INSP. GABRIEL OF COMM., POLICE MONITORING UNIT, LAGOS STATE v. EVG. (MRS) HELEN UKPABIO
(2007)LCN/2316(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of April, 2007
CA/C/97/2005
RATIO
WHETHER THE FEDERAL HIGH COURT IS POSSESSED OF JURISDICTION TO HEAR AND DETERMINE THE ISSUE OF FUNDAMENTAL RIGHT
In any case, a consideration of the applicable law under the Fundamental Rights Enforcement Procedure Rules 1979, which by law is infused into an existing constitution, shows in the definition of court that the ‘court’ therein defined include the Federal High Court or the High Court of a State. Consequently, whether under the Fundamental Rights Enforcement Rules 1979, or under the 1999 Constitution, section 318(1) the Federal High Court is possessed of jurisdiction to hear and determine the issue of fundamental right. See Federal University of Yola V. Nigerian Navy. (2005) 12 NWLR (Pt. 17); FUTO v. Lionel O. Garrich (2006) 4 NWLR. PER VICTOR AIMEPOMO OMAGE, J.C.A.
INTERPRETATION OF SECTION 46(1) OF THE 1999 CONSTITUTION AS TO WHETHER THE DEFINITION OF “THE HIGH COURT IN THAT STATE” POSSESSED WITH JURISDICTION TO HEAR AND DETERMINE THE ISSUE OF FUNDAMENTAL RIGHT INCLUDES A FEDERAL HIGH COURT IN THE STATE
The central question in this appeal is whether the Federal High Court has jurisdiction to try cases under the Fundamental Rights Enforcement Procedure Rules 1979 and the simple answer to that question is in the positive. This is so, because “court” is defined under the applicable law that is the Fundamental Rights Enforcement Procedure Rules 1979 to include the Federal High Court and the position is further supported by the exclusive jurisdiction of the Federal High Court under section 251 (1) of the 1999 Constitution, more particularly by the provisions of sections 251 (1) (p), (q), (r) and (s) that is in relation to the administration or the management and control of the Federal Government or any of its agencies or as regards any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. Indeed, the provision of section 46 of the 1999 Constitution makes itself easily conformable to the definition section in the Fundamental Human Rights (Enforcement Procedure) Rules, 1979, which defines “court” to include the Federal High Court. Section 46(1) of the 1999 Constitution reads thus: “46(1) 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.” Thus section 46(1) of the 1999 Constitution talks about the special jurisdiction conferred on the “High Court in that State for redress” and not High Court of a State. If the provision of section 46(1) of the 1999 Constitution had wanted to exclude the Federal High Court from the special jurisdiction conferred in relation to the Fundamental Human Rights Provision, the section would have talked about the High Court of the State and not the “High Court in that State”. The use of the words “High Court in that State” includes a Federal High Court in the State. And therefore, the jurisdiction to entertain breaches of the Fundamental Human Rights provisions under the 1999 Constitution also extends to the Federal High Court. PER OWOADE, J.C.A.
JUSTICES
VICTOR AIMEPOMO OMAGE Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
INSP. GABRIEL OF COMM., POLICE MONITORING UNIT, LAGOS STATE Appellant(s)
AND
EVG. (MRS) HELEN UKPABIO Respondent(s)
VICTOR AIMEPOMO OMAGE, J.C.A.: (Delivering the Leading Judgment): In this appeal, the respondent instituted an action in the Federal High Court, Calabar, for the enforcement of her fundamental human right before His Lordship.A. O. Ajakaiye, Federal Judge. In the application, the applicant in the ex parte motion sought leave of the Court to enforce her fundamental human lights to dignity of human person, personal liberty and right to private and family life. She also sought leave for an order of Court when granted to operate as a stay of all actions or matters relating to or connected with the complainant, until the determination of the motion on notice. The trial Court granted the order as prayed, after reading the affidavit in support of the motion.
The deposition in the affidavit in support of the motion is as follows: The applicant is Evangelist (Mrs.) Helen Ukpabio, and she seeks the relief to enforce her fundamental human rights against the Inspector General of Police; Commissioner of Police, Lagos State; Inspector Gabriel, Monitoring Unit, Lagos State; and Nigerian Film and Censors Board. The applicant, Mrs. Helen Ukpabio deposed that she is a preacher and executive producer of liberty films, an arm of the Liberty Foundation Gospel Ministries. She claimed to have produced thirteen religious films and she is the producer of RAPTURE FILMS part 1&2 which is the subject of this action.
The 4th respondent received the film in 2001 for censorship according to the law, directed the applicant to make amendments in the two films. The applicant deposed that she carried out the amendments which were not satisfactory to the 4th respondent, Mrs. Roseline Odey in the service of the 4th respondent and she ensured that the films were not released to the applicant. The applicant said she eventually circulated the films to the church and circulated the films only within the church. Applicant said she subsequently realized that it was not necessary to go to 4th respondent, because the latter had no authority to secure films for religious evangelization. Deponent said that she heard in the air that the film had been banned, but Mrs. R. Odey appeared on AIT to say the film was illegal; after which in the name of the 4th respondent, Mrs. R. Odey used the police to harass and intimidate her.
That on 20th December, 2002, the police bulldozed into her shop at No. 10 Nnebi Street, Surulere, and Lagos and took away several cartons of Rapture Films, three thousand copies of empty cartons, and arrested the sales girl.
On 7th January, 2003, the applicant deposed that the police on the direction of the 3rd and 4th respondent went to her house fully armed with guns where the police harassed and intimidated her. That despite the harassment, the respondents have not charged her to court.
In the motion on notice filed on 10/2/2003 the applicant sought the following:
(1) A declaration that the invasion of the applicant’s shops at Lagos and Calabar by the respondents in the packing of her films there from, the continued harassment of the applicant by the respondents and or their agents is unconstitutional and a violation of her fundamental rights to dignity of human person, personal liberty, private and family life guaranteed under section 34, 35 and 37 of the Constitution of the Federal Republic of Nigeria 1999.
2) All order of injunction restraining the respondents whether by themselves, their agents, servants, privy or persons however called from interfering in any manner whatsoever with the applicant’s employment of her fundamental rights to dignity of humans person, personal liberty, private and family life as guaranteed under section 34, 35 and 37 of 1999 Constitution.
3) An order directing the respondents to jointly and severally pay N5, 000, 000.00 damages to the applicant for wrongly violation of her fundamental right to dignity of human person, personal liberty, private and family life as guaranteed under the Constitution aforesaid.
4) N3, 000, 000.00 (Three Million Naira) special damages jointly and severally from the respondents for Four Thousand Video Compact Disc Plates of Rapture film three thousand empty VHS Video Cassettes and five hundred (500) recorded VHS Video Cassette of Rapture Film carried away illegally by the respondents from the applicant’s shop ill Lagos.
The 4th respondent’s office filed a counter affidavit. In it Miss M. A. Maiyaki who is a legal officer in the unit of National Film Censors Board deposed that the National Film Censors Board was set up by Decree No. 85 of 1993: and that its functions include the censor and approval of films and video reserved in Nigeria.
That the film sent for screening by Mrs. (Evg.) Helen Ukpabio to the office at Calabar and Abuja office in the year 2002 were duly censored, and the applicant was told to make earlier corrections in the film. The applicant did not carry out the whole corrections she was directed to make, but the applicant proceeded to show the film and refused to carry out the entire corrections ordered. That the films were not approved for release because the applicant refused to carry out the amendments requested by the board. That generally it is not difficult to get the approval of the censor’s board once the individual carry out the direction of the board. That the release of the film to the church members amounts to releasing the film to the general public.
The 4th respondent’s deny all the averments made by the appellant in the affidavit and averred that the 4th respondent has a legal duty to censor film sent to it, and to demand amendments to film which do not conform to decency and or film which offend the ethics or practices of other religious bodies. That when a religious film fails to meet the laid down requirements such films stand banned, being illegal. It is only the 4th respondent which has the legal authority to stop the contravention of its marketing law, and the officers of Nigeria Police may be instructed by the 4th respondent to perform their duty to ensure compliance with the law.
A counter affidavit was filed on behalf of the Lagos State monitoring unit the 3rd respondent Inspector Gabriel Erhabor. He denied the averment of the appellant that the police forced themselves into the premises of the applicant in Lagos and in Calabar. He deposed that upon the complaints made by the 4th respondent, he went to the shop of the applicant with search warrant, and removed cartons of empty video cassette. The shop girl was invited to the police station. He said he was subsequently directed to go to Calabar in pursuit of the business of recovering the illegally produced film. He said in the house of the applicant he, and not the applicant was harassed by the applicant who shouted on him, and called him names. That when the applicant called in the police and Assistant Commissioner of Police. Mrs. Mary Olji, and DSP, Steve Ngholor went to meet the applicant. He said, because of the hystering of the applicant, the applicant was asked to report in Lagos to make a statement. That since the mailer went to court there has been no contact with the applicant.
At the resumed hearing of the motion on notice, the objection raised by the 3rd respondent was brought before the Court. The objection was filed by the solicitor to the 3rd respondent, to wit, that the Federal High Court lacks jurisdiction to entertain action or proceedings relating to enforcement of fundamental rights. That the lack of jurisdiction of the Federal High Court is founded on the Nigerian Constitution section 6(5) which created the High Court. The 3rd respondent averred that the right and jurisdiction to entertain suit on fundamental rights is conferred only on the High Court of a State, even under section 46 of the Constitution. He submits that section 318(1) of the 1999 Constitution unlike section 277(1) of the 1999 Constitution, does not provide for jurisdiction of the Federal High Court to deal with complaints on fundamental rights. He urges the court to dismiss the claim.
The trial court dismissed the objections of the plaintiff/applicant, and ruled that the objection was made only to delay the proceedings in the court. The court therefore ruled that the applicants counsel shall file his reply on points of law, and having served same on the applicant third respondent shall have same adopted at the hearing. The ruling was made on 27/5/05 and fixed the return date for 14/7/05.
On 1/7/05, the counsel for the 3rd respondent Inspector Gabriel filed an appeal in the case. The grounds of appeal is “the learned trial judge erred in law in dismissing the appellant’s objection impeaching the jurisdiction of the Federal High Court to entertain Fundamental rights of action under 1999 Constitution and proceedings thereafter to continue to entertain the respondent’s action.” The grounds of appeal are followed by five layers of particulars contained in the record. The parties filed their briefs as follows- the appellant’s brief – the brief or the 1st respondent, namely Mrs. (Evg.) Helen Ukpabio, 2nd – 4th respondents, each having read and considered all the issues contained in the appellants brief and other briefs. The first inclination is to send the matter to the Federal High Court for hearing and conclusion, because heating in the suit has not been concluded: and the leave of the court below has not been granted before the appeal is fixed in this court.
In any case, a consideration of the applicable law under the Fundamental Rights Enforcement Procedure Rules 1979, which by law is infused into an existing constitution, shows in the definition of court that the ‘court’ therein defined include the Federal High Court or the High Court of a State. Consequently, whether under the Fundamental Rights Enforcement Rules 1979, or under the 1999 Constitution, section 318(1) the Federal High Court is possessed of jurisdiction to hear and determine the issue of fundamental right. See Federal University of Yola V. Nigerian Navy. (2005) 12 NWLR (Pt. 17); FUTO v. Lionel O. Garrich (2006) 4 NWLR. The appeal is therefore dismissed and the suit is remitted to the High Court Calabar, Cross River State for healing and determination.
NGWUTA, J.C.A.: I have had the honour of reading in draft the judgment just delivered by my learned brother Omage, JCA. I entirely agree with His Lordship reasoning and conclusion.
S. 46(1) of the 1999 Constitution creating special jurisdiction of High Court 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 in that State for redress (Italics mine)”
In my humble view “a High Court” is either a State High Court or Federal High Court. The section of the Constitution vests concurrent jurisdiction in proceedings under chapter IV of the 1999 Constitution, 1990 in the State High Court and the Federal High Court. The position is made clearer by order 1 of the Fundamental Rights (Enforcement Procedure) Rules made pursuant to chapter IV of the Constitution wherein court is defined to mean the Federal High Court or the High Court or a State.
For the above and the fuller reasons in the lead Judgment I also dismiss the appeal as devoid of merit. I adopt the consequential order.
OWOADE, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother Omage JCA. I agree with the reasoning and the conclusions. I also abide with the consequential orders.
The central question in this appeal is whether the Federal High Court has jurisdiction to try cases under the Fundamental Rights Enforcement Procedure Rules 1979 and the simple answer to that question is in the positive.
This is so, because “court” is defined under the applicable law that is the Fundamental Rights Enforcement Procedure Rules 1979 to include the Federal High Court and the position is further supported by the exclusive jurisdiction of the Federal High Court under section 251 (1) of the 1999 Constitution, more particularly by the provisions of sections 251 (1) (p), (q), (r) and (s) that is in relation to the administration or the management and control of the Federal Government or any of its agencies or as regards any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
Indeed, the provision of section 46 of the 1999 Constitution makes itself easily conformable to the definition section in the Fundamental Human Rights (Enforcement Procedure) Rules, 1979, which defines “court” to include the Federal High Court. Section 46(1) of the 1999 Constitution reads thus:
“46(1) 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.”
Thus section 46(1) of the 1999 Constitution talks about the special jurisdiction conferred on the “High Court in that State for redress” and not High Court of a State. If the provision of section 46(1) of the 1999 Constitution had wanted to exclude the Federal High Court from the special jurisdiction conferred in relation to the Fundamental Human Rights Provision, the section would have talked about the High Court of the State and not the “High Court in that State”.
The use of the words “High Court in that State” includes a Federal High Court in the State. And therefore, the jurisdiction to entertain breaches of the Fundamental Human Rights provisions under the 1999 Constitution also extends to the Federal High Court.
For these reasons and the fuller reasons contained in the judgment of my learned brother Omage JCA. I also dismiss the appeal.
ABOKI, J.C.A.: I had the benefit of reading in advance the judgment of my learned brother O.F. Omoleye. J.C.A. I agree with the reasoning and conclusions contained therein that this appeal lacks merit and it is accordingly dismissed. I affirm the order of the trial court. I abide by the order as to costs.
Appeal dismissed
Appearances
Dafe Diegbe, EsqFor Appellant
AND
Anthony Effiom, Esq.For Respondent
