CIVILIAN JTF & ORS v. ABDULLAHI & ORS (2020)

CIVILIAN JTF & ORS v. ABDULLAHI & ORS

(2020)LCN/14782(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, November 12, 2020

CA/YL/126/18

RATIO

FUNDAMENTAL RIGHTS: NATURE OF AN ACTION BROUGHT UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009

On issue one, the action that led to this appeal was brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009, it is in the nature of an action that would be termed as sui generis, a peculiar action in a class of its own, the rules and procedure are also unique with the singular aim of enforcing the Constitutional Rights of citizens where it has been violated by another person or persons. These rights are so important that they are entrenched in the 1999 Constitution of the Federal Republic of Nigeria (as amended) (hereafter referred to as the Constitution) preserved in Chapter IV. For this reason the Fundamental Rights (Enforcement Procedure) Rules, 1979 created a Special Procedure for this category of cases via which an action could be brought to enforce one’s right when breached. The 1979 Rules guide the conduct of proceedings of all actions to enforce rights. The enforcement of Fundamental Rights is provided for by Section 46 (1) and (2) of the 1999 Constitution which provide as follows:
46 (1). “Any person who alleges that any of the provisions of this chapter has been, is being, or is likely to be contravened in any State in relation to him may apply to a High Court for redress.
(2). Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.”
While Order 1 Rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, (hereafter referred to as the Rules) which created the special procedure for this class of action used clear and similar terms to qualify who can apply to a Court for enforcement of a right. By the use of the word “any” it is clear that it is a right that can only be exercised singularly, individual rights and not collective. PER NWAOMA UWA, J.C.A.
FUNDAMENTAL RIGHTS: COVERAGE OF THE PROVISIONS OF CHAPTER 4 OF THE CONSTITUTION

The provisions of Chapter 4 of the Constitution covers individuals by the clear use of the words “every individual”, “every person”, “any person”, and “every citizen”. See, R.T.F.T.C.I.N. vs. IKWECHEGH (2000) 13 NWLR (PT 683) at PAGE 1 where it was held that, where an individual feels that his Fundamental Rights or Human Rights have been violated, he should take out an action personally for the alleged infraction as rights of one differs from the complaint of another. Similarly, this Court in OKECHUKWU vs. ETUKOKWU (1998) 8 NWLR (PT 562) PAGE 511 held that no group of persons can commence an action on infringement or contravention of Fundamental Rights under Chapter IV of the Constitution or by virtue of the 1979 Rules that created the rights under the Constitution, now governed by the Fundamental Rights (Procedure Enforcement) Rules, 2009. The provisions of Chapter 4 of the Constitution covers individuals not groups or a collection of individuals. The wordings in Chapter 4 did not contemplate an application being filed by several persons in one. PER NWAOMA UWA, J.C.A.

ACTION: WHEN WILL AN ACTION BECOME HYPOTHETICAL

In the case of DR. UMAR ARDO VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2017) LPELR – 41919 (SC)at PP. 12 – 18, PARAGRAPHS E – B his lordship Chukwuma-Eneh, JSC in part, held as follows:
“An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement, upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a Suit in that state has none. In simple terms, an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on a successful party – see ODEDO vs. INEC (2008) 17 NWLR (PT. 1117) 554 SC, ADEOGUN vs. FASHOGBON (2008) 17 NWLR (PT. 1115) 149 SC.”
See, also PLATEAU STATE vs. ATTORNEY GENERAL OF THE FEDERATION & ANOR (2006) LPELR – 2921 (SC);PLATEAU STATE V. A.G FEDERATION (2006) 3 NWLR (PT. 967) P. 346; DAHIRU & ANOR. V. APC & ORS. (2016) LPELR – 42089 (SC) PP. 25 – 26, PARAS. B-A; ODEDO V. I.N.E.C. (2008) 17 NWLR (PT. 1117) P. 556; OYENEYE V. ODUGBESAN (972) 4 SC P. 244; BAKARE V. A. C. B. LTD. (1986) 3 NWLR (PT. 26) P. 37; OKULATE V. AWOSANYA (2000) 2 NWLR (PT.646) P. 530 and NKWOCHA V. GOVERNMENT OF ADAMAWA STATE (1984) 1 SCNLR P. 634. PER NWAOMA UWA, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. CIVILIAN JTF 2. THE CHIEF OF ARMY STAFF NIGERIAN ARMY 3. ATTORNEY GENERAL OF THE FEDERATION APPELANT(S)

And

1. IDRIS ABDULLAHI 2. MUSA TELL 3. MADUIZAH 4. BUBA SUTURAGI 5. MUSA MOHAMMED RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Federal High Court Yola, presided over by A. M. Anka, J. on the 3rd day of July, 2018 awarded N1,000,000.00 (One Million Naira) to each of the five Applicants for the violation of their fundamental human rights with additional cost of N100,000.00 (One Hundred Thousand Naira) against the respondents. The respondents were dissatisfied with the decision, thus this appeal.

The background facts are that this case was commenced by originating processes wherein the five applicants jointly filed an application for the enforcement of their Fundamental Human Rights under the Fundamental Rights (Enforcement Procedure) Rules, 2009 and Sections 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The application was supported by a thirty (30) paragraph affidavit deposed to by one Idris Abdullahi, the 1st Applicant who deposed as one of the Applicants and not on behalf of any or the other four Applicants.

In opposing the application, the Respondents filed separate processes, written addresses, Counter Affidavits and a notice of preliminary objection in which the

competence of the application was challenged, the application for the fundamental rights of the applicants having been brought jointly. The lower Court dismissed the objection and proceeded to determine the application. The appellants alleged that the trial Court in its judgment failed to consider the processes filed by them as Respondents before the trial Court and instead struck out their written address and counter affidavit.

The following issues were distilled for the determination of the appeal:
1. Whether the learned Judge of the Lower Court was not in error when he dismissed the preliminary objection on the propriety and competence of application being brought jointly by five Applicants. (Distilled from Ground 1).
2. Whether the learned Judge of the lower Court was right when after the close of proceedings, without hearing the parties on propriety or otherwise of the processes instead, he suo moto struck out the Respondents written address and Counter Affidavit. (Ground 2).
3. Whether the learned Judge of the lower Court was not in error when he delivered judgment for the applicant before him without considering the processes filed

by the Respondents in the case. (Ground 3).

When the appeal came up for hearing on 8/9/2020, the Respondents were absent from Court as well as their counsel, E. O. Odo Esq. who had been served with the hearing Notice, without any reason for their absence. The Respondents did not file any brief of argument. The appeal was therefore argued based on the Appellants’ brief alone.

In arguing the appeal, the learned counsel to the Appellants J. J. Shalli Esq. adopted and relied on his brief of argument filed on 18/2/19 but deemed properly filed and served on 1/4/19 in urging us to allow the appeal and set aside the judgment of the lower Court.
The Respondents did not file any brief of argument and had nothing to urge.

In arguing his first issue, it was submitted that the lower Court acted in error when it dismissed the preliminary objection on the competence of the Respondents’ application, reference was made to Order II (I) of the Fundamental Rights (Enforcement Procedure) Rules, 2009. It was argued that the above provision does not give room for group action, Subrule (3) of the Order was also referred to. The provision of

Order 1 Rule 2 was reviewed. It was submitted that paragraph 3 (e) of the same Order relied upon by the trial Court was misconceived. It was submitted that the present action was not a representative action, contrary to the opinion of the lower Court at page 17 of the record of appeal that, it is more convenient and cost effective as a representative action, for which reason the preliminary objection was dismissed. It was argued that the application was not consolidated as permitted by Order VII Rule 1 of the Rules, where individually filed cases could be consolidated. It was concluded that more than one person cannot file an application jointly to enforce their fundamental rights. See, KPORHAROR & ANOR vs. YEDI (2017) LPELR – 4241 (CA).

In arguing issue two, it was submitted that the trial Court acted in error when it struck out the processes, particularly the Counter Affidavit and Respondents’ written address without calling on the parties to address the Court on the competence of the processes. It was argued that the written address filed by the Appellants that was struck out was referred to and adopted at the trial Court without any objection by

the Respondents. It was submitted that the processes ought not to have been struck out suo motu by the trial Court. See, I.G.P. & ORS vs. PETER O. IKPILA & 1 OTHER (2016) 9 NWLR PT. 1517, 236.

In arguing his third issue, it was submitted that the Court’s failure to consider the Counter Affidavit and the Appellants’ written address as Respondents was done in error considering the provisions of Order IX Rule 1 of the Fundamental (Rights Enforcement Procedure) Rules 2009, reference was made to the order of the lower Court at page 75, last paragraph, of the records of appeal.

Further, that even though Order II Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 requires that the opposing processes be filed within five days of the service of the application, by Order IX Rule 1, failure to file within the stipulated time ought to be treated as mere irregularity which ought not to vitiate the processes filed and adopted at the proceedings. See, EMEKA vs. OKOROAFOR (2017) 11 NWLR (PT. 1577), 410. It was concluded on this issue that the reason given by the trial Court for its decision is technical rather than substantial

justice. See, SALEH vs. ABAH (2017) 12 NWLR (PT. 1579), 100. It was submitted that had the Counter Affidavit and the written address of the Appellants been considered, the decision would have been different.

The Respondents did not file any process and had nothing to urge the Court therefore, the appeal would be determined on the appellants’ brief of argument alone.

one’s right when breached. The 1979 Rules guide the conduct of proceedings of all actions to enforce rights. The enforcement of Fundamental Rights is provided for by Section 46 (1) and (2) of the 1999 Constitution which provide as follows:
46 (1). “Any person who alleges that any of the provisions of this chapter has been, is being, or is likely to be contravened in any State in relation to him may apply to a High Court for redress.
(2). Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.”
While Order 1 Rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, (hereafter referred to as the Rules) which created the special procedure for this class of action used clear and similar terms to qualify who can apply to

a Court for enforcement of a right. By the use of the word “any” it is clear that it is a right that can only be exercised singularly, individual rights and not collective.
No doubt, the application that was before the trial Court was brought by five (5) applicants, it was filed by more than one person and it was not filed in a representative capacity. On the other hand, the provisions of the 2009 Rules (the operative Rule) did not give any room for a group of persons to file an application before the Court. The wordings of Order II (3) of the Rules is clear by the use of the word “applicant”.
ORDER II (3):
“An application shall be supported by a statement setting out the name and description of the applicant…” (underlined mine for emphasis)
As rightly argued by the learned counsel to the Appellants, Order 1 Rule (2) of the Rules defined “applicant” to mean “a party who files an application or on whose behalf an application is filed under these Rules.” Further, Order VII Rule 3 of the 2009 Rules allows consolidation after the applications have been filed individually, it cannot be

assumed, without a formal application and grant of an order for consolidation, which was not the case here, where one application was filed by the five Respondents as applicants. In effect, the rule provides that more than one person cannot apply to enforce a fundamental right. It is the law that any application filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules, 2009 is incompetent.
The provisions of Chapter 4 of the Constitution covers individuals by the clear use of the words “every individual”, “every person”, “any person”, and “every citizen”. See, R.T.F.T.C.I.N. vs. IKWECHEGH (2000) 13 NWLR (PT 683) at PAGE 1 where it was held that, where an individual feels that his Fundamental Rights or Human Rights have been violated, he should take out an action personally for the alleged infraction as rights of one differs from the complaint of another. Similarly, this Court in OKECHUKWU vs. ETUKOKWU (1998) 8 NWLR (PT 562) PAGE 511 held that no group of persons can commence an action on infringement or contravention of Fundamental Rights under

Chapter IV of the Constitution or by virtue of the 1979 Rules that created the rights under the Constitution, now governed by the Fundamental Rights (Procedure Enforcement) Rules, 2009. The provisions of Chapter 4 of the Constitution covers individuals not groups or a collection of individuals. The wordings in Chapter 4 did not contemplate an application being filed by several persons in one. Pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, filing separate applications is the starting point before an order for consolidation could be considered, which is not the case here. See, UDO vs. ROBSON & ORS (2018) LPELR – 45183 (CA) and Order VII of the 2009 Rules which provides as follows:
1. “The Judge may on application of the Applicant consolidate several applications relating to the infringement of a particular Fundamental Right pending against several parties in respect of the same matter, and on the same grounds.
2. Where applications are pending before different Judges, the Applicant shall first apply to the Chief Judge of the Court for re-assignment of the matter to a Judge before whom one or more of the matters are

pending.
3. The Applicant must show that the issues are the same in all the matters before the application for consolidation may be granted by the Court.”
The above Rule is clear to the effect that before consolidation of applications for infringement of Fundamental Rights, which is not applicable in this case because non was sought, individuals must first file their individual applications. I hold that the learned trial Judge was in error when he dismissed the preliminary objection raised by the Appellants as to the propriety and competence of the application brought jointly by the five Respondents as Applicants. The trial Court ought not to have dismissed the preliminary objection, two or more persons cannot jointly file an application for enforcement of their Fundamental Rights. The application for the enforcement of the Respondents’ Fundamental Rights jointly filed at the trial Court on 20th November, 2017 is incompetent and ought to have been struck out by the trial Court.
I hold that the application jointly filed by the Respondents for the enforcement of their Fundamental Rights is incompetent, same is hereby struck out. Issue

one is resolved against the Respondents.

Having held that the application that led to this appeal is incompetent and having resolved issue one in favour of the Appellants, there would be no need to resolve issues two and three in this appeal. It would be an exercise in futility, and an academic exercise that would not be of any benefit to any of the parties. In the case of DR. UMAR ARDO VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2017) LPELR – 41919 (SC)at PP. 12 – 18, PARAGRAPHS E – B his lordship Chukwuma-Eneh, JSC in part, held as follows:
“An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement, upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a Suit in

that state has none. In simple terms, an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on a successful party – see ODEDO vs. INEC (2008) 17 NWLR (PT. 1117) 554 SC, ADEOGUN vs. FASHOGBON (2008) 17 NWLR (PT. 1115) 149 SC.”
See, also PLATEAU STATE vs. ATTORNEY GENERAL OF THE FEDERATION & ANOR (2006) LPELR – 2921 (SC);PLATEAU STATE V. A.G FEDERATION (2006) 3 NWLR (PT. 967) P. 346; DAHIRU & ANOR. V. APC & ORS. (2016) LPELR – 42089 (SC) PP. 25 – 26, PARAS. B-A; ODEDO V. I.N.E.C. (2008) 17 NWLR (PT. 1117) P. 556; OYENEYE V. ODUGBESAN (972) 4 SC P. 244; BAKARE V. A. C. B. LTD. (1986) 3 NWLR (PT. 26) P. 37; OKULATE V. AWOSANYA (2000) 2 NWLR (PT.646) P. 530 and NKWOCHA V. GOVERNMENT OF ADAMAWA STATE (1984) 1 SCNLR P. 634.
In sum, there would be no need to resolve issues two and three either way. In the final analysis, the appeal is meritorious. It is hereby allowed. The judgment of the trial Court in Suit No: FHC/YL/CS/29/2017, delivered on the 3rd day of July, 2018 is hereby set aside, including the award of N1,000,000.00 (One Million

Naira) damages and compensation in favour of the Respondents as well as N100,000.00 (One Hundred Thousand Naira) for filing and prosecuting the action.
Parties to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA and I am in agreement that the application for enforcement of the Respondents’ fundamental rights jointly filed by them is incompetent. For this reason, I too strike it out. I abide by all other orders in the judgment including the order as to costs

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

J. SHALLI, ESQ. For Appellant(s)

O. ODO, ESQ. – for the Respondents was served but absent For Respondent(s)