MRS. PRECIOUS OMONYAHUY & ORS v. THE INSPECTOR-GENERAL OF POLICE & ORS
(2015)LCN/7979(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of July, 2015
CA/L/493/13
RATIO
APPEAL: GROUND OF APPEAL; WHETHER THE GROUNDS OF APPEAL MUST ARISE FROM THE RATIO DECIDENDI OF THE DECISION APPEALED AGAINST AND WHETHER ISSUES FORMULATED FOR THE DETERMINATION OF THE APPEAL BY AN APPELLATE COURT MUST ARISE FROM THE GROUNDS OF APPEAL
An appeal is a complaint against a decision of a Lower Court, and it is well settled that the complaint itself must be relevant to the said decision. Put together, the grounds of appeal must arise from the ratio decidendi of the decision appealed against and issues formulated for the determination of the appeal by an appellate Court must arise from the Grounds of Appeal, which emanated from the decision appealed against – see Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt.863) 243. per. AMINA ADAMU AUGIE, J.C.A.
CONSTITUTIONAL LAW: LOCUS STANDI; WHETHER THE CONSTITUTIONAL RIGHT TO LIFE OF A DEAD MAN CAN BE ENFORCED BY HIS DEPENDENTS
That unlike the archaic 1979 Rules, which only recognized locus standi of victims, it no longer matters that persons whose fundamental rights were breached are dead; that since the Respondents admitted by their pleadings to the extra-judicial killing of the deceased men, any member of the family can maintain an action to redress the infringements under the extant Fundamental Rights Rules; that the Courts in recent times have awarded damages to relatives of deceased persons, whose rights to life have been cut short – Okere V. I.G.P [SUIT NO. FCT/HC/CV/4653/11] and Fugu v. The President, FRN [2009-10] CHR 1 cited; that even before the advent of the 2009 Rules, judicial activism had risen to the occasion under the compelling need to do substantial justice, as exemplified by Oyewole, J. (as he then was) in Shobayo V. COP, Lagos State (Suit No.ID/760m/2008]; that Nosiru Bello’s Case (supra) they relied on was misapplied by them, and buttresses their position as what the Court did in that case was to find a law under which the Appellants’ claims would flow so as to meet the demands of justice in the case; and that the above authorities reveal the radical departure and earnest attempts by Judges in exorcising the evil and oppressive 1979 Rules, which the Respondents laboriously seek to exhume from the graveyard of history in apparent oblivion to the extant 2009 Rules, which expanded our jurisprudential space as regards locus standi vis-a-vis 3rd parties’ interest in Fundamental Right cases. In resolving this Issue, which boils down to a question of whether the constitutional right to life of a dead man can be enforced by his dependents, we are faced with an uphill task and will be swimming in uncharted waters, since there are no authorities either from the Supreme Court or this Court on the subject, and so, to guide us on this Journey through virgin territory, we must establish where we were, where we are, and where we need to go. [The aforementioned Rules will hereinafter be referred to as FREP Rules]
Clearly, the 1979 FREP Rules had shortcomings, which resulted in substantial justice being undermined by legal technicalities, for instance, the requirement that an Applicant must seek leave of the High Court was treated as mandatory – see Udene V. Ugwu (1997) 3 NWLR (Pt.491) 57. Sometimes the discretion to grant leave on the determination of a prima facie case was exercised wrongly, resulting in some credible complaints being shut out – see Ushae V. C.O.P. (2002) 11 NWLR (Pt.937) 499.
As for standing to sue; soon after the 1979 FREP Rules was made, the Supreme Court recognized the requirement of personal standing as fundamental for any action, including complaints of human rights abuse. It held that standing would be accorded to a Plaintiff, who shows that his rights/obligations have been, or are in danger of being violated, etc., and that the relevant person for determining standing was set out by Section 42(1) of the 1979 Constitution. Following this interpretation, Section 46(1) of the 1999 Constitution [similar to Section 42(1)] would accord standing only to the person, whose fundamental human rights are at issue; this was viewed as detrimental to Public Interest Litigation. per. AMINA ADAMU AUGIE, J.C.A.
CONSTITUTIONAL LAW: THE 2009 FREP RULES; THE OVERRIDING OBJECTIVES AS SET OUT BY THE RULES
These threshold principles denied access to genuine complaints of human rights abuse, and to ameliorate the situation, Kutigi, CJN acting on the power conferred on him by Section 46(3) of the 1999 Constitution made the 2009 FREP Rules, under which the present Application was filed.
The salient amendments include abolition of application for leave to secure the enforcement of fundamental rights, the doctrine of locus standi and statutes of limitation, filing of verifying affidavit and that of service.
The Preamble to the 2009 Rules sets out its overriding objectives, it reads –
1. The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule.
2. Parties and their legal representatives shall help the Court to further the overriding objectives of these Rules.
3. The overriding objectives of these Rules are as Follows-
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely Interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.
(b) For the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like Constitutions. Such bills include-
(i) The African Charter on Human Rights and Peoples Rights and other instruments (including protocols) in the African Regional Human Rights system.
(ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations Human Rights System.
(c) For the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient
(d) The Court shall proactively pursue enhanced access to justice for all classes or litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.
(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well any non-governmental organizations, may institute human rights application of 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 person. Anyone acting in the public interest and Association acting in the interest of its members or other individuals or groups
(f) The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
g. Human rights suits shall be given priority in deserving cases, when there is any question as to the liberty of the Applicant or any person, the case shall be treated as an emergency. per. AMINA ADAMU AUGIE, J.C.A.
CONSTITUTIONAL LAW: PUBLIC INTEREST LITIGATION; THE MEANING OF PUBLIC INTEREST LITIGATION
One of the overriding objectives of the 2009 FREP Rules in Preamble 3(e) is “the Court shall encourage and welcome Public Interest Litigations”, and Public Interest Litigation means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected – see Black’s Law Dictionary. Under Public Interest Litigation, it is not necessary that the Applicant has suffered some Injury of his own or has had personal grievance to litigate. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or the African Charter on Human and Peoples Rights and to which the Applicant or some other potential Applicant is entitled, has been, is being, or is likely to be infringed may, apply to the Court in the State where the infringement occurs or is likely to occur, for redress.
Public Interest Litigation is, therefore, a right given to the socially conscious member or a public spirited Non-Governmental Organization to espouse a public cause by seeking judicial redress of public injury. It is the device by which public participation in judicial review of administrative action is assured. See the decision of the Indian Supreme Court in PUDR [People’s Union for Democratic Rights] v. Union or India 1982 (2) S.C.C.253. In India, all people, irrespective of race, religion, caste or sex, have the right to move the Supreme Court and High Courts for the enforcement of their fundamental rights. Poor people may not have the means, and in the public interest, anyone can commence litigation in the Court on their behalf. High Court Judges have acted on their own on the basis of newspaper reports – see Bodhisattwa Gautam v. Subhra Chakraborty, 1995 ICHRL 69. per. AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. MRS. PRECIOUS OMONYAHUY
2. MR. MIKE OMONYAHUY
3. MR. SEGUN AMUSA
4. MR. SAHEED OKEWOLE Appellant(s)
AND
1. THE INSPECTOR-GENERAL OF POLICE
2. THE COMMISSIONER OF POLICE, LAGOS STATE
3. ATTORNEY-GENERAL OF THE FEDERATION
4. INSPECTOR NIYI OLADAPO
5. INSPECTOR ADENIJI OLADAPO
6. CORPORAL SMART Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): This Appeal involves a matter brought pursuant to the Fundamental Rights (Enforcement Procedure) Rules 2009, in respect of two members of staff of Multiple Covenant Investment Ltd., Endurance Omonyahuy [Chief Driver] and Sikiru Amusa [Assistant Driver] who were killed by the 4th Respondent, at a Roadblock/Checkpoint along Lasu/Igando Expressway, on 15/2/2012. The 4th Appellant was their Supervisor, and after they were shot and killed, allegedly as armed robbers, the Policemen intercepted his telephone calls to the deceased men, and arrested and detained him at their Police Station. The 1st and 2nd Appellants, i.e. wife and father of the deceased Chief Driver respectively, the 3rd Appellant, who is the father of the deceased Assistant Driver, and the 4th Appellant filed the Application that led to this Appeal.
They jointly filed Form 1 -Notice of Application for Order Enforcing Fundamental Right (Order 2 Rule 1) at the Lagos State High Court wherein they sought for an Order from the Court granting the following Reliefs-
1. A DECLARATION that the killing of Mr. Endurance Omonyahuy and Mr. Sikiru Amusa on the 15th day of February, 2013, by the 4th Respondent acting under the authority of the 1st and 2nd Respondents for no justifiable reason constitutes extra judicial murder and is a violent violation of their fundamental right to life as guaranteed by the provisions of Section 33 (1) of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4 and 5 of the African Charter on Human and Peoples’ Rights and hence ultra vires the Respondents, illegal and unlawful.
2. A DECLARATION that the arrest, incarceration and the Indignity meted on the 4th Applicants person and the Interception of his private telephone conversation on the 15th day of February, 2012, by the 4th to 6th Respondents acting under the authority of the 1st and 2nd Respondents was in gross violation of the 4th Applicant’s fundamental rights preserved and guaranteed under Section 34 (1) (a), 35 (1) and 37 of the Constitution of the Federal Republic of Nigeria, 1999.
3. COMPENSATION in the sum of N300,000,000.00 against the Respondents jointly and severally to be paid to the 1st and 2nd Applicants for the aforesaid extra judicial murder and unconstitutional violation of Mr. Endurance Omonyahuy’s fundamental right to life and as general damages for the aforesaid violation.
4. COMPENSATION in the sum of N500,000,000.00 against the Respondents jointly and severally to be paid to the 1st and 2nd Applicants for the aforesaid extra judicial murder and unconstitutional violation of Mr. Endurance Omonyahuy’s fundamental right to life as exemplary and aggravated damages for the aforesaid violation
5. COMPENSATION in the sum of N300,000,000.00 against the Respondents jointly and severally to be paid to the 3rd Applicant for the aforesaid extra judicial murder and unconstitutional violation of Mr. Sikiru Amusa’s fundamental right to life and as general damages for the aforesaid violation
6. COMPENSATION in the sum of N500,000,000.00 against the Respondents jointly and severally to be paid to the 3rd Applicant for the aforesaid extra judicial murder and unconstitutional violation of Mr. Sikiru Amusa’s fundamental right to life as exemplary and aggravated damages for the aforesaid violation.
7. COMPENSATION in the sum of N200,000,000.00 against the Respondents jointly and severally to be paid to the 4th applicant for the aforesaid illegal and unconstitutional violation of his fundamental rights to dignity of a person, liberty and private of telephone conversation as general damages for the aforesaid violation.
8. COMPENSATION in the sum of N300,000,000.00 against the Respondents jointly and severally to be paid to the 4th applicant for the aforesaid illegal and unconstitutional violation of his fundamental rights to dignity of a person, liberty and private of telephone conversation as general damages for the aforesaid violation.
9. PUBLIC APOLOGY by the Respondents for all the above enumerated breaches to be published in conspicuous pages of at least three national dailies widely circulated and read in Nigeria.
10. Such Further or other Orders as this Hon. Court may deem fit to make —
They also filed – Statement of Facts Pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, which reads thus –
“FACTS GIVING RISE TO THE APPLICATION
The 1st to 3rd Applicants are the respective family members cum dependants of late Mr. Endurance Omoyahuy and later Mr. Sikiru Amusa who were brutally, callously and unjustifiably (extra judicial) murdered in the early hours of 15/2/2012 by the 4th to 6th Respondents. The said Endurance Omonyahuy was at all material times under the employ of Multiple Covenant Limited as the Chief Driver while Sikiru Amusa was under same employ as Assistant Driver. Both men reported to the 4th Applicant, who Superintendents over them as Supervisor. On 15/02/2012, at about 6.00am, Endurance and his assistant driver, Sikuru Amusa set out for their place of work on Omonyahuy’s motorcycle bike. In the course of their journey to the office, along Lasu/Igando Expressway, some Policemen including the 4th to 6th Respondents (of the Anti-Robbery Team attached to the Igando Police Station mounted an illegal roadblock/checkpoint in deviance to the well-publicized 1st Respondent’s lawful order. The 4th to 6th Respondents demanded for money from Omonyahuy at the road block but he bluntly refused to part with his money and then continued on his journey. Unknown to him, two of the Policemen who were part of this illegal roadblock took exception to Omonyahuy’s audacious refusal to give them money and consequently went after him on a motorcycle. Apparently oblivious of the Respondents’ trial, Omonyahuy had a brief stop at Ologuro bus-stop along the same Lasu-Igando Expressway. He had a minor encounter at this bus stop with a commercial bus driver, who had driven reckless in front of his bike and thereby caused him (Omonyahuy) some discomfort. However, because the bus driver was quick to accept his fault and promptly apologiezed they did not tarry long at the spot. Unfortunately though, as Omonyahuy zoomed off from this spot (with Amusa seated behind him), the 4th Respondent alighted from the bike (driven by another Policemen), cocked his A-K 47 rifle gun, targeted and shot at them. The 1st shot missed target. Then again, he fired a 2nd shot which his target, fatally piercing through both Sikiru Amusa and Endurance Omonyahuy. Faced with the gravity of this action, the 4th Respondent was initially crestfallen but became emboldened when his colleague suggested to him to claim that the men he murdered were armed robbers. He promptly adopted this evil suggestion. Consequently, the Respondents’ next action in pursuit of this devious plan was to intercept 4th Applicant’s private telephone call to Omonyahuy’s telephone line pretending to be (impersonating) Omonyahuy. The Respondents conversed with the 4th Applicant under this pretense till they were able to trace him to automobile mechanic garage where awaited both drivers. They quizzed the 4th Applicant at the mechanic garage about his relationship with Omonyahuy and Amusa. The 4th Applicant did not hesitate to identify himself as the Supervisor to both men and further informed the Respondents that he had been in communication with both men earlier that morning. He went further to pin point to the Respondents the particular truck he awaited the drivers to come and retrieve from that garage. However, because their preconceived devious machination, the Respondents chose to discard his explanation and went ahead to manhandle the 4th Applicant with rounds of slaps and thorough beating before putting him in handcuffs and whisking him away from the mechanic garage like an armed robber and straight into incarceration at their Police Station. In line with their plan, the initial story related to Mr. Adewale Sadiku, Managing Director of Multiple Covenant Investment Ltd. at the Police Station was that his staffs were armed robbers who met their waterloo that morning: Though upon the intervention of the company’s Solicitors when it dawned on the Respondents that they could not sustain this ridiculous story, they changed it. The new story became that the deceased men were innocent citizens killed by unknown armed robbers suspected to be members of a gang that had been terrorizing the neighborhood for some time and that the 4th to 6th Respondents only assisted to recover their corpses from the scene of the crime. This story became the Respondents’ official position and same version was also narrated to the solicitor by the Area Commander of Area “M” Assistant Commissioner of Police (ACP) Ibrahim Kayode and further reiterated by the District Police Station (DPO) of Igando Police Station Superintendent (Supol) Gbenga Adeoye who had direct charge over the 4th to 6th Respondents. As it turned out, the Respondents’ concocted lie crumbled like packs of card in the face of the overwhelming evidence gathered by the Solicitor and his team of concerned private citizens led (same day) to the scene of the crime. Sensing that the game was indeed up, having been confronted with hard facts adduced from eye witnesses to the crime including vivid description of the shooter (4th Respondent) and coupled with the Solicitor’s direct telephone call to the then incumbent Commissioner of Police, Lagos State (COP) Mr. Alkali, the 4th Respondent finally confessed to the murder and his weapon (AK 47 Rifle Gun) was promptly retrieved. The Post-mortem examination reports on both corpses have confirmed that they died from the bullet wound inflicted on them.
GROUNDS FOR THE APPLICATION
a. The 4the Respondent acting under the authority of the 1st and 2nd Respondents did brutally, callously and extra-judicially murdered Mr. Endurance Omoyahuy and Mr. Sikiru Amusa on the 15th day of February, 2012 for no just cause.
b. By the provisions of Section 33 of the [1999] Constitution (as amended) and Articles 4 of the African Charter on Human and Peoples’ Rights; human life is inviolable and no one should be deprived Intentionally of his life.
c. The 4th to 6th Respondents on the 15th day of February, 2012 acting under the authority of the 1st and 2nd Respondents did intercept the 4th Applicant’s private telephone conversations and calls to the later Endurance Omonyahuy. And subsequently manhandled, humiliated, tortured and subjected him to degrading treatments; beating, sleeping and deliberately treated him like a common criminal (armed robber) before putting him in handcuffs in the full glare of the public and whisked him away into detention at their Station.
d. By the provisions of Section 34 of the (1999) Constitution (as amended) and Articles 5 of the African Charter on Human and People’s Rights, no person shall be subjected to inhuman and degrading treatment.
e. By Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Article 6 of the African Charter on Human and Peoples’ Rights, every person shall be entitled to his personal liberty and security of his person.
f. By the provision or Section 37 of the (1999) Constitution (as amended), the privacy of every citizen’s telephone conversation is guaranteed and protected.
g. The 4th to 6th Respondents were at all material times to this Application acting under the authority of the 1st and 2nd Respondents, who also supplied the arms and ammunitions used to kill both deceased men.
h. In the circumstances of this case, the Applicants are entitled to a public apology in addition to all the relief sought in this Application.”
The Application is supported by a 54-paragraph Affidavit deposed to by
Adewale Sadiku, the M.D. of the Company that employed the deceased men, and 4th Respondent. The 1st, 2nd, 3rd, 5th and 6th Respondents (hereinafter referred to as the 1st set of Respondents), filed a 32-paragraph Counter-Affidavit deposed to by Inspector Olumide Alagbe, a Police Officer attached to State C.I.D. Lagos, wherein they denied the allegations, and also averred-
– That the deceased men were not staff of the said Company; if so, they would have been found with the Company’s identity card since the [Appellants] claimed that they were going to work before the incident.
– That the Deponent’s narration of the incident is full of lies, insinuation fueled with innuendos, and it depicts of hearsay since he was not on the spot when the said incident took place.
– That the 4th and 6th Respondents are not witch-hunting the [Appellants] having done a thorough investigation to ascertain the status of the deceased, and that they never manhandled the 4th Applicant with rounds of slap. He was told the nature of the offence he allegedly committed.
– That they were accosted as having nexus with suspected armed robbers that were terrorizing Igando environs based on the earlier complaints to the Police.
– That immediately they received information of the death of the two deceased suspected robbers, the Police swung into action and went to the scene where the 2 bodies were lying, and they were later removed to Ikeja mortuary.
– That they took all necessary steps to investigate the cause of the death of the suspected robbers and never meted any unlawful treatment to the 4th [Respondent] as it was within their constitutional duties in line with Police Act.
– That the 1st and 2nd Respondents are Constitutionally empowered and assigned to combat crime with arms that are not meant to be used by the 4th Respondent to kill innocent citizens, and the public have the right to channel their complaints either through petition to the 1st Respondent, which was received on 17/4/2012 and action taken immediately without being ignored.
– That they are professionally treated to discharge their statutory duties as provided in Section 4 of the Police Act, and when faced with sudden attack where ammunitions are exchanged at cross purposes, there is always casualties from either side, which in this case, cannot be tagged as callous, brutal and wicked.
– That there is incessant report of armed robbery terrorizing the Igando environs, particularly along Lasu/Isheri Road, where this particular incident took place. .
– That as the body of the deceased (Sunday Endurance) was searched by them, a National Driving Licence was recovered in one of his pockets belonging to one Monday Solomon, who was involved in a case of armed robbery within this area, and was subsequently charged to Ikeja Magistrate Court on November 2011.
– That the Motor-bike-Bajaj Boxes M/C, which the two deceased used, have particulars bearing one Mr. peter Ebite of No. 3 Rasaki Owolabi Street, Adaloko Ojo, Lagos with Reg. LND-154-A4. Engine No. Dumbu F 31356, with Chassis No. MD2DDM22UKIF8762G, Red in colour was found to be fake name. Hence, it is crystal clear that the deceased person in this case are some of the armed robbers that were recently terrorizing the Igando locality.
The Appellants filed a 48-paragraph Further Affidavit accompanied by an “EYE WITNESS STATEMENT ON OATH” that is now an issue in this appeal. The 3rd Respondent, despite being served with the Respondents’ processes and Hearing Notice, did not file any process or react to the said Application. In a Ruling delivered on 20/2/2013, the learned trial Judge, Kasali, J., held-
“I have read the affidavit in support of this Application, the Written Address in support; the Further Affidavit with Statement of an Eye Witness, and the Reply on Points of Law to the Respondents’ Address. I have equally perused the Counter-Affidavit, the Written Address in opposition, and I have critically examined the Exhibits attached: “The law on the point is well settled that only actions Founded on a breach of any of the fundamental rights guaranteed in the Constitution can be enforced under the Rules. It is also a condition precedent to the exercise of the Court’s Jurisdiction that the enforcement of Fundamental Right or the securing of the enforcement thereof should be the main claim and not an accessory claim” – per Akintan, JSC, (P.22- paragraph D-F). See WAEC v. AKINKUNMI (2008) 4 SC 1. From the facts and affidavit evidence placed before the Court by the Applicants it follows that this action is founded under a criminal offence of murder and cannot be brought under the Fundamental Right Enforcement Procedure Rules 2009. The redress the Applicants sought in the main suit is Justice against the 4th Respondent who was alleged to have shot the 2 deceased men. I am not unmindful of the provision of S.33(10) of the 1999 Constitution of the Federal Republic of Nigeria(as amended) that guarantee the right of person to life. The issue of the 4th-6th Respondents alleged interception of the 4th Applicant’s private telephone call/conversation to one of the deceased line may be a breach of the 4th Applicant’s right to privacy of his telephone conversation, which S.37 of the 1999 Constitution guaranteed and protected, but it is not the main claim, it is an accessory claim. So also is the claim in respect of slapping, beating and handcuff put on the 4th Applicant. I have therefore come to the conclusion that the Applicants’ action was incompetent as it was wrongly commenced under the Fundamental Rights (Enforcement Procedure) Rules 2009. In the result, Application dated 8th day of August, 2012 is hereby refused, and it is accordingly dismissed”.
Dissatisfied with the Lower Court’s Ruling, the Appellants appealed to this Court with a Notice of Appeal containing 2 Grounds of Appeal, and in their Brief of Argument settled by Abayomi Sadiku, Esq., Ibitayo Sadiku, Esq., and Dayo Odunsi (Ms), they distilled the following Issues for Determination-
1. Whether the learned trial Judge was right in holding that the alleged infractions of rights of the Appellants, which are all guaranteed, protected and provided for under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 [as amended], and sought to be redressed by the prescribed Originating Process brought by the Appellants was an action founded under a criminal offence of murder that cannot be brought under the Fundamental Right Enforcement Procedure Rules 2009.
2. Whether the right to privacy, right to personal liberty and right to dignity of human persons are not substantive or main fundamental rights on their own right.
The 1st Set of Respondents, however, submitted in their Brief prepared by G. O. Osuyi, Esq., that the Issues that call for determination are as follows –
i. Whether the Lower Court was not right in dismissing the Appellants’ Application having found same to have been wrongly commenced by/or under the Fundamental Human Rights (Enforcement Procedure) Rules, 2009.
ii. Whether the Appellants can succeed in the Application for the enforcement of fundamental rights in relation to the alleged killing/Murder of one Mr. Endurance Omonyahuy and Mr. Sikiru Amusa both (deceased), being a violation of their rights to life as guaranteed under Section 33 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 2 and 4 of the African Charter on Human and People’s Right (Ratification and Enforcement) Act, 2004.
This time the 3rd Respondent filed a Brief settled by I. O. Obimakinde (Mrs.) wherein he formulated a sole Issue for determination by this Court; that is
“Whether the Lower Court was not right in dismissing the Appellants’ Application on the ground that was wrongly commenced”.
The Appellants filed Reply Briefs to the respective Respondents’ Briefs, wherein they challenged the competency of the respective Issues on the ground that are not linked nor formulated from their Grounds of Appeal. They submitted in both Reply Briefs that the Issues formulated by the 1st set of Respondents and the sole Issue formulated by the 3rd Respondent are bad in law, incompetent, and should be discountenanced by this Court as not only do the issue(s) not have any bearing on the Grounds of Appeal; it also does NOT stem from any part/portion of the Lower Court’s decision.
They referred us to the following authorities – Oba James Adeleke & 3 Ors. V. Nafiu Adewale Lawal & 7 Ors. (2014) 3 NWLR (Pt.1393) 15 SC, Magaji v. Nigerian Army (2008) 8 NWLR (Pt.1089) 373 SC, Nze Benson Obialor & Anor V. Josiah Uchendu & 3 Ors. (2014) 11 NWLR (Pt.1419) 455; Senator Ameh Ebute & 3 Ors. v. Union Bank [2012] 2 NWLR (Pt.1284) 259, and urged us to strike out their respective Issues and arguments thereon.
The 1st set of Respondents and 3rd Respondent also argued in their Briefs that the Appellants commenced the action at the Lower Court by way of “Originating Summons” that contemplates use of affidavit evidence, which often contains contentious issues of fact that have to be resolved, therefore, the Appellants commenced this action by a wrong procedure.
The Appellants countered in the Reply Briefs that their arguments were founded on an erroneous pedestal precipitating their uninformed submission that their action was commenced by “Originating Summons” but it was rightly and duly commenced by the prescribed Form No.1 of the Appendix to the extant Rules, which allows use of Affidavit evidence.
Citing Order II rules 1 and 2 of the said Enforcement Procedure Rules, which covers “Commencement of Action” and “Mode of Commencement” respectively, they argued that it is clear that the Respondents’ attack on their mode of commencement must necessarily crumble like packs of cards in the face of those unambiguous express provisions of the extant Fundamental Rights [Enforcement Procedure] Rules; that it does not lie in their mouth to complain about the proceedings or the Ruling as they filed no appeal or cross-appeal, and they have permanently lost the right to ventilate any grouse, grievances or disagreements they may nurse; and that all that they can do is to support the Ruling appealed against, and even then, they must confine themselves to their Grounds of Appeal, citing Musa Salisu V. Abdussamad Yusuf (2011) LPELR-22225 [CA].
Furthermore, that even if they filed a Respondents Notice/Cross-Appeal, their arguments would still hold no water being totally irrelevant to the live issues in this Appeal because the law is that where a matter can be determined by Affidavit evidence, a Court need not call oral evidence or witnesses, citing Okada Airlines V. FAAN (2015) 1 NWLR (Pt.1439) 1; and that the case of Afribank V. Adigun [2009] 11 NWLR [Pt.1152] 329 harped on the need for Courts to expeditiously decide Fundamental Rights Applications and as much as possible, refrain from allowing parties to lead oral evidence save where there are fundamental conflicts in the Affidavits.
The 1st set of Respondents also argued under their Issue 1 that Order II rule 3 of the said Fundamental Rights [Enforcement Procedure] Rules, does not make room for/or include “Eye Witness Statement on Oath”, and the Appellants inclusion of one to their Application is a departure from the aforesaid Rules on commencement of action, which nullifies the entire proceedings because it deals on the commencement of action. But the Appellants referred to Order XIII rule 1 of the aforesaid Rules on “Right of Any Other Person to Be Heard”, and submitted that a person, who witnessed the callous extra-judicial killing of a fellow human being, is without contention a proper person to be heard in an Application to redress the illegal killing; and that since the said Respondents did not deem it necessary to raise this issue before the Lower Court, their earlier arguments and the case of Magaji v. Nigerian Army (supra) suffices here.
Obviously, these contentions/arguments/submissions are nothing but distractions obstructing our view of what are at stake in this Appeal, which is an invitation to this Court to review the Lower Court’s decision to see whether it arrived at a correct decision – see Oredeyin V. Arowolo (1989) 4 NWLR (Pt.114) 172 SC. In other words, this Appeal is not a new action but the continuation of the matter that was before the Lower Court.
An appeal is a complaint against a decision of a Lower Court, and it is well settled that the complaint itself must be relevant to the said decision. Put together, the grounds of appeal must arise from the ratio decidendi of the decision appealed against and issues formulated for the determination of the appeal by an appellate Court must arise from the Grounds of Appeal, which emanated from the decision appealed against – see Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt.863) 243.
There is no law prohibiting a Respondent from formulating his issues for determination, but a Respondent, who has not filed a cross-appeal or Respondent’s Notice, has no right to formulate issues outside the grounds of appeal containing the complaints against the decision – see Mushuwareng V. Abdu (2003) 11 NWLR (Pt.831) 403, Nwankwo v. FRN (2003) 11 NWLR (Pt.809) 1, Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511, Igbinoba v. Igbinoba (2003) 3 NWLR (Pt.803) 39 and Ibator v. Barakuro (2007) ALL FWLR (Pt.371) 1669 SC. where the Supreme Court per Mohammed, JSC (as he then was) observed-
“The Respondent’s who have not filed any cross-appeal from which grounds of appeal these further issues could have arisen, nor filed a Respondent’s Notice to affirm the Judgment of the Court below on grounds other than grounds argued by the Appellants; have not got an unbridled right or freedom of raising issues or further issues for determination which have no relevance to the grounds of appeal filed by the Appellants”.
In this case, there appears to be nothing untoward about the Respondents’ Issues as distilled, however, a closer look at the Ruling of the Lower Court, which I set out earlier, reveals that its decision has nothing whatsoever to do with the process the Appellants used to commence the action before it. The Lower Court simply held that the action was founded under a criminal offence of murder, and cannot be brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009. The issue of whether they applied by way of Originating Summons or via prescribed Forms of the Appendix to the aforesaid Rules was never raised or determined by the Lower Court.
The Lower Court did not consider any contentious affidavit evidence before it came to a decision to dismiss the Application for the reason given, and the fact that the Appellants attached an Eye Witness Statement on Oath to the Affidavit in support of the said Application is neither here nor there. The Lower Court merely mentioned that it read the Further Affidavit with “statement or an eye witness”, and there is no indication that it relied on it in arriving at its decision. It is well settled that an issue for determination, which is raised from the Grounds of Appeal, is usually a proposition of law or of fact in dispute between parties, necessary for determination by the Court and the determination of which would affect the result of an appeal. The determination of these issues will add nothing and subtract nothing front this Appeal, and so, any arguments thereon will be discountenanced.
Now that we have cleared the cobwebs, we can see that the issue for determination is whether the Lower Court was right to deny the Appellants redress under the Fundamental Rights (Enforcement Procedure) Rules.
It is the Appellants’ contention that the Lower Court’s conclusion is flawed and at variance with the letters, spirit and the intention of Chapter IV of the Constitution dealing with fundamental rights and the said Rules. They submitted that the crux of their Application was to seek CIVIL redress for the extra judicial killings of the deceased men on one hand AND redress for breach of the right to privacy, detention, torture and indignity meted on the 4th Appellant on the other hand; by instituting/commencing the matter pursuant to the said Rules, they demonstrated beyond contention their intention to seek only CIVIL redress in damages and public apology for the infractions of their rights and NOT criminal prosecution or procedure, which admits of no such remedies as compensations or apology but rather punishments whilst vesting exclusive prosecutorial powers in the State, citing Mohammed Abacha V. FRN (2006) 4 NWLR (Pt.970) 292-293.
They referred us to Sections 33, 34, 35, 37 and 46 of the Constitution, the Preambles of the said Rules, Sambo & Ors V. Okon & Ors [2013] LPELR-20394 [CA]. Attn-Gen. v HRH Prince Ernest Augustus of Hanover [1957] AC 456, Order IX Rule 1 and Rule 1 [i-ii] of the said Rules, and argued that the Lower Court failed to be guided by the clear and unambiguous stipulated overriding objectives of the said Rules. citing Saleh V. Monguno & Ors [SC.403/2001 (sic)]; that it was incumbent upon it to interpret and apply the Rules broadly to suppress the mischief whilst advancing the remedy, which they aim to redress, citing Heydon’s Case (1584), Smith v. Hughes (1960], Eastbourne Borough Council v. Stirling [2000]; that it was rather unduly narrow, non-expansive and restrictive of their rights, freedom and access to justice in complete variance with aims and objectives of the said Rules; that it is NOT the law that a violation of any of the Fundamental rights CANNOT be redressed under the said Rules only because the ingredients of such violations also happen to constitute elements of criminal offences, especially in this case, where they must establish the extra judicial killings [tantamount to murder] to succeed in their claims against the Respondents; that since the rights for which they sought redress were all provided for, guaranteed and protected under Chapter IV of the Constitution, their Application was rightly founded and properly brought under those Rules; that having proved that the Respondents violated the fundamental rights enshrined in Sections 33, 34, 35 and 37 of the Constitution, it ought to have granted their Application had it adverted itself to ends of justice, citing Oladekoyi v. IGP (2011) 16 NWLR (PART 1273) 424; and that the Lower Court’s decision dismissing their Application not only conflicted with the spirit, letters and intendment of the said Fundamental Rights (Enforcement Procedure) Rules, but also with the decision in WAEC V. Akinkunmi [2008] 4 SC (sic), cited by the Lower Court in the Ruling they appealed against.
Furthermore, that had the Lower Court constrained itself to properly and carefully examine all of their 10 reliefs [as held in WAEC V. Akinkunmi], it would not have misdirected itself to hold that their action was founded on criminal offence of murder; that its ratio decidendi was superficial and, occasioned a miscarriage of justice as it failed to take into cognizance the totality of their claims and their reliefs vis-a-vis the Intendment, spirit and letters of the Rules, more so when it is reckoned that its decision may have stemmed from the word “murder” used in some of their reliefs thereby unjustly promoting FORM [i.e “the manner in which the claim is couched”] over and above substantial justice [i.e, what the case was “really about”); and that even if they were inadequate in the presentation, form or content of documents, in as much as their primary motive of seeking redress was not lost on the Lower Court, it ought to have tilted to the side of substantial justice by granting reliefs sought in their Application and not dismiss same, citing Saleh V. Monguno & Ors (supra); They further submitted as follows-
“It was not the Respondents’ case that the 4th Respondent did not shoot and kill both deceased men. Indeed [they] tendered abundance of proof including, “Affidavit Forwarding Additional Documents to The Court” (Filed pursuant to Order XII Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009), which contained the “Legal Advice” from the office of the Directorate of Public Prosecution of Lagos State alluding to relevant documents such as the 4th to 6th Respondents’ “Confessional Statement”; their D.P.O.’s written statement” indicting the 4th Respondent over the deaths. [They] exhibited all these in addition to other overwhelming evidence [which were neither rebutted nor denied by the Respondents] in further proof that the killing of both deceased men by the 4th Respondent was extra judicial and not congruent with Section 33 (2)(a-c) of the Constitution, which provides for the only exception to the right to life enshrined in Section 33 (1) of the Constitution. Upon the weight of the un-rebutted evidence of breach of fundamental rights placed before the trial Court, the Court ought to have done substantial justice by granting (their) Application”.
They also cited Effiong V. State [2006] 18 NWLR (Pt.1010) 127 and Saleh V. Monguno & Ors (supra), and submitted if indeed there was a mistake in the presentation of their case, which is not conceded, the Lower Court ought not to have inflexibly denied their reliefs to which they are justly entitled on the mistakes of their counsel. We were urged to overrule the said decision.
The 1st set of Respondents cited Odogu V. A.G. Fed. (1996) 6 NWLR (Pt.456) 508 on fundamental rights and Section 33(1) of the Constitution, and submitted that procedure for the enforcement of fundamental rights is a strict and special one, which must be adhered to strictly, citing EFCC V. Ekeocha (2008) 14 NWLR (Pt.1106) 161, Raymond Dongtoe V. Civil Service Commission, Plateau State & Ors (2001) 9 NWLR (Pt.717) 132, Ogwuche V. Mba (1994) 4 NWLR (Pt.336) 75; that only actions founded on a breach of any of the fundamental rights guaranteed in Section 33 of the Constitution can be enforced under the said Rules and Article 4 of the African Chapter on Human and People’s Rights; that the principal claim must be a relief for enforcement of the fundamental right or securing the enforcement of the fundamental right of a person, citing Order 11 Rule 1 of the aforesaid Rules; and that the question that needs to be answered here is whether the action commenced by the Appellants and as formulated by them is competent under the Fundamental Rights (Enforcement Procedure) Rules, 2009.
They referred to the Appellants’ first relief, which is declaratory, and submitted that it is trite that a Court in the exercise of its interpretative jurisdiction must stop where the statute stops as it is not to make law, citing Buhari V. Yusuf (2003) 14 NWLR (Pt.841) 446, Okoli V. Udeh (2008) 10 NWLR (Pt.1095) 213 and Archbishop Okogie V. Att.-Gen., Lagos State (1981) 2 NCLR 337; that the said rights are personal rights to the person concerned, which are not transferrable, since the rights of any person suing as a relation or next of kin are not in issue, therefore, an application under this special procedure cannot be made by proxy, and that the Appellants are relations of the deceased, who brought this action under the said Rule, a special and strict procedure, the rights to be enforced are personal rights that they are entitled, which has been, is being or is likely to be infringed, citing Boniface Ezechukwu V. Peter Maduka (1997) 4 NWLR (PT.518) 635.
They argued that the procedure adopted by the Appellants in seeking redress at the lowe r Court was wrong as the reliefs fall within an action in tort, which was/or is the view of the Court that relations/friends of those, whose right of life was illegally terminated could not maintain an action under the Fundamental Rights (Enforcement Procedure) Rules but under common law, citing Nosiru Bello V. A.G, Oyo State (1986) 5 NWLR (Pt.45) 828; A.G., Kaduna State V. Umoru Hassan (1985) 8 NWLR (Pt.8) 843; that the right guaranteed by Section 33 of the Constitution is not a mere right but special one, the remedy for which is outside the purview of an ordinary action brought at the Lower Court mainly to claim damages for delicit, citing Olufunmilayo Ransome-Kuti V. A.G. Fed & 8 ORS (1985) 2 NWLR (Pt. 6) 211; and that the Appellants’ Application can only be commenced by a writ being an action in tort, and so, the Lower Court was right to dismiss it.
On his part, the 3rd Respondent argued along the same lines with the 1st set of Respondents, and cited the same authorities. He also contends that they came to Court through the wrong procedure, and the Lower Court was right in dismissing the Suit.
The Appellants filed a Reply to 1st set of Respondents’ Brief and to 3rd Respondent’s Brief wherein they canvassed the same arguments that the cases cited are obsolete and no longer the current correct position, as they are based on the repealed provisions of the 1979 Constitution, and obsolete 1979 Fundamental Rights [Enforcement Procedure] Rules; and that the 2009 Fundamental Rights [Enforcement Procedure] Rules is more expansive and all-embracing in its pursuit of substantial justice in the redress and prevention of infringements or likely infringements of the Fundamental Rights provided in Section 33 [1] of the Constitution.
They submitted that Paragraph 3 [e] of the Preambles of the 2009 Fundamental Rights [Enforcement Procedure] Rules expressly stipulates the classes of eligible Applicants under the new Rules to include –
(i) Anyone acting in his own interest:
(ii) Anyone acting on behalf or 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.
That unlike the archaic 1979 Rules, which only recognized locus standi of victims, it no longer matters that persons whose fundamental rights were breached are dead; that since the Respondents admitted by their pleadings to the extra-judicial killing of the deceased men, any member of the family can maintain an action to redress the infringements under the extant Fundamental Rights Rules; that the Courts in recent times have awarded damages to relatives of deceased persons, whose rights to life have been cut short – Okere V. I.G.P [SUIT NO. FCT/HC/CV/4653/11] and Fugu v. The President, FRN [2009-10] CHR 1 cited; that even before the advent of the 2009 Rules, judicial activism had risen to the occasion under the compelling need to do substantial justice, as exemplified by Oyewole, J. (as he then was) in Shobayo V. COP, Lagos State (Suit No.ID/760m/2008]; that Nosiru Bello’s Case (supra) they relied on was misapplied by them, and buttresses their position as what the Court did in that case was to find a law under which the Appellants’ claims would flow so as to meet the demands of justice in the case; and that the above authorities reveal the radical departure and earnest attempts by Judges in exorcising the evil and oppressive 1979 Rules, which the Respondents laboriously seek to exhume from the graveyard of history in apparent oblivion to the extant 2009 Rules, which expanded our jurisprudential space as regards locus standi vis-a-vis 3rd parties’ interest in Fundamental Right cases.
In resolving this Issue, which boils down to a question of whether the constitutional right to life of a dead man can be enforced by his dependents, we are faced with an uphill task and will be swimming in uncharted waters, since there are no authorities either from the Supreme Court or this Court on the subject, and so, to guide us on this Journey through virgin territory, we must establish where we were, where we are, and where we need to go. [The aforementioned Rules will hereinafter be referred to as FREP Rules]
Clearly, the 1979 FREP Rules had shortcomings, which resulted in substantial justice being undermined by legal technicalities, for instance, the requirement that an Applicant must seek leave of the High Court was treated as mandatory – see Udene V. Ugwu (1997) 3 NWLR (Pt.491) 57. Sometimes the discretion to grant leave on the determination of a prima facie case was exercised wrongly, resulting in some credible complaints being shut out – see Ushae V. C.O.P. (2002) 11 NWLR (Pt.937) 499.
As for standing to sue; soon after the 1979 FREP Rules was made, the Supreme Court recognized the requirement of personal standing as fundamental for any action, including complaints of human rights abuse. It held that standing would be accorded to a Plaintiff, who shows that his rights/obligations have been, or are in danger of being violated, etc., and that the relevant person for determining standing was set out by Section 42(1) of the 1979 Constitution. Following this interpretation, Section 46(1) of the 1999 Constitution [similar to Section 42(1)] would accord standing only to the person, whose fundamental human rights are at issue; this was viewed as detrimental to Public Interest Litigation.
These threshold principles denied access to genuine complaints of human rights abuse, and to ameliorate the situation, Kutigi, CJN acting on the power conferred on him by Section 46(3) of the 1999 Constitution made the 2009 FREP Rules, under which the present Application was filed.
The salient amendments include abolition of application for leave to secure the enforcement of fundamental rights, the doctrine of locus standi and statutes of limitation, filing of verifying affidavit and that of service.
The Preamble to the 2009 Rules sets out its overriding objectives, it reads –
1. The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule.
2. Parties and their legal representatives shall help the Court to further the overriding objectives of these Rules.
3. The overriding objectives of these Rules are as Follows-
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely Interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.
(b) For the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like Constitutions. Such bills include-
(i) The African Charter on Human Rights and Peoples Rights and other instruments (including protocols) in the African Regional Human Rights system.
(ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations Human Rights System.
(c) For the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient
(d) The Court shall proactively pursue enhanced access to justice for all classes or litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.
(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well any non-governmental organizations, may institute human rights application of 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 person. Anyone acting in the public interest and Association acting in the interest of its members or other individuals or groups
(f) The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
g. Human rights suits shall be given priority in deserving cases, when there is any question as to the liberty of the Applicant or any person, the case shall be treated as an emergency.
As the Appellants submitted, Preambles are important and are used as aid to the construction of a statute. It restricts or extends the general language used in the body of the statute – see Halsbury’s Laws of England (3rd Ed.). Cranes on Statute (7th Ed.) and Sambo & Ors V. Okon & Ors (supra), where this Court per Tur, JCA.. while emphasizing the purport of the preambles to the 2009 FREP Rules, adopted the observation of Lord Normand In Att-Gen. v. H.R.N Prince Ernest Agustus of Hanover [1957] A.C. 456. as follows –
“When there is a Preamble it is generally in its recital that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as aid to constructing the enabling provisions…”
One of the overriding objectives of the 2009 FREP Rules in Preamble 3(e) is “the Court shall encourage and welcome Public Interest Litigations”, and Public Interest Litigation means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected – see Black’s Law Dictionary. Under Public Interest Litigation, it is not necessary that the Applicant has suffered some Injury of his own or has had personal grievance to litigate. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or the African Charter on Human and Peoples Rights and to which the Applicant or some other potential Applicant is entitled, has been, is being, or is likely to be infringed may, apply to the Court in the State where the infringement occurs or is likely to occur, for redress.
Public Interest Litigation is, therefore, a right given to the socially conscious member or a public spirited Non-Governmental Organization to espouse a public cause by seeking judicial redress of public injury. It is the device by which public participation in judicial review of administrative action is assured. See the decision of the Indian Supreme Court in PUDR [People’s Union for Democratic Rights] v. Union or India 1982 (2) S.C.C.253. In India, all people, irrespective of race, religion, caste or sex, have the right to move the Supreme Court and High Courts for the enforcement of their fundamental rights. Poor people may not have the means, and in the public interest, anyone can commence litigation in the Court on their behalf. High Court Judges have acted on their own on the basis of newspaper reports – see Bodhisattwa Gautam v. Subhra Chakraborty, 1995 ICHRL 69.
The Indian Supreme Court has stated that any member of the public having sufficient interest may maintain an action by way of PIL provided –
(i) There is a personal injury or injury to a disadvantaged section of the population for whom access to legal justice system is difficult;
(ii) The person bringing the action has sufficient interest to maintain an action of public injury;
(iii) The injury must have arisen because of breach of public duty or violation of the Constitution or of the law; and
(iv) It must seek enforcement of such public duty and observance of the constitutional law or legal provisions. See Peoples Union for Democratic Rights v. Union of India – A.I.R. 1982, S.C. 1473; In the Judges Transfer Cases – AIR 1982, SC 149; M. C. Mehta v. Union of India (1988) 1 SCC 471; Parmanand Katara v. Union of India – AIR 1989, SC.2039; Council For Environment Legal Action v. Union of India – 1996) 5 SCC 281 and State v. Union of India – AIR 1996 Cal 181 at 218.
The only Nigerian Supreme Court decision is that in Bello’s case (supra), where the deceased, convicted of armed robbery and sentenced to death, had filed a notice of appeal, but was executed before hearing of the appeal. His relatives claimed damages for wrongful and premature termination of his life, and the Supreme Court held that the unlawful termination of his life by the Oyo State Government before his appeal, was a contravention of Sections 30(1), 220(1) and 213(1) of the 1979 Constitution.
In his Judgment in Nosiru Bello’s Case, Karibi-Whyte, JSC, observed that-
“…Surely the violation of his constitutional right to appeal is a violation of a personal right, the remedy of which can only be sought by the deceased himself. The grievance for the exercise of the right of appeal is such that is vested in the deceased alone and cannot — be exercised for and on his behalf by any other person. It is not certain whether a claim for damages arising therefrom survives the deceased. In my opinion the maxim actio personalis moritur cum persona will apply to bar such action. On the other hand, action will lie for the violation of the right to life in section 30 by or on behalf of any person who has an interest in the continued existence of the deceased”
Nosiru Bello’s Case (supra) was decided in 1986 before the enactment of the 2009 FREP Rules, but it appears that the Lagos State High Court and the Federal High Court have built on the view expressed by Karibi-Whyte, JSC, that – “action will lie for to violation of the right to life by or on behalf of any person who has an interest in the continued existence of the deceased”. In Shobayo V. C.O.P, Lagos State (supra), the Applicant prayed inter alia for a declaration that the arrest, detention, torture, and killing of her deceased husband by some Police officers/men is “unlawful, unconstitutional and contrary to Section 33, 34, 35 and 41 of the 1999 Constitution”, and in his judgment delivered on 15/1/2010, Oyewole, J. (as he then was) held –
“Insisting that only the citizen subject of an infringement can approach the court when such right is violated would create an absurdity. This would imply the lion-realization of a fundamental right expressly created by the Constitution. This is more so in relation to the right to life when already contravened, for in this case, the citizen victim of the deprivation would have been dead. Restricting redress for violation of fundamental right to life is antithetical to the letters of the Constitution and to avoid this anomaly, the next of kin of such deceased citizen must be permitted to enforce the right so allegedly deprived. The depositions before the Court indicate that the Applicant was the wife and next of kin of the deceased, who reportedly died in custody of the Respondent. Denying her the right to maintain the action would create a situation never contemplated by the framers of the Constitution, as an unenforceable right would thus have been created. The Applicant without contradiction was the wife of the deceased, a relationship not too distant to fathom. That she will be affected by the deprivation of life of her husband goes without saying. The wife of a deceased whose right was supposedly violated would naturally be affected by the violation and comes within the purview of persons affected by the infraction who, could pursuant to Section 46(1) of the Constitution, approach the Court for redress.”
In Orjieh V. The Nigerian Army & Ors (supra), the Applicant prayed the Federal High Court for a declaration inter alia that the fatal shooting and killing of her husband by a Soldier, was a gross violation of the deceased fundamental rights to life and dignity of his human person “contrary to Sections 33 (1) and 34(1) (a) of the 1999 Constitution and Articles 4 and 5 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, LFN 2004, and therefore, unconstitutional and illegal”.
In his Judgment delivered on 20/2/2013. M. B. Idris, J., pointed out that-
“…The Applicant’s husband was shot in the head and his brains blown out onto the floor. That was very harsh cruel, dehumanizing, and inhuman. It is all the more pathetic that the Applicant’s husband was killed for a business transaction that he knew nothing about: He had not been the person, who transacted the business with the 6th Respondent. He was not even present when the purported business had been undertaken. He died an Innocent man, unblemished, for nothing. In the instant, case, the Applicant’s husband’s rights were breached with wanton impunity. Clearly, the 7th Respondent acted with the belief that his action cannot be questioned by anyone. Indeed, till date, none of the Respondents took any action and none of them has apologized to the Applicant: – -. The shooting of the deceased, who was unarmed while pursuing his daily activities, was unjustified by any of the exceptions and, therefore, constitute a substantial violation of the Constitution. The right to life imposes on an individual the obligation not to deprive another intentionally of his right to life except in the event of self-defence, suppressing a riot or mutiny or to prevent a lawful arrest…”
He entered Judgment in favour of the Applicant, and awarded her N300m as general and/or exemplary damages/compensation for the breach of her deceased husband’s Fundamental Right to life and dignity of his person.
The African Commission on Human and People’s Rights had cause to deal with a similar Complaint against Zimbabwe – Communication 295/04: Noah Kazingachire, John Chitsenga, Elias Chemvura end Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum v Zimbabwe) done during the 51st Ordinary Session of the Commission on 18/4/12 to 2/5/12. The Complaint was filed by a coalition of 16 NGOs working in the field of human rights in Zimbabwe, and relates to allegations of wrongful killings through the use of excessive force and unjust compensation for the death of the four above mentioned persons in Zimbabwe (the Respondent State).
The Commission’s decision in Communication 295/04, reads as follows –
“Firing a gun at someone is regarded as the exercise of lethal force. The overriding logic of the situation remains the fact that the police have the power to use lethal force only as an exception, motivated by a situation of “self-defence or in the defence of others against the imminent threat of death or serious injury”. If that rationale disappears, the foundation for the exceptional powers and consequently the powers as such disappear. The sanctity of life requires that lives not be taken in the interest of the common good – for example the shooting of a fleeing suspect in order to promote the general respect for the law. The Africa Commission notes its decision in Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, where it held that shootings by police officers are a violation of the right to life. – The use of lethal force by police officers of the Respondent State was not within the bounds of the closely circumscribed conditions under which lethal force may be used — The principle is that life should not be taken by the State, and any action that seeks to fall in the narrow confines of exceptions to this rule requires strong motivation. Furthermore, the Respondent fails to prove that the deceased persons were suspected criminals. International human rights law proceeds from what is called the protection of life principle. This principles entails that while life may not be sacrificed to protect other values, under closely defines circumstances one life may be taken as a last resort in order to protect another life or lives. The use of lethal force in the case of – – Kazingaachire and – – Chitsenga was not done as an act of last resort to protect lives. Therefore the use of lethal force by the police was not justified. – – The use of lethal force by the law enforcement officials of the Respondent State leading to the death of – – Kazingachire and – – Chitsenga was not proportional and necessary in the given situation; and therefore it is arbitrary, excessive, wrongful and unlawful. – – Human rights law and the international law on State respondent require that individuals should have an effective remedy when their rights are violated, and that the State must provide reparations for its own violations. States must ensure that victims’ families are able to enforce their right to compensation through judicial remedies where necessary – – – Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human right law. A state shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law. Full and effective reparation should be provided to victims of violations of international human rights law as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. According to principle 20, compensation should be provided for “any economically assessable damage”, such as “physical or mental harm”; “lost opportunities, including employment, education and social benefits”; “material damages and loss of earnings, including loss of earning potential”; “moral damage”; and “costs required for legal or expert assistant, medicine and medical services, and psychological and social services”, Satisfaction includes a “public apology, including acknowledgment of the facts and acceptance of responsibility”.
With respect to Lameck Chemvura who died as a result of unsanctioned activities by members of the national army of the Respondent State, there are, however, principles recognized by international law that attach legal responsibility to a State for acts committed by officials not acting on behalf of a State.
These principles include: state agency, i.e., a person is in fact action on behalf of a State or exercise governmental authority in the absence of official authority, state complicity in wrongs committed by private persons and state failure to exercise due diligence in the control of private persons. The Respondent State is therefore not responsible for human rights violations carried out by members of its national army acting in the private capacity per se. But the Respondent State is bound to duly investigate, prosecute the assailants and compensate the victims. In the Velasquez Rodriquez case, the Inter-American Court of Human Rights held that an illegal act which violates human rights and which initially is not directly imputable to the State, for example because it is an act of a private person, can lead to international responsibility of the State, not because of the act itself but because of the lack of due diligence to prevent the violation or respond to it. – – The death of Lameck Chemvura is not directly imputable to the Respondent State as it is a result of the private act of a member of its national army. The African Commission however holds the Respondent State responsible in that it failed to properly respond to the death of Lameck Chemvura because of the lack of due diligence and the incapacity of the Respondent State to satisfactorily compensate the close relations of the deceased in as far as the current laws of the Respondent state obtain. Regarding the case of Beaven Tatenda Kazingachire, the African Commission is further convinced that the payment of ZWD$97,000.00 made to the parents of the deceased to cover the funeral expenses is not satisfactory and does not effectively remedy the violations suffered (wrongful killing as a result of police assault). The African Commission is therefore convinced that the relations of the deceased persons; Noah Kazigachire in his capacity as the father, legal their and next of kin of the late Beaven Tatenda Kazingachire; John Chisenga in his capacity as the father, legal heir and next of kin of the late Munveradzi Never Chitsenga; Elias Chemvura in his capacity as the brother, legal heir and next of kin of the late Lameck Chemvura; and the estate of the late Batanai Hadzisi are entitled to effective and satisfactory compensation. As noted above, the compensation shall cover any financially assessable damage and the satisfaction shall consist in an acknowledgement of the breach and a formal apology”.
The decision of the African Commission of Human Rights on Merits is –
“In view of the above, the African Commission finds that the Respondent State is in violation of the Articles 1 and 4 of the African Charter”.
The African Commission recommended that the Respondent State should –
(a) Undertake law reform to bring domestic laws on compensation in case of wrongful killings into conformity with the Africa Charter and other international standards, especially in respect to effective and satisfactory compensation as outlined above; and
(b) Pay compensatory damages to the legal heirs and next of kin of the four deceased person.
It appears that we have charted a way to the answer to our question – the constitutional right to life of a dead man can be enforced by his dependents. In arriving at this answer that is in line with modern-day pronouncements, I will say that I was swayed by the mischief rule of statutory interpretation, which is the oldest of the rules; it was established in Heydon’s Case (1584). Under the mischief rule, the Court’s role is to suppress the mischief the Act is aimed at and advanced the remedy. Although, it has been argued that one of the problems with the mischief rule is that judges can bring their views, sense of morality and prejudices to a case – see DPP v. Bull (1995) QB 88.
In this case, I believe that the 2009 FREP Rules was enacted to cure shortcomings in the 1979 FREP Rules, and decisions under FREP Rules that were enacted thirty years apart, cannot be the same, as the law is not static; it moves and pulsates with every generation as different cultures unfold, and as criminal elements find new ways to terrorize and torment citizens. I am strengthened in this view by the Preamble to the 2009 FREP Rules, which sets out the overriding objections of the Rules that are far-reaching, and geared towards moving with modern trends in human rights actions. Obviously, the Lower Court is wrong to have dismissed the Application with a wave of the hand without even considering what the said Rules are about.
Its decision regarding the 4th Appellant is even more perplexing since he was directly affected by the alleged acts, but the Lower Court held –
“The issue of the 4th – 6th Respondent alleged interception of the 4th Applicant’s private telephone call/conversation to one of the deceased line may be a breach of the 4th Applicant’s right to privacy of his telephone conversation which Section 37 of the 1999 Constitution guaranteed and protected, but it is not the main claim, it is an accessory claim. So also is the claim in respect of slapping, beating and handcuff put on 4th Applicant. I have therefore come to the conclusion that the Applicant’s action was incompetent as it was wrongly commenced under the 2009 FREP Rules. In the result, Application dated 8/8/2012 is hereby refused and it is accordingly dismissed.”
The Appellants had something to say but it will not be necessary to go into the details because the 1st set of Respondents and the 3rd Respondent did not comment or refer to the Lower Court’s decision regarding 4th Appellant. The law says that for a claim to qualify as falling under fundamental rights, the principal relief must be for enforcement or for securing enforcement of a fundamental right and not by its nature to redress a grievance ancillary to the principal relief, which is not ipso facto a claim for the enforcement of fundamental right. Thus, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it will be incompetent to constitute the claim as one for the enforcement of a fundamental right – See Abdulhamid v. Akar & Anor (2006) 13 NWLR (Pt.996) 127 SC. In this case, the Lower Court’s mind was fixated on the misconceived notion that the action before it was “founded under a criminal offence of murder” that it failed to see that the 4th Appellant’s claim is one for the enforcement of his fundamental rights, thereby qualifying him to commence the action under the 2009 FREP Rules.
As it stands, the Lower Court did not address the merits of the Application, and there is not much we can do except to send it back to the Lower Court.
In the final analysis, this Appeal succeeds and is allowed. The Ruling of the Lower Court delivered on 20/2/2013 is set aside, and the Application is remitted to the Lower Court for hearing before another judge.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I was privileged to read before now the lead judgment just delivered by my learned brother AMINA ADAMU AUGIE JCA.
His Lordship has duly addressed the core issues in contention in line with the relevant authorities both local and international but with particular emphasis on the extant Fundamental Rights (Enforcement Procedure) Rules 2009.
The reasoning and conclusion contained therein are quite acceptable to me and I do agree with same.
I need however emphasize the point that there are now a plethora of authorities on the principle that enforcement of the Fundamental Right of an applicant must be within the ambit or the rights guaranteed under the Constitution of the Federal Republic of Nigeria 1999. In order words, it is not every wrong or injury that will give rise to an action for enforcement of fundamental Right. See JACK VS UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 5 NWLR (PT 865) 208; UZONDU VS U.B.N PLC (2009) 5 NWLR (PT.113) 1; ABBA VS JAMB (2014) LPELR (24205) CA; SURVEYOR GENERAL OF CROSS-RIVER STATE VS JONATHAN (2014) LPELR (23380) CA.
Consequently, in order to sustain an action for the enforcement of Fundamental right, the main or principal claim in an applicant’s process must be hinged on breach of any of the Fundamental Right as guaranteed by the 1999 Constitution. It must not be ancillary claim else such action will be deemed as being outside the scope of the Fundamental Right proceedings and therefore incompetent. See WAEC VS AKINKUNMI (2008) 9 NWLR (PT 1091) 151; TUKUR VS GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT.510) 549. In FRN VS ABACHA (2007) LPELR (8177) CA this court held inter alia, that where an application is made under the Fundamental Right (Enforcement Procedure) Rules, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of Fundamental Right or the securing of enforcement thereof should be the main claim and not the ancillary claim. Where the main or principal claim is not the enforcement of a Fundamental Right, the jurisdiction of the court cannot be properly exercised under the Fundamental Rights (Enforcement Procedure) Rules.
The bottom-line therefore is that only actions founded on a breach of Fundamental Right guaranteed under the 1999 Constitution that can be enforced under the Fundamental Rights (Enforcement Procedure) Rules. See ABBA VS JAMB (Supra), EGBUONU VS BRTC (1997) 12 NWLR (Pt.531) 29. See also UNIVERSTIY OF ILORIN VS OLUWADARE (2006) 14 NWLR (PT.1000) 751 where the Supreme Court held that, where the main or principal claim is not the enforcement or securing the enforcement of a Fundamental Right, the jurisdiction of the court cannot be properly exercised as the action will be incompetent.
In the instant case the Appellants’ claim in the Lower Court are as set out below:-
1. A DECLARATION that the killing of Mr. Endurance Omonyahuy and Mr. Sikiru Amusa on the 15th day of February, 2013, by the 4th Respondent acting under the authority of the 1st and 2nd Respondents for no justifiable reason constitutes extra judicial murder and is a violent violation of their fundamental right to life as guaranteed by the provisions of Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4 and 5 of the African Charter on Human and Peoples’ Rights and hence ultra vires the Respondents, illegal and unlawful.
2. A DECLARATION that the arrest, incarceration and the indignity meted on the 4th Applicant’s person and the interception of his private telephone conversation on the 15th day of February, 2012, by the 4th to 6th Respondents acting under the authority of the 1st and 2nd Respondent was in gross violation of the 4th Applicant’s fundamental rights preserved and guaranteed under Section 34(1)(a), 35(1) and 37 of the Constitution of the Federal Republic of Nigeria, 1999.
3. COMPENSATION in the sum of N300,000,000.00 against the Respondents jointly and severally to be paid to the 1st and 2nd Applicants for the aforesaid extra judicial murder and unconstitutional violation of Mr. Endurance Omonyahuy’s fundamental right to life and as general damages for the aforesaid violation.
4. COMPENSATION in the sum of N500,000,000.00 against the Respondents jointly and severally to be paid to the 1st and 2nd Applicants for the aforesaid extra judicial murder and unconstitutional violation of Mr. Endurance Omonyahuy’s fundamental right to life as exemplary and aggravated damages for the aforesaid violation.
5. COMPESNATION in the sum of N300,000,000.00 against the Respondents jointly and severally to be paid to the 3rd Applicant for the aforesaid extra judicial murder and unconstitutional violation of Mr. Sikiru Amusa’s fundamental right to life and aggravated damages for the aforesaid violation.
6. COMPESNATION in the sum of N500,000,000.00 against the Respondents jointly and severally to be paid to the 3rd Applicant for the aforesaid extra judicial murder and unconstitutional violation of Mr. Sikiru Amusa’s fundamental right to life as exemplary and aggravated damages for the aforesaid violation.
7. COMPESNATION in the sum of N200,000,000.00 against the Respondents jointly and severally to be paid to the 4th Applicant for the aforesaid illegal and unconstitutional violation of his fundamental right to dignity of a person, liberty and private of telephone conversation as general damages for the aforesaid violation.
8. COMPESNATION in the sum of N300,000,000.00 against the Respondents jointly and severally to be paid to the 4th Applicant for the aforesaid illegal and unconstitutional violation of his fundamental right to dignity of a person, liberty and private of telephone conversation as general damages for the aforesaid violation.
9. PUBLIC APOLOGY by the Respondents for all the above enumerated breaches to be published in conspicuous pages of at least three national dailies widely circulated and read in Nigeria.
10. Such further or other Orders as this Hon. Court may deem fit to make – – —
The statement of facts giving rise to the application as well as the ground for same are very well detailed as produced in the lead judgment. There is also a 54 paragraph affidavit in support of the application.
However, the Learned Trial Judge in his wisdom held inter alia that.-
“From the facts and affidavit evidence placed before the court by the Applicants it follows that this action is founded under a criminal offence of murder and cannot be brought under the Fundamental Right (Enforcement Procedure) Rules 2009. The redress the Applicants sought in the main Suit is justice against the 4th Respondent, who was alleged to have shot the 2 deceased men. I am not unmindful of the provision of Section 33 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that guaranteed the rights to life…”
With all due respect, I find the above holding of the Learned Trial Judge quite contradictory in terms. In the first place, he hinged his stance on the fact that the first claim in the Suit for declaration was based on the killing of the two deceased persons which ordinarily should be a criminal offence triable at the instance of the state.
Fortunately enough he was able to appreciate the fact that such killing is a breach of the right to life guaranteed under Section 33 (1) of the 1999 Constitution as amended). To my mind the fact that there is possibility of prosecution for a case of murder does not deny an aggrieved applicant the constitutionally guaranteed right to enforce his right thereunder, hence Section 46 (1) of the said Constitution specifically provided that:-
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.”
That said provision is sacrosanct and carries no exception such as in the case of injury to a person or the loss of life.
Any infringement of the Fundamental Right of an applicant ignites his right to enforce same by virtue of the aforementioned Section and it is without prejudice to whatever further action the authorities of the state may want to take against such offender. It is a constitutionally guaranteed right and must at all times be seen and respected as such, if the wheel of the Rule of law is to be allowed to grind properly.
What is more, the second claim of the Applicant which relates to a declaration that the arrest, incarceration and the indignity meted to the 4th Applicant’s persons and the interception of private telephone conversation by the 4th to 6th Respondents acting under the authority and direction of the 1st and 2nd Respondents was in violation of his right under Sections 34(1)(a), 35(1) and 37 of the Constitution.
This second claim for Declaration is no doubt a main claim on its own even without recourse to the 151 (which I had earlier viewed as being within the scope of Fundamental Right), but the Learned Trial Judge seem to have ignored or overlooked this glaring reality that the 2nd relief constitute a principal claim and ought to be treated a such rather than regard it as an ancillary or accessory claim which definitely it is not.
For this and the more exhaustive reasons detailed in the lead judgment of my erudite brother, I also hold that this appeal has merit and it is accordingly allowed.
The Ruling of the Lower Court delivered on 20-2-2013 is hereby set aside and the Appellants Suit is remitted to the Lower Court for hearing on the merit before another Judge.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother Amina Adamu Augie JCA. I agree with the reasoning and conclusion contained therein. I also allow the Appeal and I abide by the consequential orders made therein.
Appearances
Abayomi Sadiku, Esq., with Miss Adedayo OdunsiFor Appellant
AND
G. O. Osuyi, Esq., for the 1st, 2nd, 4th, 5th & 6th Respondents
Mrs. I. O. Obimakinde for the 3rd Respondent.For Respondent
