MRS. MOJI ANDEE IHEME v. CHIEF OF DEFENCE STAFF & ORS
(2018)LCN/12037(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of August, 2018
CA/J/263/2017
RATIO
COURT AND PROCEDURE: WHAT IS A GOOD JUDGMENT
“The Supreme Court has made it certain that a good judgment should have five distinct parts as follows:
1. Introduction of issues between the parties
2. Cases of either side to the litigation, going by the pleadings.
3. Evidence adduced by either sides.
4. Resolution of the issues, facts and law.
5. The Court’s decision and reason for arriving at the decision. OGBORU & ANOR. V. UDUAGHAN & ORS. (2012) 11 NWLR (PT. 1311) 357. Furthermore in the referred case, the Apex Court held thus: ‘It has been stated in ABACHA V FAWEHIMI (2002) FWLR (Pt. 4) 568 that the substance of a Judgment of a Court is embodied in its ratio decidendi or ration(s) in the case, that is, the reason or reasons for the decision(s) as against passing remarks… To decide without giving reasons, leaves room for arbitrariness and leaves the parties to grope in the darkness as to how the decision of the tribunal or Court is arrived at. If judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule merely tossing the coin and likely to result in judicial anarchy.'” PER UCHECHUKWU ONYEMENAM, J.C.A.
FUNDAMENTAL RIGHT: RIGHT OF PARTY TO SEEK REDRESS
“I will wish to reiterate that a fundamental right is a right guaranteed in the Nigerian Constitution. It is a right which every citizen is entitled to by reason of being a human being unless when a person suffers any of the disabilities set out in the Constitution. ODOGU V. A.G. FEDERATION (2000) 2 HRLRA 82 AT 102; FAJEMIROKUN V. COMM. BANK (NIG.) LTD. (2009) 21 WRN 1. Fundamental rights stand above the ordinary laws of the land. RANSOME KUTI V. A.G. FEDERATION (1985) 2 NWLR (PT. 6) 211. These rights are so jealously guarded that no citizen can be shut out from seeking redress when his fundamental right has been allegedly breached unless he suffers any constitutional disability like when he is sentenced to flogging or hard labour by a Court of competent jurisdiction.” PER UCHECHUKWU ONYEMENAM, J.C.A.
JURISDICTION: WHO DETERMINES THE JURISDICTION OF THE COURT
“It is trite law that it is the claim of the Plaintiff that determines the jurisdiction of the Court. P & C.H.S CO. LTD. & ORS. V. MIGFO (NIG.) LTD. & ANOR. (2012) VOL. 212 LRCN 1; ABDULHAMID V. AKAR (2006) 5 SCNJ 43. Making it more explicit, the Apex Court in the case of OLORUNTOBA-OJU & ORS. V. DOPAMU & ORS. (2008) LPELR – 2595 (SC) P. 19 PARAS. A-B, Per Oguntade JSC, held thus: ‘The jurisdiction of the Court will be determined by the subject matter of the claim and not the claim relating to the injunction which was an ancillary relief and depend on the primary claim.'” PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
MRS. MOJI ANDEE IHEME Appellant(s)
AND
1. CHIEF OF DEFENCE STAFF
2. NIGERIA ARMY COUNCIL
3. CHIEF OF ARMY STAFF
4. ATTORNEY GENERAL OF THE FEDERATION & HON. MINISTER OF JUSTICE Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Ruling of Shitu Abubakar, J. of the Federal High Court, Bauchi Judicial Division, delivered on the 16th of December, 2016. The Appellant was the Plaintiff at the Federal High Court, Bauchi Judicial Division who took out a Writ of Summons against the Respondents who were the Defendants. The Appellant vide the Writ of Summons filed on 19th February, 2013 claimed the following:
a) A declaration that the acts of assault, battery and brutalization of the Plaintiff by the 4th Defendant and the other men, officers and agents of the 1st – 3rd Defendants is illegal, unlawful, unconstitutional and constitutes assault, battery and is also a gross violation of the Fundamental Human Rights of the Plaintiff to personal liberty and dignity of human person.
b) An order of this Honourable Court directing the Defendants to render an unreserved public apology to the Plaintiff and to publish same in two (2) National Dailies.
c) An order directing the Defendants to pay all the medical bills and all other expenses incurred by the Plaintiff as a result of the injuries inflected on her in the cause of their brutalization of her person.
d) An order of this Honourable Court directing the Defendants to pay to the Plaintiff the sum of N20,00,000.00 (Twenty Million Naira) only, as general damages for the pain, anguish, physical and psychological torture and embarrassment inflicted on the Plaintiff by the 4th Defendant and the other men, officers and agents of the 1st – 3rd Defendants.
e) The cost and expenses of this action.
The 1st, 2nd and 3rd Respondents vide a Motion on Notice dated 21st March, 2013 and filed on 27th May, 2013 objected to the jurisdiction of the trial Court. In response, the Appellant filed a Written Address in opposition to the 1st, 2nd and 3rd Respondents’ Motion on Notice. The Motion was argued on 5th May, 2016 and ruling delivered on 16th December, 2016. The trial Court in granting the said Motion on Notice declined jurisdiction to entertain the Appellant’s case.
The Appellant being dissatisfied with the ruling of the trial Court delivered on 16th December, 2016 appealed to this Court on 3 Grounds of Appeal on 9th March, 2017.
The gravamen of the Appellant’s case is as encapsulated in paragraphs 9-47 of the Plaintiff’s Statement of Claim. On 18th June, 2011, one Major M. Sule who is an officer of the Nigerian Army, serving at the time with 33 Artillery Brigade, Bauchi, violated the Fundamental Human Rights of the Appellant and her husband by insulting, cruelly beating, torturing and brutalizing them for daring to ask him to allow them drive through a public road which he blocked with the army vehicle he was driving. He also ordered soldiers under his command to further insult, beat, torture and cruelly brutalize the Appellant and her husband. They only stopped when the Appellant’s husband fainted. Hence the Appellant instituted this action at the trial Court in order to seek redress for the violation of her Fundamental Human Right.
With the appeal instituted, parties filed and exchanged their briefs of arguments whereupon appeal became ripe for hearing. On 14th May, 2018, when the appeal was heard Mr. Y. M. MICAH holding the brief of K. K. IHEME appeared for the Appellant, while O. M. ATOYEBI appeared for the 1st – 3rd Respondents, and T. A. GAZALI Chief State Counsel with B. A. NAIYEJU State Counsel and C. A. OKONKWO State Counsel Federal Ministry of Justice Abuja represented the 4th Respondent. Parties said they were ready for the appeal. Mr. Micah referred to the Appellant’s brief filed 16th October, 2017 but deemed 25th January, 2018, the reply briefs to 1st – 3rd Respondents’ brief and 4th Respondent’s brief filed on 23rd March, 2018 respectively. He adopted the referred briefs and relied on them in urging the Court to allow the appeal and remit the case for hearing. In response, Mr. Atoyebi for 1st – 3rd Respondents adopted their brief filed 24th November, 2017 but consequentially deemed properly filed and served on 25th January, 2018. He relied on same in urging the Court to dismiss the appeal and affirm the decision of the trial Court.
Mr. GAZALI adopted the 4th Respondent’s brief filed 24th January, 2018 but consequentially deemed on 25th January, 2018. He relied on the same in urging the Court to dismiss the appeal.
In the Appellant’s brief, Mr. K. K. Iheme formulated the following 2 issues for the determination of the appeal.
1) Whether the Learned Trial Judge was right to have adopted his ruling delivered in FHC/ABJ/CS/799/2011: ANDEE IHEME V. CHIEF OF DEFENCE STAFF & 3 ORS. as his ruling in this case.
2). Whether the Learned Trial Judge was right to decline jurisdiction to entertain the Appellant?s case.
Mr. O. M. Atoyebi learned counsel for the 1st – 3rd Respondents conceived the following as the relevant issues for determination in this appeal.
a. Whether the learned trial judge was right to have adopted his ruling delivered in FHC/ABJ/CS/799/2011: ANDEE IHEME V. CHIEF OF DEFENCE STAFF & 3 ORS. as his ruling in the case that led to this appeal.
b. Whether the lower Court was wrong when it upheld the Preliminary Objection of the 1st – 3rd respondents by striking out the Appellant’s suit in its entirety.
On its own, T. A. Gazali learned counsel for the 4th Respondent in their brief adopted the issues for determination as raised by the Appellant in this appeal.
After examining the facts as are made known in the record, the ruling of the trial Court and the Appellant’s Grounds of Appeal, I too adopt the issues as raised by Mr. Iheme the learned counsel for the Appellant as appropriate for the determination of this appeal.
SUBMISSIONS ON ISSUE 1
Whether the learned trial judge was right to have adopted his ruling delivered in FHC/ABJ/CS/799/2011: ANDEE IHEME V. CHIEF OF DEFENCE STAFF & 3 ORS. as his ruling in this case.?
Mr. Iheme for the Appellant submitted that the learned trial Judge was wrong to have adopted his Ruling in FHC/ABJ/CS/799/2011: ANDEE IHEME V. CHIEF OF DEFENCE STAFF & 3 ORS. as his ruling in this case because the essence of the element of reason in any Court’s decision cannot be compromised. He referred to: OGBORU & ANOR. V. UDUAGHAN & ORS. (2011) 11 NWLR (PT. 1311) 357; DOMA & ANOR. V. INEC & ORS. (2012) ALL FWLR (PT. 628) P 32. The learned counsel contended that in the instant appeal, the trial Court without stating the nexus between Suit Nos. FHC/ABJ/CS/799/2011 and FHC/BAU/CS/06/2013; and or giving any reasons why the principles in one is applicable to the other, hastily adopted his Ruling in FHC/ABJ/CS/799/2011 as his Ruling in this case and held that the Federal High Court lacked the jurisdiction to entertain the Appellant?s case.
He urged the Court to resolve the issue in favour of the Appellant.
Mr. Atoyebi learned counsel for the 1st to 3rd Respondents submitted that the learned trial Judge was right when he adopted his ruling in a sister case as the facts, respondents and the subject matter are the same and there was no need for the learned trial Judge to have written a different ruling as the Appellant has not shown how the adoption of the ruling in the sister case led to a miscarriage of justice. He urged that no miscarriage of justice was occasioned.
The learned counsel argued that a Court of law cannot be cornered in a way or style of writing his ruling or judgment. He cited: AKINYANJU V. UNIVERSITY OF ILORIN & ORS (2004) LPELR-6054 (CA) 22. He argued that the Appellant did not put before this Court any issue that was raised at the trial Court that was not incorporated in the ruling that was adopted in the ruling that led to this appeal. He referred to:OGUNDARE & ORS V. ALAO (2013) LPELR-21845 (CA) 33.
In reply to paragraph 5.06 of the Appellant’s brief of argument, he contended that the issue of nexus in the two cases is res ipsa loquitor and he urged the Court to so hold. He also posited that what the trial Court did by adopting the ruling in the case of ANDEE IHEME V. CHIEF OF DEFENCE STAFF & 3 ORS: FHC/ABJ/CS/799/2011, was not strange nor out of place. He cited: UBAH & ANOR. V. FIDELITY BANK PLC (2013) LPELR-20658 (CA) 27.
The learned counsel further argued that the trial Court complied with all the requirements of a good judgment or ruling writing in the case at hand because it evaluated the affidavit evidence of the parties before it, perused the written addresses of the counsel to the parties including all the materials placed before it, before arriving at its conclusion. In addition, that the trial Court did not just adopt its ruling delivered in the sister case, i.e. suit NO. FHC/ABJ/CS/799/2011, but the Court went further to give the reason why the Appellant’s suit was struck out. He invited the Court to page 142 of the record.
For the foregoing, Mr. Atoyebi submitted that all the argument of the Appellant’s counsel together with the legal authorities cited in support of same are misplaced, misleading, baseless and far from the Nigerian Jurisprudence prevailing in our Courts today. He prayed the Court not to disturb the ruling of the trial Court.
In the alternative, the learned counsel argued assuming without conceding that there was an error in the ruling of the trial Court under consideration, the error is not fatal as the Appellant has not suffered any miscarriage of justice. She is not misled as to what the ruling really connotes or as to the effect of the ruling. He relied on: F.B.N. PLC V. TSOKWA (2004) 5 NWLR (PT. 866) 271; FERODO LTD V. IBETO IND LTD. (2004) 5 NWLR (PT. 866) 317 AT 327; AKIBU V. ODUNTAN (2000) 13 NWLR (PT. 685) 146.
He urged the Court to resolve the issue in favour of the 1st, 2nd and 3rd Respondents.
Mr. Gazali learned counsel for the 4th Respondent submitted that the learned trial Judge was right to have adopted his ruling delivered in FHC/ABJ/CS/799 as his ruling in this case. He referred to the statement of the trial Court at page 142 of the record. He contended that the adoption of the ruling was premised on the fact that Suit No: FHC/ABJ/CS/799/2011 between Andee Iheme VS Chief of Staff & 3 Ors and the instant suit emanated from the same cause of action. He argued on the same line with the learned counsel for the 1st, 2nd and 3rd Respondents, reproducing the holding of the trial Court.
He urged the Court to resolve issue 1 in favour of the 4th Respondent.
In reply on points of law, the learned counsel for the Appellant relied on the apex Court’s decision in IROLO & ORS. V. UKA & ANOR. (2002)LPELR – 3335 (SC) 49, to submit that detraction or departure from known judicial procedure amounts to miscarriage of justice. He further referred to the Supreme Court in: PROFESSOR FOLARIN SHYLLON V. MRS. JUDITH ASEIN (1994) LPELR – 3071 (SC) 45, to submit that since in the instant- appeal there is no Order of Court consolidating Suit Nos. FHC/ABJ/CS/799/2011 and FHC/BAU/CS/06/2013. There is also no agreement between the Counsel who conducted the said cases that the decision in Suit Nos. FHC/ABJ/CS/799/2011 should determine Suit No. FHC/BAU/CS/06/2013, or vice versa; the learned trial Judge deviated or detracted from known judicial procedure by adopting his Ruling in FHC/ABJ/CS/799/2011: ANDEE IHEME V. CHIEF OF DEFENCE STAFF & 3 ORS. as his Ruling in this case.
He urged the Court to resolve the issue in favour of the Appellant.
RESOLUTION OF ISSUE 1
In resolving this issue, a good stand point is to state the nature of a good judgment or ruling. The Supreme Court has made it certain that a good judgment should have five distinct parts as follows:
1. Introduction of issues between the parties
2. Cases of either side to the litigation, going by the pleadings.
3. Evidence adduced by either sides.
4. Resolution of the issues, facts and law.
5. The Court’s decision and reason for arriving at the decision.
OGBORU & ANOR. V. UDUAGHAN & ORS. (2012) 11 NWLR (PT. 1311) 357. Furthermore in the referred case, the Apex Court held thus:
”It has been stated in ABACHA V FAWEHIMI (2002) FWLR (Pt. 4) 568 that the substance of a Judgment of a Court is embodied in its ratio decidendi or ration(s) in the case, that is, the reason or reasons for the decision(s) as against passing remarks… To decide without giving reasons, leaves room for arbitrariness and leaves the parties to grope in the darkness as to how the decision of the tribunal or Court is arrived at. If judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule merely tossing the coin and likely to result in judicial anarchy.”
The two main issues herein from the arguments of the learned counsel for the parties are the position of the law when a Court writes a judgment without reasons and where a Court adopts his earlier decision in a later one. Apart from the holding of the Apex Court that had been reproduced above; in OGBORU & ANOR. V. UDUAGHAN & ORS. (supra), the Supreme Court categorically held that a judgment of Court written without reasons offends Section 294 (2) of the 1999 Constitution. Still on this note the Apex Court encouraged trial Courts and Court of Appeal to always give reasons for their judgment as that is the hallmark of a good judgment. DOMA & ANOR. V. INEC & ORS. (2012) ALL FWLR (PT. 628) 32. This means any judgment of a trial Court or the Court of Appeal delivered without reasons is unconstitutional and as such cannot stand.
On the propriety of adopting the decision in an earlier judgment, the 1st to 3rd Respondent’s contention is that: since the breach of fundamental rights as alleged by the Plaintiffs at the trial Court arose from the same act, and the Appellant even admitted this fact at paragraph 5.02, page 4 of her Appellant’s brief of argument; also the Respondents are the same in the two cases; and in fact, the plaintiffs in the cases are husband and wife; the fact that the trial Court adopted his earlier ruling in a related matter has not occasioned any miscarriage of justice to warrant the setting aside of the ruling of the trial Court.
The learned counsel for the 1st, 2nd, and 3rd Respondents leaned heavily on the case of UBAH & ANOR. V. FIDELITY BANK PLC (2013) LPELR-20658 (CA) 27, PARAS. F-G where SAULAWA, JCA relished Eso, JSC style of writing, and stated:
”I think, it’s not an entirely novel for a judge to adopt the reasoning or views expressed in a previous case in a later decision. My view is fortified by the precedent cherishingly established by the Supreme Court in a plethora of authorities.”
This Court in the above case relied on NASARALAI ENT. LTD. V. ARAB BANK (1986) 4 NWLR (PT. 36) 409 AT 437; where ESO, JSC (of blessed memory) in support of a lead judgment stated:
”I am in agreement with the judgment which has been delivered by my learned brother Bello JSC and will also dismiss the appeal having regards to the reasons which I have given in my judgment delivered this morning in A.M.O AKINSANYA V. U.B.A S.C 95/1985 with regards to the law on documentary credits, I can only dismiss the appeal on the issue of waiver which has been well treated in the judgment of my learned brother Bello JSC to which I intend to add nothing. As regards jurisdiction, I adopt the views I expressed in A.M.O AKINSANYA V. U.B.A aforesaid.I abide by all the orders contained in the judgment of my learned brother Bello JSC.”
I will like to note that adoption of reasons or ruling of a previous case was not an issue in NASARALAI ENT. LTD. V. ARAB BANK (supra) and as such the apex Court did not pronounce on the propriety of adoption of reasons or ruling of a previous decision in a later decision. Eso, JSC in his contribution to the leading Judgment of Bello JSC. in NASARALAI ENT. LTD. V. ARAB BANK (supra) merely adopted his reasons in his earlier decision with regard to the law on documentary credits. It is my view that the fact that His Lordship adopted a style of writing in his contribution does not make it the pronouncement or position of the apex Court for it to form a stare decisis. Again the case of PROFESSOR FOLARIN SHYLLON V. MRS. JUDITH ASEIN (1994) LPELR – 3071 (SC) relied on by the Appellant’s counsel did not decide on the propriety of adoption of ruling from an earlier suit.
The known judicial procedure to the delivery of decisions by Courts in Nigeria is that every case is distinct and separate and are entertained and determined separately except where there are circumstances and or principles of law which allow them to be entertained and determined together. The judicial procedure of adopting the decision delivered in one suit in another is only permissible where there is a prior Order of Court consolidating the different and distinct suits and or where there is an agreement of Counsel conducting the different and distinct suits, that the decision in one should abide the other. PROFESSOR FOLARIN SHYLLON V. MRS. JUDITH ASEIN (1994) LPELR – 3071 (SC).
It is correct as argued by the learned counsel for the Appellant that detraction or departure from known judicial procedure amounts to miscarriage of justice. Howbeit, for such departure to amount to miscarriage of justice; the Supreme Court in IROLO & ORS. V. UKA & ANOR. (2002) LPELR – 3335 (SC) (P. 49, PARAS. B-F) PER OGUNDARE JSC held thus:
”To constitute a miscarriage of justice, however, there must be such departure from the rules which permeates all judicial procedure as to make what happened not in the proper sense of the word judicial procedure at all..
To reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached, and to be affected by the miscarriage of justice, it is enough if what is done is not justice according to law”.
The question that begs for an answer in the light of the above decision of the Supreme Court is whether in the circumstances of the learned trial Judge adopting the ruling in FHC/ABJ/CS/799/2011; in the instant case, there was such departure from the rules absolutely negating judicial procedure as to make what happened not in the proper sense of the word judicial procedure at all. Put differently, with the established judicial procedure on writing and delivery of Court’s decisions vis a vis the facts and circumstances of this case, was there an absolute radical and judicial rascal departure from the known judicial procedure that makes the adoption of the ruling in Suit No: FHC/ABJ/CS/799/2011; in this case a miscarriage of justice.
To answer this poser, the facts and circumstances of this instant case is paramount.
In the case at hand it is important to note as argued by the learned counsel for the two sets of Respondents that the trial Court did not just jump into adopting its earlier ruling in suit NO. FHC/ABJ/CS/799/2011. The trial Court first evaluated the affidavit evidence of the parties before it, considered the written addresses of the counsel to the parties including all the materials placed before it, before arriving at its conclusion. Equally, the trial Court went further to give the reason why the Appellant’s suit was struck out, when at page 142 of the record it held that:-
”I have duly read the submissions of both counsel. Consequently I adopt my ruling which I have just delivered in a sister case to this case in suit NO. FHC/ABJ/CS/799/2011 between Andee Iheme V. Chief of Defence Staff & 3 ORS as my ruling in this case”.
Furthermore the trial court stated thus:
“For avoidance of doubt and on the authority of the decision of the Court of Appeal in KLM ROYAL DUTCH AIR-LINES V. TOBA (2014) 2 NWLR (PT. 1393) 137 AT 146 R.3. I hold that this Court has no subject matter jurisdiction under S.251 (1) (p), (q) & (r) of the Constitution as amended to hear or entertain claim founded on tort. Accordingly the case is struck out for want of jurisdiction”.
Let me firmly state that it is not every error in the judgment or ruling of a Court that will lead to the reversal of same, it is only the error that goes to the root of same or slip that causes miscarriage of justice. F.B.N. PLC V. TSOKWA (2004) 5 NWLR (PT. 866)271 AT 312-313 PARAS F-C, FERODO LTD V. IBETO IND. LTD. (2004)5 NWLR (PT. 866) 317 AT 327, AKIBU V. ODUNTAN (2000) 13 NWLR (PT. 685) 146.
A careful study of the facts in Suit No: FHC/ABJ/CS/799/2011 between Andee Iheme V. Chief of Staff & 3 Ors. Appeal No. CA/J/264/2017 and the instant suit, will show that the scenario is not strictly a case of adopting ruling of a previous decision without more. The Court delivered its separate rulings in the suits and in the instant case after making its findings went further in a paragraph to adopt its ruling, in Suit No: FHC/ABJ/CS/799/2011; between Andee Iheme V. Chief of Staff & 3 Ors. to support its ruling. This is not in any way the mere importation and application of an entire set of judgment to a different suit as portrayed by the Appellant. What the trial Court did was to support its decision in the instant suit with its earlier decision in Suit No: FHC/ABJ/CS/799/2011 between Andee Iheme V. Chief of Staff & 3 Ors. In other words the trial Court relied on his ruling in an earlier case to determine the case at hand.
I do agree with the learned counsel for the 4th Respondent that the principle of stare decisis empowers the trial Court to be guided by its earlier decision more so since the facts and circumstances of Suit NQ: FHC/ABJ/CS/799/2011 between Andee Iheme V. Chief of Staff & 3 Ors. are not different from the instant case. The two suits are the same, they both share the same cause of action. It is also of importance to observe that the ruling delivered by the trial Court striking out the suit of the Appellant was purely on a point of law which borders on whether the trial Court has the jurisdiction to entertain the suits.
The subject matter in Suit No: FHC/ABJ/CS/799/2011 between Andee Iheme V. Chief of Staff & 3 Ors. and the instance suit are also the same. All that the trial Court did was to ascertain whether the subject matter in the suits fall within the jurisdiction of the Court.
While it is not desirable for a Court to simplicita adopt his decision in an earlier matter in a later one, that alone where there is no miscarriage of justice may not lead to the setting aside of the decision. In the instant case, it is my considered view that it would have been different if there was an issue that was not dealt with by the trial Court and was determined in the ruling adopted or extraneous fact which was brought into the ruling by reason of the adoption. In my further considered view the ruling appealed against outside going further to adopt the Court?s ruling in a sister case earlier delivered was not bereft of reasons for its decision which was the main contention of the Appellant. The ruling possessed the five distinct parts of a good judgment as stated in OGBORU & ANOR. V. UDUAGHAN & ORS. (SUPRA). The ruling can very well stand on its legs as a good decision without the adopted ruling it relied on. There was therefore no radical or rascal judicial departure from the established judicial procedure of judgment or ruling writing.
The learned trial Judge did not simply determine that the instant case abide the ruling of Suit No: FHC/ABJ/CS/799/2011 without previous Order of consolidation of the two cases or the agreement of both counsel for the decision of Suit NO: to determine the instant case. He wrote the ruling in the instant case and further adopted the ruling in Suit No: FHC/ABJ/CS/799/2011 in addition. The Appellant did not in any way show how or that the style of ruling writing adopted by the learned trial judge occasioned a miscarriage of justice. I too from the facts and circumstances of the case have not perceived any miscarriage of justice arising from the adoption of the said previous ruling.
Conclusively, it is my view that in the circumstances of the adoption of the previous ruling by the learned trial judge, the adoption was not wrong. I therefore resolve issue 1 against the Appellant.
SUBMISSIONS ON ISSUE 2
”Whether the learned trial judge was right to decline jurisdiction to entertain the appellant’s case”.
Mr. Iheme submitted that the learned trial Judge was wrong to have declined jurisdiction to entertain the Appellant’s case because he failed to distill the real issue for adjudication placed before him. He noted that the basis for the trial Court’s decline of jurisdiction is that the claim of the Appellant is on tort and that the Federal High Court lacks the subject matter jurisdiction to determine the Appellant’s case.
He submitted that the decision of the learned trial Judge is flawed, as the issue donated for determination in the instant case stems strictly on Fundamental Human Right of the Appellant. He referred to the Appellant’s Writ of Summons and the Statement of Claim to argue that the Federal High Court is empowered in law to entertain claims founded on Fundamental Human Rights. He referred to: P & C.H.S. CO. LTD. & ORS. V. MIGFO (NIG.) LTD. & ANOR. (2012) VOL. 212 LRCN 1; ABDULHAMID V. AKAR (2006) 5 SCNJ 43; OLORUNTOBA-OJU & ORS. V. DOPAMU & ORS. (2008) LPELR 2595 (SC) P. 19 PARAS. A-B.
The learned counsel drew the attention of the Court to paragraph 50 (a) of the statement of claim at page 7 of the record as the hub of the Appellant’s Claim. He submitted that the Claim of the Appellant is based purely on Fundamental Human Rights, particularly the rights to Personal Liberty and Dignity of the Human Person. He referred to Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) Section 34 (1) (a); KALU V. THE STATE (1998) 13 NNLR (PT. 583) @ 531.
Furthermore the learned counsel argued that the two factors which the Apex Court held must co-exist for the trial Court to have jurisdiction under Section 251 (1) (p) (q) and (r) are present in the instant suit under appeal. He relied on: AG LAGOS STATE & ORS V. ZANEN VESTOEP & CO. (NIG.) & ORS. (2016) LPELR 41402 (Pp 23-26) Para A-A; PDP V. SYLVA (2012) LPELR ? 7814 @ Pp 52- 53; ADETONA V. IGELE GENERAL ENTERPRISES LTD. (2011) 7 NWLR (Pt. 1247) 535 @ 504. He submitted on Section 251 (1) (p), (q) and (r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
He urged the Court to resolve the issue in favour of the Appellant.
Mr. Atoyebi learned counsel for 1st, 2nd and 3rd Respondents in reaction agreed that it is trite law that the Court will look at the plaintiff’s claim in order to determine whether it has jurisdiction to entertain a matter or not. He also conceded that a succinct look at the reliefs sought by the plaintiff at the trial Court makes it clear that the plaintiff is seeking that the Court should declare that his Fundamental Human Right has been infringed upon. He referred to: DR. J. U ACHEBE V. CHIEF DONA NWOSU (2003)7 NWLR (PT. 818) 103 81130; TRUCKS NIGERIA LTD. V. ANIGBORO (2001) 10 WRN 78; ABDULHAMID V. AKAR (2006)5 SCNJ 43 AT 56; PARAGRAPH 50 (A) of the Appellant’s claim.
The learned counsel for the referred Respondents however argued that being that the claim of the Appellant is for the enforcement of her fundamental human right, the procedure through which an aggrieved party who feels that his/her right has been or is likely to be infringed upon is expressly provided for in the FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009. He submitted that for the Appellant’s claim to have been properly instituted, it ought to have complied with the provisions of Order 2 Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009. He further submitted that the requirements of the law are fundamental to the Appellant’s claim and having failed to comply with this provision, the claim is not properly constituted and ought to be struck out. He cited: CHUKWUOGOR V. CHUKWUOGOR (2006) 7 NWLR (PT. 979) 302. He therefore submitted that the trial Court lacked the vires to entertain the Appellant’s appeal because the Appellant chose a wrong procedure to institute the action having initiated the suit by way of a Writ of Summons at the trial Court. He relied on: OSSAI V. WAKWAH (2006) 4 NWLR (PT. 969) 208.
Mr. Atoyebi contended that assuming without conceding that the Appellant instituted this action under tort, that the trial Court would still not have the requisite jurisdiction to entertain the suit. He relied on: ALHAJI TUKUR V. GOVERNMENT OF GONGOLO STATE (1989) 4 NWLR (PT. 117) 517 AT 549; AFRICAN NEWSPAPER OF NIGERIA & ORS. V. THE FEDERAL REPUBLIC OF NIGERIA (1985) 1 ALL NLR 50; (1985) 2 NWLR (PT. 6) 137; to urge the Court to uphold the trial Court’s ruling and resolve the issue in favour of the 1st , 2nd and 3rd Respondents.
On their part, Mr. Gazali learned counsel for the 4th Respondent responded that the learned trial Court was right to hold that it does not have jurisdiction. He relied on Section 46 (1) of the Constitution; TUKUR V. GOVERNMENT Of GONGOLA (1989) 4 NWLR (Pt. 117) 517 at 529-530; GAFAR V. GOVERNMENT Of KWARA NSCQR Vol. 29; ADETONA V. I.G ENT LTD (2011) 7 NWLR (PT1247) PG 542-543. The learned counsel leaning on the above authorities contended that a Federal High Court cannot, rightly and validly determine alleged violation of human rights that arouse from rape or armed robbery; better still, assault, battery or vicarious liabilities as in the instant case. He urged the Court to so hold.
The learned 4th Respondent’s counsel agreed with the Appellant’s counsel on the meaning of torture and inhuman and degrading treatment as provided under Section 34 of the Constitution of the Federal Republic of Nigeria, 1999 but drew the attention of the Court also to assault, battery and most importantly, vicarious liability which is the sole reason for suing all the respondents in the suit. He went further to define assault, battery and vicarious liability. He also reproduced the claim of the Appellant at the trial Court to submit that the claim is for torts and not for the Enforcement of Fundamental Rights. He relied on: RANSOME KUTI V. AGF (1985)2 NWLR (PT 6); (1985) LPELR 2940 (SC); ISAAC OBIUWEUBI V. CENTRAL BANK OF NIGERIA (2011)7 NWLR (PT. 1247) 465 AT 480.
Mr. Gazali further argued that for the Federal High Court to have jurisdiction under Section 251 of the 1999 Constitution the following must co-exist:
a. The parties or a party must be the Federal Government or its agencies;
b. The subject matter of the litigation.
He submitted that in the instant case although all the Defendants are Federal Government agencies, the subject matter does not fall under Section 251 of the 1999 Constitution, the trial Court was right to decline jurisdiction.
He urged the Court to resolve the issue in favour of the 4th Respondent.
In reply on point of law, Mr. Ekeh in the Appellant’s reply brief argued that the 1st to 3rd Respondent’s brief from pages 10 to 21 argued issues that did not stem from the ruling of the trial Court. He urged the Court to discountenance same. He submitted on other issues which I shall refer to in the course of resolving this issue. Suffice it to say herein that I shall discountenance submissions of parties not arising from the ruling subject of this appeal in accordance with the law.
RESOLUTION OF ISSUE 2
It is trite law that it is the claim of the Plaintiff that determines the jurisdiction of the Court. P & C.H.S CO. LTD. & ORS. V. MIGFO (NIG.) LTD. & ANOR. (2012) VOL. 212 LRCN 1; ABDULHAMID V. AKAR (2006) 5 SCNJ 43. Making it more explicit, the Apex Court in the case of OLORUNTOBA-OJU & ORS. V. DOPAMU & ORS. (2008) LPELR – 2595 (SC) P. 19 PARAS. A-B, Per Oguntade JSC, held thus:
”The jurisdiction of the Court will be determined by the subject matter of the claim and not the claim relating to the injunction which was an ancillary relief and depend on the primary claim.”
On the question whether the action before the trial Court was that of tort or one seeking to secure the enforcement of the Appellant?s fundamental right. This Court in its UNREPORTED DECISION in YUSUF BUKAR V. THE HON. MINISTER, FEDERAL MINISTRY OF HEALTH GARKI, ABUJA & ANOR. DELIVERED ON 23RD MAY, 2018, Per Onyemenam, JCA stated thus:
”A fundamental right is a right guaranteed in the Nigerian Constitution. It is a right which every citizen is entitled to by reason of being a human being unless if a person suffers any of the disabilities set out in the Constitution. ODOGU V. A.G. FEDERATION (2000) 2 HRLRA 82 AT 102; FAJEMIROKUN V. COMM. BANK (NIG.) LTD. (2009) 21 WRN 1. Fundamental rights stand above the ordinary laws of the land. RANSOME KUTI V. A.G. FEDERATION (1985) 2 NWLR (PT. 6) 211. There are therefore constitutional provisions and rules of procedures contrived for the enforcement of those rights specifically entrenched in the Constitution. These rights are so jealously guarded that it is only when a party’s right that has been so breached are such that are well clearly protected by the Constitution that the Constitutional provision can be exploited to remedy whatever wrong the party would have suffered. TUKUR V. GONGOLA STATE GOVERNMENT (1989) 4 NWLR (PT. 117) 517; NWOKORIE V. OPARA (1999) 1 NWLR (PT. 587) 389; EJEFOR V. OKEKE (2000) 7 NWLR (PT. 665) 363.”
The learned counsel for the 1st, 2nd and 3rd Respondents agreed with the Appellant that the action was on fundamental human right and not on tort. Both relied on the claim of the Appellant for their position. I have examined the claim of the Appellant at the trial Court particularly paragraph 50 of the Appellant’s statement of claim at page 7 of the record. The hub of the Appellant’s Claim is for:
”A declaration that the acts of assault, battery and brutalization of the Plaintiff by the 4th Defendant and the other men, officers and agents of the 1st – 3rd Defendants is illegal, unlawful, unconstitutional and constitutes assault, battery and is also a gross violation of the Fundamental Human Rights of the Plaintiff to personal liberty and dignity of human person”.
The Claim of the Appellant is based purely on Fundamental Human Rights, particularly the rights to Personal Liberty and Dignity of the Human Person. I agree with the Appellant and the learned counsel for the 1st, 2nd and 3rd Respondents that the Appellant’s case is hinged on the gross violation of her Fundamental Human Rights particularly her right to human dignity. The learned trial Judge in holding that the Appellant’s claim is based on tort, failed to take into cognizance, the very nature and elements constituting the Right to Dignity of the Human Person. The distillable elements constituting the Right to Dignity of the Human Person as provided for in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) particularly Section 34 (1)(a) of the Constitution is reproduced hereunder for ease of reference:
Every individual is entitled to respect for the dignity of his person and accordingly –
a. No person shall be subjected to torture or inhuman or degrading treatment.
The purport of Section 34 (1) (a) of the Constitution is that no one should be inflicted with intense pain on his body or mind nor subjected to physical or mental cruelty so severe that it endangers his life or health. Anything amounting to brutalization is synonymous to torture or inhuman treatment and is actionable under the claim for Fundamental Human Rights as provided for by the 1999 Constitution of the Federal Republic of Nigeria (as amended). KALU V. THE STATE (1998) 13 NWLR (PT. 583) @ 531.
From the foregoing and from paragraph 50 of the Appellant’s claim, it is clear that the Appellant sought for a declaration that her right to personal liberty and human person which is provided for under Chapter IV of the 1999 Constitution, has been violated. This certainly brought the claim of the Appellant at the trial Court under the enforcement of fundamental human rights, as other reliefs are merely ancillary to this main relief. EMEKA V. OKOROAFOR (2017) LPELR 41738 (SC); UNILORIN & ANOR. V. OLUWADARE (2006). For what I have said, I hold that the learned trial Judge was wrong to hold that the Appellant’s action was on tort.
On the contention that the learned trial Judge has no jurisdiction to entertain the action because it was not Fundamental Rights (Enforcement Procedure ) Rules 2009 compliant in that it was brought under a wrong originating process to wit: by writ of Summons. Indeed by a Writ of Summons, the Appellant had sought for a declaration that the acts of the men, officers and agents of 1st ? 3rd Respondents amount to a gross violation of her Fundamental Human Rights to personal liberty and dignity of her human person making her action come under the Fundamental Rights (Enforcement Procedure) Rules. The 1st – 3rd Respondents’ counsel agreed that the cause of action fell under the fundamental enforcement rights but contended that the Appellant’s action was wrongly brought under the mode of commencement of the action which robbed the trial Court of its jurisdiction.
The instant rule is The Fundamental Rights (Enforcement Procedure) Rules, 2009 pursuant to Section 46(3) of the Constitution of the Federal Republic of Nigeria, 1999. The commencement and mode of application of enforcement of fundamental rights actions have been stipulated in the 2009 Rules. Order II Rule 2 of the 2009 Rules provides that:
1. An application for the enforcement of the Fundamental Right may be made by any originating process mode accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.
From the above, an Applicant seeking to enforce his right under Chapter IV of the 1999 Constitution has the option to come by way of Motion, Originating Summons, Writ of Summons or by any other form of commencement of an action in Court accepted by the adjudicating Court. This is also in consonance with Order 3 Rule 1 of the Federal High Court Civil Procedure Rules 2009. In the instant appeal, the trial Court did not complain nor reject the mode of commencement to wit: Writ of Summons as the originating process the Appellant approached it to enforce her alleged contravened right under Section 34 (1) (a) of the Constitution.
That the trial Court held that the Appellant’s suit was not an action under The Fundamental Rights (Enforcement Procedure) Rules, does not imply that it did not accept the mode of commencement. I therefore do not agree with the learned counsel for the 1st, 2nd and 3rd Respondents? submission that the learned trial Court lacked jurisdiction to determine the case because the action was commenced by Writ of Summons. I hold that the mode of commencement of the action which is in conformity with Order 2 Rule 2 of The Fundamental Rights (Enforcement Procedure) Rules 2009 and Order 3 Rule 1 of the Federal High Court Civil Procedure Rules 2009; having not been rejected by the trial Court was a proper originating process for the commencement of the Appellant’s action for the enforcement of her alleged right guaranteed by the Constitution.
Now on whether the trial Court was in error to hold that it lacked the subject matter jurisdiction to hear and determine the case. All the counsel relied strongly on the Apex Court’s decision in ADETONA V. IGELE GENERAL ENTERPRISES LTD. (2011) 7 NWLR (PT. 1247) PG 542; to support their position.
The Supreme Court in ADETONA V. IGELE GENERAL ENTERPRISES LTD. (supra) at page 543 held:
”Where a person’s fundamental right is breached, being breached or about to be breached, that person may apply under Section 46 (1) to the judicial division of the Federal High Court in the State or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about, to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federation, or the State or the Federal Capital Territory. However it should be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus, fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court.”
Furthermore, the Supreme Court in the most explicit terms interpreted Section 46(2) of the Constitution thus:
”On Jurisdiction of the Federal and State High Court over action for enforcement of fundamental rights –
A High Court of a State lacks Jurisdiction to entertain matters on Fundamental Rights, although brought pursuant to Section 46(2) of the Constitution, where the alleged breach arose from a transaction or subject matter which falls within the exclusive Jurisdiction of the Federal High Court as provided by Section 251 of the Constitution” ADETONA V. I. G. ENTERPRISES (supra) at P.564, para. E; F.
The Apex Court’s holdings reproduced above is the bone of contention of the parties. The seeming import of the above judicial authority is that whereas both the State and Federal High Courts have concurrent jurisdiction in the determination of Fundamental Right cases, the phrase “subject to the provision of the Constitution” as embodied under Section 46 (2) demarcated the respective Jurisdictions of the State and Federal High Courts. In essence, a State High Court cannot for instance rightly and validly determine allegations of breach of Fundamental Rights emanating from acts of Terrorism or Treason and Treasonable felonies. Likewise, a Federal High Court cannot, ordinarily validly determine alleged violation of human rights that arise from torts, rape or armed robbery etc.
The learned counsel for the 4th Respondent relating the above authority and the analysis to this case, submitted that the Federal High Court rightly declined Jurisdiction on the ground that the claims of assault, battery or vicarious liabilities being tortious in nature does not fall under the Jurisdiction of the Federal High Court. Where and if the above decision of the Supreme Court is viewed in the light of the above position without regard to the facts and circumstances of the case then, what becomes the fate of a party like the Appellant who by reason of the fact that the violation of her alleged right has tortious related subject matter in which case the subject matter jurisdiction vests on the State High Court but has party jurisdiction which is exclusive to the Federal High Court in that the Respondents are Federal government agencies.
I will wish to reiterate that a fundamental right is a right guaranteed in the Nigerian Constitution. It is a right which every citizen is entitled to by reason of being a human being unless when a person suffers any of the disabilities set out in the Constitution. ODOGU V. A.G. FEDERATION (2000) 2 HRLRA 82 AT 102; FAJEMIROKUN V. COMM. BANK (NIG.) LTD. (2009) 21 WRN 1. Fundamental rights stand above the ordinary laws of the land. RANSOME KUTI V. A.G. FEDERATION (1985) 2 NWLR (PT. 6) 211. These rights are so jealously guarded that no citizen can be shut out from seeking redress when his fundamental right has been allegedly breached unless he suffers any constitutional disability like when he is sentenced to flogging or hard labour by a Court of competent jurisdiction.
In the instant case it will appear from the referred decision of the Apex Court that the Appellant will not have any Court of law to seek redress for the alleged violation of her fundamental right because while the subject matter jurisdiction of her action abides the High Court of a State the parties are exclusively within the jurisdiction of the Federal High Court in which case the narrow interpretation of the above decision will oust the jurisdiction of both Courts. This definitely is not the intendment of both the Apex Court and the law makers in view of the common law principle that where there is a wrong there must be a remedy. I hold this firm view by reason of the more recent Supreme Court decision in ADEGBITE & ANOR. V. AMOSU (2016) LPELR 40655 (SC); wherein it was held that:
”The Constitution of the Federal Republic of Nigeria, 1999 (as amended) has conferred exclusive jurisdiction on the Federal High Court in a matter in which the Federal Government or any of its agencies is involved. (Section 251(1) (p), (q), (r) and (s).” Per Ibrahim Tanko Muhammad, J.S.C (p. 16).
Also in the case of INEGBEDION V. SELO ? OJEMEN & ANOR. (2013) LPELR ? 19769 (SC); the Apex Court held:
?The effect of Paragraphs (p), (q) and (r) of Section 251 (1) of the 1999 Constitution is to vest exclusive jurisdiction on the Federal High Court over all civil causes and matters in which the Federal Government or any of its agencies is a party. See NEPA V. EDEGBERO (2002) 103 LRCN 2280 at 2281 – 2282. The proviso to Section 251 (1) of the 1999 Constitution does not in any way detract from the exclusive jurisdiction conferred on the Federal High Court by virtue of Section 251 (1) (p), (q) and (r). Consequently the proviso cannot apply.? Per Stanley Shenko Alagoa, J.S.C. (Pp 13 -14 para F ? B). (Underlining mine for emphasis).
Furthermore the Supreme Court went on to state that:
?The law is unequivocally stated by the 1999 Constitution [as amended] in Section 251 (1) (p), (q), (r) and by this Court that where in a matter, one of the parties is the Federal Government or any of its Agencies, it is only the Federal High Court that has
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exclusive jurisdiction. A State High Court lacks jurisdiction to entertain such a matter. See: NATIONAL ELECTRIC POWER AUTHORITY V. EDEGBERO (2002) 18 NWLR (part 789) 79.? Per Ibrahim Tanko Muhammad, J.S.C (p. 15, paras A ? B). (underlining mine for emphasis).
From the above it is without controversy that whenever any matter involves the Federal Government or any of its agencies as a party, the only Court that has jurisdiction to hear and determine the matter is the Federal High Court. In the instant case the Respondents are Federal Government Agencies and imperatively, it is the Federal High Court which has the jurisdiction to hear and determine the Appellant?s action to enforce her fundamental right which she alleged has been breached. It is important to also note that in the case of ADETONA V. I. G. ENTERPRISES (supra), neither the Federal Government nor any of its agencies was a party unlike in the cases of ADEGBITE & ANOR. V. AMOSU (supra) and INEGBEDION V. SELO ? OJEMEN & ANOR. (supra); this in my view is the distinguishing factor which makes the decision not applicable in the instant case. Consequently, once the Federal Government or any of its
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agencies is a party in an action where a party seeks to enforce the breach of his fundamental human right, it is of no moment that the aspect of the fundamental human right sought to be secured has a subject matter flavour that only the State High Court seem to have jurisdiction on; the Federal High Court will be the right Court that will have the jurisdiction to hear and determine the question arising from the breach of the citizen?s right. ADEGBITE & ANOR. V. AMOSU (supra). It follows therefore and I so hold that it is the Federal High Court that has the jurisdiction to entertain the Appellant?s action. The trial Court therefore was in error when it held that it lacked the jurisdiction to hear and determine the suit.
I resolve issue 2 in favour of the Appellant.
In conclusion, I find merits in the appeal. Appeal No: CA/J/263/2017; hereby succeeds and the same is allowed. I set aside the decision of the Federal High Court in Suit No: FHC/BAU/CS/06/2013 delivered on 16th December, 2016.
I make Order remitting the case file in Suit No: FHC/BAU/CS/06/2013, to be tried on its merits by another Judge. I make no order as to costs.
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ADZIRA GANA MSHELIA, J.C.A.: I read before now the leading Judgment of my learned brother Onyemenam, J.C.A just delivered. I agree with the reasoning and conclusion arrived thereat. My learned brother had adequately considered and resolved the issues raised for consideration in this appeal. For the same reasons canvassed in the lead Judgment, I too allow the appeal and abide by the consequential orders contained therein.
ADAMU JAURO, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, UCHECHUKWU ONYEMENEM JCA, just delivered.
I agree with his reasoning and conclusion that the appeal is meritorious and ought to be allowed.
I therefore allow the appeal and abide by the consequential orders made in the lead judgment.
?Appeal allowed.
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Appearances:
Y. M. MICAH holding the brief of K. K. IHEMEFor Appellant(s)
O. M. ATOYEBI – for 1st-3rd Respondents
T. A. GAZALI CSC with him, B. A. NAIYEJU SC and C. A. OKONKWO SC FMOJ Abuja – for 4th RespondentFor Respondent(s)
Appearances
Y. M. MICAH holding the brief of K. K. IHEMEFor Appellant
AND
O. M. ATOYEBI – for 1st-3rd Respondents
T. A. GAZAL,I CSC with him, B. A. NAIYEJU SC and C. A. OKONKWO SC FMOJ Abuja – for 4th RespondentFor Respondent
