CHIEF TAYE JAMES & ORS v. THE NIGERIA SECURITY AND CIVIL DEFENCE CORPS & ORS (2014)

CHIEF TAYE JAMES & ORS v. THE NIGERIA SECURITY AND CIVIL DEFENCE CORPS & ORS

(2014)LCN/7565(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of November, 2014

CA/AK/63/2011

RATIO

COURT; JURISDICTION; THE PROVISION OF THE CONSTITUTION ON THE JURISDICTION OF THE FEDERAL HIGH COURT

COURT; JURISDICTION; WHEN IS AN ACTION PROPERLY CONSTITUTED TO VEST THE COURT WITH JURISDICTION

COURT; FUNTUS OFFICIO; WHETHER A COURT CAN REOPEN A MATTER IT HAS DECIDED ON

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMAD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

CHIEF TAYE JAMES & ORS Appellant(s)

AND

THE NIGERIA SECURITY AND CIVIL DEFENCE CORPS & ORS Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court Akure delivered on the 3rd March 2011 declining, jurisdiction to entertain the Appellants’ application for enforcement of their fundamental rights on the ground of lack of jurisdiction and striking out the suit.
The Appellants who were Applicants pursuant to the leave granted them by the Lower Court to apply to enforce their fundamental right brought a motion on notice under Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 1979 against the Respondents praying for the following:
A DECLARATION that the arrest of the 3rd, 4th, 5th and 6th applicants in the course of their lawful and civil business by the men and officers of the 1st respondent at Owo-Ilesha Road, Akure in Ondo State at about 9pm on Monday 7th July 2008 without any just cause is wrongful, illegal, unconstitutional and amount to a violation of the 3rd, 4th, 5th and 6th applicants’ fundamental rights to liberty and freedom of movement guaranteed by sections 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 6 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004.

A DECLARATION that the detention of the 3rd to 6th applicants by men and officers of the 1st respondent at their office situate at Alagbaka, Akure in Ondo State for 3 days without any just cause is wrongful illegal unconstitutional and amount to outright violation of the 3rd to 6th applicants’ fundamental rights to personal liberty and freedom of movement guaranteed by sections 35 and 41 respectively of the Constitution of the Federal Republic of Nigeria, 1999, and Articles 6 and 12 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap A9 Law of the Federation of Nigeria, 2004.

A DECLARATION that the beating, torture, inhuman and degrading treatment meted out on the 1st applicant, who was already suffering from high blood pressure and diabetes, by the men and officers of the 1st respondent namely the 5th to 12th respondents and others unknown at the respondents’ office situate at Alagbaka, Akure in Ondo State is wrongful, illegal, and unconstitutional and amount to violation of the 1st Applicant fundamental right to dignity of human person guaranteed by section 34 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4 and 5 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004.

DECLARATION that the seizure and detention of the 1st applicant’s Diana Truck with Registration Number XF 504 AKR, Chassis Number JTIPOBU509101291 and Engine Number 138 – 0802884, and 1000 litres of diesel lawfully purchased at NNPC Mega Station, Owo-Ilesha Road, Akure on Monday July 7, 2008 for a period of 10 days without any just cause by the men and officers of the 1st Respondent at their office situate at Alagbaka, Akure is wrongful, illegal, unconstitutional and amount to violation of the 1st applicant’s right to own moveable property guaranteed by section 44 of the Constitution of the Federal republic of Nigeria, 1999 and Article 14 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004.

A DECLARATION that the beating, torture, detention, inhuman and degrading treatment meted out on the 2nd applicant by the men and officers of the 1st respondent at the respondents’ office situate at Alagbaka Akure in Ondo State on Tuesday July 8 and Wednesday July 9, 2008 is wrongful, illegal and unconstitutional and amount to a violation of the 2nd applicant’s fundamental rights to personal liberty, freedom of movement and dignity of human person guaranteed by sections 35, 41 and 34 respectively of the constitution of the Federal Republic of Nigeria, 1999 and Article 6, 12, 54 and 5 respectively of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004.

A DECLARATION that the seizure and detention of the 1st applicant’s Peugeot 206 car with Registration Number NH 967 AAA and Chasis No 32AK6F847661038 for a period of 9 days by the men and officers of the 1st respondent at their officer(sic) situate at Alagbaka, Akure in Ondo State is wrongful, illegal and
unconstitutional and amount to a violation of the 1st plaintiff’s fundamental right to own moveable property guaranteed by section 44 of the Constitution of the Federal republic of Nigeria, 1999 and Article 14 d the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004.

The sum of N770,585.00 (Seven Hundred and Seventy Thousand Five Hundred and Eighty Five Naira) in favour of the 1st applicant against the respondent being special damages for personal loss, loss of properties and loss of earnings and expenses.

Particulars of Special damages:
1. N25,000.00 daily being the average earning of the 1st applicant’s Diana Truck which was lost as a result of the unlawful detention of the truck by the respondents and amounting to N250,000.00.00.
2. N30,000.00 being the cost of the lace material worn by the 1st applicant on July 8, 2008 and torn by the officers of the 1st respondent.
3. N150,000.00 being the cost of Nokia N931 of the 1st applicant which was destroyed by the 5th respondent.
4. N35,000.00 being cost of Nokia 3230 of the 1st applicant which was damaged by the 6th respondent.
5. N38,800.00 being the money in the trousers pocket of the 1st applicant which was lost in the course of being beaten and rough-handled by the officers of the 1st respondent.

The Respondents by a counter affidavit dated 18/2/2009 opposed the application. The counter affidavit of the Respondents elicited a further affidavit dated 27th March 2009 from the Appellants: The Respondents again reacted to the further affidavit by filing a further counter affidavit dated 1st April 2009.

Briefly, the case of the Appellants as contained in the affidavit in support of the application was that the 3rd – 6th Appellants on or about the 7th July 2008 were arrested by men of the 1st Respondent and (locked up) detained. The vehicle in which they were travelling was impounded with 1000 litres of diesel. While the 1st Appellant and his son 2nd Appellant were pleading for the release of the 3rd – 6th Appellants, the vehicle and the 1000 litres of diesel, the 2nd Appellant received severe beating! While trying to rescue the 2nd Appellant, the 1st Appellant fell into mud and he was dragged in the mud beaten and teargas was released into his face.

Later in the evening of 8th July 2008, the Respondents granted an interview to the Nigerian Television in which they stated that the 1st Appellant was involved in oil bunkering.

But the case of the Respondents as contained in their counter affidavit was that the vehicle of the 1st Appellant was impounded on suspicion of conveying illegal petroleum products.

That the 2nd Appellant was ordered to leave the Respondents’ office to avoid trouble. But the 1st Appellant prevented them from ejecting him from the office by kicking and slapping men of the 1st Respondent. This resulted in the detention of the 2nd Appellant. After the arrest of the 1st Appellant’s vehicle, he invited thugs who vandalized the properties including vehicles and roof of the Respondents’ building.
After the filing of affidavit, counter affidavit, further affidavit, further counter affidavit and written addresses by both parties, the learned trial judge wrote a considered ruling contained at pages 132 -142 of the record of appeal. The Lower Court concluded the ruling with an invitation to both parties to address it on whether it had jurisdiction to entertain the matter in the following words:
“As I had said earlier this Court cannot dabble into the facts as canvassed for fear of acting ultra vires my jurisdiction. I will therefore urge the parties to address me on my jurisdiction to entertain this matter for purposes of making the declarating (sic) reliefs sought or seek redress at the State High Court. This is the ruling of the Court.”

It was apparently after it was addressed on the issue of jurisdiction that the Lower Court in the ruling complained against declined jurisdiction and struck out the matter on the 3rd of March 2011.

The Appellants have appealed against the ruling upon four grounds of appeal from which the following four issues were presented for determination:
i. Whether the learned trial judge has jurisdiction to look into the materials placed before it to ascertain the truth of the matter before the court including proof of crimes – Ground 1.
ii. Whether the trial court is right to have struck out the case in the circumstances of this case – Ground 2
iii. Whether the learned trial judge was right to have applied a rule that came into existence after the commencement of the action to strike out the suit – Ground 3.
iv. Whether the learned trial judge can sit on an appeal over an issue on which it was functus officio – Ground 4.

The Respondents also submitted the following four issues for determination:
1. Whether the learned trial Judge has jurisdiction to look into the materials placed before it to ascertain the truth of the matter before the court including proof of crime. Ground 1
2. Whether the trial court is right to have struck out the case in the circumstances of this case. Ground 2
3. Whether the learned trial Judge was right to have applied a rule that came into existence after the commencement of this action to strike the suit. Ground 3
4. Whether the learned trial Judge can sit on an appeal over an issue on which it was functus officio. Ground 4.
On issue 1, the Appellants’ counsel submitted that the Federal High Court has jurisdiction to entertain criminal offences. We were referred to sections 251(1) and (3) and 252(1) of the Constitution FRN 1998 and section 7(3) and (4) of the Federal High Court Act.
It was submitted that the Federal High Court and the State High Courts have concurrent jurisdiction under section 46 of the Constitution FRN 1999 to entertain Fundamental Rights cases. We were referred to Gabriel v. Ukpabio (2008) 3 NWLR (Pt.1073) 21 at 31 – 32.

On issue 2, it was submitted that the description of 2nd, 5th and 6th Appellants as Mr and Mrs as shown at page 35 of the record of appeal was sufficient and that if it was not it was not sufficient reason to strike out the matter, since there were still competent parties before the Court.

We were referred to Order 9 Rule 14(1) and (2) of the Federal High Court (Civil Procedure) Rules 2009, Adefarasin v. Dayekh (2007) 11 NWLR (Pt.1044) 89, Kukoyi v. Ladunni (1976) 11 SC 243 and Osun State Government v. Dalani (2003) 7 NWLR (Pt.818) 72 at 94.

It was submitted that the Fundamental Rights Enforcement Procedures Rules 1979 and 2009 do not have a provision to cover a situation where some applicants are competent while some are not competent. In any case that lacuna, it was submitted is covered by Order XV Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

At page 147 of the record of appeal containing the ruling of the Lower Court, the Lower Court it was submitted based its decision on Order 2 Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009 on the ground that the description of the 2nd, 5th and 6th Applicants were not indicated in the statement in support of the application.

It was submitted that the provision is not supposed to be applied retrospectively as the Lower Court did.

It was submitted that there was substantial compliance anyway as the 2nd, 5th and 6th Appellants were described as “Mr” “Mrs” and “Mr”.

On issue 4, it was submitted that having considered the Appellants’ processes and granted leave and having further considered the objections of the Respondents and overruled them on 25th February 2010, the Lower Court was Functus Officio on the issue of competence or incompetence of Court processes. It was submitted that having earlier ruled on competence of the action, a party and the Court cannot reopen the argument. We were referred to Nigerian Army v. Iyela (2008) 18 NWLR (Pt.1118) 115 at 131 – 132 and Arion v. Fassassi No 4 (1987) 3 NWLR (Pt.59) 42 at 43 – 44.

It was submitted that the Lower Court was wrong to have re-opened the issue of competence of the Court processes as regards the names of some of the parties.

This Court was urged to invoke its powers under section 15 of the Court of Appeal Act, consider the evidence and grant the reliefs sought.

Issue 1 and arguments based on it in the Respondents brief not having been derived from ground 1 are hereby discountenanced.

Arguments of Respondents counsel to a very large extent on affidavit of service and who to be properly served are not based on ground 2 of the grounds of appeal and are hereby discountenanced.

It was submitted that failure to describe 2nd, 5th and 6th Respondents as provided by Order 1 Rule 2(3) of the Fundamental Right (Enforcement Procedure) Rules 1979 was fatal to the application of the Appellants entitling the Lower Court to strike it out.
The Fundamental Rights Enforcement Rules procedure it was submitted is a special procedure and the Court cannot have recourse to the Federal High Court (Civil Procedure) Rules to remedy any defect in the Appellants’ application. We were referred to Abia State University v. Chima Anyaibe (1996) 1 NWLR (Pt.439) 646 at 660 -661.

On issue 3, it was submitted that the argument of Appellants counsel that the Lower Court wrongly relied on the 2009 Rules to strike out a matter filed under the 1979 Rules was without substance. This is because Order 1 Rule 2(3) of the Fundamental Right Enforcement Procedure Rules of 1979 was to the same effect. That is that that the description of the Appellants was necessary under the 1979 Rules. Non compliance, it was submitted, was fatal to the application. We were referred to U.U.U. Isuofia v. U-V Union (2011) 6 NWLR (Pt.1243) 394 at 312.

It was submitted that the non description of the Appellants rendered the Appellants’ suit incompetent and liable to be struck out.

It was submitted that the Appellants suffered no miscarriage of justice by the application of the 2009 Rules to strike out the suit instead of the 1979 Rules.

On issue 4, it was submitted that the trial court did not pronounce its final decision on the case as shown by the ruling dated 25th February 2010. That the Lower Court merely raised the issue of jurisdiction suo motu and parties were invited to address the Court and they did. That the action of the parties in addressing the Lower Court showed that there was no final address.

At page 147 of the record of appeal while considering whether or not it has jurisdiction to entertain the Fundamental Rights matter the Lower Court made the following finding:
“In the instant case there was overwhelming allegations that assaults, deprivations of rights etc were committed. But can the Federal high Court go into ascertaining the truth of such allegations to enable it make the declaration sought. It is doubtful as proof of crimes are outside the jurisdiction of Federal High Court. I so hold.”

Section 251(3) of the Constitution FRN 1999 provides as follows:
“The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this section”
Section 252(1) and (2) provides as follows:
“(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly the Federal High Court may have all the power of the High Court of a state.
(2) Notwithstanding subsection (1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court power in addition to those conferred by this section as may appear necessary or desirable for enabling the Court more effectively to exercise its jurisdiction.”
Section 7 (4) of the Federal High Court Act provides as follows:
“4 The jurisdiction conferred by subsection 3 of this section in respect of criminal causes and matters shall without prejudice to the generality of that subsection and section 64(3) of this Act, include original jurisdiction in respect of offences under the provisions of the Criminal Code the penal Code —– being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.”
The Appellants did not institute criminal charges against the Respondents before the trial Court. Even if they did, the Lower Court had jurisdiction. What was filed in that Court was an application to enforce the Appellants Fundamental rights. If proof of crimes arose in the proceedings that certainly would not rob the Lower Court of jurisdiction. What it would entail would merely involve the standard of proof expected of the Appellants which would be proof beyond reasonable.
From the provisions of the Constitution and the Federal High Court Act reproduced above even if the case of the Appellants against the Respondents at the Lower Court was for Criminal Offences, the Lower Court would not have rightly hands off the case on the excuse that “crimes are outside the jurisdiction of Federal High Court.” But I have pointed out; it was a matter for the enforcement of the Fundamental Rights of the Appellants. The Lower Court was wrong to hold that it was outside its jurisdiction.

Issue 1 is therefore resolved in favour of the Appellants.

Also at page 147 of the record of appeal the Lower Court made the following finding:
“Order 11 Rule 3 of the Fundamental Right Enforcement Procedure Rule 2009, provide thus:
‘An application shall be supported by a statement setting out the name and description of the Applicant, the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the fact’
In the instant case the descriptions of the following applicants not given as provided in the above rule i.e Mr. Basuyi James (2nd Applicant) Mrs. Bukola Ogunyemi (5th Applicant) and Mr. Ayeni Abayomi (6th Applicant). The said rule reproduced above is mandatory and the Applicant has not complied with same.”

The application was filed in 2008 so the Fundamental Rights (Enforcement Procedure) Rules made on the 1st December 2009 relied upon by the Lower Court should not have been relied upon since the matter was already in litigation before the 2009 Rules. See Lagos State Bulk Purchase Corporation v. Purification Techniques Nig. Ltd. (2012) 12 SCNJ (Pt.II) 692.

Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 1979 had a provision similar to Order 11 Rule 3 of the 2009 Rules reproduced above. It reads thus:
“An application for such leave must be made ex parte to the appropriate Court and must be supported by a statement setting out the name and description of the applicant and relief sought and the ground on which it is sought, and by an affidavit verifying the facts relied on.”
If it was under this rule that the learned trial Judge also relied to find the suit incompetent, I think he was wrong because he had already granted leave to the Applicants/Appellants to bring their application for enforcement of their fundamental rights without showing that any of them had not been properly described and all affidavit evidence and addresses of learned counsel for both parties were before him. He should not at that stage have looked back to the procedure employed by the Applicants to obtain the leave earlier granted by it. As the Lower Court was no longer considering the application for leave which was made ex parte, the requirements for description of Applicants was not a matter for his consideration after evidence and addresses of counsel to strike out the suit for incompetence under Order 2 Rule (3) of the 1979 Fundamental Rights (enforcement Procedure) Rules.
If the 2nd, 5th and 6th appellants were not described when the application for leave was made to apply to enforce their fundamental rights, the Lower should at that stage have either refused to grant the leave or strike out the names of the 2nd, 5th and 6th Appellants from the application for leave and grant leave to the other Applicants who were described. See Awoyemi v. Fausan (2006) 13 NWLR (Pt.996) 86.

An action is properly constituted to vest the Court with jurisdiction to adjudicate when there is a competent plaintiff and a competent defendant. See Ataguba v. Gurara Nig. Ltd (2005) 2 SCNJ 139. 1st, 3rd and 4th Appellants who were described being competent Applicants should not have been so lightly driven away from the judgment seat by striking out the suit on the ground that the 2nd, 5th and 6th Applicants were not described.

Issue 2 should therefore be resolved in favour of the Appellants. It is accordingly resolved in their favour.

I had earlier on issue 2 above pointed out that the Lower Court wrongly relied on the 2009 Fundamental Rights Enforcement Rules to hold that some of the Applicants were not described. Those Rules should not have been relied upon since the matter was already in litigation before the 2009 Rules came into effect. The application was filed in 2008. See Lagos State v. Purification (Supra).

Issue 3 is therefore resolved in favour of the Appellants.

Where a Court had decided an issue and the decision of the Court is embodied in some judgment or order that has been made effective, then the Court cannot reopen the matter and cannot substitute a different decision in place of the one which has been recorded. A party who seeks to alter that decision can only appeal against it. See Nigerian Army v. Iyela (2008) 18 NWLR (Pt.1118) 115 at 131.
From the enrolled order of the Lower Court at pages 18 – 21, it had granted leave to the Appellants to apply to enforce their fundamental rights, the decision was made effective by the Appellants’ application on notice and full prosecution and defence of the suit. The Lower Court should not have reopened the issue of leave already granted since it was functus officio. It was wrong for the Lower Court to substitute a different decision in place of the earlier decision granting the leave to Appellants to apply to enforce their fundamental right.

Issue 4 is also resolved in favour of the Appellants.

All four issues having been resolved in favour of the Appellants the appeal is hereby allowed.

The decision of the Lower Court in suit No. FHC/KA/CS/83 dated 3rd March 2011 to the effect that the Federal High Court lacks jurisdiction to hear and determine the suit is hereby set aside.

The matter is hereby remitted back to the Federal High Court Akure Division to be heard on the merits.

MOJEED ADEKUNLE OWOADE, J.C.A.: I was privilege to read in draft, the lead judgment of my learned brother James Shehu Abiriyi, JCA. I agree with his reasoning and conclusion that the appeal has merit and ought to be allowed. I too allow the appeal, the decision of the trial court is also hereby set aside. I abide by the consequential order(s) contained in the lead judgment.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the succinct decision of my Lord, Abiriyi, JCA in the Lead wherein he allowed this appeal on all the four issues formulated for determination, and I wholly agree and adopt the reasoning and conclusion as mine.

A court of law must not shy away or abdicate its jurisdiction, nor confer an appellate jurisdiction on itself as done in the case at trial.

I abide by the consequential order sending the case back to the trial court for adjudication.

Appearances

R.F. AkinreleFor Appellant

AND

Okai Felix O. with G.O. OzogoFor Respondent