ANDEE IHEME v. CHIEF OF DEFENCE STAFF & ORS
(2018)LCN/12032(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of August, 2018
CA/J/264/2017
RATIO
FUNDAMENTAL RIGHT: RIGHT TO DIGNITY
“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 NNLR (PT. 583) @ 531.” PER UCHECHUKWU ONYEMENAM, J.C.A.
JURISDICTION: WHETHER CLAIM OF PLAINTIFF DETERMINES JURISDICTION
“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
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 appeal is against the Ruling of Shitu Abubakar, J. of the Federal High Court, Bauchi Judicial Division, delivered on 16th December, 2016. The Appellant was the Plaintiff at the trial Federal High Court. He took out a Writ of Summons against the Respondents who were the Defendants. The Appellant vide the Writ of Summons filed on 16th September, 2011 claimed the following:
a) A declaration that the act of brutalization of the Plaintiff by the Defendants’ men, officers and agents is illegal, unlawful, unconstitutional and a gross violation of the Fundamental Human Rights of the Plaintiff. An Order of this Honourable Court directing the Defendants to render public apology to the Plaintiff in two National Dailies.
b) An order directing the Defendants to pay all the medical bills and all other expenses incurred by the Plaintiff.
c) An order of this Honourable Court directing the Defendants to pay to the Plaintiff the sum of N500,000,000.00 (Five Hundred Million Naira) only, as general damages for the pain, anguish, physical and psychological torture and embarrassment inflicted on the Plaintiff by the men, officers and agents of the Defendants.
d) Cost of this action.
The gravamen of the Appellant’s case is as encapsulated in paragraphs 7-49 of the Plaintiff’s Statement of Claim. That 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 his wife 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 his wife. That they only stopped when the Appellant fainted. Hence the Appellant instituted this action at the trial Court in order to seek redress for the violation of his Fundamental Human Right.
On the part of the Respondents, they filed their Statements of Defence at the lower Court. The 2nd and 3rd Respondents vide a Motion on Notice dated 10th January, 2013 and filed same day objected to the jurisdiction of the trial Court. In response, the Appellant filed a Counter Affidavit and Written Address in opposition to the motion. 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. After parties filed and exchanged their necessary processes according to the rules of this Court, the appeal was heard on 14th May 2018.
On said date Mr. Y. M. Micah holding the brief of K. K. IHEME appeared for the Appellant. Mr. O. M. ATOYEBI appeared for the 1st – 3rd Respondents; while Mr. T. A. GAZALI Chief State Counsel, Federal Ministry Of Justice with B. A. NAIYEJU Esq. State Counsel and C. A. OKORONKWO Esq. State Counsel appeared for the 4th Respondent. Parties agreed that the appeal was ripe for hearing.
In arguing the appeal, Mr. Micah referred to the Appellant?s brief filed on 16th October, 2017 but deemed properly filed and served on 25th January, 2018. He said they also filed 2 reply briefs against the briefs of the 2 sets of Respondents on 23rd March, 2018 respectively. He adopted and relied on the referred processes in urging the Court to allow the appeal and remit the case for hearing.
In response, Mr. Atoyebi for 1st – 3rd Respondents adopted the Respondent’s brief filed on 24th November, 2017 but consequentially deemed properly filed and served on 25th January, 2018, in urging the Court to dismiss the appeal. Mr. Gazali CSC adopted the 4th Respondent’s brief filed on 24th January, 2018 but consequentially deemed on 25th January, 2018 in urging the Court to dismiss the appeal. The Court thereafter reserved judgment.
The Appellant raised a sole issue for determination in this Appeal and which is:
”Whether the Learned Trial Judge was right to decline jurisdiction to entertain the Appellant’s case.”
The 1st, 2nd and 3rd Respondents distilled a single issue for the determination of this appeal. The said issue is:
”Whether the lower Court was wrong when it upheld the Preliminary Objection of the 2nd & 3rd Respondents by striking out the Appellant’s Suit in its entirety.”
On his own, the 4th Respondent also formulated a sole issue for determination of the appeal as follows:
”Whether the learned trial judge rightly held that the Court lacks jurisdiction and struck out the matter. I opine that the purport of the respective sole issues raised by the parties is the same. I shall adopt the issue as formulated by the Appellant in the determination of the appeal.
SUBMISSIONS ON SOLE ISSUE
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 Rights 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 the hub of the Appellant’s Claim which he submitted is 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 NWLR (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 the 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; SEA 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 also submitted that the trial Court lacked the vires to entertain the Appellant’s appeal since the Appellant had chosen a wrong procedure to institute this 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 further contended that the claim for the alleged blockage of road which prevented other road users to have access to the road is not a claim in Fundamental Right but a claim in Tort of nuisance as the complaint here is not that officers of the 2nd & 3rd Respondents arrested, detained and tortured the Appellant which would have brought it under Human Right in pursuance of Section 34 of the Constitution of Federal Republic of Nigeria 1999 (as amended). He referred to: ABDULHAMID V. AKAR (2006) 5 SCNJ 43 AT 56; ALHAJI TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 AT 549; to submit that it was improper for the appellant to say that the matter is one amounting to that of infringement of his Fundamental Right and which thereby qualified him to commence the action under the Fundamental Rights (Enforcement Procedure) Rules. He also relied on: UZOUKWU & ORS V. EZEONU & ORS (1991)6 NWLR (PT. 200) 708; OKANU V. IMO STATE COMMISSIONER FOR POLICE (2001) 1 CHR 407 AT 411.
He submitted on the condition precedent that must be present and available for a Court to have jurisdiction as laid down in MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; OZIGBO V. PDP (2010) 9 NWLR (PT. 1200) 601 AT 647 PARA H; DINGYADI V. INEC (NO. 1) (2010) 18 NWLR (PT. 1224) SC 137-138 PARA H-B; OHAKIM V. AGBASO (2010) 19 NWLR (PT. 1226) 172 SC and OPARA V. AMADI (2013) 12 NWLR (PT. 1369) 512 AT 530 PARAS A-C. SC.
The learned counsel further submitted that the jurisdiction of the Federal High Court as in this case is ousted by the provisions of S. 251 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He referred to: ALHAJI TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517; OLADIPO V. NIGERIA CUSTOMS SERVICE BOARD (2009) LPELR- 8278 (CA); AFRICAN NEWSPAPER OF NIGERIA & ORS. V. THE FEDERAL REPUBLIC OF NIGERIA (1985) 1 ALL NLR 50; (1985) 2 NWLR (PT. 6) 137.
Mr. Atoyebi contended that even when some of the parties are Federal Government Agencies in a suit, the Court must always look at the subject matter to decide jurisdiction. He cited: NURTW & ANOR V. R.T.E.A.N & ORS (2012) 3 SCM 171 AT 197 PARA C-F; FMBN V. LAGOS STATE GOVT. (2010) 5 NWLR (PT. 1188) 570 AT 601 PARAS B-D, 602 PARAS G-H, 603 PARAS E-G; ONUORAH V. KRPC LTD (2005) 6 NWLR (PT. 921); ADETONA & ORS V. IGELE (2011)1 SCM 1 AT 23; OLUTOLA V. UNILORIN 111(2004) 18 NWLR (PT. 905) 416; NIGERIAN INSTITUTE OF MEDICAL RESEARCH V. NATIONAL UNION OF ROAD TRANSPORT WORKERS (2010) 12 N.W.L.R (PT. 1208) 328.
The learned counsel urged 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 trial Court was right to hold that it does not have jurisdiction. He relied on Section 46 (1) of the Constitution. The learned counsel reproduced Section 46 (2 ) of the CFRN 1999 which is impari materia with Section 42 of the 1979 Constitution; he referred to the Apex Court?s decision in TUKUR V. GOVERNMENT Of GONGOLA (1989)4 NWLR (Pt. 117) 517; and submitted on the phrase “subject to” in a statue. He referred to: GAFAR V. GOVERNMENT Of KWARA NSCQR Vol. 29; ADETONA V. I.G ENT LTD (2011) 7 NWLR (PT. 1247) PG 542-543; to submit that the Federal High Court, rightly declined Jurisdiction on ground that the claim is tortious in nature and tort does not fall within the Jurisdiction of the Federal High, Court.
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 this 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 since direct claim was not made against the Respondents but an indirect claim of vicarious liability. 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, since 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 points of law, Mr. Ekeh in the Appellant’s reply brief argued that the 1st to 3rd Respondents’ submissions from pages 6 to 9 at paragraphs 4.04 – 4. 12 are incompetent as the same is a challenge of the decision of the trial Court appealed against when the said Respondents did not file either a Cross-Appeal or Respondents’ Notice. He further argued that the arguments of the 1st to 3rd Respondents’ at pages 13 – 17 are incompetent as the issues 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 matter of this appeal in accordance with the law. I will make reference to the Appellant’s reply to the 4th Respondent’s brief in the course of resolving the issue.
RESOLUTION SOLE ISSUE
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 right 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 his Fundamental Human Rights particularly his 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 NNLR (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 his 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 the 1st – 3rd Respondents amount to a gross violation of her Fundamental Human Rights to personal liberty and dignity of his human person making his 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 did not abide the Fundamental Rights (Enforcement Procedure) Rules and was also brought under the wrong mode for 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 his 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 to 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 II 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 his 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 which fall under the jurisdiction of the Federal High Court. Likewise, a Federal High Court cannot except where circumstances permit, validly determine alleged violation of human rights that arise from torts, rape or armed robbery etc. as the same ordinarily fall within the jurisdiction of the State High Courts.
The learned counsel for the 4th Respondent relating the above analysis to the referred 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 Apex 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 alleged violation of his fundamental human right under Section 34 (1) of the Constitution 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 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 would 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 his fundamental right because while the subject matter jurisdiction of his action abides the High Court of a State, the party jurisdiction is exclusively within the jurisdiction of the Federal High Court in which case the straight jacket 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 provison 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 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, where the Respondents are the Federal Government and its Agencies, imperatively, it is the Federal High Court that has the jurisdiction to hear and determine the Appellant’s action to enforce his fundamental right which he 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 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 to be approached 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 the sole issue in favour of the Appellant.
In conclusion, I find merit in the appeal. Appeal No: CA/J/264/2017, hereby succeeds and the same is allowed. I set aside the decision of the Federal High Court in Suit No: FHC/ABJ/CS/799/2011 delivered on 16th December, 2016.
I make Order remitting the case file in Suit No: FHC/ABJ/CS/799/2011, to be tried on its merits by another Judge.
I make no order as to costs.
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 made therein.
ADAMU JAURO, J.C.A.: I had a preview of the lead judgment of my learned brother, UCHECHUKWU ONYEMENAM JCA, and for the reasons advanced therein, I entirely agree with the conclusion he arrived at, that the appeal has merit and same should succeed.
I adopt the said judgment as mine, and join my brother in allowing the appeal.
I abide by all consequential orders made therein.
Appearances:
Y. M. MICAH holding the brief of K. K. IHEMEFor Appellant(s)
O. M. ATOYEBI – for 1st-3rd Respondents
T. A. GAZALI CSC FMOJ with him, B. A. NAIYEJU SC & C. A. OKORONKWO SC FMOJ, Abuja – for 4th RespondentFor Respondent(s)
