FINAMEDIA GLOBAL SERVICES LTD v. ONWERO (NIG) LTD & ORS (2020)

FINAMEDIA GLOBAL SERVICES LTD v. ONWERO (NIG) LTD & ORS

(2020)LCN/13946(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, October 08, 2020

CA/A/127/2019

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FINAMEDIA GLOBAL SERVICES LTD APPELANT(S)

And

1.ONWERO NIG. LTD 2.MR. UCHENNA JOHN 3. PAUL CHIDOKWE RESPONDENT(S)

RATIO

THE PRINCIPLE OF ENFORCEMENT OF FUNDAMENTAL RIGHT

A good starting point to the resolution of this issue requires the understanding of the principle that enforcement of the Fundamental Right of an applicant must be within the rights guaranteed under the Constitution of the Federal Republic of Nigeria 1999, as amended. This is necessary in view of the fact that it is not every wrong or injury that will give rise to an action for enforcement of fundamental Right; See JACK V. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 5 NWLR (PT 865) 208; UZONDU V. U.B.N PLC (2009) 5 NWLR (PT. 113) 1; ABBA V. JAMB (2014) LPELR – 24205 CA; SURVEYOR GENERAL OF CROSS RIVER STATE V. JONATHAN (2014) LPELR – 23380 CA. PER MUSTAPHA, J.C.A.

DETERMINATION OF THE JURISDICTION OF A COURT TO ENTERTAIN A MATTER BEFORE IT

The reliefs claimed, elaborately reproduced hereinbefore is clear in this regard, but a reproduction of some of the paragraphs of the affidavit in support of the application will be helpful, not least because they serve the purpose a statement of claim serves in this case, after all, the law remains settled that it is the claim of the Plaintiff that determines the jurisdiction and since this matter was commenced by originating summons, it is the endorsements therein and the Affidavit in support that will determine the jurisdiction of the Court; see ABIA STATE INDEPENDENT COMMISSION V. CHIEF OKECHI KANU & ORS (2013) 12 SCM 46 at 52 G – H and PEOPLES DEMOCRATIC PARTY V. TIMIPRE SYLVA & ORS 13 NWLR (Pt,1316) 85 at 127 E per RHODES-VIVOUR, JSC who held:
“Jurisdiction of a Court to entertain a suit is resolved by scrupulous examination of the writ of summons, the statement claim and the reliefs claimed. No other document should be examined, where the originating process is an originating summons, the affidavit filed in support of the originating summons serves as the plaintiff’s pleadings (statement of claim). Jurisdiction would be resolved by examining the originating summons, the reliefs contained therein and the affidavit filed in support.”PER MUSTAPHA, J.C.A.

FUNDAMENTAL HUMAN RIGHT

Fundamental Rights are so basic and inalienable to every person, individually. That explains the use of the word “any person” in Section 46 (1) of the Constitution; See RAYMOND S. DONGTOE V. CIVIL SERVICE COMMISSION, PLATEAU STATE & ORS (2001) 4 SCNJ Page 131.
The right to approach a Court to enforce a Fundamental Right is conferred by Section 46 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), sub Section (1) provides:
“Any person who alleges that any of the provisions of this chapter has been, is being, or likely to be contravened in any State in relation to him may apply to a High Court for redress.”
In this appeal under consideration, the application was brought by two applicants (1) Onwero Nigeria Ltd and (2) Mr. Uchenna John Paul Chidokwe. The words used in Section 46(1) of the Constitution are very clear, and it is not by accident that the constitution and the rules use the same adjective in qualifying who can apply to a Court to enforce a Right as, “any”, which denotes singular, and does not admit pluralities in any form. Individual rights and not collective rights take prominence in fundamental rights applications; see R.T.F.T.C.I.N. V. IKWECHEIGH (2000) 13 NWLR Part 683 at Page 1 and OKECHUKWU V. ETUKOKWU (1998) 8 NWLR Part 562 Page 511. PER MUSTAPHA, J.C.A.

WHETHER OR NOT FUNDAMENTAL RIGHT ENFORCEMENT CAN BE A CLASS ACTION

I want to only add a simple note that the fundamental right enforcement is not and can never be a class action. It is a special proceeding with its own special rules under the 1999 Constitution. By Section 46(1) of the Constitution, any person who alleges that any of the provisions of this chapter (i.e. Chapter iv), has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress. This provision is clear and sacrosanct. It is intended to afford an individual human (or natural) person to have access to Court to sue when his fundamental right listed in Chapter IV of the 1999 Constitution of Nigeria is threatened or violated. The provision of the Constitution can be invoked when the main or principal complaint of the applicant is the enforcement of a fundamental right is the issue and not an accessory claim. See Tukur v. Govt. of Taraba State (1997) 6 NWLR (Pt. 510) 549; Jack v. University of Agriculture (2004) 1 SC (Reprint) (Pt. 11) 100, Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt. 696) 159, FRN & Anor. V. Ifegwu (2003) LPELR 3173 (SC) and Nwachukwu v. Nwachukwu & Anor. (2018) LPELR – 44696 (SC) where Onnoghen, JSC (as he then was) held:
“It is also settled law that for a matter to be instituted under the Fundamental Rights (Enforcement Procedure) Rules, 1979 to enforce the constitutionally guaranteed rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the enforcement of such right(s) must be the main/substantive claim before the Court — not ancillary. In the case of Tukur v. Government of Taraba State (1997) NWLR (Pt. 510) 549 at 574 — 575, this Court stated the law as follows: “When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental rights or the security of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental right or securing the enforcement thereof should, from the applicant’s claim as presented, be the principal or fundamental claim as presented, and not accessory claim. See The Federal Minister of Internal Affairs & Ors. v. Shugaba Abdulrahman Darman (1982) 2 NCLR 915 in which the principal or main claim was a declaration that the order …was ultra vires and that the same constituted a violation of his fundamental rights to personal liberty, privacy and freedom to move freely throughout Nigeria…However, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot as has been pointed out above, be properly exercised, as it will be incompetent by reason of the foregoing feature of the case.” PER ADAH, J.C.A.

WHETHER OR NOT THE CONSTITUTIONAL PROVISIONS IN CHAPTER 4 AND THE RULES OF PROCEDURE ARE ENFORCEMENT OF RIGHTS SPECIFICALLY ENTRENCHED IN THE CONSTITUTION

It must be understood that the Constitutional provisions in Chapter 4 and the rules of procedure so contrived are for the enforcement of those rights specifically entrenched in the Constitution. The two are not amenable to litigants in respect of such other civil claims or rights that have not been so entrenched, Unless and until a party’s rights that have been breached within the purview of those rights are so clearly protected and guaranteed by the Constitution, the constitutional provision and the adjectival arrangement equally put in place cannot be exploited to remedy whatever wrong the party would have suffered. See TUKUR VS. GONGOLA STATE GOVT (1989) 4 NWLR (PT. 117) 517; NWOKORIE VS. OPARA (1999) 1 NWLR (PT. 587) 389; EJEFOR VS OKEKE (2000) 7 NWLR (PT. 665) 363. PER IDRIS, J.C.A.

MOHAMMED MUSTAPHA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of the Federal Capital Territory, Zuba, Abuja in FCT/HV/CV/07/2015, delivered on the 1st of November, 2018 presided by Hon Justice A.O Ebong.

Briefly stated, the facts of this case are that the 1st and 2nd respondents whose shops were locked up by the appellant, resulting in loss of livelihood and goodwill, filed a joint application for the enforcement of their fundamental rights, under the Fundamental Rights Procedure Rules, 2009, praying for among other things, the enforcement of their fundamental rights.

The application was brought pursuant to Sections 44 and 46 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, Article 14 of the African Charter on Human and People’s Rights, Order 2 Rules 1, 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and the inherent jurisdiction of the Court; praying for the following:
1. A declaration that the lock up and compulsory takeover of possession of the trading shops at Block 21, shops 1 and 2 Gwagwalada main market, Abuja from the 16th day of

November, 2015 till date by the respondent through its agents without a warrant or an order of court is illegal, unlawful and constitutes an infringement of the applicants’ fundamental right to immovable property guaranteed under Section 44(1) of the Constitution of the Federal Republic of Nigeria, as amended and Article 14 of the African Charter on Human and People’s Right (Ratification) Act, CAP 10 Laws of the Federation, 1990.
2. A declaration that the continuous detention of the applicants’ goods (perishable and non-perishable) within block 21, shops 1 and 2 Gwagwalada main market, Abuja from the 16th day of November, 2015 till date by the respondents through its agents without a warrant or an order of Court is illegal, unlawful and constitutes an infringement of the applicants’ fundamental rights to interest in immovable property guaranteed under Section 44 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and Article 14 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, CAP. 10 Laws of the Federation of Nigeria, 1990.
3. General damages of N20,000,000 against the respondent for the

emotional trauma, harassment, intimidation, embarrassment, loss of possession and use of shops, loss of profit and goodwill occasioned by the acts of the respondent breaching the applicants’ fundamental rights to moveable and immovable property.
4. An order of injunction of restraining the respondent by himself, agents, privies or otherwise, whomsoever, from further infringing on any of the applicants fundamental rights.
5. An order compelling and directing the respondent to immediately open the applicants’ shops at block 21, shops 1 and 2, Gwagwalada main market, Abuja.
6. And for such further or other orders as this Court may deem fit to make in the circumstances.

The application is supported by 15 paragraph affidavit deposed to by Uchenna John Paul Chidokwe with exhibits AP1 — 8 attached; see pages 5 — 8 of the record of appeal. The appellants filed 5 paragraph counter affidavit with exhibits A — C attached; see pages 22 — 24 of the record of appeal.

After consideration of the issues before it, the trial Court entered judgment for the respondents. Dissatisfied, the appellant appealed by a notice of appeal

filed on the 12th of December, 2018 on the following grounds without the particulars:
Ground one:
1. The learned trial judge erred in law when he assumed jurisdiction to entertain the fundamental rights enforcement proceedings initiated by the respondents leading to the judgment herein appealed against when the initiating application was ab initio incompetent. Ground two:
2. The learned trial judge erred in law when he assumed jurisdiction to entertain the fundamental right enforcement proceedings initiated by the respondents pursuant to the relevant provisions of Chapter IV of the 1999 Constitution as amended leading to the judgment herein appealed against when the initiating application was ab initio incompetent.

From these grounds a sole issue was formulated for determination on behalf of the appellant in the brief settled by Adekola Mustapha Esq., of counsel, filed on the 18th day of March, 2019, and adopted by Anthony O. Chuckwurah Esq., of counsel to the respondents. The brief was filed on the 2nd day of May, 2019 but deemed properly filed on the 15th of September, 2020 as follows:
Whether the trial Court had jurisdiction to

entertain the joint application filed by the respondents to enforce their fundamental rights pursuant to Fundamental Rights Enforcement Procedure Rules, 2009; grounds 1 and 2.

It is submitted for the appellant that the issue in this appeal is whether an application by more than one party is competent under the rules purportedly relied on by the applicants to initiate their complaint.

That an action for the enforcement of fundamental rights is considered a claim in a class of its own, in other words sui generis, unlike in a civil action filed under civil procedure rules, where all persons may be joined in one action as plaintiffs, where they have a right to a relief.

That the Fundamental Rights Procedure Rules does not contemplate multiple or joint applicants, as such what is not contemplated or provided for, cannot be imported; TABANSI V. TABANSI (2018) 18 NWLR part 1651 page 279; OKECHUKWU V. ETUKOKWU (1998) 8 NWLR part 562 page 51.

That the provisions of Chapter IV of the 1999 Constitution, as amended covers only individuals and not a group or collection of individuals, as the expression “every individual”, “every person”, “every

citizen” variously used in the provisions does not contemplate multiple applicants R.T.F.C.I.N. v. IKWECHEGH(2000) 2 NWLR part 683 page 1; UDO V. ROBSON & ORS (2018) LPELR-45183 and ECOBANK NIG. LTD V. HONEYWELL FLOUR MILLS PLC (2019) 2 NWLR part 1655. The Court was thus urged to allow the appeal.

In response, it is submitted for the respondents that the decision in UDO V ROBSON & ORS (supra) cited by the appellant as the basis for the contention that the trial Court lacked jurisdiction was based on a decision of this Court in KPORHAROR & ANOR V. YEDI & ORS (2017) LPELR-42418-CA, which took into consideration the provisions of Fundamental Rights Enforcement Procedure Rules, 1979 in arriving at the decision that more than one applicant cannot competently bring an application under the fundamental rights proceedings.

That the 1979 Rules were found to be restrictive in terms of procedure to be followed by an aggrieved person, that is why the 2009 Rules, which moved away from procedural technicalities were promulgated. Learned counsel referred the Court toUMARU KWAGE & ORS V. UPPER SHARIA COURT, GWANDU & ORS (2017) LPELR-42508 –

CA, which was decided by this same court after the decision in KPORHAROR & ANOR V. YEDI & ORS (supra).

That also non-compliance with any of the provisions of the 2009 Rules should not have any effect of nullifying proceedings, except where it concerns an error in mode of commencement of the suit, in view of Order IX Rule 1 of the Fundamental Rights Procedure Rules, 2009.

It is further submitted for the respondent that the decision of the Supreme Court in DIAMOND BANK PLC V. HRH EZE DR. PETER OPARA & ORS (2018) LPELR-43907-SC and the decision in MALLAM UMARU KWAGE & ORS V. UPPER SHARIA COURT, GWANDU & ORS (supra) where in each of the two cases, there were two or more parties who instituted a suit jointly to enforce their fundamental rights, the use of the phrase ‘any person’ in Section 46 (1) of the 1999 Constitution and Order II Rule 1 of the Fundamental Rights Procedure Rules, 2009 does not operate to preclude joint applications for the enforcement of fundamental rights; especially in view of the decision inSKYE BANK PLC V. ANAEMEM IWU (2017) LPELR-42595-SC; learned counsel referred the Court to

Section 14 of the Interpretation Act, UNILORIN V. ADENIRAN (2007) 6 NWLR part 1031 page 498 and SARAKI V. FRN (2016) LPELR-40013-SC.

It is submitted in reply that what is in issue is the interpretation to be accorded a constitutional provision and not the fundamental rights enforcement procedure rules, because it is the constitution that provides the rights while the procedure rules merely make provision for how the rights may be enforced; OMOROGBE V. OGBEMUDIA (1973) LPELR 2660-SC and UGBOJI V. STATE (2017) LPELR-4327-SC.

RESOLUTION:
A good starting point to the resolution of this issue requires the understanding of the principle that enforcement of the Fundamental Right of an applicant must be within the rights guaranteed under the Constitution of the Federal Republic of Nigeria 1999, as amended. This is necessary in view of the fact that it is not every wrong or injury that will give rise to an action for enforcement of fundamental Right; See JACK V. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 5 NWLR (PT 865) 208; UZONDU V. U.B.N PLC (2009) 5 NWLR (PT. 113) 1; ABBA V. JAMB (2014) LPELR – 24205 CA; SURVEYOR GENERAL OF CROSS RIVER STATE V. JONATHAN (2014) LPELR – 23380 CA.

A careful scrutiny of the affidavit of the petitioners/respondents in support of their application raises the question, whether the grouse or complaint in this case is indeed about the fundamental right of the petitioners/respondents. I am constrained to arrive at the conclusion, from the evidence in support of the application that, the complaint is fundamentally about tenancy gone awry; or at best trespass. The reliefs claimed, elaborately reproduced hereinbefore is clear in this regard, but a reproduction of some of the paragraphs of the affidavit in support of the application will be helpful, not least because they serve the purpose a statement of claim serves in this case, after all, the law remains settled that it is the claim of the Plaintiff that determines the jurisdiction and since this matter was commenced by originating summons, it is the endorsements therein and the Affidavit in support that will determine the jurisdiction of the Court; see ABIA STATE INDEPENDENT COMMISSION V. CHIEF OKECHI KANU & ORS (2013) 12 SCM 46 at 52 G – H and PEOPLES DEMOCRATIC PARTY V. TIMIPRE SYLVA & ORS 13 NWLR (Pt,1316) 85 at 127 E per

RHODES-VIVOUR, JSC who held:
“Jurisdiction of a Court to entertain a suit is resolved by scrupulous examination of the writ of summons, the statement claim and the reliefs claimed. No other document should be examined, where the originating process is an originating summons, the affidavit filed in support of the originating summons serves as the plaintiff’s pleadings (statement of claim). Jurisdiction would be resolved by examining the originating summons, the reliefs contained therein and the affidavit filed in support.”
The relevant portions of the affidavit in support of the application are produced hereunder for aid:
Paragraph 1 states:
“I am the 2nd applicant, the managing director of the
1st applicant…”
Paragraph 3 states:
“…the 1st applicant through me, leased the shops known as shops 1 and 2 at block 2, Gwagwalada main market, Abuja…for a period of one year at a combined rent of N400,000…”
Paragraph 6:
“that the 1st applicant undertook part of its business of trading in perishable and non-perishable goods on Saturday, 14th of November, 2015 within the shops… and closed for the weekend, only to

be accosted with strange padlocks counter locking the said shops on Monday, the16th of November, 2015…”
Paragraph 7:
“that the 1st applicant through his solicitor…has written a letter to the respondent demanding the reopening of the shops and further a petition to the area commander, Nigeria police force…”
Paragraph 10:
“That despite both letters the respondent has not maintained its action of locking up and compulsory takeover of the shops and goods within the shop.”
Paragraph 13:
That the action of the respondents and its agents have caused me and the 1st applicant loses in revenue, use of shops and goods, loss of enjoyment of possession of the shops for the period of tenancy already paid for and the loss of goodwill from customers whom we cannot provide goods to.”
Learned counsel for the 1st and 2nd Respondents, in my view, misinterpreted the provisions of the Fundamental Rights Enforcement Procedure Rules 2009, whose preamble provides:
“1. The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially

whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule.
3. The Overriding objectives of these rules are as follows:
a) The Constitution, especially Chapter IV as well as the African Charter, shall be expansively and purposefully interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.
c) For the Purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.”
These provisions are clear guides to the interpretation of Chapter IV of the 1999 Constitution.

On the propriety of two or more persons filing a joint application for the enforcement of their fundamental rights, it is important to understand that, as rightly pointed out, an action for the enforcement of fundamental rights is quite unlike an action in a civil suit, where parties may, expectedly, be joined in an action as plaintiffis quite unlike an action in a civil suit, where parties may, expectedly, be joined in an

action as plaintiff.
This cannot happen in an action under the fundamental rights enforcement procedure rules 2009, because of the sui generis nature of fundamental rights.
The contention that the respondents’ grievances is the determining factor is hollow, to say the least, because Fundamental Rights are so basic and inalienable to every person, individually. That explains the use of the word “any person” in Section 46 (1) of the Constitution; See RAYMOND S. DONGTOE V. CIVIL SERVICE COMMISSION, PLATEAU STATE & ORS (2001) 4 SCNJ Page 131.
The right to approach a Court to enforce a Fundamental Right is conferred by Section 46 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), sub Section (1) provides:
“Any person who alleges that any of the provisions of this chapter has been, is being, or likely to be contravened in any State in relation to him may apply to a High Court for redress.”
In this appeal under consideration, the application was brought by two applicants (1) Onwero Nigeria Ltd and (2) Mr. Uchenna John Paul Chidokwe. The words used in Section 46(1) of the Constitution are very clear, and

it is not by accident that the constitution and the rules use the same adjective in qualifying who can apply to a Court to enforce a Right as, “any”, which denotes singular, and does not admit pluralities in any form. Individual rights and not collective rights take prominence in fundamental rights applications; see R.T.F.T.C.I.N. V. IKWECHEIGH (2000) 13 NWLR Part 683 at Page 1 and OKECHUKWU V. ETUKOKWU (1998) 8 NWLR Part 562 Page 511.
It is significant that the respondents’ brief concedes and argued that the genesis of the claim under the Fundamental Right (Enforcement Procedure) Rule, arose from the act of eviction or locking up of the shops by the appellant or its agents. That being so; as was held by the Supreme Court in EGBUONU V. BORNU RADIO TELEVISION CORPORATION (1997) 12 NWLR (Pt. 531) 29 at 40, 42, 43, 44 – 45; the learned trial judge, with respect, was in error to have assumed jurisdiction to entertain, hear and determine the application, because stricto sensu, this has nothing to do with fundamental rights as enshrined in Chapter 4 of the Constitution. The vain effort on the part of the respondents, at justifying it by relying on

Section 44 of the Constitution fell flat on its face because, any grievance founded on trespass, however stretched, cannot come within the ambit of the fundamental rights enforcement procedure rules.
The position of this Court, and indeed the Supreme Court in recent times is that Chapter IV of the 1999 Constitution, as amended protects individuals and not groups as the expression “every individual”, “every person” and “every citizen” clearly suggest. See R.T.F.C.I.N. v. IKWECHEGH (2000) 2 NWLR part 683 page 1 and UDO V ROBSON & ORS (2018) LPELR-45183.
Learned counsel to the appellant relied on UMARU KWAGE & 7 ORS V. UPPER SHARIA COURT GWANDU & ORS (supra) to drive home the point that joint application of fundamental rights application is allowed. This contention however, failed to take into consideration, the fact that the issue of joint application was neither raised nor addressed by this Court, for reasons of which it cannot be an authority on the issue, same as the issue of joint application was neither raised nor addressed by the Supreme Court in DIAMOND BANK PLC V H.R.H.EZE DR PETER OPARA & ORS (2018) LPELR-43907 SC.
On whether there is a need to

call in aid Section 14 of the Interpretation Act, for the purpose of interpreting the word ‘any person” in Section 46 (1) of the Constitution, I would hasten to add that the necessity for that has not arisen, because the word is clear and unambiguous, and therefore not likely to lend itself to any other interpretation. See SARAKI V. FRN (2016) 3 NWLR part 1500 page 531 and BRONIK MOTORS LTD V. WEMA BANK LTD(1983) 1 SCNLR 296.
The 2009 Rules was promulgated to enhance the enforcement of fundamental rights; Order IX Rule 1 is particularly revolutionary in this regard, because it sought to cure defects and technicalities. Be that as it may, no exception was made for multiple applications. If indeed there was any intention or desire to allow for multiple applications, it would have been provided for in Order IX Rule 1. Alas, no such exception was made. Reliance on the said rule is of little or no help to the respondents in this case; for the avoidance of doubt, it reads:
1. Where any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time,

place or manner of form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to-
i) Mode of commencement of the application;
ii) The subject matter is not within Chapter IV of the Constitution or the African charter on Human and People’s Rights (Ratification and Enforcement) Act.
The respondents’ case before the trial Court was incompetent for all these reasons, thus the judgment emanating from the incompetent action cannot stand. For the same reason I now resolve the sole issue for determination in favour of the appellant, against the respondents; judgment of the trial Court is hereby set aside. The appeal is allowed.
Parties to bear their respective costs.

STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.
I am in agreement with his reasoning and the conclusion that this appeal be allowed.

I want to only add a simple note that the fundamental right enforcement is not and can never be a class action. It is a special proceeding with its own special rules under the 1999 Constitution.

By Section 46(1) of the Constitution, any person who alleges that any of the provisions of this chapter (i.e. Chapter iv), has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress. This provision is clear and sacrosanct. It is intended to afford an individual human (or natural) person to have access to Court to sue when his fundamental right listed in Chapter IV of the 1999 Constitution of Nigeria is threatened or violated. The provision of the Constitution can be invoked when the main or principal complaint of the applicant is the enforcement of a fundamental right is the issue and not an accessory claim. See Tukur v. Govt. of Taraba State (1997) 6 NWLR (Pt. 510) 549; Jack v. University of Agriculture (2004) 1 SC (Reprint) (Pt. 11) 100, Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt. 696) 159, FRN & Anor. V. Ifegwu (2003) LPELR 3173 (SC) and Nwachukwu v. Nwachukwu & Anor. (2018) LPELR – 44696 (SC) where Onnoghen, JSC (as he then was) held:
“It is also settled law that for a matter to be instituted under the Fundamental Rights (Enforcement Procedure) Rules, 1979 to enforce the

constitutionally guaranteed rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the enforcement of such right(s) must be the main/substantive claim before the Court — not ancillary. In the case of Tukur v. Government of Taraba State (1997) NWLR (Pt. 510) 549 at 574 — 575, this Court stated the law as follows: “When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental rights or the security of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental right or securing the enforcement thereof should, from the applicant’s claim as presented, be the principal or fundamental claim as presented, and not accessory claim. See The Federal Minister of Internal Affairs & Ors. v. Shugaba Abdulrahman Darman (1982) 2 NCLR 915 in which the principal or main claim was a declaration that the order …was ultra vires and that the same constituted a violation of his fundamental rights to personal liberty, privacy and freedom to

move freely throughout Nigeria…However, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot as has been pointed out above, be properly exercised, as it will be incompetent by reason of the foregoing feature of the case.”
In the instant case, a cursory look at the reliefs and the claim of the 1st and 2nd Respondents before the lower Court will indicate clearly, that the claim is rooted in Landlord/Tenancy/Rent issues.
It is clearly outside the fundamental Right Enforcement Procedure Rules. It is for this and the detailed reasons advanced in the lead judgment that I believe there is merit in this appeal. The appeal is accordingly allowed and I abide by the consequential order made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, Mohammed Mustapha JCA, and I agree with the conclusion that the appeal has merit on the ground that the learned trial judge was in error to have assumed jurisdiction to entertain the matter because stricto sensu, it has nothing to do with fundamental

rights as enshrined in Chapter 4 of the Constitution.
It must be understood that the Constitutional provisions in Chapter 4 and the rules of procedure so contrived are for the enforcement of those rights specifically entrenched in the Constitution. The two are not amenable to litigants in respect of such other civil claims or rights that have not been so entrenched, Unless and until a party’s rights that have been breached within the purview of those rights are so clearly protected and guaranteed by the Constitution, the constitutional provision and the adjectival arrangement equally put in place cannot be exploited to remedy whatever wrong the party would have suffered. See TUKUR VS. GONGOLA STATE GOVT (1989) 4 NWLR (PT. 117) 517; NWOKORIE VS. OPARA (1999) 1 NWLR (PT. 587) 389; EJEFOR VS OKEKE (2000) 7 NWLR (PT. 665) 363.

I however wish to differ on the issue of joint application for the enforcement of fundamental rights. In my view, the Court may allow many applicants to be joined together in the same application once a common cause of action is established. While it is a wrong joinder of action and incompetent for the different individuals to join

in one action to enforce different causes of action under the Fundamental Rights (Enforcement Procedure) Rules, or where the infraction of rights differ in content and degree from one applicant to the other, when the infraction is against several persons concerning the same subject matter and on the same grounds, a joint application can be allowed. A Court of law will not loose its jurisdiction to entertain the suit simply because there are several applicants in an application. As a matter of fact, if the applications were brought separately, they could have been consolidated by virtue of Order VII of the Fundamental Rights (Enforcement Procedure) Rules which states thus:
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 matters before the application for consolidation may be granted by the Court.”
See generally UZOUKWU & ORS VS. EZEONU II & ORS (1991) 6 NWLR (PT. 200) 708; IHEJIOBI VS. IHEJIOBI (2013) LPELR – 21957; OGWUGHE & ORS VS. UNIVERSITY OF AGRICULTURE MAKURDI & ORS 2 NPILR 809; SADIKU & 35 ORS VS. OBAFEMI AWOLOWO UNIVERSITY, IFE 2 NPILR 809.

Appearances:

Adekola Mustapha, Esq., with him, A. Adeyemi For Appellant(s)

Anthony Chukwu, Esq. For Respondent(s)