ABAYOMI FABUNMI v. INSPECTOR GENERAL OF POLICE, ABUJA & ANOR (2011)

ABAYOMI FABUNMI v. INSPECTOR GENERAL OF POLICE, ABUJA & ANOR

(2011)LCN/4585(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of May, 2011

CA/I/164/2003

RATIO

ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST RELATE TO OR ARISE FROM GROUNDS OF APPEAL

The law is trite, and it has been stated and repeated in a litany of cases, that one is quite saddened that some learned lawyers keep repeating the error of formulating issues for determination outside their grounds of appeal. That issues for determination must relate to or arise from grounds of appeal, See the Supreme Court cases of UDEH V. OKOLI (2009) 7 NWLR (Pt.1141) 571 and NDUKWE V. STATE (2009) 7 NWLR (Pt. 1139) 43. PER MOORE A.A. ADUMEIN, J.C.A.

FUNDAMENTAL RIGHTS: PROCEDURE FOR APPLYING FOR LEAVE TO ENFORCE A PERSON’S FUNDAMENTAL RIGHTS

The procedure for applying for leave to enforce a person’s fundamental rights is provided for in Order 1 rule 2 of the Rules fully reproduced as follows: (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 likely to occur, for redress. (2) No application for an order enforcing or securing the enforcement within that State of any such rights shall be made unless leave therefore has been granted in accordance with this rule. (3) An application for such leave must be made ex pate to the appropriate Court and must be supported by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by an affidavit verifying the facts relied on. (4) The applicant must file, in the appropriate Court, the application for leave not later than the day preceding the date of hearing and must at the same time lodge in the said Court enough copies of the statement and affidavit for service on any other party or parties as the Court may order. (5) The Court or Judge may, in granting leave, impose such terms as to giving security for costs as it or he thinks fit. (5) The granting of leave under this rule, if the Court or Judge so directs, shall operate as a stay of all actions or matters relating to, or connected with, the compliant until the determination of the application or until the court or Judge otherwise orders”. From the provisions of Order 1 rule 2 sub-rules 3 it is obvious that an application for leave to enforce one’s fundamental rights must be made ex parte and it must be supported by a statement setting the following particulars: (a) The name of the applicant, (b)The description of the applicant, (c) The relief sought and (d)The ground or grounds upon which the relief is sought. The application must be further supported with an affidavit verifying the facts relied upon by the applicants. An affidavit is “A voluntary declaration of facts written down and sworn to by the declaring before an officer authorized to administer oaths” (see BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 62). Therefore, it is imperative that the application, although ex parte, must be written and not oral as was the application in this case. In the case of OYAWOLE V. SHEHU (1995) 8 NWLR (Pt. 414) 484 this court affirmed the refusal of the trial court to grant leave for the enforcement of the applicant’s rights because the application was not supported with an affidavit verifying the facts relied upon. The requirements set out in Order 1 rule 2 (3) of the Fundamental Rights (Enforcement Procedure) Rules, are strict and they constitute conditions precedent to a valid application for leave to enforce a person’s fundamental rights. PER MOORE A.A. ADUMEIN, J.C.A.

ORDER OF COURT: EFFECT OF AN ORDER OF A COURT OF COMPETENT JURISDICTION

The law is settled that an order of a court of competent jurisdiction is valid and binding until it is set aside. See the case of LABOUR PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2009) 6 NWLR (pt. 1137) 315 SC. PER MOORE A.A. ADUMEIN, J.C.A.

FUNDAMENTAL RIGHTS: WHEN CAN THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 1979 BE APPLIED TO A CAUSE OR MATTER

RIGHTS OF ACCUSED PERSON: CONSTITUTIONAL RIGHTS THE PERSON CHARGED WITH A CRIMINAL OFFENCE

Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 has rested judicial powers in law courts duly established in accordance with said Constitution. Some of the courts are set out and enumerated in sub-section 5 of the section. Section 36 sub-sections (a) to (6) of the Constitution of the Federal Republic of Nigeria, 1999 deal with a persons rights in respect of criminal offences or cases:- the person charged with a criminal offence (i) is entitled to a fair hearing by a court or tribunal; (ii) is presumed innocent until proven liable or guilty; (iii) shall be informed of the nature of the offence leveled against him; (iv) shall be given enough time and facilities to prepare for his defence; (v) shall be entitled to legal practitioner(s) of his choice or defend himself. There is no provision in the Constitution that a person should not be prosecuted for any offence. The only exception is the immunity granted to serving president and Vice President of the Federal Republic of Nigeria and serving Governors and Deputy Governors of the various States in Nigeria. PER MOORE A.A. ADUMEIN, J.C.A.

JUSTICES

NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

ABAYOMI FABUNMI – Appellant(s)

AND

1. INSPECTOR GENERAL OF POLICE, ABUJA

2. COMMISSIONER OF POLICE, OSUN STATE

3. ASST. COMMISSIONER OF POLICE, OSUN STATE (MR. EMMANUEL OBIAKO)

4. THE 21/C OSUN STATE CRIME INVESTIGATION DEPT STATE C.I.D. AYETORO, OSOGBO (MR.J. N IBEZIM)

5. INSPECTOR OJO (STATE C.I.D.) AYETORO OSOGBO

6. TAIWO TUNDE AKINTITUBO – Respondent(s)

MOORE A.A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision delivered by CHUKWURAH NNAMANI, J. of the Osogbo Division of the Federal High Court delivered on the 11th day of July, 2002. The appellant was not satisfied with decision of the lower court which ordered that his suit, under the Fundamental Rights (Enforcement Procedure) Rules be “commenced by way of Writ of Summons for a better consideration of the case ….” and the appellant filed a notice of appeal containing 5 (five) grounds. The five grounds, weeded of their particulars, are reproduced hereunder:

“1. The Lower Court erred in law to have refused leave on the Applicant application for Leave to enforce his Fundamental Rights under the Fundamental Rights Enforcement Procedure Rules 1979.

2. The learned trial judge committed error in law by ruling that redress in violation of the Applicant Fundamental Rights is better commenced by filing Writ of Summons and Statement of claim than by going the way of Application for the enforcement of the Applicant’s Fundamental Rights though Fundamental Rights Enforcement Procedure Rules 1979.

3. The learned trial Judge misdirected himself in law by refusing Leave on Motion Ex-Parte seeking Leave to enforce applicant Fundamental Rights without hearing the Applicant’s counsel.

4. The learned trial judge committed error in law when he held; “I have read through the case file, I found the reliefs sought so complex and many.”

5. The learned trial judge erred to have insisted that a fresh Leave be obtained by the applicant to enforce his Fundamental Right”.

The parties filed and exchanged written briefs. The appellant’s brief dated the 12th day of January, 2005 was filed on the same date. The respondent’s brief dated and filed the 19th day of March, 2007 was deemed properly filed on the 7th day of July, 2007. The appellant filed a reply brief on the 18th day of July, 2008. At the hearing of this appeal the parties adopted and relied on their respective briefs of argument. The appellant distilled the following 3 (three) issues for determination, namely:

“(i) Whether the Learned Trial Judge was right to have refused to grant Leave to the Applicant (Appellant) in an application to enforce his fundamental right properly brought under fundamental Rights Enforcement Procedure Rules 1979.

(ii) Whether the Lower Court acted properly by ordering that the Applicant (Appellant) legal action which was commenced under Fundamental Rights Enforcement Procedures Rules 1999 be commenced by way of writ of summons and statement of Claim when the appellant complaints center on violation of his fundamental rights as guaranteed in chapter IV of the Constitution of the Federal Republic of Nigeria 1999.

(iii) Whether the Learned Trial Judge of the Lower Court was right to have disallowed the Applicant from moving his Motion Ex-Parte for Leave to enforce his Fundamental Rights under the Fundamental Rights Enforcement Procedures Rules 1979 despite the fact that Leave had already been granted by Federal High Court Ibadan where the case was transferred from to Federal High Court, Osogbo, Osun State.”

On his part, learned counsel for the 1st -5th respondents framed the following 2 (two) issues for determination, namely:

“(i) Whether the trial court was right in refusing the application of the Appellant/Applicant for leave to enforce his fundamental right brought under the Fundamental Right (Enforcement Procedure) Rules, 1979, given the peculiar Circumstances of the case before the trial Court.

(ii) Whether the trial court was right in entertaining a fresh application for leave to enforce fundamental right under the Fundamental Rights (Enforcement Procedure) Rules, 1979 despite the fact that leave had earlier been granted by another court.”

The appellant’s issue 3 centres on the lower court disallowing the appellant to move “his motion Ex-parte for Leave”. None of the grounds of appeal complains of the lower court, disallowing the appellant to move any motion ex-parte.

The third issue framed by the appellant does not arise from any of the grounds of appeal in this case.

The live issues in this appeal are

1. Whether or not the learned trial judge was right in refusing to grant the appellant his application for leave to apply to enforce his fundamental rights.

2. Whether or not the lower court was right, having regard to the facts and circumstances of this case, to have ordered the appellant to commence his suit by a writ of summons instead of the fundamental rights enforcement procedure.

Issue 1 recast above covers the first issue formulated by the appellant and also issue one distilled by the respondents. The second issue reframed above covers the second issue respectively distilled by the parties. I will consider the two issues together.

In his brief of argument, the appellant Abayomi Fabunmi, Esq. summarised the facts of the case, from pages 2-3, and thereafter argued that 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, (sic) apply for redress” in the High Court. The learned lawyer referred to Order 1 rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 and argued that his application for leave to enforce his fundamental rights complied with the said rule. The appellant contended that having complied with the Rules – that is the Fundamental Rights (Enforcement

Procedure) Rules, 1979 the learned trial judge erred in not granting him leave, especially as the Federal High Court, Ibadan Division had earlier granted leave.

Mr. Fabunmi – the appellant stated that since the substantive application on notice had been argued in Ibadan Division before the case was transferred to Osogbo all that the lower court could have done was to issue the respondents a hearing notice “to make them available at Federal High Court, Osogbo.”

The appellant referred to the case of SEA TRUCKS NIGERIA LTD. V. PANYA ANIGBORO (2001) 2 SCM 168 and contended that “Leave to enforce the rights must be granted once the Rules had been complied with”.

Counsel contended that where the principal claim is a breach of fundamental rights, the Fundamental Rights (Enforcement Procedure) Rules can be invoked even though other claims are made. He referred the court to the cases of DIN V. A.G. OF FEDERATION (1988) 4 NWLR (Pt. 87) 147 SC and BORNO RADIO CORPORATION V. BASIL EGBOUNU (1991) 2 NWLR 81 at 89 CA.

The appellant argued that the learned trial court erred in refusing him leave to apply to enforce his rights. The appellant concluded as follows:

“Although we believe that the legal action can be commenced by writ, but if however, the appellant had deemed it fit to seek redress through enforcement of his rights as provided for by the Fundamental Rights Enforcement Procedure Rules 1979, so shall it be. It is not business of the court to start ordering adoption of a particular procedure in seeking redress.”

The contention of Aarinade Aderemi, Esq. (State Counsel, Osun State), learned counsel who settled the 1st – 5th respondents’ joint brief, submitted that a court must be sure that “it is properly seized (sic-seised) of a matter before embarking upon its determination”. On this point, counsel referred to and relied on the ease of A.G. ANAMBRA STATE V. A.G. FEDERATION (1993) 5 NWLR (Pt. 3021) 692 at 742.

Mr. Aderemi referred to the reliefs sought by the appellant in the court below and argued that none of the two reliefs sought “is provided for under Chapter IV of the 1999 Constitution”. Counsel argued that for a court to assume jurisdiction over matters brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 “the reliefs sought in such matters must specifically be limited to any of the fundamental rights prescribed and embodied in Chapter IV, (sic) of the Constitution of the Federal Republic of Nigeria,1999”. He referred the court to the case of DANGOTE V. CIVIL SERVICE COMMISSION (2005) 5 SCM 59 at 68.

The learned counsel for the respondents argued that the learned trial judge “was even magnanimous to have suggested to the Applicant/Appellant that the matter is better commenced by writ, since on the authority of DANGOTE V. CIVIL SERVICE COMMISSION (Supra) the court ought to have refused to grant leave sought based on the only fact that the reliefs sought are not provided for under Chapter IV of the 1999 Constitution”.

Mr. Aderemi contended that the appellant’s first claim for N5 Million “damages for alleged infringement of fundamental right of the claimant can only be an ancillary or incidental claim to a principal claim of actual infringement on specific fundamental right or rights”. He referred the court to the cases EGBUONU V. BORNO RADIO (1997) 12 SCNJ 99 at 113 and F.R.N. V. IFEGWU (2003) 5 SCNJ 217 at 245.

Learned counsel for the respondents submitted that “since there is no right like fundamental rights to damages under Chapter IV of the 1999 Constitution, claim for damages is inextricably tied to … the main claim of complaint of infringement on a specific fundamental right”. Counsel then stated thus:

“It is therefore submitted that the Applicant/Appellant having failed to seek relief on any of the fundamental rights provided for under Chapter IV of the 1999 Constitution he cannot properly bring his application for leave under Fundamental Rights (Enforcement Procedure) Rules, 1979. It is further submitted that the court was right to have refused the application, because to do otherwise would have made the trial court to adjudicate on subject matters in respect of which it does not have any jurisdiction, on the authority of DANGOTE V. CIVIL SERVICE COMMISSION (Supra) at page 68.”

Mr. Aderemi, learned counsel for the respondents submitted that combined effect of section 46 of the Constitution of the Federal Republic of Nigeria 1999 and Order 1 rule 2 and orders 6 rule 1 of the Fundamental Rights (Enforcement Procedure) Rules all the steps are “expected to be done before a particular judge or court “. Counsel contended that it is not the contemplation of the law that, where a judge cannot finish the process any other judge could take up the matter and entertain a fresh application for leave to enforce fundamental rights notwithstanding that leave had earlier been granted by the first judge.

The facts of this case are that the appellant, as applicant in the Ibadan Judicial Division of the Federal High Court in Suit No. FHC/IB/CS/142/2004, filed a motion ex parte on the 19th day of October, 2001 for “an order for leave to apply for an order for the enforcement of his Fundamental Rights”. The motion ex parte was supported with an affidavit of 88 (eighty-eight) paragraphs, a statement, a verifying affidavit and an affidavit of urgency – pages 3 to 23 of the record of appeal. In the affidavit in support of the motion ex parte, the appellant alleged that he hired the services of the 5th respondent – an electrician to connect electricity to his house which had been discounted because a nearby mosque through which his house got electricity was allegedly indebted to NEPA whereas his “house was not owing (sic) the NEPA at all”. In the course of doing the job of connecting electricity to the appellant’s house, the 5th respondent allegedly worked at night and tampered with the transformer in that area of the Ile-Ife, Osun State thereby disrupting electricity supply. As a result, the people of the area stopped the 5th respondent. This was about 10:00pm of Saturday, the 8th day of September, 2001. According to the appellant, he was not happy that the 6th respondent decided to do the work at night and apparently without permission from NEPA contrary to his advice to the 6th respondent.

One event led to another until the appellant got the 6th respondent arrested at about 5p.m on the 9th day of September, 2001. The 6th respondent was taken to Moremi Police Station, Ile-Ife. After series of encounters, the 6th respondent begged the appellant to forgive him and he (the appellant) decided to withdraw his complaint but that the police refused and the 6th respondent was transferred to “Osogbo Crime investigation Department”. In short after some days the appellant was invited by the Police to report on Monday, the 17th day of September, 2001 at “Osogbo C.I.D. in respect of the matter. When he reported, the Police accused him of procuring “the 6th respondent to do illegality”. The appellant was accordingly detained for (four) 4 days in the first and despite his poor health he was not granted bail nor given medical attention. The appellant was later transferred to the Criminal Investigation Department Headquarters of the Nigeria Police Force, Abuja.

The appellant claimed that he was released on bail in Abuja on the 24th day of September, 2001 and was asked to report on the 31st day of October, 2001.

The appellant alleged that “the Police intends to prosecute me because I had sued some policemen for detaining me unlawfully in May, 2000, and for charging me with frame-up offence just like this case on hand in which I suffered loss of liberty and indignity”.

In the statement in support of the motion ex parte, the relief endorsed therein by the appellant is as follows:

“RELIEF SOUGHT

(1) 5 Million (Five Million Naira) damages against the Respondents jointly and severally for violating his Fundamental Rights.

(2) An order of this Honourable Court restraining the 1st to the 5th Respondents from prosecuting the Applicant in any court for any offence relating or pertaining to tampering with transformer supplying the Applicant’s area. The incidence was said to have happened on the 8th September, 2001, at Ile-Ife, Osun State”.

The appellant’s motion ex parte was heard by Hon. Justice S. Yahaya of the Federal High Court, Ibadan Division, on the 19th day of October, 2001. Leave was granted to the appellant to apply to enforce his fundamental rights against the respondents. (Page 48 of the record of appeal)

The substantive motion on notice for the enforcement of his fundamental rights was subsequently filed by the appellant on the 23rd day of October, 2001 – pages 24 – 47 of the record of appeal. The appellant’s motion on notice was moved by the appellant on the 15th day of November, 2001 before Yahaya, J. who reserved ruling for the 5th day of February, 2002. (Pages 53 -57 of the record of appeal).

The record of appeal does not indicate what happened on the 16th day of November, 2001. However, on the 11th day of July, 2002 the matter, (with a new Suit Number that is Suit No. FHC/OS/CP/1/2002) came up before Hon. Justice Chukwurah Nnamani of the Osogbo Judicial Division of the Federal High Court (page 58 of the record of appeal). On that day, the appellant – Abayomi Fabunmi, Esq appeared in person and orally applied for leave to enforce his fundamental rights whereupon the learned trial judge refused to grant leave and ordered the action to be commenced by writ of summons.

The full record of proceedings on the 11th day of July, 2002 is hereby set out for a comprehensive appreciation of my reasoning in this appeal:

“I have read through the case file, I found the reliefs sought so complex and I am of the opinion that this matter is better commenced by writ. Also there is no urgency. Accordingly leave is refused as it will serve no useful purpose and matter ordered to be commenced by way of writ of summons for a better consideration of the case involved.”

From the proceedings fully set out above, it is very clear that both the appellant and the learned trial judge adopted a procedure very alien to the Fundamental Rights (Enforcement Procedure) Rules, 1979 when the appellant as applicant proceeded to move the trial court orally “for leave to apply to enforce his fundamental rights”.

The procedure for applying for leave to enforce a person’s fundamental rights is provided for in Order 1 rule 2 of the Rules fully reproduced as follows:

(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 likely to occur, for redress.

(2) No application for an order enforcing or securing the enforcement within that State of any such rights shall be made unless leave therefore has been granted in accordance with this rule.

(3) An application for such leave must be made ex pate to the appropriate Court and must be supported by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by an affidavit verifying the facts relied on.

(4) The applicant must file, in the appropriate Court, the application for leave not later than the day preceding the date of hearing and must at the same time lodge in the said Court enough copies of the statement and affidavit for service on any other party or parties as the Court may order.

(5) The Court or Judge may, in granting leave, impose such terms as to giving security for costs as it or he thinks fit.

(5) The granting of leave under this rule, if the Court or Judge so directs, shall operate as a stay of all actions or matters relating to, or connected with, the compliant until the determination of the application or until the court or Judge otherwise orders”.

From the provisions of Order 1 rule 2 sub-rules 3 it is obvious that an application for leave to enforce one’s fundamental rights must be made ex parte and it must be supported by a statement setting the following particulars:

(a) The name of the applicant,

(b)The description of the applicant,

(d)The ground or grounds upon which the relief is sought.

The application must be further supported with an affidavit verifying the facts relied upon by the applicants. An affidavit is “A voluntary declaration of facts written down and sworn to by the declaring before an officer authorized to administer oaths” (see BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 62). Therefore, it is imperative that the application, although ex parte, must be written and not oral as was the application in this case. In the case of OYAWOLE V. SHEHU (1995) 8 NWLR (Pt. 414) 484 this court affirmed the refusal of the trial court to grant leave for the enforcement of the applicant’s rights because the application was not supported with an affidavit verifying the facts relied upon.

The requirements set out in Order 1 rule 2 (3) of the Fundamental Rights (Enforcement Procedure) Rules, are strict and they constitute conditions precedent to a valid application for leave to enforce a person’s fundamental rights. Neither the applicant/appellant nor the trial court had any right to waive such fundamental conditions as it was done in this case.

Mr. Fabunmi claimed in his brief that the trial court “asked the appellant to obtain a fresh leave”. (See paragraph 4.08 at page 3 of the appellant’s brief). With due respect to the learned appellant, there is nothing in the record of appeal indicating or showing that the appellant was asked by NNAMANI, J. to re-apply for leave. Even if the learned trial judge asked the appellant to apply, for “a fresh leave” such an order or direction would not warrant the appellant to make an oral application for leave to enforce his fundamental rights in this case.

The parties made a serious issue on whether or not the trial court was right in requesting or entertaining a fresh application for leave notwithstanding that leave had earlier been granted by the Ibadan Division of the Federal High Court. At page 48 of the record of appeal, the appellant in the court below, moved his ex parte for leave to enforce his fundamental rights. The motion ex parte was granted and in so doing the learned trial judge- Yahaya, J. ordered on the 19th day of October, 2001 inter alia as follows:

(1) Leave is hereby granted to the applicant to enforce his fundamental rights against the respondents.

(2) That this order shall be served on the Respondents by the Applicant”.

There is no where in the record of appeal indicating that the order of Yahaya J. made on the 19th day of October, 2001 was vacated or set aside. The law is settled that an order of a court of competent jurisdiction is valid and binding until it is set aside. See the case of LABOUR PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2009) 6 NWLR (pt. 1137) 315 SC.

In the present case, by virtue of the leave obtained by the applicant on the 19th day of October, 2001, the appellant had since then crossed the “Rubicon” on the issue of leave to apply to enforce his fundamental rights and until that order is a validly set aside, in accordance with law, the question of leave was foreclosed before the matter was transferred from Ibadan Judicial Division of the Federal High Court to Osogbo Division of the same court. As I had indicated earlier in this judgment, the substantive motion on notice was heard by YAHAYA J. before the transfer of the case. It was the motion on notice that NNAMANI J. was to hear de novo. To reopen the issue of leave would be tantamount to NNAMANI J. reviewing the hearing of the motion ex parte and the decision and orders thereon by YAHAYA J. of the same Federal High Court, albeit of different judicial division. I think that such procedure is wrong. In UGOH V. BENUE STATE LOCAL GOVERNMENT SERVICE COMMISSION (1995) 3 NWLR (Pt. 383) 288 where this Court, per ORAH, JCA held as follows:

“The question is was the learned trial Judge right or has he acted outside jurisdiction in striking out the application? To the extent that Utasha J. a Judge of concurrent jurisdiction has already ruled on the objections on Exhibits 4A and 6… it was no longer open to Ogbole J. of the same concurrent jurisdiction for review…

As far as the ruling of Utasha J. goes, rightly or wrongly and to which no appeal lies, Ogbole J, would be acting out of jurisdiction when he upheld objections on the same documents already annexed and deemed admitted in the said same substantive application which he himself regarded as being the same issue on which his predecessor Utasha J. had earlier on overruled. He would be clearly in error to strike out the application on those grounds”.

In that case (UGOH V. BENUE STATE LOCAL GOVERNMENT SERVICE COMMISSION (supra)) leave was granted for the appellant to enforce his fundamental rights by Utasha J., but before the substantive motion could be determined, the matter was transferred to Ogbole, J of the same High Court.

The next question in this appeal is whether the learned trial judge was right to have ordered the appellant to adopt writ of summons as the mode of commencing his action instead of the Fundamental Rights Enforcement Procedure. As indicated earlier in this judgment, substantive motion for the enforcement of the appellant’s rights was heard by YAHAYA, J. but, before he could deliver his ruling, the matter was transferred to Osogbo Division of the Federal High Court presided by NNAMANI, J. The motion on notice was, therefore, to be heard by NNAMANI, J. de novo. Therefore, NNAMANI, J. was not bound to proceed to deliver ruling on the substantive motion on notice based on the hearing thereof or any ruling therein by YAHAYA, J. see UGOH v. BENUE STATE LOCAL GOVERNMENT SERVICE COMMISSION (supra) where ORAH, JCA further held as follows:

“I am of the firm view that Ogbole, J., was hearing the substantive issue de novo. That been so, the previous ruling made by Utasha J. in the same substantive application, no matter how eminently right or valid, is no longer of any binding effect on Ogbole J. before whom the application was heard de novo”.

In the instant case, although no interrogatory ruling was made by YAHAYA J. in the substantive motion, the appellant – Mr. Fabunmi decided to reopen the issue of leave to enforce his fundamental rights by and making an oral application in that respect when his substantive motion on notice came before NNAMANI, J. I am of the view that this oral application for leave and the inherent powers of the trial court conferred competence on the learned trial judge to examine the processes before. He therefore acted within jurisdiction in ordering that the appellant’s action be commenced by writ of summons. The learned trial judge, however, erred in holding that the relief sought by the appellant is “complex”. There is nothing complex in the two relief of the appellant reproduced herein above.

Mr. Aderemi, learned counsel for the respondents referred to section 46 of the Constitution of the Federal Republic of Nigeria, 1999 and contended that the reliefs sought by the appellant do not relate to any of the rights “prescribed and embodied” in Chapter IV of the said Constitution and therefore the procedure employed by the appellant was wrong. On this point, he referred the court to the case of DANGOTE (SIC – DONGTOE) v. CIVIL SERVICE COMMISSION, PLATEAU STATE (supra).

I am very inclined to agreeing with the learned counsel of the respondents that the Fundamental Rights (Enforcement Procedure) Rules, 1979 apply to cases, actions, causes or matters in which the main prayer request of the applicant shows a breach or a likely contravention of the applicant’s rights as enshrined and guaranteed in Chapter IV of the Constitution of the Federal Republic of Nigeria. In the present case, there is an unnecessarily very copious affidavit of 88 (eighty – eight) paragraphs in support of the applicant/appellant’s application, the prayers are drafted in such a manner that they are drained and dry of any clear affiliation or affinity to the fundamental rights constitutionally guaranteed in Chapter IV, that is sections 38 to 46 of the Constitution bf the Federal Republic of Nigeria, 1999.

The appellant’s second relief is for an injunctive “order restraining the 1st to 5th respondents from prosecuting the Applicant in any court for any offence relating or pertaining to tampering with transformer supplying the Applicant’s area”. Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 has rested judicial powers in law courts duly established in accordance with said Constitution. Some of the courts are set out and enumerated in sub-section 5 of the section. Section 36 sub-sections (a) to (6) of the Constitution of the Federal Republic of Nigeria, 1999 deal with a persons rights in respect of criminal offences or cases:- the person charged with a criminal offence (i) is entitled to a fair hearing by a court or tribunal; (ii) is presumed innocent until proven liable or guilty; (iii) shall be informed of the nature of the offence leveled against him; (iv) shall be given enough time and facilities to prepare for his defence; (v) shall be entitled to legal practitioner(s) of his choice or defend himself.

There is no provision in the Constitution that a person should not be prosecuted for any offence. The only exception is the immunity granted to serving president and Vice President of the Federal Republic of Nigeria and serving Governors and Deputy Governors of the various States in Nigeria. The appellant who is a lawyer ought to know this.

The appellant’s first relief is for damages for the violation of his fundamental rights without indicating which of his fundamental rights was violated by the respondents. Such a blanket claim, in my humble opinion is not one contemplated by Section 46(1) of the Constitution which provides thus:

“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”.

Section 45(3) of the said Constitution empowers the Chief Justice of Nigeria to make Rules in respect of the practice and procedure for the enforcement of a person’s or an applicant’s fundamental rights. while interpreting Section 42 of the constitution of the Federal Republic of Nigeria, 1979 which is similar or in pari materia with Section 46 of the constitution of the Federal Republic of Nigeria, 1999 the supreme in the case of DONGTOE V. CIVIL SERVICE COMMISSION, PLATEAU STATE 5 SCM; (2001) FWLR. (pt. 50) 1539 held inter alia as follows:

“Whilst S.42 (1) speaks of any of the provisions of this chapter, i.e. Chapter IV. S.42 (2) speaks of enforcing the chapter i.e. chapter IV. S. 42(3) vests in the chief Justice the power to make rules for the purposes of this section. It is clear therefore from the Ipsissima verba of this section and particularly the expressions underlined which are clear and unambiguous that the relief which may be claimed by means of this procedure is limited and confined to any of the provisions of chapter IV of the constitution. Any exercise of jurisdiction in respect of subject matters outside Chapter IV is without jurisdiction, unconstitutional and void – Ransome Kuti V.A.G. of the Federation (1985) 2 NWLR. 211, Maria David – Osuagwu V.AG Anambra state and ors (1993) 4 (NWLR) 13 C.A. This procedure must be adhered to strictly. See Saude V. Abdullahi (1989) 4 NWLR (pt 116) 387 S.C.”

Without more, the appellant’s prayers in his application for the enforcement of his fundamental rights do not disclose that they are confined or limited to any of the provisions of Chapter IV of the Constitution and the procedure adopted by him was wrong, the trial court purporting to exercise jurisdiction pursuant to and under the Fundamental Rights (Enforcement Procedure) Rules acted without jurisdiction. The leave granted to the applicant by the court below to apply to enforce his fundamental rights is hereby nullified and set aside. The applicant’s application in the court below is hereby struck out. The appeal based on appellant’s incompetent application in the trial court is accordingly struck out for want of jurisdiction.

There is no order as to costs.

NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead judgment just delivered by my learned brother, Adumein, JCA. His Lordship effectively dealt with the twin issues in the appeal.

I will however add a few words.

Relief No 1 in the statement in support of the motion exparte under the caption relief sought is “5 million (Five Million Naira) damages against the Respondents jointly and severally for violating his Fundamental Rights.”

It was not stated the specific right violated and what constituted the alleged violation of that right. The special jurisdiction of the High Court donated by S. 46 (1) & (2) of the 1999 constitution of the Federal Republic of Nigeria as amended does not and is not intended to, embrace every infraction of a person’s real or perceived right. The right for which redress can be sought under S. 46 of the constitution must fall within “… any of the provisions of this chapter.”

“This Chapter” referred to in S. 46 is Chapter IV of Constitution.

A person who seeks to protect a right, or who seeks redress for a violation of a right not within the warm embrace of sections 33 to 45 of the constitution can not invoke the special jurisdiction of the High Court under S. 46 of the Constitution. Without specifying the right sought to be protected or the violation for which redress is sought it remains a matter for speculation whether or not the right can be pursued under S. 46 of the Constitution.

The second relief sought is; “2. An order of this Honourable Court restraining the 1st to the 5th Respondents from prosecuting the Applicant in any Court for any offence relating or pertaining to tampering with transformer supplying the applicant’s area. The incidence was said to have happened on the 8th September, 2001 at Ile-Ife, Osun State.”

The second relief reproduced above fares worse than the first one. Not only is that the “right” for which injunction is sought not within the intendment of S. 46 of the Constitution, it can not, if it does exist, be enforced in any court of Law in Nigeria. It is the statutory duty of Law enforcement agents to arrest alleged offenders, investigate the complaint with a view to prosecution if need be. Any person who feels aggrieved can approach the court for redress. As my Lord stated in the lead judgment only four Nigerians have immunity from prosecution for any offence while in office i.e. the President and the Vice President, a Governor and a Deputy Governor of a state. The cover of immunity expires with the expiration of the term of their respective offices.

It is to be noted that even those who enjoy immunity under S. 308 (1) of the Constitution are not exempted by the Constitution from being investigated for an offence while in office provided that “no court or criminal proceedings shall be instituted or continued” against him S. 308 (a) and he “shall not be arrested or imprisoned” while in office “in pursuance of the process of any court or otherwise” S. 308 (1) (b) and ” no process of any court requiring or compelling” his appearance shall be applied for or issued. S. 308 (1) (c).

It is therefore absurd for anyone to approach any court to seek immunity, by way of injunction, from the criminal process. Only a person with something to hide will resort to seeking such reliefs. Unfortunately instances abound of privileged persons who have looted their own treasuries rushing to court to seek protection (or is it exemption) from investigation and prosecution which they deserve.

From the above and the fuller reasons articulated in the lead judgment I also dismiss the appeal and adopt the consequential orders in the lead judgment.

CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, Moore A.A. Adumein JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. I also hold that the appeal lacks merit and should be dismissed. It is hereby dismissed.

Chukwurah Nnamani J. of blessed memory with all due respect erred in holding that the matter was better commenced by writ of summons because the reliefs sought were complex’ complexity of reliefs sought in a fundamental rights case is no bar to the institution of the suit by that procedure. The only factor that constitutes a bar is that the relief sought is not one recognized under chapter IV of the constitution. I agree with my learned brother that the reliefs sought in this case do not come within chapter IV of the constitution and that the action ought not to have been commenced under the Fundamental Rights Enforcement procedure Rules. I abide by the order as to cost.

Appearances

ABAYOMI FABUNMI, ESQFor Appellant

AND

AARINADE ADEREMI, ESQFor Respondent