LOOK ENGINE PARTS LIMITED & ORS v. ECOBANK NIGERIA PLC & ORS
(2011)LCN/4562(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of March, 2014
CA/L/693/2011
RATIO
FUNDAMENTAL RIGHT: WHETHER FOR THE COURT TO EXERCISE ITS JURISDICTION IN FUNDAMENTSL RIGHTS CLAIMS, THE MAIN OR PRINCIPAL CLAIM MUST BE THE ENFORCEMENT OF FUNDAMENTAL RIGHT AND NOT AN ACCESSORY CLAIM
The issue as to whether a claim is to qualify or fall under the Fundamental Rights, Procedure Rules is already settled. The Rules as provided, are not meant to enforce Common Law rights or mere contractual rights, unless such contractual rights also infringe the constitutional rights of the citizen. This position has since been settled by the Supreme Court. See: Abubakar Umaru Abba Tukur V. the Government of Taraba State & Ors. (1997) 6 NWLR (Pt. 510) 549 at 574 paras B – C, H 575 para A. The apex court set out a precondition to exercise of court’s jurisdiction in Fundamental Rights claims. It stated as follows: When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 a condition precedent to the exercise of the Coarts jurisdiction is that the enforcement of fundamental right or securing of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of Fundamental right or securing the enforcement thereof should, from the applicants claim as presented, be the principal or fundamental claim, and not an accessory claim. Where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly exercised as it will be incompetent. See B. R. T. C. V. Egbuonu (1991) 2 NWLR (Pt.171) 81. Per Ogundare JSC at pages 576 – 577 paras. H – F: The primary complaint of the Appellant in the whole case was his deposition as the Emir of Muri; the alleged breaches of his fundamental rights to fair hearing, liberty and freedom of movement were merely accessory to his primary complaint. The proceedings by way of the Fundamental Rights (Enforcement Procedure) Rules, are inappropriate, in the circumstance. As Adio, I. C. A. put it is Borno Radio Television Corporation V. Basil Egbuonu (supra) at page 90, and quite rightly in my view; The competence of a court to exercise jurisdiction in relation to an action before it depends on certain conditions which Bairamina, F. J., (as he then was) set out in Madukolu & Ors. V. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587, at p.595. His Lordship stated, inter alia, as follows: Before dismissing those portions of the record, I shall make some observations on jurisdiction and the competence of a court. Put briefly, 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 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). The combined effect of the second and third conditions mentioned above is that when the main or principal claim in an application is not the enforcement or securing the enforcement of a fundamental right, the court has no jurisdiction to entertain it under the Fundamental Rights (Enforcement Procedure) Rules, 1979. That is the position in the case of the present application of the Respondent. The Respondent’s application is not properly before the court. (Italics are mine) The Appellant herein ought to have come by way of a writ of summons, not only in respect of Reliefs 1 and 2 but also in respect of the other Reliefs as well..PER SIDI DAUDA BAGE, J.C.A.
ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT: WHETHER WHERE THE ALLEGED BREACH OF RIGHT IS NOT THE PRINCIPAL CLAIM, GRIEVANCE OR COMPLAINT IT WILL BE INCOMPETENT TO PROCEED SUCH ACTION UNDER THE THE FUNDMENTAL RIGHTS (ENFORCEMENT PROCEDURE ) RULES
It cannot be questioned that the right to be an Emir, a natural ruler or a Chief is not an issue cognizable under the Fundamental Rights pursuant to the provisions of Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1979. It is also clear that the central complaint in respect of which the Appellant’s claims were filed revolved in his deposition as the Emir of Muri. The learned trial Chief Judge appeared to have appreciated this point when he proceeded to classify the claims, found the main or principal claims before the court to be chieftaincy matter for which he rightly declined jurisdiction but proceeded to entertain and to uphold the Fundamental Right issues which were merely ancillary or incidental to the main chieftaincy issue before the court, namely, the Appellant’s deposition as the Emir of Muri. The learned trial Chief fudge rightly declined jurisdiction to entertain the main chieftaincy claims before the court. This was because the Appellant wrongly commenced his action by an application on notice supported by affidavit after leave had been obtained pursuant to Order 2 Rule 1 (1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 instead of by way of a writ of summons under which Chieftaincy claims are filed. He nonetheless proceeded to entertain the Fundamental Rights claims which were merely incidental to the main Chieftaincy question before the court. I cannot see how the court below can be faulted by holding that having found that the principal claims before the court were Chieftaincy questions, the trial court ought to have struck out the subsidiary or incidental reliefs just as he did in respect of the principal claims. Following the dicta established by the Supreme Court, this Court of Calabar Division in Effiong V. Ebong (2006) 18 NWIR (Pt. 1010) 127 paras A – H held as follows: At anytime when the court is confronted with a claim under the Fundamental Rights Procedure Rule, it is imperative that it should examine the reliefs and the facts relied upon by the applicant. Where the facts relied upon disclose a breach of the fundamental rights of the applicant as the basis of the claims, there is a clear case for the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules. However, where the alleged breach of right is ancillary or incidental to the principal claim. grievance or complaint, it is incompetent to proceed under the Rules. This is because the right violated is not synonymous with the substantive claim which is the subject matter of the action. (emphasis mine) Following the decisions of two superior courts above the trial court on page 172 of the records in its judgment, the 4th paragraph, stated as follows: Clearly, the dispute grounding this application is such that, can be resolved through the remedies available under the financial contract executed between the parties. The anticipated breach of the Applicant’s fundamental rights as alleged, appears to be ancillary to the core or main cause of the controversy between the parties. That being so, it is my humble view that, the application is incompetent and so should not have been predicated under the Fundamental Rights Enforcement Procedure Rules. In support of this position see the decisions in Egbuonu v. B. R T. C. (1991) 2 NWLR (Pt.177) 81 and Ushae V. Commissioner of Police supra. PER SIDI DAUDA BAGE, J.C.A.
Juctice
SIDI DAUDA BAGE Juctice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Juctice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Juctice of The Court of Appeal of Nigeria
Between
1. LOOK ENGINE PARTS LTD
2. MR. RUFUS ODUONYE
3. MR. HENRY EZEUDEFUNA OKWUZULUIKEAppellant(s)
AND
1. ECOBANK NIGERIA PLC
2. INSPECTOR GENERAL OF POLICE
3. ECONOMIC AND FINANCIAL CRIMES COMMISSIONRespondent(s)
SIDI DAUDA BAGE, J.C.A.(Delivering The Leading Judgment): The Appellants herein lodged this appeal against the judgment of the Federal High Court Lagos, presided over by the Honourable Juctice B. I. Molokwu sitting at Lagos (the court below) in Suit No.FHC/L/CS/1343/2009.
See pages 166 – 174 of the Records of Appeal for copy of judgment.
Upon the grant of leave by the court below in accordance with the requirement of the Fundamental Right [Enforcement Procedurel Rules 1979, the Applicants (Appellants herein) filed an application by way of a Motion on Notice dated the 17th of December, 2009 under the Fundamental Rights (Enforcement Procedure) Rules 1979 praying for reliefs in the following terms:
(i) A DECLARATION that the decisions of the 2nd and 3rd Respondents to arrest and detain the 2nd and 3rd Applicants and the servants or workers of the 1st Applicants at the request of or on the promptings of the 1st Respondent by reason of the failure of the Applicants to liquidate the outstanding credit facilities granted to the 1st and 2nd Applicants by the 1st Respondents in respect of which credit facilities, the Applicants had deposited substantial collateral security are unconstitutional, illegal and constitute grave violation of the constitutional rights of the Applicants to personal liberty and human dignity guaranteed by sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 5 and 6 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, 2004.
(ii) A DECLARATION that the threat or decision of the 1st Respondent to sell the 3rd Applicant’s landed property situated at Olooja Street, Bariga Lagos and covered by the Certificate of Occupancy No.47/47/2003m dated the 1st day of July, 2003 which Certificate of Occupancy had been deposited with the 1st Respondent by way of collateral security of the credit facilities granted to the 1st Applicant’s by the 1st Respondent without fulfilling all conditions precedent constitutes illegal or wrongful violation of the 3rd Applicant’s right to own immovable property guaranteed by Sections 34 and 43 of the constitution of the Federal Republic of Nigeria, 1999.
(iii) AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd and 3rd Respondents, their agents, officers or any other person acting pursuant to their instruction or directive from:
(a) Arresting and detaining the 2nd and 3rd Applicants over the 1st Applicant’s indebtedness to the 1st Respondent
(b) Arresting and detaining any officer or worker of the 1st Applicant over or on account of the 1st Applicants indebtedness to the 1st Respondent.
(iv) AN ORDER of injunction restraining the 1st Respondent, its agents, servants or any other person acting pursuant to its directive or instruction from selling the 3rd Applicant’s landed property situated at Olooja Street Bariga, Lagos and covered by Certificate of Occupancy No. 47/47/2003m dated the 1st day of July, 2003 which Certificate of Occupancy had been deposited with the 1st Respondent as collateral security of the credit facilities granted to the 1st Applicant by the 1st Respondent.
(v) N10,000,000.00 (Ten Million Naira) damages.
By a 23 paragraph counter-affidavit deposed to by Mr. Eroje Ohio on the 22nd of January 2010 and another 13 paragraph further counter-affidavit deposed to on 22nd day of June 2010, the 1st Respondent denied all the averments in the affidavit attached to the Applicants’ application of 17th December, 2009.
The 23 paragraphs counter-affidavit of Eroje Ohio and the 13 paragraphs further counter-affidavit are respectively at pages 66-69 and 149 – 150 of Records of Appeal.
The 3rd Respondent, in the same vein also filed a 14 paragraph counter-affidavit deposed to by one Emmanuel Dawudu, said to be an Assistant Superintendent of Police attached to the Economic and Financial Crimes Commission, the 3rd Respondent. The 3rd Respondent also filed a Notice of Preliminary Objection dated the 25th of January, 2010 challenging the jurisdiction of the court to entertain the suit.
The 3rd Respondent’s counter-affidavit and Notice of Preliminary Objection are respectively at pages 106 – 108 and 109 – 110 of the Records of Appeal.
When the application of 17th December 2009 came up for hearing on the 28th of March 2011, learned counsel for the Applicants moved the application, relying on the affidavits attached to the said application and the further affidavits. Counsel also adopted the written address as well as the reply address and urge the Honourable Court to grant all the reliefs prayed vide the said application.
Learned counsel for the 1st Respondent, in opposing the grant of the application relied on all the averments in both the 23 paragraphs counter-affidavit of 22nd January, 2010 and the 13 paragraphs further counter-affidavit of 22nd June 2010 with all the exhibits annexed thereto. In arguing against the grant of the application Counsel adopted the written address attached to the original counter affidavit of 22nd January 2010 and urged the court to refuse the grant of the application on the grounds that:
(i) The Applicants’ action is not within the purview of claims enforceable under the Fundamental Right (Enforcement Procedure) Rules 1979.
(ii) Assuming (without conceding) that the claims fall within the scope of claims enforceable under the rules, that the Applicants did not supply enough materials to warrant the grant of the reliefs prayed for in the application.
In a considered judgment delivered by the Honourable Court on the 25th of May 2011, the court below agreed with counsel to the 1st Respondent on his contention that the action is not one maintainable under the Fundamental Right Enforcement Procedure Rules. Consequently, the action was struck-out by the court below.
It is the judgment striking-out the suit of the Applicants that is the subject of this appeal.
The Appellants filed a Notice of Appeal dated and filed the 27th of June, 2011, containing Six (6) grounds. The said grounds are hereunder reproduced, shun of their particulars.
GROUND ONE
The learned trial judge erred in law when His Lordship held that the anticipated breach of the Applicants’ / Appellants fundamental rights as alleged appears to be ancillary to the main cause between the parties.
GROUND TWO
The learned trial judge erred in law when His Lordship held “That being so, it is my humble view that, the application is incompetent and so should not have been predicated under the Fundamental Rights Enforcement Procedure Rules. In support of this position see the decisions in EGBONU V. B. R. T. C. (1991) 2 NWLR PT. 171
GROUND THREE
The learned trial judge erred in law when His Lordship held that the 2nd Respondent denied threatening to arrest and detain the Appellants when from the evidence before the Honourable Court, the 2nd Respondent did not put up any appearance before the Honourable Court and did not file any process in the matter.
GROUND FOUR
The learned trial judge misconceived the case of the appellants and the misconception by the learned trial judge led to a miscarriage of Juctice as the case of the appellants was not appreciated by the learned trial judge.
GROUND FIVE
The ruling of the learned trial judge is against the weight of evidence before the court and cannot be supported in law.
GROUND SIX
The decision of the learned trial judge cannot be supported having regard to the facts before the court.
From the Notice of Appeal stated above, learned counsel to the Appellants distilled the following three (3) issues for the determination of the appeal as follows:
(i) Was the learned trial judge right to have strike out the application of the appellants when his lordship took the view that the anticipated breach of the appellants fundamental right was ancillary to the main dispute between the parties? (The issue is formulated from grounds 1 and 2 of the Notice of Appeal).
(ii) Was there any evidence before the trial court by the 2nd Respondent that it did not threaten to arrest the Appellants when the 2nd Respondent did not file any process before the trial court, and did not put up any appearance before the trial court (the issue is formulated from ground 3 of the Notice of Appeal).
(iii) Whether the learned trial judge did not misunderstand the case of the Appellants before the court when the learned trial judge held that if the contract was improperly executed the remedy would have been available to the Appellants under the contracts concluded by the parties when the issue of the execution of the contract was not before the court? (The issue is formulated from grounds 4, 5, and 6 of the Notice of Appeal).
On the other hand, the learned counsel to the Respondent, formulated alone issue for the determination of the Appeal, as follows:
Whether the court below was not right in its decision that considering the circumstances of the case, and the lack of substantial evidence by the Applicants in proof of their case, the claim of the Applicants as presently constituted cannot be redressed under the Fundamental Rights Enforcement Procedure) Rules (1979).
(Distilled from Grounds 1 and 2 of the Notice of Appeal).
Having examined the three (3) issues as formulated by the learned counsel to the Appellants, as against the sole issue formulated by the learned counsel to the Respondents, for the determination of this appeal, it is the view of this court that, one thread that runs across the issues is whether, this action is maintainable under the Fundamental Rights (Enforcement Procedure) Rules. The sole issue for the determination of this appeal in the opinion of this court is as follows:-
Was the court below right in its decision that, considering the circumstances of this case, the claim of the Applicants as presently constituted cannot be redressed under the Fundamental Rights (Enforcement Procedure) rules 1979.
Learned counsel to the Appellants submitted that, in determining the competency of the Appellants action before the court, the court is entitled to look at the Appellant’s claim or relief. It is the claim before the court that has to be looked at or examined to ascertain whether or not the claim comes within the jurisdiction conferred on the court. See: Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284 at 301 – 302; Tukur V. Government of Gongola State (1989) 9 SC 1 (1989) 4 NWIR (Pt.117) 517; Adeyemi v. Opeyori (1976) 9 – 10 SC 31at 51 (1976) 9 – 10 SC (reprint) 18; Attorney General of Anambra State V. Attorney General of the Federation (1993) 6 NWIR (Pt.302) 692 at 742, Adetayo v. Ademola (2010) 3 – 5 SC (Part 1) 87 at 115.
Learned counsel further submitted that, it is trite law that The Fundamental Rights (Enforcement Procedure) Rules are meant to enforce fundamental rights as enshrined in the constitution.” They are not meant to enforce Common Law rights or mere contractual rights unless such contractual rights also infringe the constitutional rights of the citizen. A party who wants to bring an action for infringement of his fundamental right must be able to bring or at least frame his action to fit into one of the facts as contained in Sections 33 to 44 of the Constitution. See: Peterside V. International Merchant Bank Nig. Ltd (1993) 2 NWLR (Pt.278) 712 at 734. The procedure for the commencement of action for breach of Fundamental Rights is provided under Order 2 rule 1; Section 46 (1) of the 1999 Constitution. See also Federal Republic of Nigeria V. Ifegwu (2003) 5 SC 252 at 303 – 306; Uzonkwu V. Ezeonu (1991) 6 NWLR (Pt.200) 708 at 784 Attorney General Anambra State V. Eboh (1992) 1 NWLR (Pt.218) 491 at 509; A. G. of Bendel State V. Aideyan (1989) 9 SC 127; (1989) 4 NWLR (Pt. 118) 646 at 674.
Learned counsel submitted further that, all the Fundamental Rights Enforcement Procedure Rules requires an applicant alleging a breach of his fundamental right is to place before the court sufficient materials to establish that his fundamental right has been infringed, is being infringed or would be infringed. This is in accordance with the provisions of Section 46 (1) of the 1999 Constitution of the Fed. Republic of Nigeria and Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules.
Learned counsel submitted further that, from the Record of the Court, there was no evidence before the learned trial judge to come to the conclusion that the 2nd Respondent denied threatening to arrest and detain the Appellants. The 2nd Respondent did not at any time file any process before the Court and the 2nd Respondent did not even appear in the Court whether personally or through counsel. How the learned trial judge came to a conclusion which is not supported by the evidence before him as such the decision of the Court is in conflict with the decision in the case of Williams V. Majekodunmi (1962) NSCC 268 at 278; where the Supreme Court held the court can draw conclusions only on the evidence presented. See also: The State V. Aigbanbee (1988) 7 SC (Pt.11) 154 at 168-8, 201 – 202; Agholor V. A. G. Bendel (1990) 6 NWLR (Pt.155) 141; Adelenwa V. The State (1972) 10 SC (Reprint) 12 at 19.
Learned counsel further submitted that the learned trial judge having misconstrued the Appellant’s case went further to make a finding that there is no real threat by the 1st Respondent to dispose of the Mortgage property covering the Loan transaction when the evidence before the court shows that the 1st Respondent even after denying not employing the services of the 2nd and 3rd Respondents to arrest and detain the Appellants which we all know in Nigeria is the NORM since the establishment of the 3rd Respondent went on to making a finding that the controversy between the parties arose primarily from the inability of the Appellants to offset their indebtedness to the 1st Respondent arising from the Loan facility granted to them.
Learned counsel submitted further that, it is trite law that where a court misapprehends a party’s case like the case in hand and it goes on to decide the case misapprehended, its decision will not be right and it will be liable to be set aside. See: Federal Ministry of Health V. Comet Shipping Agencies Limited (2009) 5 SC (Part 11) 110 at 137.
In reply to the submissions above, the learned counsel to the 1st Respondent submitted that, it is trite law that for a claim to qualify as falling under fundamental rights it must be clear that the principal relief is for the enforcement or for securing the enforcement of a fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of a fundamental right. In other words, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as one for enforcement of fundamental right. See: F. R. N. V. Ifeguzie (2003) 15 NWLR (Pt.842) 113 at 180; Tukur V. Govt. of Taraba State (1997) 6 NWLR (Pt.510) 549; Sea Trucks (NIG.) Ltd V. Anigboro (2001) 2 NWLR (Pt.696) 159; Effiong V. Ebong (2006) 18 NWLR (Pt.1010) 127 paras. A – H; Peterside v. I. M. B. (Nig.) Ltd. (1993) 2 NWLR (Pt. 278) 734 paras, B – D and E.
Learned counsel submitted further that, from the state of the pleadings i. e. the Applicants motion of 17th December, 2009, the affidavit annexed thereto and all other processes attached to the application, it is evidently clear that the principal reliefs sought by the Applicants are common law reliefs. The claim relating to a threatened arrest and detention is ancillary and secondary to the alleged attempt by the 1st Respondent to dispose off the Applicants property used as security for a loan transaction. It is also evident from the affidavit of the Applicants that their apprehension of a possible arrest and detention by the 2nd and 3rd Respondents arose from the Applicant’s breach of a contractual relationship with the 1st Respondent. Further, there is no order of court to the effect that the 1st Respondent has issued a court process seeking the order of court to dispose off Appellants property. Even where the 1st Respondent had even threatened to dispose off the said property the remedy that would have been available to the applicants would be one under the civil contract and not under the Enforcement Procedure Rules.
On the part of this court, the submission of counsel is carefully examined. The issue as to whether a claim is to qualify or fall under the Fundamental Rights, Procedure Rules is already settled. The Rules as provided, are not meant to enforce Common Law rights or mere contractual rights, unless such contractual rights also infringe the constitutional rights of the citizen. This position has since been settled by the Supreme Court. See: Abubakar Umaru Abba Tukur V. the Government of Taraba State & Ors. (1997) 6 NWLR (Pt. 510) 549 at 574 paras B – C, H 575 para A. The apex court set out a precondition to exercise of court’s jurisdiction in Fundamental Rights claims. It stated as follows:
When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 a condition precedent to the exercise of the Coarts jurisdiction is that the enforcement of fundamental right or securing of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of Fundamental right or securing the enforcement thereof should, from the applicants claim as presented, be the principal or fundamental claim, and not an accessory claim. Where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly exercised as it will be incompetent. See B. R. T. C. V. Egbuonu (1991) 2 NWLR (Pt.171) 81.
Per Ogundare JSC at pages 576 – 577 paras. H – F:
The primary complaint of the Appellant in the whole case was his deposition as the Emir of Muri; the alleged breaches of his fundamental rights to fair hearing, liberty and freedom of movement were merely accessory to his primary complaint. The proceedings by way of the Fundamental Rights (Enforcement Procedure) Rules, are inappropriate, in the circumstance.
As Adio, I. C. A. put it is Borno Radio Television Corporation V. Basil Egbuonu (supra) at page 90, and quite rightly in my view;
The competence of a court to exercise jurisdiction in relation to an action before it depends on certain conditions which Bairamina, F. J., (as he then was) set out in Madukolu & Ors. V. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587, at p.595. His Lordship stated, inter alia, as follows:
Before dismissing those portions of the record, I shall make some observations on jurisdiction and the competence of a court. Put briefly, 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 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).
The combined effect of the second and third conditions mentioned above is that when the main or principal claim in an application is not the enforcement or securing the enforcement of a fundamental right, the court has no jurisdiction to entertain it under the Fundamental Rights (Enforcement Procedure) Rules, 1979. That is the position in the case of the present application of the Respondent. The Respondent’s application is not properly before the court. (Italics are mine) The Appellant herein ought to have come by way of a writ of summons, not only in respect of Reliefs 1 and 2 but also in respect of the other Reliefs as well.
Per BELGORE, J.S.C. at page 578 – 578, paras. C – F; This matter was taken to the trial court on a wrong vehicle, instead of a writ of summons designed for initiating an action, it was started with a motion on notice under Fundamental Rights Procedure under the Constitution.
The real crux of the complaint in the trial court, however, is as to whether the Plaintiff was lawfully deposed as the Emir of Muri, but this was cloaked under Fundamental Rights. Since the main procedure approach at the trial court was incompetent, no relief could flow from it. It is impossible to separate the main issues, had the Plaintiff initiated the action by writ of summons perhaps the story would have been different, better still if he had brought the two actions-one under fundamental rights and another under normal writ of summons. All the breaches of fundamental rights emanated from the Plaintiffs deposition as an Emir and it would have been right for him to challenge the legality of the deposition via writ of summons. Ancillary to his deposition are the issues of his freedom of movement and liberty. The High Court of Taraba State has jurisdiction to try all the reliefs sought but the real defect is that he went under a wrong procedural process making the action incompetent. Certainly this action was wrongly separated by the trial court. The Court of Appeal was therefore right that since the principal claim was incompetent, the ancillary ones must collapse with it. I therefore agree with Ogundare, JSC that this appeal has no merit.
Per IGUH, J.S.C.at page 582, paras. C – F:
It cannot be questioned that the right to be an Emir, a natural ruler or a Chief is not an issue cognizable under the Fundamental Rights pursuant to the provisions of Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1979. It is also clear that the central complaint in respect of which the Appellant’s claims were filed revolved in his deposition as the Emir of Muri. The learned trial Chief Judge appeared to have appreciated this point when he proceeded to classify the claims, found the main or principal claims before the court to be chieftaincy matter for which he rightly declined jurisdiction but proceeded to entertain and to uphold the Fundamental Right issues which were merely ancillary or incidental to the main chieftaincy issue before the court, namely, the Appellant’s deposition as the Emir of Muri. The learned trial Chief fudge rightly declined jurisdiction to entertain the main chieftaincy claims before the court. This was because the Appellant wrongly commenced his action by an application on notice supported by affidavit after leave had been obtained pursuant to Order 2 Rule 1 (1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 instead of by way of a writ of summons under which Chieftaincy claims are filed. He nonetheless proceeded to entertain the Fundamental Rights claims which were merely incidental to the main Chieftaincy question before the court. I cannot see how the court below can be faulted by holding that having found that the principal claims before the court were Chieftaincy questions, the trial court ought to have struck out the subsidiary or incidental reliefs just as he did in respect of the principal claims.
Following the dicta established by the Supreme Court, this Court of Calabar Division in Effiong V. Ebong (2006) 18 NWIR (Pt. 1010) 127 paras A – H held as follows:
At anytime when the court is confronted with a claim under the Fundamental Rights Procedure Rule, it is imperative that it should examine the reliefs and the facts relied upon by the applicant. Where the facts relied upon disclose a breach of the fundamental rights of the applicant as the basis of the claims, there is a clear case for the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules. However, where the alleged breach of right is ancillary or incidental to the principal claim. grievance or complaint, it is incompetent to proceed under the Rules. This is because the right violated is not synonymous with the substantive claim which is the subject matter of the action. (emphasis mine)
Following the decisions of two superior courts above the trial court on page 172 of the records in its judgment, the 4th paragraph, stated as follows:
Clearly, the dispute grounding this application is such that, can be resolved through the remedies available under the financial contract executed between the parties. The anticipated breach of the Applicant’s fundamental rights as alleged, appears to be ancillary to the core or main cause of the controversy between the parties. That being so, it is my humble view that, the application is incompetent and so should not have been predicated under the Fundamental Rights Enforcement Procedure Rules. In support of this position see the decisions in Egbuonu v. B. R T. C. (1991) 2 NWLR (Pt.177) 81 and Ushae V. Commissioner of Police supra. With respect to the instant appeal, what is not in dispute is the existence of a contractual relationship between the Appellant’s and the 1st Respondent. This no doubt constitutes the main claim between the parties. Facts of the case suggest that a Loan facility, which is not disputed, was granted the Appellants by the 1st Respondent. Also the fact shows that, there was default to redeem the Loan by the Appellants which remains unresolved. Another fact suggests that the said loan was backed up by security from the Appellants. There was a threat to dispose off those security by the 1st Respondent to recover the Loan facility.
The main crux of the breach of Fundamental Right as employed by the Appellant was the method employed by the 1st Respondent. The involvement of the 2nd and 3rd Respondents by the 1st Respondent had constituted a real threat to the Fundamental Rights of the Appellants. The 2nd and 3rd Respondent being security agencies have the capacity and or capability to arrest and detained the Appellants.
Accordingly the anticipated threat appears real, and the Appellants could not sit back to watch their Fundamental Right threatened. This is the whole scenario of the point of the instant appeal. The fact here however, remains constant, there is the main claim which is the contract of the Loan facility between the Appellants and the 1st Respondent.
If there was a breach on the terms of the agreement on either side to the contract the remedy available is to be found on a civil action in contract. The breach may even include the involvement of the 2nd and 3rd Respondents who were not initial part of the contract. Their involvement is to ground a civil action being stranger to the terms of the contract. Their anticipated or perceived threat, notwithstanding, civil action can be invoked to ensure the proper execution of the terms of contract. The issue of the threat or anticipated threat is not and cannot be the principal or the fundamental claim between the Appellants and the 1st Respondents. The said threat or the anticipated threat to either dispose the security for the Loan, or the threat to arrest or detained the Appellants are only accessory or ancillary to the main claim. Where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised as it will be incompetent. The present action therefore was brought at the Lower Court not initiated by due process of Law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu & Or. V. Nkemdilim (1962) 1 All NLR 587 at 595.On the whole therefore, this court has resolved the sole issue in this appeal in favour of the Respondents and against the Appellants.
In the final analysis, this appeal is devoid of any merit and it is hereby dismissed. The Ruling of Hon. Juctice B, I. Molokwu of the Federal High Court, Lagos judicial Division in Suit No. FHC/L/CS/1343/2009 delivered on the 25th of May, 2011, is hereby affirmed by this Court.
Parties to bear their own costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in advance the comprehensive judgment of my learned brother, Sidi Dauda Bage, J.C.A., with which I agree and adopt as my judgment with nothing useful to add.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the lead Judgment delivered by SIDI DAUDA BAGE J.C.A and I agree with his reasoning and conclusion.
I adopt his reasoning as mine and the appeal, being devoid of merit is dismissed by me.
I abide by the consequential order made as to costs, that parties shall bear their own cost.
>
Appearances
C. A. Chambang with E. C. OkonkwoFor Appellant
AND
J. K. Aworinde for the 1st RespondentFor Respondent
