IDRISU USMAN & ORS v. INSPECTOR GENERAL OF POLICE & ORS
(2018)LCN/11926(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/L/854/2017
RATIO
COURT AND PROCEDURE: SERVICE OF ORIGINATING PROCESS
“It is trite that service of originating process is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will presume and rightly too, that he has no defence. But where a defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void. See EIMSKIP LTD V. EXQUISITE INDUSTRIES NIG. LTD (2003) 4 NWLR (Pt. 809) 898, SKENCONSULT NIG. LTD V. UKEY (1981) 1 SC. 6, CRAIG V. KANSEEN (1943) 1 QB 256, OKE V. AIYEDUN (1986) 2 NWLR (Pt. 23) 548.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
FUNDAMENTAL RIGHT: THE IMPORTANCE OF FUNDAMENTAL RIGHT
“Fundamental rights and its nature was described the case of IGWE V EZEANOCHIE (2009) LPELR-11885 (CA) thus: “What is a fundamental right? It is a right derived from natural or fundamental, or Constitutional law. See; Blacks Law Dictionary, 8th Edition, page 692. In this country, the fundamental rights of the citizens though acquired naturally, are constitutionally guaranteed. Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria clearly provides for the Fundamental Rights, see; Chief (Dr) O. Fajemirokun vs. Commercial Bank Nig. Ltd. Anor, (2009) 2 SCM 55 at 71, (2009) 37 NSCQR 1 at 27, (2009) 5 NWLR (Pt.1132) 588 at 611.” The meaning and nature of fundamental human right(s) given in the case of NIGERIA CUSTOMS BOARD V MOHAMMED (2015) LPELR-25938(CA)” PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
1. IDRISU USMAN
2. SAIDU USMAN
3. ROTIMI ADEBAYO
4. ABDULGANIYU AYINDE – Appellant(s)
AND
1. INSPECTOR GENERAL OF POLICE
2. COMMISSIONER OF POLICE, LAGOS STATE POLICE COMMAND
3. COMMISSIONER OF POLICE, EKITI STATE POLICE COMMAND
4. CPL. SAHEED LAWAL, BADAGRY DIVISIONAL POLICE STATION BADAGRY, LAGOS
5. WOMAN SGT. PEACE ATAGHOMAH, BADAGRY DIVISION POLICE STATION, BADAGRY LAGOS
6. MR. LEFI AWUSE – Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Federal High Court in Lagos and delivered on the 29th March, 2017 by OBIOZOR, J wherein the originating summons taken out by the Appellants seeking to enforce their fundamental Rights was dismissed and dissatisfied with the said decision the Appellants filed their Notice of Appeal on the 15/5/2017 setting out 7 grounds of Appeal.
The Appellants were arrested by the Police upon the complaint made by the 6th Respondent who alleged his cattle numbering over 400 were stolen from his farm at Badagry. The 6th Respondent had employed the 1st and the 2nd Appellants as herdsmen, provided them with accommodation and paid them their entitlements as agreed. The 1st Appellant later left but would visit occasionally whilst the 2nd Appellant remained until one day when the 1st Appellant visited and shortly after both 1st and 2nd Appellant and 400 cows, 15 sheep and some goats belonging to the 6th Respondent disappeared.
The matter was reported to the Police who traced them to Ado Ekiti in Ekiti State where they were found in custody of some of the stolen animals and arrested by the Police in the company of 6th Respondent who identified 31 cows, 5 sheep found in the custody of the Appellants. Bail was granted to the Appellants, 3rd and 4th Appellants who were released in Ado Ekiti while 1st and 2nd Appellants were moved to Badagry where they were arraigned before the Magistrate Court and granted bail. It was in the course of the criminal trial that the Appellants filed the application seeking to enforce their fundamental Rights. The application was dismissed by the Court below, thus this appeal.
The Appellants Brief settled by Julius Ajibulu is dated 10th August, 2017 and filed on the same day. It distilled 6 issues for determination in this appeal. They stated as follows:
i. Whether the Lower Court was right in holding that the Appellants did not serve their Amended originating process and other processes on the 1st ? 5th Respondents having regard to the evidence before the Court.
ii. Whether the Lower Court was right in holding that the Appellants require the leave of the Lower Court to file their further affidavit considering the provisions of Order II Rule 7 and Order VI Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009
iii. Whether the Lower Court was right in holding that the reliefs sought by the Appellants are for the enforcement of their private property right and not the enforcement of their fundamental rights as provided for under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999.
iv. Whether the Lower Court was right in holding that the Federal High Court, Lagos is not the forum convenience for the hearing of the application for the enforcement of the fundamental human rights of the 3rd and 4th Applicants having regards to the facts and circumstances of this case and the provisions of Section 249(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) Order II Rule 1 and Order VII Rule of the Fundamental Rights (Enforcement Procedure) Rules, 2009.
v. Whether the Lower Court was right in holding that the Appellants were not illegally and unlawfully arrested, tortured and detained beyond the constitutionally stipulated period and time by the officers and men of the 1st – 5th respondents under the active incitement and instigation of the 6th Respondent.
vi. Whether the Lower Court is right in holding that the Appellants are not entitled to the reliefs sought in the application in the application dated 7th December, 2016.
The 6th Respondent Brief settled by Chief Oludare Oreolu Fasae dated 13th February, 2018 filed on the 15/2/2018, it adopted issues 1 ? 4 formulated by the Appellants and formulated as 5th issue as follows:
Whether having regards to the evidence on record, the Appellants are entitled to their reliefs particularly against the 6th Respondent whether or not any or all of the Appellants? issues 1 ? 4 is or are resolved in their favour.
The 1st to 5th Respondents were served with a hearing Notice but they were absent at the hearing. They did not file any brief.
After a careful consideration of the notice of appeal, Record of appeal and the briefs of the parties, I shall adopt the issues for determination by the Appellant since the 6th Respondent adopted 4 out of the 6 issues, it shows there is a consensus on the gravamen of the complaint against the judgment of the Court. I shall resolve the issues all together.
SUMMARIES
The Appellants by their first issue challenged the findings of the Court below that the Amended originating summons was not duly served on the 1st ? 5th Respondents thus informing their being struck out of the application. The Court had made a specific order for personal service within 5 days from the grant of an application to amend the Originating summons. It was argued that there was an affidavit of service by means made by counsel which the Court below should have taken of being part of its record, relied on AFRIBANK (NIG) PLC v. YELWA (2011) ALL FWLR (Pt. 585) 301; AJAOKUTA STEEL CO. LTD V. ROLE (2011) ALL FWLR(Pt. 563) 1033; AMIKA V. IRONBAR (2012) ALL FWLR (Pt.640) 1379 and Order V Rule 1 which allows for service by officer of Court, which counsel submits includes him. That affidavit of service, the Court should find that the Appellants served their Amended originating summons, citing ODU v FAWEHINMI NWLR (Pt. 949) 578 and MODAHUNSI V. KWARA INV. AND PROPERTY DEV. CO. LTD (2013) ALL FWLR (Pt. 659) 1200.
Appellants argued that the Court below erred in striking out the names of 1st – 5th Respondents since the purpose of service was to inform the party of the pendency of a suit against him, citing MODAHUNSI v. INV AND PROPERTY DEV. CO. LTD (SUPRA).
Appellants under Issue two argued that Order VI Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 does not require the Appellants to seek leave of the Court below to file a further affidavit the Court was wrong to so find. They relied on SHETTIMA V. GONI (2012) ALL FWLR (Pt. 609) 1023 to submit that the clear statutory provision should be so interpreted. They submitted that the Appellants further affidavit dated 7th December, 2016 is valid but assuming they required leave, then, the leave granted to amend the originating summons which was made after the filing of the further affidavit had been overtaken and therefore became regular.
The Appellants further contended under issue three that the Court below erred in holding that the reliefs sought were for the enforcement of private property rights and not fundamental rights. Appellants referred to their affidavit in support which they submit disclosed inhuman and degrading treatment, interference with their right to liberty, right to fair hearing, right to private property and right to private and family life. That when considered against the reliefs sought it would be clear that the summons was property made under the Fundamental Rights enforcement rules because the appellants are not in any way connected with the allegation made by the 6th Respondent for which the 1st-5th Respondents arrested the appellants.
They submitted that all the rights are provided for in Section 43 of the 1999 Constitution and even if they ancillary in the application, the procedure is allowed and therefore, the Court should find for the appellants, relied on DONGTOE V. C.S.C PLATEAU STATE (2001) 9 NWLR (Pt. 717) 132 and DIN V A.G. FEDERATION (1988) 4 NWLR (Pt. 87) 147. The Appellants argued that their arrest in the process of investigating the theft of herds of cow breached their fundamental rights. Arguing in the Alternative, the Appellants submitted that the manner the cows were recovered breached their fundamental rights named above and therefore does not foreclose them from enforcing their fundamental rights, relied on the facts in the affidavit in support.
Arguing further, the Appellants under issue four submitted that the forum appropriate for the enforcement of the Fundamental rights was Lagos not Ekiti State relying on Section 249(1) of the Constitution of the Federal Republic of Nigeria (As Amended) and Order II Rule 1, Order VII Rule 1 of the Fundamental Right (Enforcement Procedure) Rules 2009. Appellants? counsel agreed that the 3rd and 4th Appellants were arrested and detained in Ado Ekiti along with the 1st and 2nd Appellants on the 3rd-5th August, 2015 before they were released in Ado Ekiti and before the 1st and 2nd Appellants were moved to Badagry along with the cows found on them, where their trial commenced.
They contended that there was no way the enforcement of fundamental rights could have been filed in Ado Ekiti and more so because the 1st Appellant is an employee of the 3rd and 4th Appellants while the 2nd Appellant is the 1st Appellant’s younger brother. That the case of the 1st and 2nd Appellants cannot be separated from that of the 3rd and 4th Appellants because it was a common breach, they cited FIRST BANK OF NIGERIA V MAIWADA (2013) ALL NWLR (Pt. 661) 1456 to urge the Court to insist on doing substantial justice by its progressive and purposeful interpretation of legislations and avoid miscarriage of justice, therefore any interpretation that will emasculate the step to substantial justice, should be avoided.
That the Fundamental Rules are merely procedural rules for the enforcement of Constitutional provisions and should not be used to defeat the ends of justice, relying on UTC (NIG) LTD v. PAMOTEI & ORS (1989) 2 NWLR (Pt.103) 103. Further the Appellants argued that the Constitution did not specify where a person can apply to enforce any infraction in any Court in the Federation and its provisions are superior to any other legislation, citing HOPE DEMOCRATIC PARTY V. OBI (2012) ALL FWLR (Pt. 612) 1625. And furthermore that Lagos was the forum convenient to the Appellants.
Under issue five, the Appellants contended that they were arrested and detained beyond the period allowed by law at the instigation of the 6th Respondent thereby breaching their fundamental rights. That the Respondents did not deny the arrest and detention and the alleged bail granted was not established nor substantiated by the 6th Respondent, consequently deemed an admission against the 6th Respondent and relied on Sections 122(1) & 124(1)
(b) of the Evidence Act; OGUANUHU V. CHIEGBOKA (2013) ALL FWLR (Pt.703) 1930; GENEVA V. AFRIBANK (NIG) PLC (2013) 1 ALL FWLR (Pt. 702) 1656 on facts admitted and by virtue of paragraphs 9 and 16 of the 6th Respondent?s counter affidavit.
Appellants further argued that the 1st – 5th Respondents have the powers to investigate offences by arresting and detaining suspects pursuant to Section 4 of the Police Act but that it does not extend to beyond 24 hrs and maximum of 48 hours. Furthermore, that the non joinder of the wife of the 1st Appellant cannot defeat the claim, citing IBRAHIM V. OJONYE (2013) ALL FWLR (Pt.654) 133.
On issue six, the Appellants submitted that they are entitled to reliefs stated in the application and assuming that reliefs 4, 5 and 6 are incapable of being granted in the process because of the need for proof by witnesses, the Court below could have granted the remaining reliefs they are rooted in the Constitution and do not require the calling of witnesses. They urged the Court to avoid technicality and remedy the wrong done by the Court below, citing OSUAGWU V. ATTORNEY ANAMBRA (1993) 4 NWLR (Pt. 285) 13 and DONGTOE V. C.S.C. PLATEAU STATE (supra) to finally urge the Court to invoke Order 4 Rule 3 of the Court of Appeal Rules to enter judgment for the Appellants.
The 6th Respondent in arguing the appeal and in response emphasized on the importance of service of originating processes, citing TENO ENGINEERING LTD V. ADISA (2005) 10 NWLR (Pt. 933) 353 to state that failure to serve processes as required goes to the root of the jurisdiction of the Court. He traced the chronological flow of events and finally agreed with the finding that there was no service on the 1st – 5th Respondents as directed by the Court on the day the originating process was amended, and the affidavit of service did not show it was effected pursuant to the order of court made on the 6/12/2016 which gave 5 days within which to serve the 1st – 5th Respondents. Furthermore, the 6th Respondent said the affidavit of service was not brought to the attention of the Court, relied on ISIAKA V OGUNDIMU (2006) 13 NWLR (Pt. 997) 401 @ 415 to submit that failure to comply with the order of Court should have been explained and any failure to do that means no indulgence should be granted such a party.
On issue two, the 6th Respondent submitted that Order II Rule 1 and Order VI Rule 2 of the Fundamental Rights (Enforcement Procedure) apply to different situations and there should be no controversy whatsoever. The first deals with the right of the Applicant to respond to the Respondents by the filling of a further affidavit to deal with new issues raised in the Respondents address; while the second one deals with the consequences of an amendment which borders on the discretion of the Court in the use of the words ‘may allow’ citing ISIAKA V. OGUNDIMU (SUPRA) and OKOYE v. C.O.P. (2015) 17 NWLR (Pt.1488) 320. Furthermore, he submitted that it was the 6th Respondent’s further affidavit that was discountenanced and not any further affidavit of the Appellants therefore, the Appellants have no basis for any complaint.
Arguing against issue three, the 6th Respondent submitted that in determining which is the main and ancillary claim, it is the claim of the Applicant that is scrutinized and juxtaposing the facts and the reliefs in this case situate the claim under private property rights of the Appellants. He admitted that the Appellants were arrested and while the 3rd and 4th Appellants were released in Ado Ekiti before the 1st and 2nd Appellants were moved to Badagry, Lagos State and arraigned.
That it was only after arraignment before they complained of the alleged breach of their fundamental rights when the cows and other items were not released to them, the basis of which is the relief seeking the release of the property. That it is the ownership of the cows, motorcycle machine, goats and the sum money that is the main claim notwithstanding the inclusion of reliefs 1 and 2. He relied on KOKORO-OWO V LAGOS STATE GOVERNMENT (1995) 6 NWLR (Pt. 404) 760. Stressing the issue further, the 6th Respondent referred to relief 10 which is asking for a public apology for disruption of business in Ekiti State and not for the breach of their fundamental rights.
On appropriate forum for the determination of the application, the 6th Respondent submitted that the Appellants admitted that the 3rd and 4th Appellants have their business and residence in Ado Ekiti where they were arrested and released and therefore have no business seeking reliefs in Lagos. Admitting that there is one Federal High Court in Nigeria but the Rules applicable stipulated that for administrative purposes, applications must be made in the states infractions occurred for enforcement, relied on Order II Rule 1 of the Fundamental Right (Enforcement Procedure) Rules to argue that where to file an application for enforcement is specific and in this case it is the Federal High Court Ado Ekiti and the Court below was right to strike out reliefs touching on the 3rd and 4th Respondents because they had nothing to do with Lagos.
On issue five and six, the 6th Respondent submitted that the Appellants failed to substantiate their claim and the Court below after a careful consideration came to the conclusion that the application was not made out. He made a rehash of the depositions in the counter affidavit and added that the 1st and 2nd Appellants were standing trial before they brought this application, the charge sheet annexed to the Appellants Affidavit as Exhibit I.U.1 is relevant and confirms that there was a theft of cows, relied on DURUAKU V. NWOKE (2015) 15 NWLR (Pt.1483) 417 and ONAH V. OKENWA (2010) 7 NWLR (Pt.1194) 512 to argue that the 6th Respondent reserves the right and duty to report a crime and the 1st -5th Respondents have a statutory power to investigate. Furthermore, the Court below found that the Appellants failed to prove that they were detained beyond the period allowed.
Arguing further, the 6th Respondent contended that it is not every error that can cause the reversal of the decision of a Court of trial, relied on ADEOGUN V. FASHOGBON (2011) 8 NWLR (Pt.1250) 427. He finally urged the Court to dismiss the appeal.
In reply, the Appellants formulated a new set of issues for determination different from the first set of issues for determination. A reply Brief is not another forum for the Appellant to repeat or reemphasize and consolidate the case he put forward in the Appellant’s brief. It is a Brief to reply to new point or issues made in the Respondent’s Brief. Appellant cannot have a second bite at the cherry. Doing so would offend the rules of fair hearing which gives both sides equal opportunity to be heard. See OLAFISOYE V F.R.N. (2004) 4 NWLR (Pt. 864) 580. The Appellant therefore is not at liberty formulate new issues for determination in the Reply Brief. The issues named in the Reply Brief here shall be discountenanced.
In reply, the Appellants reiterated the need to do substantial justice and urged the Court to hold that failure to serve the originating processes on the 1st ? 5th Respondents did not occasion a miscarriage of justice. Relied on LASUN V. AWOYEMI (2011) ALL FWLR (Pt. 577) 718 and TABIK INVESTMENT LTD V. G.T.B. PLC (2011) ALL FWLR (Pt. 602) 1597 on the non compliance of the 5 days time limit within the originating processes were to be served on the 1st – 5th Respondents.
The Appellants noted that the 6th Respondent appeared upon the defective service and therefore the Court below should have found so in respect of the 1st – 5th Respondent. They submitted further that the Court has no business acting on speculation or guess work. They submitted that the 6th respondent incited the 1st – 5th Respondent to proceed against the Appellants, relying on NWADIOGBU V. A.I.R.B.D.A. (2011) ALL FWLR (Pt. 562) 1616 and to submit that strict adherence to rules ought to be put in the determination of fundamental rights matters. Appellants questioned why the 6th Respondent was with the Police at the point of arrest and therefore, he instigated the Police to breach the Fundamental rights of the appellants. Finally urged the Court to allow the appeal.
RESOLUTION
It is trite that service of originating process is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will presume and rightly too, that he has no defence. But where a defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void. See EIMSKIP LTD V. EXQUISITE INDUSTRIES NIG. LTD (2003) 4 NWLR (Pt. 809) 898, SKENCONSULT NIG. LTD V. UKEY (1981) 1 SC. 6, CRAIG V. KANSEEN (1943) 1 QB 256, OKE V. AIYEDUN (1986) 2 NWLR (Pt. 23) 548.
This is a contention about whether the 1st – 5th Respondents were served with the originating processes, the Court below found that they were not served. It is the responsibility of a Court to verify service and if service was not effected then those not served cannot be bound by the outcome of the determination and that was what happened in this case. The principle is premised on the fact that jurisdiction is activated by proper service on the parties to respond. The Court made a specific order for the service of the amended originating processes on the 6th December, 2016 and hearing to a later date to enable the Appellants serve the Amended Originating summons within 5 days.
It was not served within 5 days but several days later and by substituted means without leave of Court and by counsel, the affidavit of service by substituted means was filed. The 1st – 5th Respondents did not appear but the application was taken and the names of the 1st to 5th Respondents were struck out of the application for failure to serve them with the originating processes in the judgment. The Court below found that the service effected by learned Counsel to the Applicants was defective and consequently struck out the names of the 1st-5th Respondents for want of jurisdiction. And that is the basis of issue one.
I cannot fathom the import of the Appellants arguments when in deed there was no personal service and the purported service was by substituted means without leave of Court and by counsel, the Court was right to decline jurisdiction and strike out the names of the said 1st – 5th Respondents. The manner of serving originating processes is primarily personal but the Court can grant leave for service to be effected by substituted means which should be specified in the order and service would be circumscribed by that mode of service. Since the Appellants as applicants failed to ensure service was duly effected, the Court acted rightly and the first issue is resolve against the Appellants.
It is trite that a Court could take judicial notice of processes in its file to decide an issue but in this case taking judicial notice would still not be of help to the Appellants who went on a frolic of their own to give themselves power to serve by substituted means and to do beyond the period limited by the Court. The Appellants did not even seek to regularize the defective mode of service and therefore the said affidavit of service is worthless, it did not reflect any pronouncement of the Court below.
The law is settled that originating processes must be served personally, this was not done and the consequence is that any purported service is a nullity. The Court could, upon an application order for service by substituted means and that would have the same effect as personal service. No such application was made and therefore, there was no order for the said processes to be served in the manner learned counsel to the Appellants served. The effect is that there was no service. Furthermore, the argument that learned counsel is an officer of the Court and so could effect service as a bailiff or sheriff appointed by the Court is a non starter, processes of Court are served by an officer designated to do so for obvious reasons.
By law, they are protected from aggressive and violent parties and therefore could be assisted by law enforcement agents. A counsel does not have such protection. The saying that counsel is an officer of the Court is not with regards to effecting service. That is not to say that the Court could not have so ordered to be effected by counsel, the point is that if service of originating processes is not personally effected, then the Court must so direct.
On the second issue, the Appellants challenged the finding of the trial Court that the Appellants were seeking to enforce their private property right and not fundamental rights. Fundamental rights and its nature was described the case of IGWE V EZEANOCHIE (2009) LPELR-11885 (CA) thus:
“What is a fundamental right? It is a right derived from natural or fundamental, or Constitutional law. See; Blacks Law Dictionary, 8th Edition, page 692. In this country, the fundamental rights of the citizens though acquired naturally, are constitutionally guaranteed. Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria clearly provides for the Fundamental Rights, see; Chief (Dr) O. Fajemirokun vs. Commercial Bank Nig. Ltd. Anor, (2009) 2 SCM 55 at 71, (2009) 37 NSCQR 1 at 27, (2009) 5 NWLR (Pt.1132) 588 at 611.”
The meaning and nature of fundamental human right(s) given in the case of NIGERIA CUSTOMS BOARD V MOHAMMED (2015) LPELR-25938(CA) thus:
“Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome-Kuti vs. Attorney General of the Federation (1985) 2 NWLR (Pt.6) 211 at 230 Eso, JSC stated that a fundamental right ‘is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself’ and “it is a primary condition to civilized existence’. Fundamental rights are rights derived from natural or fundamental law – Igwe vs. Ezeanochie supra. They are rights that attach to particular individuals who can invoke them, they are of high priority, and compliance with them is mandatory rather than discretionary. Human rights are things which are owed to man because of the very fact that he is a man and are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt. 1389) 607. The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights – Igwe vs Ezeanochie supra.”
On the other hand, there are other categories of rights as categorized by Private law jurisprudence was reiterated in the case of THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA & ORS V. V. E. N. NWAWKA (2003) LPELR 3206 (SC) as follows:
“In private law, the jurisdiction of the Court to grant declaration of right is predicated on the existence of a right. Legal right in private law, generally attaches to property and the person. A third broad category is the right that arises by and from the agreement of the parties when parties make a contract, they make their own law to which they are subject and which creates the rights and obligations which binds them to which the general law only gives recognition and force. It is in the light of the categories that of rights that plowmen, J in COX v GREEN (1966) CH 216 defined justiciable disputes in terms of issues which concern rights of property and right of contract when he said: ‘in my judgment, the issue between the plaintiff and the defendant are not justiciable disputes at all. The issues between them does not concern any right of property; it does not concern any right of contract; it does not concern any legal right.'”
It is therefore beyond disputes that there are private rights that do not fall within the contemplation of Fundamental Rights and cannot be in the contemplation of Fundamental Rights (Enforcement Procedure) Rules which the Court below found was the main claim in the originating summons. Some of the reliefs seek a declaration as to ownership and of cows, goats, motorcycle and some money. On how to determine main claim in application seeking to enforce fundamental rights, the apex Court in the case of SEA TRUCK NIGERIA LTD V PANYA ANIGBORO (2001) LPELR-3025 (SC) stated the correct approach thus:
“The correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such reliefs and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim here, there is a redress though the enforcement of such right through the Fundamental rights (Enforcement Procedure) Rules 1979. However, the alleged breach of right where the alleged breach of right is ancillary or incidental to the main grievance or complaint it is incompetent to proceed.”
The trial Court identified the main claim from the Amended Originating Summons and named it as private property right to some to cows, goats, a motorcycle and some amount of money. It held that the prayer 4, 5, 6, 7, 9 and 10 which seeks the declaration, transferring of ownership, compensation for disruption of business and an apology from the Respondent for the damage and disruption caused the business of the Appellants, particularly, the 3rd and 4th Appellants as incompatible with fundamental rights.
Such rights though justiciable are claimed through other forms of claim but not under fundamental rights. The Court below was therefore right to strike out the reliefs as it pertains the 3rd and 4th Appellants. It is not every perceived breach of a right that falls under the fundamental Rights procedure, the root of the breach is important and must come within those rights named specifically under Part IV of the 1999 Constitution. The rights named in this case revolve around ownership and private right to property in question, such will fail to qualify.
Moreso because the Federal High Court will lack jurisdiction to determine who the rightful owner of the cows. Since there is no half judgment, the Court below couldn’t have considered some of the reliefs and leave out some for want of jurisdiction.
Additional reason given for striking out the names 4th and 5th Appellant was because everything that had to do with them took place in Ado Ekiti and the clear provisions of Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 applies, it provides thus:
”Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled has been, is being or is likely to be infringed may apply to the Court in the State where the infringement occurs or is likely to occur, for redress provided that where the infringement occurs in a State which has no Federal High Court, the Division of the Federal High Court administratively responsible for that State shall have jurisdiction.”
The Appellants argued strenuously that the provision being one of procedural rules, it cannot over ride the Constitution which did not make such provision or limitation. That is overlooking the fact that the same Constitution empowered the Chief Justice of the Federation to make rules for the Enforcement of Fundamental Rights, and therefore the Rules acquired the flavor of subsidiary legislation under the Constitution. Furthermore, the three basic ingredients of jurisdiction include commencing the action according to prescribed rules, see the case of TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517 which is on point with the issue here. The apex Court therein restated the fact that an infraction couldn’t have taken place in Gongola State and the Federal High Court in Kano State will have jurisdiction to determine same. It held thus:
”In this case, Alhaji Umaru Abba Tukur is complaining that there has been a breach of one or other of his fundamental rights to his liberty or to his freedom of movement. The contravention alleged took place in Gongola State. From Section 42(1) above, he has to apply “to a High Court in the that State? that is, the High Court where the contravention or breach occurred. The Federal High Court Kano cannot be a “High Court in that State? which was envisaged by Section 42(1) above….. .it is therefore my view that by choosing a Court outside the territorial boundaries of Gongola State where his fundamental rights were breached, the appellant in this case did not “apply to a High Court in that State? as required by Section 42(1) of the 1979 “Constitution.”
It was again reemphasized in the case of GRACE JACK V UNIVERSITY OF AGRICULTURE MAKURDI (2004) LPELR-1587 (SC). The arguments of the Appellants in respect of the 3rd and 5th Appellants who had nothing to do in Lagos State but sought to enforce their alleged breach which allegedly occurred in Ekiti State by applying in Lagos cannot stand. It is a breach of a clear constitutional provision, Section 46 (2) of the 1999 Constitution (as altered). The 1st and 2nd Appellants are the only ones who could contend that the allegation of breach started from one State and moved to another but even at that, since their allegation is that they were kept beyond the constitutional period after arrest and before arraignment in Lagos so they could file their application in Lagos. Lagos will have complete jurisdiction in this case unlike a situation where two states could share jurisdiction, that where the alleged breach is across two states, see the case ANYAECHE V NDUKA (2017) LPELR-42459 where this Court held as follows:
”It is no longer subject to debate that jurisdiction is the limits which is imposed upon the power of a validly constituted Court to hear and determine issues properly brought before it by due process: Nsirim v. Amadi (2016) LPELR SC.40/2005. From the stipulation of Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which state:-
”Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress.” Connotes that any infringement of the fundamental rights of a person as enshrined under Chapter 4 of the Constitution of the Federal Republic of Nigeria is determinable upon application by a person who claims that his fundamental right has been, is being or likely to be contravened, to approached the High Court in that State for redress. The Apex Court in the case ofKalu v. The State (1998) 64 LRCN 5398 at 5495, stated the position of the law having said that the jurisdiction to entertain any suit which alleges that any fundamental right, including the right of any person not to be subjected to torture, inhuman or degrading treatment can only be exercised by a High Court in that state for redress.” per BARKA, J.C.A.
For the 3rd and 4th Appellants to file for the enforcement of their fundamental rights in Lagos against the grain of the rules amounts to forum shopping, and that cannot be allowed, see HON. KHAMISU AHMED MAILANTARKI VS. HON. YAYA BAYCHI TONGO & ORS (2017) LPELR-42467(SC) which held that forum shopping is another specie of abuse of judicial process. See also IDEMUDIA V. IGBINEDION UNIVERSITY, OKADA & ORS (2015) LPELR 24514(CA).
There is the unnecessary arguments on the further affidavit discountenanced by the Court below, it must be made clear that what the Court discountenanced was the further affidavit of the 6th respondent and not the Appellants. The right of the Appellants to file a further affidavit was not in any way breached and therefore their complaint has no basis and must be discountenanced. There is no need to waste valuable time on that.
The Appellants alleged that the 6th Respondent made a malicious complaint against them alleging the theft of his cows, the Appellants denied but indeed cows belonging to the 6th Respondent were found in their possession thus their arraignment, the complaint to the Police cannot therefore be malicious because the substance of the complaint was real and the 1st and 2nd Appellants are being prosecuted. The presence of the 6th Respondent with the 1st – 5th Respondents was for the purposes of his cows. The arrest was made after some discrete investigations and tracking of the Appellants. The alleged breach of a fundamental right cannot be valid when a crime is alleged and security agencies arrest to investigate and prosecute as in this case.
It is settled that fundamental rights granted the citizens of the Nation are not immutable as held in RANSOME KUTI V. A.G. FEDERATION (1985) 6 SC 245. The Court shall not therefore fail to protect these rights when they are breached or likely to be breached see LAFIA LOCAL GOVERNMENT V. EXECUTIVE GOVERNOR OF NASARAWA STATE & ORS (2012) LPELR-20602 (SC) which held thus:
“Courts should assume an activist role on issues that touch or concern the rights of the individual and rise as the occasion demands to review with dispatch acts of Government or its agencies and ensure that the rights of the individual guaranteed by the fundamental rights provisions in the Constitution are never trampled on.”
However, these rights are not absolute but can be curtailed by appropriate authorities empowered to maintain law and order for the peace and good of the society. The rights can be circumscribed by law in public interest.
See HASSAN V. EFCC & ORS (2013) LPELR 22595 (CA) where the Court had this to say:
”Now, it is an accepted fact that fundamental rights are not absolute ? Ukaegbu vs. National Broadcasting Corporation (2007) 14 NWLR (Pt.1055) 551 and Alaya vs. State (2007) 16 NWLR (Pt.1061) 483. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubu-Asari vs. Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 320 and Onyirioha vs. Inspector General of Police (2009) 3 NWLR (Pt. 1128) 342. The Constitution of the Federal Republic of Nigeria 1999 (as amended) recognizes certain circumstances when the fundamental rights of citizens to personal liberty and freedom of movement can be curtailed. Section 35(1)(c) of the 1999 Constitution says that a person’s right to personal liberty can be breached upon a reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence. Section 41(2) (a) states that a person’s right to freedom of movement may be negated by imposing restrictions on his movement where he has committed or is reasonably suspected to have committed a criminal offence. Section 45 provides that all fundamental rights can be circumscribed in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.” Per ABIRU, J.C.A.
The fact that the 1st and 2nd appellants admitted undergoing trial when the matter was heard by the Court below for theft of 6th Respondents cows, of which were recovered from them just takes out the steam and merit out of this appeal. The Constitution specifically allows for the restriction or suspension of fundamental rights in cases where a person has committed an offence or is reasonable suspected to have committed an offence, see Section of the 1999 Constitution. The trial Court was right in that finding that there was no infraction of the rights of the 1st and 2nd Appellants.
The reliefs in the originating summons were not grantable for the reasons advanced in the judgment appealed against and with the resolution herein, the first one alleging torture and inhuman treatment were not established by evidence. The burden of proof is always on he who assert the positive. That is elementary. See Section 131 – 134 of the Evidence Act, 2011 and the case of ADAKE & ANOR V. AKUN (2003) LPELR-72 (SC) which held:
”It elementary law that a party who makes an assertion must prove the truth of it, in order to succeed in the action. A paragraph in a pleading not proved is of no avail to the party.” Per TOBI, J.S.C.
Relief two has been overtaken by the fact the appellants were undergoing trial, while relief three, four and five are private property right issues which were struck out and I affirm the decision of the trial Court in that regard. Relief 6 seeks a restraining order which in the circumstances of this case cannot be granted. The 1st and 2nd Appellants were arrested and are being tried for theft of cows, the Court cannot restrain the performance of a statutory duty by the Police, see TIMOTHY V. ADAMAWA STATE POLYTECHNIC, YOLA & ANOR (2013) LPELR 20837 (CA) which held on the duty of the police to investigate crime thus:
”Onah v. Okenwa (2011) All FWLR p. 337 at p.375 par. ‘B’ per Jauro JCA stated thus:
”Once criminal allegations are made against a citizen, it is a Constitutional and statutory duty of the Police to investigate as investigation and detection of crime is one of the primary duties assigned to the Police Force under the Police Act.”
A citizen of this country has the right to report crime and that cannot be an infraction of the fundamental rights of the person who gets arrested in the course of investigating such complaint, such cannot also sue the police for breach of his rights, see OKARO VS. COMMISSIONER OF POLICE (2001) 1 CHR 407. That follows therefore that there cannot be any compensation since there was no breach, relief seven is also not grantable. Reliefs 8 and 9 are reliefs touching on the 3rd and 4th Appellants who had been struck out trial Court for forum shopping and therefore those reliefs cannot be determined here, the order striking them out is affirmed. There cannot be an apology where there was no infraction or offence, relief 10 is also not grantable.
Flowing from above, the appeal lacks merit and is hereby dismissed. The judgment of the Court below delivered on the 29th day of March, 2017 is hereby affirmed.
There shall be cost of N200,000.00 in favour of the 6th Respondent to be paid by the Appellants.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother, Yargata Byenchit Nimpar, JCA in this and I agree that this appeal is completely bereft of merit, brought only to overreach, irritate and frustrate the Respondents, particularly the 6th Respondent in his quest for justice against the Appellants.
For the reasons elaborately set out in the lead judgment, which I adopt, I dismiss the appeal in its entirety with costs assessed at Two Hundred Thousand Naira (N200,000.00) in favour of the 6th Respondent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in draft the painstaking and closely reasoned judgment prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., with which I agree with nothing useful to add.
Appearances:
J. A. AjibuluFor Appellant(s)
Chief O. O. Fasae with him, H. A. Babagbale – for 6th RespondentFor Respondent(s)
