as the lower Court did and quite rightly too in my view, suo motu without inviting the parties to address it. I so firmly hold.
Now, by Section 46 (1) and (2) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
(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.”
By Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, it is provided thus:
“Any person who alleges that any of the Fundament Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, 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.”
Now, going by the above succinct provisions of the Constitution of Nigeria 1999 (as amended), was the Appellant’s Suit competent before the lower Court with regards to the subject matter of the claims of the Appellant as commenced by means of an Originating Notice of Motion for the enforcement of fundamental right pursuant to Chapter IV of the Constitution of Nigeria 1999 (as amended)?
In law, for an action to be valid to be commenced by means of an Application for the enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), the principal claim or relief or cause of action must be one founded on or is for the enforcement of any of the fundamental right as guaranteed by Chapter IV of the Constitution of Nigeria 1999 (as amended). It is only and only then that such a claim can be commenced under the Fundamental Right (Enforcement (Procedure) Rules 2009, as anything otherwise such a claim would be incompetent if commenced under the Fundamental Right (Enforcement (Procedure) Rules 2009. See Alhaji Umaru Abba Tukr V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA), Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA).
So, what is the principal claim or cause of action of the Appellant over which the lower Court heard and upheld the preliminary objection of the 1st – 2nd Respondent, declined jurisdiction and consequently dismissed the claims of the Appellant?
I have taken time to review the reliefs as endorsed and claimed in the Originating Notice of Motion by the Appellant against the Respondents. I have also evaluated the copious affidavit evidence of the Appellant, which ordinarily should be the documents to look at to determine both their cause of action and the jurisdiction of the lower Court, and I find as fact that the Appellant’s cause of action was the alleged failure of the Respondents to provide for the protection of lives and properties of the members and residents of Nimbo Village in Enugu State resulting into the alleged massacre of some members and residents of Nimbo Village by armed Fulani Herdsmen on 25/4/2016, and the harvest of death. This is clearly captured in relief two as claimed by the Appellant, which is as follows:
“A Declaration that the failure by the Respondents to protect the lives of innocent victims of Nimbo attack by Fulani herdsmen on 25/4/2016 amounts to a direct liability on the part of the Respondents for the violation of the right to life of the victims guaranteed under Section 33 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).”
In law, the jurisdiction to hear and determine any cause of matter under and by virtue of the Fundamental Right (Enforcement Procedure) Rules 2009, made by the Chief Justice of Nigeria pursuant to the power conferred on him by virtue of Section 46 (3) of the Constitution of Nigeria for the enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), is limited to claims falling under and within any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), and none other. Thus, no matter the guise under which an action is commenced, it is not for the enforcement and or securing the enforcement of any of the fundamental rights as guaranteed under the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), it would be incompetent if commenced as an application or suit or action or claim for the enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009. See Alhaji Umaru Abba Tukr V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA), Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA).
I have taken a second calm look at the reliefs claimed by the Appellant, particularly relief two, which appears to me to be the main or principal relief upon which all the other reliefs, including relief one, are predicated, and I have asked myself if the real essence and effects of reliefs is the enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), notwithstanding the guise and coloration given to them by the Appellant? Honestly, looking at and having reviewed and considered the entirety of the affidavit and counter-affidavit of the parties, ad having reviewed all their submissions, it seems very clear to me, and I so hold, that the principal claims of the Appellant, as clearly and correctly found by the lower Court, are not for the enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 as amended but rather for the enforcement of the socio-economic rights as provided for in Chapter II of the Constitution of Nigeria 1999 (as amended) but ingeniously disguised as claims for the enforcement of the right to life of the alleged victims of the alleged attack on the members and residents of Nimbo Village by alleged armed Fulani Herdsmen on 25/4/2016. At best, the claim in relief one, when juxtaposed with the claim in relief three and four, panders more to tortious claim for unlawful death than for the enforcement of the right to life. See these reliefs 1, 3 and 4 as hereunder reproduced as follows:
1. A Declaration that the killings of innocent citizens of Nigeria at Nimbo, Uzouwani Local Government Area, Enugu State by Fulani herdsmen on 25/4/2016 amount to a violation of the right to life of all those who died in that murderous rampage.
3. An Order of this Court compelling the Respondents to identify all the victims of the Nimbo attack on April 25/4/2016 by Fulani herdsmen for purposes of paying adequate compensation to their families.
4. An Order of this Court compelling the Respondents to pay into a dedicated account to be opened by the Deputy Chief Registrar of this Court, the sum of N100,000,000,000.00 as compensation to be shared amongst the families of the identified victims of the Nimbo attack by Fulani herdsmen on 25/4/2016.
My Lords, in law it has been firmly settled that the provisions of Chapter II of the Constitution of Nigeria 1999 (as amended), as laudable as they are, including the provision of Section 14(2) thereof, are regrettably not justiciable, and therefore, cannot be enforced in any Court of law. See Attorney-General of Ondo State V. Attorney-General of the Federation (2002) 9 NWLR (Pt. 772) 222.
It follows therefore, and I so firmly hold, that the claims of the Appellant though commenced ostensibly under the guise of an action for the enforcement of fundamental right, the reliefs, grounds, facts and circumstances relied upon by the Appellant as the cause of action are essentially the refusal or failure of the Respondents to perform and or carry out their duties and or responsibilities for the protection of lives and properties of the citizens of this Country, including the members and residents of Nimbo Village in Enugu State. This is certainly not a claim cognizable under Chapter IV of the Constitution of Nigeria 1999 (as amended) as can be competently commended as an action under and by virtue of the Fundamental Right (Enforcement Procedure) Rules 2009, as vehemently but clearly erroneously contended by the learned counsel for the Appellant. In this, the decision of the lower Court to decline jurisdiction was perfectly right and cannot be faulted in any way by this Court. See Independent National Electoral Commission V. Samuel Olalekan & Ors (2022) LPELR -56901(CA) per Sir Biobele Abraham Georgewill JCA See also Alhaji Umaru Abba Tukr V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA), Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA).
My Lords, interestingly, because actions for enforcement of fundamental rights are very special, due to the sacrosanct nature of the rights conferred by Chapter IV of the Constitution of Nigeria 1999 (as amended), which can only be derogated from as permitted by law, the procedure for enforcement of these rights are also somewhat sui generis, of their own special kind governed principally by the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009. A procedure which, in law, can only be used for the enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), and other domesticated provisions on international treaties on Human Rights none other. In other words, if a claim is not for or touching on or concerning the securing and or enforcing of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), then such a claim is not one that is capable of being competently commenced under the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009.
It is therefore the law that for an action or cause or matter to be competent under the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 as an application for enforcement of and or securing the enforcement of the fundamental rights the principal or main claim must be one for the enforcement of fundamental right, failing which such an action is and must be held to be incompetent by the Court. Thus, for an application for the enforcement of fundamental right to be competent, it must be shown that the breach of a Fundamental Right is the main claim. It follows therefore, that if the claim or violation of a Fundamental Right is only incidental or ancillary to the main claim or relief sought, it would be incompetent to institute the action as one for the enforcement of a Fundamental Right. See Princess V. Governor of Ogun State & Ors (2018) LPELR – 44986(CA), where this Court had stated inter alia thus:
“Now, the settled law, as decided in plethora of authorities is that, for an Application for the Enforcement of any of the Fundamental Rights entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to be grounded. In other words, the main or principal relief sought must be shown to be one for the enforcement of a Fundamental Right, otherwise, the action initiated by way of enforcement of Fundamental Rights under the Fundamental Rights (Enforcement Procedure). Rules. 2009 would be incompetent and liable to be struck out.”
See also JACOB V. Commissioner, Ministry of Environment and Mineral Resources, Akwa Ibom State & Anor (2018) LPELR – 45182 (CA) where this Court had reiterated inter alia thus:
“The position of the law has not yet changed. It is that for any claim to qualify as falling under the fundamental rights, it must be clear that the principal relief claimed is for the enforcement of a fundamental right as known under Chapter IV of the Constitution and not to redress any grievance that is ancillary to the principal relief. When that happens, the claim will be incompetent.”
I therefore consider, and indeed it is true, all the reliefs founded on relief two were at best merely ancillary claims and regrettably, they do not also even border on fundamental rights and since the main and or principal relief two on which they were all based and drew their strength from is not for the enforcement of any of the fundamental rights before the lower Court, the Appellant’s Suit was and remained incompetent, notwithstanding the guise under which it was brought as an application for the enforcement of fundamental rights when in law and in reality it was not! The Appellant’s Suit was therefore, clearly incompetent and thereby robbed the lower Court of its jurisdiction as was rightly held by the lower Court in its judgment appealed against by the Appellant. See Section 46(1) of the Constitution of Nigeria 1999 (as amended). See also Princess V. Governor of Ogun State & Ors (2018) LPELR – 44986(CA), JACOB V. Commissioner, Ministry of Environment and Mineral Resources, Akwa Ibom State & Anor(2018) LPELR – 45182 (CA), Peterside V. IMB (1993) 2 NWLR (Pt. 278) 712, Ezomo V. Oyakhire (1985) 1 NWLR (Pt. 2) 195, Galadima V. Tamba (2000) 11 NWLR (Pt. 677) 1, Buremoh V. Akande (2017) 1 SCNJ 207 AT p. 249.
In the light of all I have found and stated above, issues two and three for determination are hereby resolved against the Appellant in favor of the 1st – 2nd Respondents.
Having therefore, resolved issues two and three for determination against the Appellant in favor of the 1st – 2nd Respondents, I hold firmly that the Appellant’s Suit was incompetent. In law, once the requisite jurisdiction is found to be lacking that is indeed the end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC, (God bless his soul) had put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.”
I think having resolved issue one for determination dealing with the locus standi in favor of the Appellant, notwithstanding the resolution of issues two and three for determination against the Appellant, I may still invoke, for whatever it is worth, our powers under Section 15 of the Court of Appeal Act, Cap C 36 Laws of the Federation of Nigeria, 2004 to consider the application of the Appellant on the merit, rather than merely dismissing the appeal and affirming the correct decision of the lower Court, which though did not consider the merit of the Appellant’s Suit, and quite rightly too, having found itself hamstrung by its lack of jurisdiction.
My Lords, I am aware this is not a power we readily exercise except the circumstances for its exercise are so clearly and all too evident for us to ignore. We will therefore do so where the lower Court had the legal power to adjudicate in the matter or where the real issue raised by the claim of the Appellant before the lower Court is one capable of being distilled from the grounds of appeal or where all necessary materials are available to this Court as in the instant appeal, or where the need for expeditious disposal of the case to meet the ends of justice is very apparent on the face of the materials presented before, or to avoid any injustice or hardship consequent upon a mere striking out of the claims of the Appellant without the benefit of a hearing on the merit. See Ezeigwe V, Nwawulu (2010) 4 NWLR (Pt. 1183) 159 AT Pp. 203 -204. See also Chief Austine Oguejifor & Anor V. Ubakason Nigeria Limited (2022) LPELR-56783(CA) per Sir Biobele Abraham Georgewill JCA, Inakoju V. Adeleke (2007)4 NWLR (Pt. 1025) 423, Ado Ibrahim & Co. Ltd. V. BCC Limited (2007)15 NWLR (Pt. 1058) 538 AT p. 557.
I have taken time to review, consider and evaluate the affidavit evidence of the parties as in the Record of Appeal. Honestly, the more I look to see what the Appellant had said that the Respondents either in threatened or actual breach or infringement of any of the fundamental rights of either the alleged victim or any of the other members and residence of Nimbo Village, the less and more confounding I find the case of the Appellant. There is not one act attributed to all or any of the Respondents in the alleged attacks leading to the alleged unfortunate deaths of the victims. There was not even the film set of suggestion that either the Respondents were the armed Fulani Herdsmen or that they directed or instructed the armed Fulani Herdsmen to carry out the alleged attacks or that they were in law to be vicariously liable for the acts of the alleged armed Fulani Herdsmen. To make matters worse, the Appellant is even seeking an order the alleged incident be properly investigated by the 3rd Respondent with a view to unraveling the culprits for the purpose of prosecution.
So, in the above scenario as put forward by the Appellant, how can it be said that all or any of the Respondents, including even the 3rd Respondent, whom the Appellant wants to be ordered to carry out a proper and detailed investigation to unravel the culprit, are also liable for the alleged violation of the fundamental right to life and properties of the victims and other members and residents of Nimo Village? I think such a claim is not only merely speculative but also preposterous and I so firmly hold.
My Lord, it is the law that where the requisite evidence an alleged violation of human rights of the citizen is not in any, even remotely linked to the alleged violator, such a claim is dead on arrival or taken as having not been made out and thus, liable to be dismissed. Indeed, facts are the arrowhead of the law and therefore, were the much needed facts are not available in evidence against the alleged violator but all what is brandish are mere unconfirmed stories and fables, an application for enforcement of fundamental right, the breach of which rights are not proved, is bound to fail and be dismissed by the Court. In this regard, and generally, once the requisite hard evidence is lacking in support of a claim before a Court of law, then neither mere averments or even bare depositions nor the most forensic and eloquence of brilliant submissions can be a substitute for evidence that was not given. This is so because in law the fountain or arrow head of the law are the evidence of the facts. See Neka B. B. B. Manufacturing Co. Ltd V. African Continental Bank Ltd (2004) All FWLR (Pt. 198) 1175 AT p. 1191. See also Thompson V. Arowolo (2003) 7 NWLR (Pt. 818) 163, Kimdey V. Military Governor, Gongola State (1988) 2 NWLR (Pt. 77) 473.
It follows therefore, in law that where a fact or facts are relied upon but no credible and cogent admissible evidence is led to prove them, then no onus is cast on the other party to disprove the fact or facts not established. Thus, it is the law that notwithstanding even the absence of the case of a Defendant or Respondent as the case may be, a Plaintiff or Applicant as the case may be, must lead credible evidence sufficient enough to establish his claims even if it be on a minimal proof. When therefore, a Plaintiff or Applicant fails to make out at least a prima facie case of his claims against a Defendant or Respondent, the mere absence of the case of defense would not result into a verdict in favor of the Plaintiff or Respondent. This is so because in law if no prima facie case is made out by a Plaintiff or Applicant against a Defendant or Respondent, then such a Defendant or Respondent need not even prove anything in his defense. See Jolayemi V. Olaoye (2004) 12 NWLR (Pt. 887) 322, where the Supreme Court per Uwaifo JSC, had put this issue bluntly and succinctly thus:
“I realized that the Defendant need not prove anything if the Plaintiff has not succeeded in establishing the case at least prima facie, in order that the necessity of the affidavit to confront the case may arise.”
From all I have stated above, it is obvious to me, and I so firmly hold, that the Appellant failed woefully to link, even remotely, by credible and cogent evidence beyond mere conjectures and speculations, all or any of the Respondents to the alleged attack of 25/5/2016 on the members and residents of Nimbo Village in Enugu State that allegedly resulted into some deaths and destruction of properties by the alleged armed Fulani Herdsmen. The Appellant having therefore, failed to prove all or any of the claims against the Respondents, the Appellant’s Suit was liable to be dismissed for lacking in merit, apart from already being found to be incompetent and thus, liable to be struck out.
In the light of all I have found and stated, I hereby resolve issues two and three for determination against the Appellant in favor of the 1st – 2nd Respondents.
On the whole therefore, having resolved issues two and three for determination against the Appellant in favor of the 1st – 2nd Respondents, notwithstanding the resolution of issue one for determination in favor of the Appellant against the 1st – 2nd Respondents, I hold that the appeal lacks merit and is liable to be dismissed. Consequently, this appeal is hereby so dismissed.
In the result, the judgment of the Federal High Court of Enugu, Coram: R. O. Dugbo – Oghoghorie J, in Suit No. FHC/EN/CS/59/2015: Human Rights and Empowerment Project Ltd/Gte V. President of the Federal Republic of Nigeria & Ors delivered on 7/12/2017, in which the claims of the Appellant as Applicant against the Respondents were dismissed, is hereby affirmed.
There shall be no order as to cost.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Biobele Abraham Georgewill, JCA gave me the benefit of reading in advance, the draft of the judgment just delivered.
It is now settled law that, for a claim to be validly initiated via the Fundamental Rights (Enforcement) Procedure Rules, the main or principal claim must be for the enforcement of any of the fundamental rights recognised by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therefore, where the claim is merely ancillary or accessory to the main claim, it cannot be properly ventilated under the Fundamental Rights Enforcement Rules (supra). See Tukur v. Government of Taraba State (1997) 6 NWLR (Pt. 510) 549, Gafar v. Kwara State Government and Unilorin & Anor v. Oluwadare (2006) LPELR – 3417 (SC). Thus, in WAEC v. Adeyanju (2008) 9 NWLR (Pt. 1092) 270, the Supreme Court, per Akintan, JSC held that:
“When therefore an application is brought under the rules a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental right or the securing of the enforcement thereat should be the main claim and not an accessory claim…”
Upon a sober reading of the reliefs sought and the affidavit evidence in support thereof, I am compelled to agree with my learned brother that the Appellant’s main or principal claim is not one that can be validly ventilated under the Fundamental Rights (Enforcement) Procedure Rules. I therefore agree that the appeal lacks merit. It is hereby dismissed.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother, Sir Biobele Abraham Georgewill, JCA, just delivered. I am in complete agreement with the reasoning and conclusion contained therein.
I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the judgment of the Federal High Court of Enugu, Coram: R. O. Dugbo – Oghoghorie J, in Suit No. FHC/EN/CS/59/2015 delivered on 7/12/2017.
I make no order as to costs.
Appearances:
F. C. Moneke, Esq. For Appellant(s)
The 1st – 2nd Respondents were duly served with hearing notice on 22/6/2022.
The 3rd Respondent was duly served with hearing notice on 15/6/2022. For Respondent(s)
