KURAMA TRADITIONAL COUNCIL & ORS v. YANI & ORS (2020)

KURAMA TRADITIONAL COUNCIL & ORS v. YANI & ORS

(2020)LCN/14000(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, March 04, 2020

CA/K/198/2016

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Between

1. KURAMA TRADITIONAL COUNCIL 2. DR. DAMINA ISHAKU SABO (BUGGAM KURMI) 3. MR. BELLO B. DAMINA (DISTRICT HEAD OF KUDARU) 4. NUHU DANLADI (SARKIN BAKA) APPELANT(S)

And

1. BULUS YANI 2. AMOS GARBA 3. PETER USSEINI 4. ALHAJI HARUNA ABDULLAHI 5. UDOJI AMOS 6. ALHAJI ISUHU 7. SULE USMAN 8. USMAN ADAMU 9. NUHU DAUDA 10. SULE GIWA 11. MATHEW BULUS 12. LIKITA DAMSON 13. BAWA JAMO 14. MURNA JAMO 15. DIKKO JAMO 16. KUDARU JAMO 17. SHUAIBU ABDULLAHI 18. AHMADU ABDULLAHI 19. SAMAILA ISHAKU 20. DANI ISHAYA 21. REV. CHINDO (RTD) 22. MALAM JEJI JAMO 23. COMMISSIONER OF POLICE, KADUNA STATE 24. DIVISIONAL POLICE OFFICER (DPO) SAMINAKA POLICE, DIVISIONAL HEADQUARTERS RESPONDENT(S)

RATIO

COMPETENCE OF A COURT TO DETERMINE A MATTER BEFORE IT

The first relates to the competence of the action itself commenced vide the Procedure for Enforcement of Fundamental rights of the person affected by it, the second, flow from the first, and this is, on the question whether the trial Court was in the circumstance, not divested of jurisdiction over the matter. In the words of Bairamian, FJ in Madukolu vs. Nkemdilim (1962) LPELR-24023 (SC):
“… a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication”. PER HUSSAINI, J.C.A.

FACTOR TO DETERMINE WHETHER A CAUSE OF ACTION COMES UNDER BREACH OF FUNDAMENTAL RIGHT

It is trite law however that in order to determine whether a cause could come under the Fundamental Right (Enforcement Procedure) Rules of 1979, the proper approach is to closely examine the reliefs sought by the applicant, the grounds for such relief and the facts relied upon. If such facts disclose that a breach of fundamental right is main plank, then redress may be sought through the Rules. See Sea Trucks Nigeria Ltd. v. Anigboro (2001) FWLR (Pt. 37) 1000, (2001) 1 SC (Pt.1) 45. PER HUSSAINI, J.C.A.

BREACH OF FUNDAMENTAL RIGHTS

The person or the individual who alleges that the fundamental rights under Chapter 4 of the Constitution as it relates to him has been violated or there is likelihood of violation of same, can approach any of the High Courts to seek redress by reason of Section 46(1) of the Constitution of the (FRN), 1999 as amended, and the affiliate legislation i.e. Order II Rule 1 of the Fundamental Rights Enforcement Procedure Rules, 2009. Section 46(1) of the CFRN and the Fundamental Rights Enforcement Rules respectively, provide as follows:-
SECTION 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.”
ORDER II RULE 1
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Chapter 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…”
By those provisions, the application for the enforcement of the Fundamental rights can only be made or brought by individual person. There cannot be a joint application made or brought by persons to enforce their collective rights hence any such application made as is the case in the instant case on appeal, is incompetent and same liable to be struck out. This Court in Kporharor & Anor vs. Yadi & Ors. (2017) LPELR-42418 (CA) came to this conclusion where Bada, JCA held thus:
“In this appeal under consideration, the application was brought by two separate applicants (1) Mr. Michael Yedi and (2) Onodje Yedi Nig Ltd.
The words used under Section 46(1) of the Constitution set out above is very clear…
In my humble view any application filed by more than one person to enforce a right under the fundamental Rights (Enforcement Procedure) Rules is incompetent and liable to be struck out…”
In RTFTCCN vs. Ikwechegh (2000) 13 NWLR (Pt. 683) 1, it was held thus:
“If an individual feels his Fundamental Rights or Human Rights has been violated, he should take out action personally for the alleged infraction as rights of one differs in content and degree from the complaint of the other… is a wrong joinder of action and incompetent.”
The Court below ought to have struck out this case on appeal even on its own motion for improper joinder of persons to the application brought before it, being a jurisdictional issue. Even at this level, the point can be made and the issue of want of jurisdiction can be addressed by the Court. See Salisu & Anor vs. Mobolaji & Ors (2013) LPELR-22019 (SC); APC vs. Nduul & Ors. (2017) LPELR-42415 (SC). PER HUSSAINI, J.C.A.

DEFINITION OF AN “APPEAL”

An appeal is but a continuation of trial, hence the need of consistency in prosecuting a case at the trial, as well as in the Appeal Court. See Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87, 129, Agi v. PDP (2017) NWLR (Pt. 1595) 386, 462, NEPA v. Auwal (2011) 5 NWLR (Pt. 1241) 571, 598 – 599. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is sequel to the Ruling/Judgment delivered at the High Court of Kaduna State on the 26th October, 2015 wherein the Court (hereinafter called the “trial Court” or the “Court below”) granted the reliefs sought by the 1st – 22nd Respondents as applicants before the trial Court vide the application made to it, seeking to enforce their Fundamental rights in accordance with Sections 43, 35(1) and 41(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Before that Order was made, the trial Court had in the same Ruling or judgment dismissed the Preliminary Objection raised by the Appellants on the issue of the competence of the action.
It was against this Order and Ruling, the Appellants lodged this appeal vide the Notice of Appeal dated and filed on the 9th November, 2015. In it, the Appellants faulted that decision of the trial Court on seven grounds. These grounds, shorn of the particulars, are reproduced here below, namely:
“Ground one:
The trial Court erred in law when it entertained and determined the claim

under the Fundamental Rights Enforcement Procedure Rules when the main claim of the Applicants was not the enforcement of fundamental rights but title to land.
Ground two:
The Honourable trial Court erred in law when it proceeded to entertain and determine the Applicants’ claim for the enforcement of fundamental rights when the main relief sought by the Applicants and the grounds upon which the reliefs were sought were in relation to title to land.
Ground three:
The Honourable Trial Court erred in law when it granted the Applicants reliefs against the 4th – 6th Respondents when the Applicants did not make out any case against them.
Ground four:
The Honourable Trial Court erred in law when it held that the fundamental rights of the Applicants were violated or likely to be violated consequent upon the invitation letter sent to Village Head of Bitarana, Exhibit 28, when the letter was not addressed to all the Applicants and the only Applicants affected by the said Exhibit were the 2nd, 3rd, 10th and 14th Applicants.
Ground five:
The Honourable trial Court erred in law when it held that the fundamental rights of the

Applicants to own property was violated when exhibits 1 – 24, the purported sale agreements were not only unregistered but the purported sale were done in violation of Section 21 of the Land Use Act, as the consent of the appropriate authority i.e Lere Local Government was not sought and obtained.
Ground six:
The Honourable trial Court erred in law when it relied on Exhibit 26, the Certified True Copy of the judgment of the Upper Customary Court Saminaka, Lere Local Government, in holding that the said Exhibit was in favour of the Applicants, when the 1st Applicant was not among those mentioned in Exhibit 28, the letter written by the 2nd Respondent.
Ground seven:
The Honourable trial Court erred in law when it proceeded to entertain the Applicants’ suit and grant reliefs against the 4th – 6th Respondents when they were merely agents of a disclosed principal, and when the principal was party to the proceedings”.

The case for the 1st – 22nd Respondents, simply put, is that they are the owners of the farmland located in a village called Bitarana along Jos – Kaduna Highway in Kudaru District in Kurama

Chiefdom in Kaduna State but that the Appellants and the 23 – 24th Respondents would not just allow them to exercise their rights of ownership over the said farmland hence they were constrained to approach the Court below to seek enforcement of their right of ownership over the said property, their right to personal liberty and freedom of movement.

In the facts deposed to in support of the application, the 1st – 22nd Respondents alleged that the 1st Respondent and his siblings inherited the disputed farmlands from their late father and subsequently sold same to the other Respondents in exercise of their right of ownership but that the 2nd and 3rd Appellants in order to intimidate the 1st – 22nd Respondents, lodged a complaint with the Police (24th Respondent) who in turn wrote through the Village Head of Bitrana inviting nine (9) persons from among the 1st – 22nd Respondents to produce or report at the Police Station. Neither the 1st Respondent nor other persons invited to the Police Station reported as requested, the only reason being that they went into hiding following threat of arrest by the Police.

For the Appellants, their case

before the trial Court is that the 1st – 22nd Respondents trespassed into the ancestral lands and places of worship of the Kurama people, including the whole area of Bitarana under the control of their Traditional Ruler, i.e the 2nd Appellant hence the traditional Council was constrained to lodge a complaint with the Police against the 1st, 2nd, 3rd, 10th and 14th Respondents and four (4) other persons.

As indicated before, the trial Court did not only overrule the Preliminary Objection raised by Appellants, the trial Court went ahead to grant the relief sought by the 1st – 22nd Respondents, hence the appeal to this Court.

Upon the record of appeal being transmitted, the Appellants and the 23rd – 24th Respondents thereafter filed and exchanged their briefs of augment. The 1st – 22nd Respondents did not file any brief.
The brief of argument for the appellants dated and filed on 29th January, 2018 was deemed as properly filed and served on the 26th February, 2018. The 23rd – 24th Respondents filed their brief of argument on the 16th November, 2018.

In response to the brief of argument for the 23rd – 24th Respondents, the

Appellants filed a Reply brief and same was deemed as properly filed and served on the 23rd January, 2020.
The Appellants, in their joint brief of argument raised two (2) issues at page 4 of their brief as follows:
“1. Whether it was competent for the lower Court to entertain and determine the 1st – 22nd Respondents’ application under the Fundamental Rights Enforcement Procedure Rules regard being had of the main plank of the application and the grounds and facts in support thereof. (Arising from grounds one and two of the Notice of Appeal);
2. Whether on the strength of the affidavit evidence before the lower Court, the 1st – 22nd Respondents satisfactorily established the alleged infringement or likely infringement of their fundamental rights by the Appellants to warrant the reliefs granted by the Court in their favour against the Appellants”. (Arising from Grounds three, four, five and six of the Notice of Appeal).

The 23rd – 24th Respondents similarly raised two (2) issues at page 9 of their brief thus:
“1. Whether the lower Court rightly entertained and determined the 1st – 22nd

Respondents’ application under the Fundamental Rights Enforcement Procedure Rules, regard being had to the entire facts of the case?
2. Whether the 1st – 22nd Respondents established their claims for infringement or likely infringement of their fundamental rights by the Appellants to warrant the reliefs granted by the lower Court in their favour against the Appellants?”

Both briefs were adopted at the hearing of the appeal on 23rd January, 2020.
I have taken a close look at the record of appeal before us. Issues raised or identified for the determination of Court should reflect on the facts and evidence as borne out of the record of appeal. It is for this reason I am constrained to reformulate the two issues in the following words, namely:
(1) Whether on the facts and evidence presented at the Court below, the application seeking as it were, the Enforcement of the Fundamental rights of the 1st – 22nd Respondents was competent and the trial Court, rightly exercised jurisdiction over same (Grounds one and two of the Notice of Appeal).
(2) Whether the 1st – 22nd Respondents established their claims for

infringement or likely infringement of their fundamental right by the Appellants to warrant the reliefs granted at the Court below in their favour and against the Appellants (Distilled from Grounds three, four, five and six of the Notice of appeal.

In support of issue No. 1 reformulated above, we were referred by the appellants counsel to Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 which vest on the High Courts, the jurisdiction to entertain and determine application for enforcement of the Fundamental Rights of any person, hence the High Courts, according to the learned appellants’ counsel cannot competently entertain any such application if the issue of breach of a Fundamental right was not the main claim before the Court but merely ancilliary thereto. This submission was hinged on the decision in Akinola vs. Vice Chancellor, University of Ilorin (2005) ALL FWLR (Pt. 259) 1934, 1954. In determining whether the main claim of a case was a fundamental right enforcement claim or not, we were urged to look at and examine the reliefs

sought in the application along with the Grounds and the facts upon which they were premised, in line with the decision in Sea Trucks Nigeria Ltd vs. Anigboro (2001) 1 SC (Pt. 1) 45, 60-62, Egbuonu vs. Bornu Radio Television Corp. (1997) 12 NWLR 29.

It is further argued that where the applicant or his counsel ingeniously brought his reliefs to appear as if it were a Fundamental Rights case, the Courts have a duty to critically examine such case or application in its entirety with a view of determining the main issue in controversy; we were referred to Abubakar Tatali Ali Polytechnic vs. Maina (2005) ALL FWLR (Pt. 284) 250, 261-262; Govt. of Kwara State vs. Lawal (2006) ALL FWLR (Pt. 336) 313, 346-347. We were urged to hold that by the reliefs sought and contained in the application for the enforcement of Fundamental Right taken together with the grounds of the application and the facts in support thereof, the application was based on two planks or two controversies but that the issue of title over the farmland situate in Bitarana village, was the main plank or claim of the 1st – 22nd respondents while the issue of the alleged breach of their Fundamental

rights was merely ancillary. It was contended that the Court below failed to resolve any of the two issues but went ahead to grant to the 1st – 22nd respondents, the application and their request to Enforce their Fundamental rights. We were referred to page 216 of the record of appeal. We were urged to hold that the grant of the application at the Court below was wrong, who ought to have sustained the Preliminary Objection raised before it. We were urged to resolve issue No. 1 in favour of the appellants.

In response to the question surrounding the Preliminary Objection, i.e on issue No. 1, we were referred by counsel for the 23rd – 24th respondents to the reliefs sought and as contained in the application. Learned counsel has submitted that those reliefs, concerned the breach of the Fundamental rights of the 1st – 22nd respondents. Learned counsel conceded to the fact that the alleged breach of those rights arose from dispute over land matter. Relying on the decision in Madiebo vs. Nwankwo (2001) 29 WRN 137, 143 and Adeyanju vs. WAEC (2002) 13 NWLR (Pt. 785) 479, 497-498 among others, he argued that the Court below was right when it

entertained the application brought before it by the 1st – 22nd respondents for the enforcement of their fundamental rights, given the fact that the Constitution did not make the breach of those rights, the main or principal claim as a condition to maintain action under the Fundamental Rights Enforcement Procedure Rules. We were urged to resolve issue No. 1 against the appellants.

Issue No. 1 raises some fundamental questions. The first relates to the competence of the action itself commenced vide the Procedure for Enforcement of Fundamental rights of the person affected by it, the second, flow from the first, and this is, on the question whether the trial Court was in the circumstance, not divested of jurisdiction over the matter. In the words of Bairamian, FJ in Madukolu vs. Nkemdilim (1962) LPELR-24023 (SC):
“… a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising

its jurisdiction: and (3) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication”. Items (2) and (3) referred to in the above cited decision of the Apex Court comes to play in the sense that, as contended by the appellants, the case brought before the trial Court, not having been commenced by due process of the law, the Court was divested from exercise of jurisdiction. Put bluntly, was the case at the trial Court one in which title to farmland was the main plank of the claim, in which case the matter ought to have been commenced by way of Writ of Summons OR is the breach of the fundamental rights of the 1st – 22nd respondents the main plank or claim before that Court?

Faced with situations such as these, the Court before which the matter was brought by way of the Procedure for Enforcement of Fundamental Rights, has a duty to examine the record before it, especially in a case where the Principal or main

claim is the subject of controversy. Where therefore, the claim for Enforcement of fundamental rights in accordance with the Procedural Rules was not the main claim but ancillary claim, action bought under the fundamental rights Enforcement Procedure Rules is not proper. See the decision in Seatrucks Nig. Ltd vs. Anigboro (supra); Egbuonu vs. Bornu Radio Corp.(supra), Tukur vs. Govt. of Taraba State (1997) 6 NWLR (Pt. 549). The Procedural Rules for the Enforcement of Fundamental rights apply to cases or matters in which the request of the applicant shows a breach of or likely breach or contravention of the applicant’s rights guaranteed and enshrined in Chapter 4 of the Constitution of the FRN, 1999 (as amended). See the decision in Fabunmi vs. IGP (2011) LPELR-3550.
There is however the need to examine the records, as indicated earlier, to ascertain what indeed is the main claim before the trial Court. There is the need to look at the nature of the reliefs sought by that application, the ground or grounds upon which the reliefs are sought and indeed the facts relied upon for the sustenance of that application at the trial Court. All these are set out

in the record of Appeal before us. See in particular, pages 6-7 of the record on the nature of the reliefs sought; pages 7-8 of the record, on the grounds upon which the reliefs are sought and pages 9-12 of the record, on Affidavit in support of the Application. From the affidavit evidence referred to above, it is clear to me that the issue of title is at the heart of the claim of 1st – 22nd respondents, given the facts deposed to at paragraphs 3-26 of the affidavit in support of the Application. The allegation of breach of the Fundamental rights of the 1st – 22nd respondents are merely accessory or incidental to the dispute over title or ownership of the farmland, the subject-matter of dispute between the appellants and the 1st – 22nd respondents. The attempt made by the 1st – 22nd respondents, to make their case appear as a fundamental rights case vide the reliefs claimed by them is to my mind, just a smoke screen meant to shield the facts but the same cannot stand given the facts deposed to by the 1st respondent himself in the affidavit in support of this application before the trial Court. This point was so clearly made in

Govt. Kwara State vs. Lawal (2006) ALL FWLR (Pt. 336) 313, 346-347 thus:
“One point that will be noted from the cases is that the applicant’s complaint relating to infringement of fundamental rights do not become the main plank of the action just because the Applicant says so or has formulated his case to look so. Nor is the appellate Court precluded from looking into the matter just because the trial Court had regarded the matter as a fundamental rights enforcement one by granting ex parte leave under the rules to enforce the rights. The applicant’s lawyer may deploy any amount of ingenuity to make a case look like a claim for enforcement of fundamental rights and the trial Judge may have granted the applicant ex parte leave on the footing that his claim is alleged to be enforcement of fundamental rights. It is still for the appellate Court to examine the claim closely to ascertain for itself if indeed the case is a fundamental rights enforcement matter. Sea Trucks (Nig.) Ltd. v. Anigboro, supra, is one case where the Supreme Court made these points. See per Ogundare JSC at page 175 and per Achike JSC at pages 181 – 182.
What one gathers

from the pronouncements by the learned Justices of the Supreme Court is that, regardless of how the applicant categorises his complaint or of the fact that the Judge, who heard and granted the ex parte application to proceed under the rules, regarded the matter as a fundamental rights enforcement matter it is still open to the Court before which the matter eventually comes up for hearing to examine the reliefs sought, the grounds on which they are based and the surrounding circumstances with a view to making up its own mind whether or not the matter is really principally a fundamental rights enforcement matter or its one in which the question of breach of fundamental rights is merely ancillary or incidental to another claim”.
See further, the decision in Abubakar Tatari Ali Polytechnic vs. Maina (2005) ALL FWLR (Pt. 284) 250, 261-262 where the Apex Court also held that:
“There is no doubt that the reliefs sought by the Respondent/Applicant did not specifically include claim of wrongful termination of appointment by the Respondent (Appellant herein). The Applicant merely restricted his claim to breach of his fundamental right by not giving

him fair hearing. It is trite law however that in order to determine whether a cause could come under the Fundamental Right (Enforcement Procedure) Rules of 1979, the proper approach is to closely examine the reliefs sought by the applicant, the grounds for such relief and the facts relied upon. If such facts disclose that a breach of fundamental right is main plank, then redress may be sought through the Rules. See Sea Trucks Nigeria Ltd. v. Anigboro (2001) FWLR (Pt. 37) 1000, (2001) 1 SC (Pt.1) 45. A close look at the reliefs claimed by the Applicant/Respondent herein, clearly show that although the genesis of such is grounded on the alleged breach or violation of fundamental right, such alleged breach was what led to the termination of his appointment by the Appellant which was in fact the main grouse of the Applicant/Respondent. It is therefore tightly tied to the issue of the termination of his appointment. That is a common ground of both counsel for the parties. In fact the learned counsel for the Respondent conceded rightly in my view (on page 5 of his brief) when he submitted that, although the termination of the Respondent that gave rise to this

action, the same facts could be said to have given rise to multiple causes of action at the same time. From the facts of this instant case, the case borders principally on unlawful or wrongful termination of the Respondent’s appointment by the Appellant.”
I am not unmindful of the decisions of this Court in Madiebo vs. Nwankwo (2001) 29 WRN 137, 143 and Adeyanju vs. WAEC (2002) 13 NWLR (Pt. 785) 479, 499-498 where it was held that the Constitution of the Federal Republic of Nigeria did not so provide that the right of an individual to enforce his fundamental rights depends on a consideration of whether the right breached is the main or principal cause of action or fundamental issue before the Court. That, I agree but it needs be stated that the person or individual who alleges that his fundamental rights as enshrined in the Constitution has been, is being or likely to be infringed, has a duty to depose to facts which directly and unequivocally lead to those conclusions without any embellishments, as in the instant case on appeal where on the facts presented by the 1st – 22nd respondents, their case hinged on the enforcement of their

Fundamental Right, infact arose from disputations over the ownership of farmlands which the 1st – 22nd respondents also conceded to and infact deposed to those facts in their affidavit in support of the application. The instant case on appeal is to this extent, distinguishable from the decision in Madiebo vs. Nwakwo (supra) and Adeyanju vs. WAEC (supra). Their case is more in tune with the decisions in Seatrucks Nig. Ltd vs. Anigboro (supra), Egbuonu vs. Bornu Radio Corp(supra), Tukur vs. Govt. of Taraba State (supra) and I hold that issue of title or claim to ownership of disputed farmland is the major or main plank to which the issue of breach of fundamental right was surreptiously introduced to wear that garb as if it were the main claim. I so hold. Therefore, action for enforcement of a Fundamental Right, not being the main controversy in the claim but one of title or ownership of land, the action or suit was incompetent by the manner it was brought and this robbed the trial Court the exercise of jurisdiction over same.

The person or the individual who alleges that the fundamental rights under Chapter 4 of the Constitution as it relates to him

has been violated or there is likelihood of violation of same, can approach any of the High Courts to seek redress by reason of Section 46(1) of the Constitution of the (FRN), 1999 as amended, and the affiliate legislation i.e. Order II Rule 1 of the Fundamental Rights Enforcement Procedure Rules, 2009. Section 46(1) of the CFRN and the Fundamental Rights Enforcement Rules respectively, provide as follows:-
SECTION 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.”
ORDER II RULE 1
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Chapter 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…”
By those provisions, the application for the enforcement of the Fundamental rights can only be made or brought by individual

person. There cannot be a joint application made or brought by persons to enforce their collective rights hence any such application made as is the case in the instant case on appeal, is incompetent and same liable to be struck out. This Court in Kporharor & Anor vs. Yadi & Ors. (2017) LPELR-42418 (CA) came to this conclusion where Bada, JCA held thus:
“In this appeal under consideration, the application was brought by two separate applicants (1) Mr. Michael Yedi and (2) Onodje Yedi Nig Ltd.
The words used under Section 46(1) of the Constitution set out above is very clear…
In my humble view any application filed by more than one person to enforce a right under the fundamental Rights (Enforcement Procedure) Rules is incompetent and liable to be struck out…”
In RTFTCCN vs. Ikwechegh (2000) 13 NWLR (Pt. 683) 1, it was held thus:
“If an individual feels his Fundamental Rights or Human Rights has been violated, he should take out action personally for the alleged infraction as rights of one differs in content and degree from the complaint of the other… is a wrong joinder of

action and incompetent.”
The Court below ought to have struck out this case on appeal even on its own motion for improper joinder of persons to the application brought before it, being a jurisdictional issue. Even at this level, the point can be made and the issue of want of jurisdiction can be addressed by the Court. See Salisu & Anor vs. Mobolaji & Ors (2013) LPELR-22019 (SC); APC vs. Nduul & Ors. (2017) LPELR-42415 (SC). It is for this and other reasons earlier addressed in this discourse that I am inclined to resolve issue No. 1 in favour of the appellants and this appeal is allowed on this account, alone.

In the event that I am wrong in taking the position as I have done relative to issue No. 1 discussed above, I will proceed to address the next question under issue No. 2, i.e:
“Whether on the strength of the affidavit evidence before the lower Court the 1st – 22nd Respondents’ satisfactorily established the alleged infringement or likely infringement of their fundamental rights by the Appellants to warrant the reliefs granted by the Court in their favour against the Appellants.”

This question attempts to address the merit of the application. Did the Respondents prove their case of infringement of their fundamental rights?

Learned counsel for the appellants has argued in his brief that the 1st – 22nd respondents failed to prove the allegation of breach of any of the rights guaranteed under Sections 43, 41(1) and 35(1) of the Constitution (as amended) and the findings made at the trial Court to the contrary was baseless. We were urged to so hold and resolve Issue No. 2 in favour of the appellants. Arguing to the contrary are the submissions made and contained in the 23rd – 24th respondents’ brief of argument at pages 9-16 particularly the submissions made at pages 13-15 on issue No. 2 wherein it was contended that the 1st – 22nd respondents made the affidavit deposed to in support of their application for Enforcement of their Fundamental Rights along with annexures therein have established substantial facts in proof of the respective infringements complained of.

I can observe that the arguments now being put forward by the 23rd – 24th Respondents, in their brief of argument, in opposing this appeal is a scenario

different from the one projected by them at the trial Court. In other words, they are not consistent with the stand earlier taken by them before the trial Court, where the 23rd – 24th Respondents had opposed the suit brought against them, as the 1st & 2nd Respondents. This opposition is exemplified by the joint Counter – affidavit filed by them in opposition to the application for the enforcement of the Fundamental Rights of the 1st – 22nd Respondents and the Written Address filed by them. See pages 136 – 148 of the record of appeal. Having therefore taken the position as they did before the trial Court, that the application for the enforcement of the Fundamental Rights of the 1st – 22nd Respondents as the Applicants at the trial Court lacked merit, and that the same be dismissed. Having earlier taken that stand, it is rather incongruous of the 23rd – 24th Respondents to state otherwise in this appeal. Parties should be consistent in the manner they present their cases. They should not be seen to present a case different from and inconsistent with the case they made at the trial Court. It is not permissible for the 23rd

– 24th Respondents who were Co-respondents with the Appellants to the Originating Motion of the 1st – 22nd Respondents and who opposed the said motion to now make submissions before this Court justifying the grant of that application by the trial Court. See Pacers Multi – Dynamics Ltd v. The M. V. Dancing Sister & Anor (2012) 4 NWLR (Pt. 1289) 169, 191 (SC).
An appeal is but a continuation of trial, hence the need of consistency in prosecuting a case at the trial, as well as in the Appeal Court. See Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87, 129, Agi v. PDP (2017) NWLR (Pt. 1595) 386, 462, NEPA v. Auwal (2011) 5 NWLR (Pt. 1241) 571, 598 – 599. It is for this reason, I find and I so hold, that the brief of argument of the 23rd – 24th Respondents before us, is incompetent and I refuse to countenance same in the determination of issues on hand.

The burden is on the 1st – 22nd Respondents, who alleged the infraction of their fundamental rights by the Appellants and the 23rd – 24th Respondents to prove that infraction of the right which is alleged to be violated or was in danger of being violated, must

first be shown to be in existence otherwise the claim should fail. In this connection, the 1st – 22nd Respondents must indeed prove their entitlement to the farmland at Bitarana to the exclusion of the Appellants over the same farmland for which they were unjustly denied. The reliance placed by them on Exhibit 25, the writ of possession issued at the Upper Customary Court, Saminaka does not establish this fact against all the Appellants herein in view of Exhibit 27, the letter issued by Kurama Traditional Council, showing that the land being cleared by the 1st – 22nd Respondents, is indeed the subject of dispute between them. There is also the question of the admissibility of Exhibit 25 as proof of title of the 1st – 22nd Respondents.

Again the question of the impairment or curtailment of the movement and personal liberty of the 1st – 22nd Respondents herein, is to mind, not established hence the Court below wrongly relied on Exhibit 28, the letter of request by the Police to produce before them some individuals, or certain persons identified in that letter for the purpose of Police Investigation, cannot constitute a breach of the

rights contemplated in Sections 41(1) and 35(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) given the fact that investigative functions or duties reside with the police over acts or complaints bordering on criminality made to them. It is trite that the powers of the police, even if they were to arrest and detain the person pending investigation, is Constitutional and is derived from Sections 214 and 216 of the Constitution. I am of the considered view that the mere exercise of that power cannot, by virtue of Section 35(1) of the Constitution amount to breach of the fundamental right of the 1st – 22nd Respondents’ even when such exercise of power result in curtailing the freedom of movement or liberty of the persons affected. I refer to Sections 4 and 24 of the Police Act, and the case of Baby Luna & Ors v. C.O.P. Rivers State Police Command (2010) LPELR 8642, (CA); Fawehinmi v. Inspector General of Police & Ors (2002) LPELR – 1258 (SC). Invitation extended to an individual by law enforcement agencies for purposes of investigation cannot constitute infringement of fundamental rights. See Shema vs. FRN (2019)

ALL FWLR (Pt. 976) 929; Alloysious Ogah vs. EFCC (2018) ALL FWLR (Pt. 953) 222.

Thus, even on the merits of the application brought before it, the trial Court ought to have dismissed and not grant same, hence issue No. 2 reformulated as above, is similarly resolved in favour of the Appellants and against the 1st – 22nd Respondents.

This appeal on the whole, has considerable merit, and same is allowed. The Ruling delivered at the trial High Court on the 26th October, 2015 is set aside and in its place is entered this Judgment, striking out/dismissing the suit.
I so order. Cost in the sum N200,000.00 is assessed for the appellants and against the 1st – 22nd respondents.
That is the Order and Judgment of Court.

HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Saldu Tanko Hussaini, J.C.A. I agree totally with the reasons therein, for the conclusion that the appeal is meritorious and ought to be allowed. The judgment of the Court below is accordingly dismissed. I also adopt other consequential orders mode in the judgment.

OBIETONBARA O. DANIEL — KALIO, J.C.A.: I have read

the judgment of my learned brother SAIDU TANKO HUSSAINI, JCA and I agree with the reasoning and conclusions of my lord in the said judgment. I think it is the position of the law that a fundamental right complaint should be the main complaint before the relevant trial Court before it can be rightly regarded by that Court as a fundamental right matter to be ventilated as such. The Supreme Court per Aka’ahs JSC stated thus in the case of EMEKA V. OKOROAFOR & ORS (2017) LPELR-41738 “I agree with the submissions made by learned counsel for the respondents that the fundamental rights procedure rules enshrined in Section 46(1) of the Constitution can be invoked when the main or principal complaint of an applicant is the enforcement or securing of the enforcement of a fundamental right”. In other words, when the main or principal complaint is not one for the enforcement of a fundamental right under Chapter 4 of the Constitution of the Federal Republic of Nigeria,1999 (as amended) as is the case on appeal here, where the main issue is one of ownership of farmlands, the Court will not have jurisdiction to entertain an application for the enforcement

of a fundamental right. A fundamental right application should not be an appendage to a main complaint. It must itself, be the main complaint. I therefore agree with my lord that the appeal has merit, should be allowed, and the Ruling of the lower Court set aside. The Ruling of the lower Court is accordingly hereby set aside. I abide by my lord’s order as to costs.

Appearances:

Mustapha I. Abubakar, Esq. For Appellant(s)

Chris A. Umar, Esq. For Respondent(s)