MALLAM NASIR AHMED EL-RUFAI v. SENATE OF THE NATIONAL ASSEMBLY & ORS
(2014)LCN/7686(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of March, 2014
CA/A/169/2010
RATIO
LAWS: PUBLIC OFFICERS PROTECTION ACT; WHETHER THE PUBLIC OFFICERS PROTECTION ACT PROTECT BOTH ARTIFICIAL PERSONS AND NATURAL PERSONS
The law seems settled that Public Officers Protection Act protect both artificial persons and natural persons, who act in the public service of the Federation of Nigeria or of a State of the Federal Republic of Nigeria. See the meaning of “Public Officer” under Section 18 of the Interpretation Act. See also the case of Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State & Anor. (1998) 14 NWLR (Pt. 584) 1 at 36, per Iguh, JSC.
Section 2(a) of the Public Officers Protection Act provides thus:
“2. Where any action, prosecution or other preceding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following Provisions shall have effect-
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.
Provided that if the action, prosecution or proceeding be at the instance of any Person for cause arising while such person was a convict, prisoner, it may be commenced within three months after the discharge of such a person…?
While interpreting provisions ipsissima verba of the provisions reproduced above, the Supreme Court per Iguh, JSC stated in Ibrahim v. Judicial Service Committee (Supra) as follows:
“There is also the definition of the same word ‘person’ in Section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 as follows:
“person” includes any body of persons corporate or unincorporated.’
Without, therefore, seeking guidance from any where else, it seems to me plain that the definition of the word ‘person’ in the legal sense under the Nigerian law is not limited to natural persons or human beings only as the appellant now vigorously appears to contend. It clearly admits and includes artificial persons such as a corporation sole, company or any body of persons corporate or incorporate. In this regard, and again without making reference to decisions of any foreign jurisdiction, it is clear to me that it cannot be right that the definition of ‘any person in the Public Officers (Protection) Law of Northern Nigeria, 1963 must be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. I am not, with respect, prepared to accept this interpretation as well founded.”
See also the case of Federal Government of Nigeria & 6 Ors. v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162 at 195 where Mohammed, JSC held that:
“I think the argument whether the appellants are public officers or not has already been settled by my Lord Iguh, JSC, who wrote the lead judgment in Ibrahim’s case, supra.
In that case Iguh, JSC, interpreted the meaning of “Public Officers” or “any person” used in the Public Officers (Protection) Law, Cap. 111 of Northern Nigeria, 1963 thus,
“… I did hold that the words ‘public officer’ or ‘any person’ in public office as stipulated in Section 2 refer to natural persons or persons sued in their personal names but that they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles”.
All the appellants are therefore public officers within the meaning of the Public Officers Protection Act. See also the case of Permanent Secretary Ministry of Works, E.T.C. & Anor. v. Balogun (1975) NSCC 292.” per. MOORE A. A. ADUMEIN, J.C.A.
STATUTE OF LIMITATION; WHETHER THE TIME SPECIFIED IN A STATUTE OF LIMITATION FOR FILING AN ACTION CANNOT BE EXTENDED BY THE COURT
The law seems quite settled that a time specified in a statute of limitation for filing an action cannot be extended by the court, unless the statute itself has made provision for extension of time. See Congress for Progressive Change v. Independent National Electoral Commission (INEC) & 41 Ors (2011) 18 NWLR (Pt. 1279) 493. per. MOORE A. A. ADUMEIN, J.C.A.
ACTION; HOW TO DETERMINE WHETHER OR NOT AN ACTION IS STATUTE BARRED
In the determination of a question whether or not an action is statute barred the processes that should be examined are the claims endorsed in writ of summons and/or statement of claim and the facts pleaded in the claimant’s statement of claim. See Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649. per. MOORE A. A. ADUMEIN, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHTS; WHAT ARE FUNDAMENTAL RIGHTS
Fundamental rights are not ordinary rights, as they are rights derived from fundamental law, such as the Constitution and are therefore important or significant rights the “encroachment of which are rigorously tested by courts to ascertain the soundness of …justification” – Black’s Law Dictionary, Deluxe Ninth Edition, Page 744. Fundamental rights are, therefore regarded as inalienable human rights which cannot be infringed without a breach of the fundamental law of the land, that is the Constitution, which recognizes such rights.
In the case of Federal Republic of Nigeria v. Ifegwu (2003) FWLR (Pt. 167) 703 at 758, the Supreme Court, per Uwaifo, JSC said that “Fundamental rights are regarded as part of human beings.” Also this court made the point, loud and clear, when it held in Uzoukwu v. Ezeonu II (1991) 5 NWLR (Pt. 200) 708 at 761, per Nasir, PCA as follows:
“Due to the development of Constitutional Law in this field distinct difference has emerged between ‘Fundamental Rights’ and ‘Human Rights’. It may be recalled that human rights were derived from and out of the wider concept of natural rights. They are rights which every civilized society must accept; as belonging to each person as a human being. These were termed human rights. When the United Nations made its declaration it was in respect of ‘Human Rights’ as it was envisaged that certain Rights belong to all human beings irrespective of citizenship, race, religion and so on. This has now formed part of International Law.
Fundamental Rights remain in their realm of domestic law.
They are fundamental because they have been guaranteed by the fundamental law of the country; that is by Constitution.” (Underlining mine for emphasis).
On the inalienable and immutable nature of fundamental rights, the Supreme Court stated in the earlier case of Chief (Mrs.) Olufunmilayo Ransome-Kuti & Ors. v. Attorney General of the Federation (1985) 2 NWLR (Pt. 6) 211 at 229 – 230 as follows:
“This is no doubt a right guaranteed to everyone including the appellants by the Constitution. But what is the nature of a Fundamental Right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our Constitution, since independence starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in Council 1960, up to the Present Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: It is the 1963 Constitution that applies) is to have these rights enshrined in the Constitutions so that the rights could be immutable to the extent of the ‘non-immutability’ of the Constitution itself.” (Underlining mine)
Owing to its peculiar nature, being a constitutional right, the Supreme Court has held that “A fundamental right is certainly a right which stands above the ordinary laws of the land.” See Badejo v. Minister of Education (1996) 9-10 SCNJ 51 per Kutigi, JSC (as he then was). per. MOORE A. A. ADUMEIN, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
MALLAM NASIR AHMED EL-RUFAI Appellant(s)
AND
1. SENATE OF THE NATIONAL ASSEMBLY
2. PRESIDENT OF THE SENATE OF THE NATIONAL ASSEMBLY
3. SENATOR ABUBAKAR D. SODANGI
4. CLERK OF THE NATIONAL ASSEMBLY
5. HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY
6. ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final judgment of the Federal High Court, Abuja Division per Honourable Justice M. G. Umar delivered on 11th March, 2010 in Suit No. FHC/ABJ/CS/535/08 whereby the lower court dismissed the action of the Appellant on the ground that it was statute barred.
The appellant was the Minister of the Federal Capital Territory between June 2003 and May 2007. In response to several petitions written by members of the public against some of his official conduct, while in office. On 12/03/2008 there was a resolution of the Senate to conduct investigative public hearing on the activities in the Federal Capital Territory between 29th of May 1999 and 29th day of May 2007. A Senate Committee was thereafter inaugurated to conduct the investigative hearing. The appellant appeared before the Committee and made his oral and written presentation. The Joint Committee on the 10th day of July, 2008 submitted its report and made recommendations to the Senate that:-
a. He should account for all funds collected by the Ad Hoc bodies he raised during his tenure.
b. The House he obtained for himself where he signed as lessor and lessee be revoked.
c. He is not a fit and proper person to hold office in a democratic set up.
Pursuant to the said report, the Appellant commenced an action at the lower court by way of motion ex-parte seeking leave of court to enforce his fundamental rights and sought the following reliefs:
a. A Declaration that the refusal, failure and neglect of the joint Senate committee of the Senate on FCT and Housing that conducted the investigative public hearing into the administration of the Federal Capital Territory between May 29th 1999 and May 29th 2007 to make the alleged gamut of petitions over injustice meted out to the writers within the period under investigation available to the applicant, insofar as those petitions affect him in spite of his request therefore, is unfair and constitutes a breach of the Federal Republic of Nigeria, 1999 and Article 7 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004 and is therefore unlawful, illegal and unconstitutional.
b. A Declaration that the membership of the Joint Committee of the Senate on FCT and Housing that allegedly investigated the administration of the Federal Capital Territory between May 29th 1999 and May 29th 2007 was composed mainly and principally of persons who are interested in the subject matter of the investigation contrary to the principles of fair hearing and natural justice.
c. A Declaration that the refusal, neglect and failure of the joint Senate committee on FCT and Housing that conducted the investigative public hearing into the administration of the Federal Capital Territory between May 29th 1999 and May 29th 2007 to afford him adequate time and facilities for his defence is tainted with bias, malice, prejudice, unfairness and constitute a gross violation of the applicant’s right to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and article of the African Charter on Human and People’s rights (Ratification and Enforcement) Act, Cap A9 Laws of the Federation of Nigeria, 2004 and is therefore illegal, unlawful, null, void, unconstitutional and of no effect whatsoever.
d. A Declaration that the recommendation of the joint Senate committee on FCT and Housing that conducted the investigative public Hearing into the administration of the Federal Capital Territory between May 29th 1999 and May 29th 2007 that the Applicant is not a fit and proper person to hold public office in a democratic set up is a fundamental breach of the right of the applicant to participate directly in government of Nigeria and have access to public service as guaranteed by Article 13 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act, Cap, A9 Laws of the Federation of Nigeria, 2004 and is therefore illegal, unlawful, null, void and of no effect whatsoever.
e. An Order quashing the entire proceedings and the interim report of the joint Senate committee on FCT and Housing on the investigative public Hearing into the administration of the FCT between 1999 to 2007 on the ground that they are unconstitutional, null, void and of no effect.
f. An Order perpetually prohibiting the respondents whether by themselves, agents privies, officers, member or by whomsoever and howsoever from acting on the recommendations of or deliberating upon the interim, report on the investigative public Hearing on the activities of the Federal Capital Territory Administration, 1999-2008 or any other report for that matter based upon the illegal and unconstitutional investigative public hearing conductive between 12th of March 2008 and 10th of July 2008 by them insofar as it affects the Applicant or at all.
ALTERNATIVELY
g. An Order, of perpetual injunction restraining the respondents whether by themselves, agents, privies, officers, members or by whomsoever and howsoever from acting on the recommendations of deliberating upon the interim report on the investigative public Hearing on the Activities of the Federal Capital Territory Administration, 1999-2008 or any other report for that matter based upon the illegal and unconditional investigative Public hearing between 12th of March 2008 and 10th of July 2008 by them insofar as it affects the applicant or at all.
Leave was granted and pursuant to the leave of the lower court granted on the 14th August 2008, the appellant filed a motion on notice which spans pages 134-139 of the record. All the respondents, except the 3rd and 5th, filed counter affidavits to the motion on notice. The 1st, 2nd and 4th respondents as well as the 3rd respondent’s filed preliminary objections to the action. The parties, except the 5th and 6th respondents filed their written addresses and the appellant filed his reply to the respondents’ written address and all addresses were duly adopted. In a considered judgment delivered on the 11th day of March 2010, the trial court dismissed the action of the appellant on the ground that it was statute barred. The appellant is aggrieved by this decision and has appealed to this court vide a notice and grounds of appeal filled on the 28th day of April 2010.
The grounds of appeal are hereby reproduced without their particulars:
GROUND 1
Misdirection
The learned trial judge misdirected himself when he held as follows:
From the paragraphs above I am entirely in agreement with the applicant in the objection that the failure of the respondents to make available copies of the petition to the appellant is the principal cause of action and I so hold.
GROUND 2
Error of law
From this paragraph (paragraph 20 in support of the substantive application) it is clear that the request for the release of the document was made before the 30th of April 2008. The applicant deliberately or tactically refused to state the exact date when the request for the petition which led to the cause of action was made. This court is duty bound to infer from the paper filed before this court. The applicant in the objection is of the view that the applicant in this case made the request on the 9th April 2008 that request was made in writing by the applicant in support of the application…This has not been denied by the applicant in any way by filing a further affidavit to refute same. I am therefore bound to accept that the 9th of April 2008 was the day when the request was made. If this is the case then I am in agreement with the application of the 3rd respondent that the cause of action arose on the 9th of April 2008. This clearly shows that the cause of action was commenced outside the statutory limitation period as envisaged by S. 2 (a) of the Public Officers Protection Act.
GROUND 3
Error of law
The learned trial judge erred in law when he held as follows:
It is the submission of the learned counsel that elected officers are not within the contemplation of the Public Officers Protection Act as public officers. He relied on S. 318(1) of the 1999 Constitution. It is to be noted that the 3rd respondent is a Senator…He is not the only respondent.
2nd respondent is the Senate of the National Assembly; 4th respondent is the Clerk of National Assembly; 5th respondent is the Minister of the Federal Capital Territory; 6th respondent is the Attorney General of the Federation.
These are public officers who will take cover under the protection of the Public Officers Protection Act. I therefore hold that the action is statute barred and the applicant cannot enforce his right and it is hereby dismissed.
GROUND 4
Error of law
The learned trial judge erred in law by not considering the merits of the appellant’s case in his judgment.
GROUND 5
Error of law
The learned trial judge erred in law by not delivering the judgment within three months as provided for under Section 294 of the Constitution of the Federal Republic of Nigeria, 1999 and therefore lost his impression of the entire case and thereby occasioned miscarriage of justice against the appellant.”
Briefs were filed exchanged between the parties. The appellant’s brief was filed on 8/6/10, while the 1st, 2nd and 4th respondents’ joint brief was filed on 31/5/11. The 3rd respondent’s brief was filed on 7/6/11 while the 5th respondent’s brief filed on 11/1/13 was deemed properly filed on 18/03/2014. In his brief, the appellant identified the following three (3) issues for determination:
a. Whether the learned trial judge was right in holding that the failure of the respondents to make available to the Appellant petitions written against was the principal cause of action.
(Ground 1)
b. Whether having regard to the entire circumstances, the learned trial judge was correct to have held that Appellant’s suit was caught by the provision of Section 2 (a) of the Public Officers Protection Act. (Ground 2 and 3)
c. Whether it was right for the learned trial judge not to have considered the case of the Appellant on the merits (Ground 4).
The 1st, 2nd and 4th respondents adopted the issues formulated by the appellant. The 3rd respondent also adopted the issues formulated by the appellant but added a fourth issue for determination as follows:
1. Whether the learned trial judge was wrong to hold that the Applicant/Appellant’s action is statute barred and that the Applicant cannot enforce his right.
The 5th and 6th respondents, in their separate briefs, adopted the 3 issues framed by the appellant.
This appeal shall be determined on the 3 issues identified by the appellant as arising for determination.
Learned counsel for the appellant referred to the appellant’s claims and contended that the learned trial judge “evidently misconceived the issues submitted for adjudication before him by reducing the claims… to relief (a)” and that this was done when the trial judge singled out ground 1 as the basis for his decision. He referred to the cases of Nwadike v. Ibekwe (1987) 11 – 12 SCNJ 72 at 99 – 100 and Hambe v. Hueze (2001) 4 NWLR (Pt. 703) 372 at 389 and urged the court to hold that the learned trial judge misconceived the issues submitted for adjudication and, therefore, misdirected himself. Relying on the case of Metal Construction (W.A.) Ltd v. Aboderin (1998) 8 NWLR (Pt. 563) 538 at 547, the learned counsel for the appellant contained as follows:
“That the finding of the learned trial judge amounted to a misdirection is borne out by the fact that under our law a party is permitted to rely on several different rights alternatively, even if the rights are conflicting.”
The appellant relied on the cases of Igiehon v. Omoregie (1993) 2 NWLR (Pt. 276) 398 at 408 – 409 and Iwuoha v. NIPOST Ltd (2003) 8 NWLR (Pt. 822) 308 at 343 – 344 and argued that any decision based on a misdirection occasioning a miscarriage of justice would be set aside by an appellate court. After referring to Article 13 of the African Charter on Human and Peoples’ Right the appellant contended that the finding of the lower court, that it was the failure of the respondents to make copies of the petitions written against him constituted his principal cause of action, was perverse “because it failed to consider his “significant cause of action”.
The court was urged to set aside the decision of the lower court.
In their joint arguments, the 1st, 2nd and 4th respondents contended that “there is no gain saying (sic) that the case of the appellant and his entire reliefs is (sic) anchored on the main or principal relief (i.e. relief “A”).”
They submitted that the appellant’s grievance “is that of the alleged failure of the respondents to avail him copies of the petitions written against him” and that the trial court’s expression on this was an obiter.”
The 1st, 2nd and 4th respondents argued that the trial court occasioned a miscarriage of justice. They referred to the case of Ojo v. Anibire (2004) 10 NWLR (Pt. 882) 571 at 583 – 584, per Kalgo, JSC and submitted that although the phrase “miscarriage of justice” is not capable of a precise definition, it however means a failure of justice or justice not according to law.
On behalf of the 1st, 2nd and 4th respondents, their learned Senior Counsel – Yunus Ustaz (SAN) submitted as follows:
“In the instant case, we submit humbly that although the learned trial judge held that the failure of the respondents to make available copies petition to the appellant is the principal cause of action, his lordship did not make finding based on this holding neither did he dismiss the appellant’s case on the said holding. The said holding is not a ratio decidendi but at best an obiter dictum of the court.”
The learned Senior Advocate of Nigeria contended that “an obiter dictum of a court does not decide the live issue in the matter while the ratio decidendi does”. On this point, he cited and relied on the cases of Orugbo v. UTC (Nigeria) Ltd v. Pamotei & Ors (1989) 1 NSCC 523 at 525.
It was finally contended by the 1st, 2nd and 4th respondents that in this case the trial court based its decision on the Public Officers Protection Act.
In his response, the 3rd respondent referred to the meaning of the term “cause of action” as given by this court in the case of Ogah v. Bende Divisional Union, Jos Branch (2001) 3 NWLR (Pt. 701) 579 and submitted that the trial court was right, based on the appellant’s application, to have held that “…the failure of the respondents to make available copies of the petitions to the applicant in this application is the principal cause of action…”
Similarly, the 5th respondent relied on the meaning and connotation of “cause of action” as stated in the cases of Ansa v. Etim (2010) All FWLR (Pt. 541) 1555 at 1566; Obgimi v. Ololo (1993) 7 NWLR (Pt. 304) 128 and Oloriode v. Oyebi (1984) 5 SC 1 at 28 and submitted that the holding of the learned trial judge, complained of, cannot be faulted. The 6th respondent’s arguments, on this issue, are substantially the same as those of the 5th respondent and I find it necessary to reproduce or summarize the 6th respondent’s argument, as doing so will amount to mere superfluity.
ISSUE 2
The appellant’s arguments on this issue are from paragraphs 5.1 to 5.27, spanning pages 13 to 18 of his brief. The appellant referred to the decision of the learned trial judge where he stated, inter alia, as follows:
“I am therefore bound to accept that the 9th of April, 2008 was a date when the request or application was made and I so hold. If this is the case then I am in agreement with the application of the 3rd defendant that the cause of action arose on the 9th of April, 2008.
This clearly show (sic) that the cause of action was commenced outside the statutory limitation period as envisaged by Section 2(a) of the Public Officers Protection Act”.
The appellant punctuated the decision of the trial court by contending that “there was evidence before the trial court to the effect that the appellant requested for the petitions on 2nd of May, 2008 and not just on 9th of April, 2008.” He referred to paragraph 21 of the affidavit in support of application and stated through his learned counsel – Bamidele Aturu, Esq; as follows:
“It is submitted that based on the unchallenged evidence before the trial court even if failure to make available copies of petition written against the appellant were the principal cause of action (which is not conceded) the court ought to have found that the request was made on the 2nd of May 2008 and that being the case, the action of the appellant which was filed on the 24th of July 2008 could not have been caught by the limitation clause contained in Section 2 (a) of the Public Officers Protection Act (POPA) as the period between 2nd of May 2008 and 24th of July 2008 is less than the three months period stipulated in the Act.”
Relying on the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 665, the appellant argued that “unchallenged affidavit evidence ought to be deemed as admitted and acted upon by the court.”
In any case, the learned counsel for the appellant submitted that the Public Officers Protection Act is not applicable to the appellant’s case learned counsel canvassed further as follows:
“This submission is based on the fact that the Fundamental Rights (Enforcement) Procedure Rules, 1979 was sui generis and covered the filed on the question when an action commenced under it can be said to be statute barred.
By virtue of Order 1 Rule 3(1) of the said Rules, the period within which an applicant could file his application was 12 months. Thus an applicant, such as the appellant, who filed his process within 12 months could not be caught by the provisions of the Public Officers Protection Act. The learned trial judge, it is submitted with respect, erred in holding that the application of the appellant was statute barred.
It is also worth pointing out that by virtue of Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 ‘threatened breach’ of fundamental rights can constitute a cause of action. Thus if there is a continuing threatened breach of the right of a litigant, the fact that the action is filed outside three months of commencement of the threat cannot be an answer to an action challenging the threatened breach. This court has considered the scope of Section 46 of the Constitution extensively in the case of Uzoukwu v. Ezeonu II (1999) 6 NWLR (Pt. 200) 708.”
To further buttress his argument that the Public Officers Protection Act was not applicable to the appellant’s case, it was contended that the Act “does not protect elected officers and institutions that do not come within the meaning of public service of the Federation” and the cases of Asogwa v. Chukwu (2003) 4 NWLR (Pt. 811) 540; Gov. Ebonyi State v. Isuama (2004) 6 NWLR (Pt. 870) 511 and Dada v. Adeyeye (2005) 6 NWLR (Pt. 920) 1.
The appellant, however, concluded that the 3rd respondent is a public officer within the definition of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999″ but argued that being a nominal party with no specific claim made against him, the name of the 3rd respondent could be struck out.
They contended that they (1st, 2nd and 4th respondents) were all creations of the Constitution of the Federal Republic of Nigeria, 1999. The 1st, 2nd and 4th respondents jointly argued that the respondents were public officers and that they were protected by the Public Officers Protection Act. In support of their argument, they referred the court to the decision in Ibrahim v. Judicial Service Committee (1998) 14 NWLR (Pt. 584) 1.
It was submitted by the 1st, 2nd and 4th respondents that the cause of action arose on the 9th day of April, 2008 ‘which is the date the appellant made request to the 1st – 4th respondents to be given copies of the petitions written against him, which he (the appellant) said was refused, while the action was commenced on the 14th August, 2008 (i.e. over 4 months after the cause of action arose).”
The separate arguments of the learned counsel for the 3rd, 5th and 6th respondents are basically the same as the joint arguments of the 1st, 2nd and 4th respondents contended that the appellant’s suit in the lower court was caught by the provisions of Section 2(a) of the Public Officers Protection Act, a statute of limitation and that it was statute-barred.
The respondents urged the court to resolve this issue against the appellant.
ISSUE 3
Learned counsel referred to the 4th paragraph of Page 473 of the record of appeal and stated that the parties agreed, and it was sanctioned by the learned trial judge, that all the preliminary objections of the respondents and the appellant’s substantive application should be taken together and that they so were heard. The appellant referred to the case of Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332 at 360 where the Supreme Court stated as follows:
“all Courts (including the Supreme Court) must never leave any issue or issues raised by the party or parties to suit without hearing and determining same before concluding the case”
The appellant contended that since the trial court did not consider “the substantive application of the appellant and the arguments canvassed in its support”, the learned trial judge breached the time-honoured principle of law stated by the Supreme Court in Yusuf v. Adegoke (supra). It was contended that the failure to consider the appellant’s substantive application constituted a breach of his fundamental right.
They urged the court to resolve this issue in his favour and to exercise its powers under Section 15 of the Court of Appeal Act, 2004 to examine “the substantive application…, the notice of preliminary objection and the written addresses and decide the case as if it had been instituted before it.” On the conditions for the exercise by the Court of Appeal of its powers under Section 15 of the Court of Appeal Act, 2004 the appellant referred to Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 691 – 692.
The 1st, 2nd and 4th respondents referred to the cases of Etim v. I.G.P. (2001) 11 NWLR (Pt. 724) 266 at 285 and Eboigbe v. NNPC (1994) 4 NWLR (Pt. 347) 649 at 666 and contended that the result of a successful defence that an action is statute-barred is a dismissal of the action. They then submitted that:
“In the case, the learned trial judge having held that the suit is statute barred, made the proper order by dismissing the suit. And having dismissed the suit, there is nothing left for the Hon. learned trial judge to resolve.”
In substance, the 3rd, 5th and 6th respondents, in their separate briefs, contended that the trial court was right to have taken the preliminary objections first and having found that the action was statute-barred, was right in dismissing the action without considering the substantive application. On the principle of law that an issue of jurisdiction should be determined first, they cited and relied on many cases including the cases of Umaru v. Aliyu (2010) All FWLR (Pt. 508) 329; F.B.N Plc v. T.S.A. Industries Ltd (2010) All FWLR (Pt. 537) 633. On their submission that the trial court was not to have proceeded with the determination of the substantive application after holding that the action was statute-barred, they referred the court to the cases of Fajimolu v. University of Ilorin (2007) All FWLR (Pt. 350) 1361 at 1372; Iyanda v. Amori (2007) All FWLR (Pt. 349) 1172 at 1182 and Nwaonu v. Osuchukwu (2007) All FWLR (Pt. 374) 313 at 332.
The respondents urged the court to resolve this issue against the appellant. They also urged the court not to invoke its powers under Section 15 of the Court of Appeal Act, 2004 as the conditions set out in Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 are absent in this case.
RESOLUTION OF THE ISSUES
It is more convenient for me to resolve all the three issues, which call for determination of this appeal, together and I will so resolve them.
The record bears uncontroverted testimony of the fact that the various preliminary objections raised by the respondents were taken and heard together with the consent of the parties and the trial court. This fact was made clear by the learned trial judge, when he stated in his judgment, specifically at page 473 of the record of appeal, as follows:
“when the substantive application came up for hearing learned counsel to the applicant informed this court that he was served with notices of preliminary objection from the 3rd respondent as well as from counsel to 1st, 2nd and 4th respondents.
Counsel to the applicant sought for the order of this court to hear the objections together with the substantive application and the absence of any objection from counsel to the defendants the application was granted.”
The learned trial court proceeded to take the objections first and, having arrived at the conclusion that the appellant’s action was statute barred, dismissed same without taking any further step on the substantive application for the enforcement of the appellant’s fundamental rights. I am of the view that the learned trial judge erred in not expressing his opinion or views on the appellant’s substantive application, after determining that the appellant’s action was statute barred. The learned trial judge, having undertaken a judicial commitment “to hear the objections together with the substantive application” had the judicial burden to express his views on both the objections and the substantive application, as he was not sitting in a court having the final say on both the objections and or the substantive application. It was incumbent upon the trial court, having regard to its own decision to hear the objection and the substantive application together, to determine both the objections and the substantive application one way or the other. In other words, the trial court, in order to save precious judicial time, ought to have proceeded to determine the substantive application after resolving that the action was statute barred. This is usually done, in circumstances such as the present case, by the trial judge saying: “In case I am wrong in my decision/view that the plaintiff’s action is statute barred, I will consider the application/case on its merit” or words in like manner, indicating his alternative decision to that on the preliminary objection(s). By so doing, time and scarce resources will be saved by parties having only one ‘bag’ of appeal containing all their grievances, including the issue of jurisdiction, on the subject-matter of litigation. This ‘wholesale’ approach, in my view, is preferable to the piece-meal or ‘retail’ approach to the resolution of disputes, especially these days that the issue or question of jurisdiction has been and is being abused by some litigants and their lawyers.
The cases relied on by the respondents, on the failure or refusal of the trial court to do nothing about the appellant’s substantive application on the ground that it had decided that the action was statute barred, are inapplicable to the circumstances and facts of this case.
Now, in upholding the respondent’s objections, the trial court stated inter alia, that;
“The applicant in the objection is of the view that the applicant in this case made the request on the 9th of April, 2008. That the request was made in writing by the applicant. In support of this the applicant objecting stated in paragraph 3 of the counter-affidavit thus;
“that the applicant applied for and was given copies of the complaint/memoranda to be considered at the investigative public hearing on Federal Capital Territory (FCT) on the 9th of April, 2008 that relates to him.”
This has not been denied by the applicant in any way by filing a further affidavit to refute same. I am therefore bound to accept that the 9th of April, 2008 was a date when the request or application was made and I so hold. If this is the case then I am in agreement with the application of the 3rd defendant that the cause of action arose on the 9th of April, 2008.”
The trial court also held that the respondents “are all Public Officers” and that they could “take cover under the protection of the Public Officers Protection Act” and that, consequently, “the action is statute-barred”.
I have considered the arguments on whether the 1st, 2nd, 4th, 5th and 6th respondents qualify as “public officers” or “persons” under the Public Officers Protection Act and I am tempted to agree, and I actually agree, with the view of the learned trial judge that they qualify as persons who can take cover under the protection of the Public Officers Protection Act. This is so because the respondents are all juridical persons. Whereas the 1st, 2nd, 4th, 5th and 6th respondents are artificial persons created by statute namely: the Constitution of the Federal Republic of Nigeria 1999, the 3rd respondent is a natural person or human being created by the Almighty God. The word “person” under Section 18 of the Interpretation Act includes “any body of persons corporate or incorporate”.
The law seems settled that Public Officers Protection Act protect both artificial persons and natural persons, who act in the public service of the Federation of Nigeria or of a State of the Federal Republic of Nigeria. See the meaning of “Public Officer” under Section 18 of the Interpretation Act. See also the case of Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State & Anor. (1998) 14 NWLR (Pt. 584) 1 at 36, per Iguh, JSC.
Section 2(a) of the Public Officers Protection Act provides thus:
“2. Where any action, prosecution or other preceding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following Provisions shall have effect-
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.
Provided that if the action, prosecution or proceeding be at the instance of any Person for cause arising while such person was a convict, prisoner, it may be commenced within three months after the discharge of such a person…?
While interpreting provisions ipsissima verba of the provisions reproduced above, the Supreme Court per Iguh, JSC stated in Ibrahim v. Judicial Service Committee (Supra) as follows:
“There is also the definition of the same word ‘person’ in Section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 as follows:
“person” includes any body of persons corporate or unincorporated.’
Without, therefore, seeking guidance from any where else, it seems to me plain that the definition of the word ‘person’ in the legal sense under the Nigerian law is not limited to natural persons or human beings only as the appellant now vigorously appears to contend. It clearly admits and includes artificial persons such as a corporation sole, company or any body of persons corporate or incorporate. In this regard, and again without making reference to decisions of any foreign jurisdiction, it is clear to me that it cannot be right that the definition of ‘any person in the Public Officers (Protection) Law of Northern Nigeria, 1963 must be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. I am not, with respect, prepared to accept this interpretation as well founded.”
See also the case of Federal Government of Nigeria & 6 Ors. v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162 at 195 where Mohammed, JSC held that:
“I think the argument whether the appellants are public officers or not has already been settled by my Lord Iguh, JSC, who wrote the lead judgment in Ibrahim’s case, supra.
In that case Iguh, JSC, interpreted the meaning of “Public Officers” or “any person” used in the Public Officers (Protection) Law, Cap. 111 of Northern Nigeria, 1963 thus,
“… I did hold that the words ‘public officer’ or ‘any person’ in public office as stipulated in Section 2 refer to natural persons or persons sued in their personal names but that they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles”.
All the appellants are therefore public officers within the meaning of the Public Officers Protection Act. See also the case of Permanent Secretary Ministry of Works, E.T.C. & Anor. v. Balogun (1975) NSCC 292.”
The joint objection filed by the 1st, 2nd and 4th respondents in the trial court was premised on the following grounds:
“a) By virtue of Section 2(a) of the Public Officers Protection Act, this suit ought to have been commenced within 3 months after the cause of action arose;
b) The cause of action in this case is covered under Sections 29 and 30 of the Legislative House (sic) Act, which this honourable lacks jurisdiction to entertain.”
For his separate objection, the 3rd respondent stated the following ground:
“The cause of action arose on the 9th day of April 2008 when the request for petitions was refused on the ground that the public hearing was purely investigative while this suit was filed on the 15th day of August 2008 in defiance of the Public Officers Protection Act.”
In its judgment, the lower court confined itself to the issue of whether or not the appellant’s action was statute barred under the Public Officers Protection Act.
The court held that the action was statute barred because the appellant stated in a counter affidavit thus:
“That the applicant applied for and was given copies of the complaint/memoranda to be considered at the investigative public hearing of Federal Capital Territory (FCT) on the 9th of April, 2008 that relates to him.”
The Public Officers Protection Act by its Section 2(a) is a statute of limitation.
The law seems quite settled that a time specified in a statute of limitation for filing an action cannot be extended by the court, unless the statute itself has made provision for extension of time. See Congress for Progressive Change v. Independent National Electoral Commission (INEC) & 41 Ors (2011) 18 NWLR (Pt. 1279) 493.
The live issue in this appeal is whether the appellant’s action for the enforcement of his fundamental rights is statute barred.
In the determination of a question whether or not an action is statute barred the processes that should be examined are the claims endorsed in writ of summons and/or statement of claim and the facts pleaded in the claimant’s statement of claim. See Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649. In a case of this nature, the trial court ought to have considered the claims of the applicant, the statement of facts relied upon and the affidavit in support of the application.
An examination of the appellant’s action in the lower court reveals clearly that his action is for the enforcement of his ‘fundamental rights’. See the motion on notice which commences at page 133 of the record of appeal. Fundamental rights are not ordinary rights, as they are rights derived from fundamental law, such as the Constitution and are therefore important or significant rights the “encroachment of which are rigorously tested by courts to ascertain the soundness of …justification” – Black’s Law Dictionary, Deluxe Ninth Edition, Page 744. Fundamental rights are, therefore regarded as inalienable human rights which cannot be infringed without a breach of the fundamental law of the land, that is the Constitution, which recognizes such rights.
In the case of Federal Republic of Nigeria v. Ifegwu (2003) FWLR (Pt. 167) 703 at 758, the Supreme Court, per Uwaifo, JSC said that “Fundamental rights are regarded as part of human beings.” Also this court made the point, loud and clear, when it held in Uzoukwu v. Ezeonu II (1991) 5 NWLR (Pt. 200) 708 at 761, per Nasir, PCA as follows:
“Due to the development of Constitutional Law in this field distinct difference has emerged between ‘Fundamental Rights’ and ‘Human Rights’. It may be recalled that human rights were derived from and out of the wider concept of natural rights. They are rights which every civilized society must accept; as belonging to each person as a human being. These were termed human rights. When the United Nations made its declaration it was in respect of ‘Human Rights’ as it was envisaged that certain Rights belong to all human beings irrespective of citizenship, race, religion and so on. This has now formed part of International Law.
Fundamental Rights remain in their realm of domestic law.
They are fundamental because they have been guaranteed by the fundamental law of the country; that is by Constitution.” (Underlining mine for emphasis).
On the inalienable and immutable nature of fundamental rights, the Supreme Court stated in the earlier case of Chief (Mrs.) Olufunmilayo Ransome-Kuti & Ors. v. Attorney General of the Federation (1985) 2 NWLR (Pt. 6) 211 at 229 – 230 as follows:
“This is no doubt a right guaranteed to everyone including the appellants by the Constitution. But what is the nature of a Fundamental Right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our Constitution, since independence starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in Council 1960, up to the Present Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: It is the 1963 Constitution that applies) is to have these rights enshrined in the Constitutions so that the rights could be immutable to the extent of the ‘non-immutability’ of the Constitution itself.” (Underlining mine)
Owing to its peculiar nature, being a constitutional right, the Supreme Court has held that “A fundamental right is certainly a right which stands above the ordinary laws of the land.” See Badejo v. Minister of Education (1996) 9-10 SCNJ 51 per Kutigi, JSC (as he then was).
It is, therefore, clear that an action for the enforcement of a person’s fundamental right cannot be defeated by the provisions of a statute of limitation. This point has been made clear and plain by Order 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which came into force on the 1st day of December, 2009. Order 3 of the said Rules provides that:
“An application for the enforcement of Fundamental Rights shall not be affected by any limitation statute whatsoever.”
It is clear, from all that I have stated above, that the applicant’s application for the enforcement of his fundamental rights was not statute barred either under Section 2(a) of the Public Officers Protection Act or any other statute of limitation.
Issues 2 and 3 of the issues contested by the parties are hereby resolved in favour of the appellants.
The appellant has asked the court to invoke its powers under Section 15 of the Court of Appeal Act and to hear and determine his substantive application for the enforcement of his fundamental rights. I have examined all the processes filed by the parties in respect of the appellant’s substantive application for the enforcement of his fundamental rights and I am of the view that having regard to time constraints, the nature of the appellant’s claims and his entire application, the interest of justice will be served better, if the lower court is asked to exercise its constitutional jurisdiction by hearing and determining the application on its factual and legal merits.
In summary, I hold that this appeal has merit and it is hereby allowed. The judgment of M. G. Umar, J. delivered on 11th March, 2010 is Suit No. FHC/ABJ/CS/535/08 is hereby set aside.
The appellant’s application for enforcement of his fundamental rights in No. FHC/ABJ/CS/535/08 is hereby remitted to the Honourable Chief Judge of the Federal High Court to be assigned to any Judge of that court, other than M. G. Umar, J., to be expeditiously heard and determined.
There is no order for costs.
JOSEPH TINE TUR, J.C.A: I agree with conclusion in the lead judgment delivered by my learned brother, Moore A. A. Adumein, JCA.
The exparte application seeking leave to commence this proceeding was brought by the appellant on 24th day of July, 2008. The appellant was granted leave to enforce his fundamental rights on 14th day of August, 2008, the cause of action in the lower Court being founded on Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 read together with Articles 7 and 13 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap. A9, Laws of the Federation of Nigeria, 1999. The relevant provisions of the Act read as follows:
“Article 7:
1. Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
(b) the right to be presumed innocent until proved guilty by a competent Court or tribunal;
(c) the right to defence, including the right to be defended by Counsel of his choice;
(d) the right to be tried within a reasonable time by an impartial Court or tribunal.
(2) No one may be condemned for an act of or omission which did not constitute a legally punishable offence at the time of it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
x x x
Article 13:
1. Every citizen shall have the right to participate freely in the government of his country, either directly or indirectly or through freely chosen representatives in accordance with provisions of the law.
2. Every citizen shall have the right of equal access to the public services of his country.
3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.”
Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 is as follows:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 describes rights set out from Section 33-45 as “fundamental rights.” The learned authors of Black’s Law Dictionary, 9th edition, page 744 describes the term “fundamental rights” as:
“1. A right derived from natural or fundamental law.
2. Constitutional law. A significant component of liberty, encroachments of which are rigorously tested by Courts to ascertain the soundness of purported governmental justifications. A fundamental right triggers strict scrutiny to determine whether the law violates the Due Process Clause or the Equal Protection Clause of the 14th Amendment. As enunciated by the Supreme Court, fundamental rights include voting, interstate travel, and various aspects of privacy (such as marriage and contraception rights). – Also termed fundamental interest.”
At the time of commencement of this proceedings in the lower Court the Fundamental Rights (Enforcement Procedure) Rules 1979 with commencement date of 1st January, 1980 was in operation. Order 1 rule 1(1) of the Rules (supra) also defined “Fundamental Right” to mean “any of the Fundamental Rights provided for in Chapter IV of the Constitution.” The Rules however gave a time limit for seeking leave of the Court to enforce a breach or violation of an aggrieved person’s fundamental rights by providing under Order 1 rule 3(1) and (2) of the Rules (supra) as follows:
“3(1) Leave shall not be granted to apply for an order under these Rules unless the application is made within twelve months from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court or judge to whom the application for leave is made.
(2) Where the event, matter, or act complained of arose out of a proceeding which is subject to appeal and a time is limited by law for the bringing of this appeal, the Court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
The African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. A9 with commencement date being 17th March, 1983 did not however provide in any of the Articles time for applying for leave to commence proceedings to enforce the rights set out in the Act (supra). The preamble in the Act states that:
“WHEREAS a Charter entitled the “African Charter on Human and Peoples’ Rights” has been duly adopted by diverse State in Africa and Nigeria is desirous of adhering to the said Charter;
AND WHEREAS it is necessary and expedient to make legislative provision for the enforcement in Nigeria of the said Charter by way of an Act of the National Assembly:
1. Enforcement of provisions of African Charter on Human and Peoples’ Rights;
As from the commencement of this Act, the provisions of the African Charter on Human and Peoples’ Rights which are set out in the Schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.”
The African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 by virtue of its ratification by the National Assembly is deemed to be an Act of the National Assembly. The Fundamental Rights (Enforcement Procedure) Rules, 1979 was an exercise of powers conferred on the Chief Justice of Nigeria to make rules for practice and procedure in enforcing fundamental rights of any aggrieved person under Section 42(3) of the 1979 Federal Constitution. If the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983 did not prescribe time limit for instituting an action to enforce the violation of a fundamental right of an aggrieved person, it will seem to me that the deemed Act of the National Assembly ought to over-ride Rules of practice and Procedure made by the Chief Justice of Nigeria in 1979 which prescribed 12 months as the limitation period for seeking leave of Court to enforce fundamental rights. This is on the principle that Order 1 rule 3(1) of the Fundamental (Enforcement Procedure) Rules, 1979 was couched as follows: “…or such other period as may be prescribed by any enactment…” etc. Therefore, as no period is prescribed for commencing proceedings under the Act, I am of the humble opinion that the learned trial Judge erred in law by holding at page 480 lines 1-21 that:
“If this is the case then I am in agreement with the application of the 3rd Defendant that the cause of action arose on the 9th of April, 2008.
This clearly shows that the cause of action was commenced outside the statutory limitation period as envisaged by Section 2(a) of the Public Officers Protection Act (POPA).
It is the submission of the learned Counsel that elected officers are not within the contemplation of the Public Officers Protection Act (POPA) as public officers. He relied on Section 318 (1) of the Constitution. It is to be noted that the 3rd Respondent Senator Abubakar D. Sodangi is not the only Respondent.
The 1st Respondent is the Senate of the National Assembly, 2nd Respondent is the Senate of the National Assembly. The 4th Respondent is Clerk of the National Assembly, the 5th Respondent is the Minister, Federal Capital Territory (FCT) and the 6th Respondent is the Attorney-General of the Federation. They are all Public Officers and by the decision in Ibrahim vs. JSC (1999) 14 NWLR (Pt. 584) page 1 they are deemed to be Public Officers who will take cover under the protection of the Public Officers Protection Act (POPA).
I therefore hold that the action is statute barred and the Applicant cannot enforce his right and it is hereby dismissed.
Egbe vs. Adefarasin (supra) referred.”
In General Sani Abacha & Ors. vs. Chief Gani Fawehinmi (2000) FWLR (Pt. 4) 833 the Supreme Court unanimously accepted that the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983 having being duly adopted by the National Assembly, from 17th day of March, 1983, became part of the municipal law of this country. Thus Chief Gani Fawehinmi founded his action on Chapter IV of the Constitution of the Federal Republic of Nigeria, 1979 and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983, though the Federal Military Government had suspended Chapter IV of the 1979 Federal Constitution. Iguh, JSC held at page 600 paragraphs “F”-“H” and page 601 paragraphs “A”-“C” of the judgment as follows:
“In the present case, Section 4 of the State Security (Detention of Persons) Act unequivocally and in clear terms mentions Chapter IV of the Constitution of the Federal Republic of Nigeria, 1979 as the earlier enactment which it expressly suspends. It neither mentioned nor did it include the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983 as one of the enactment concerning fundamental human rights it was suspending. My attention was not drawn to any Decree or indeed, to any other Act or law promulgated after 1983 which in clear terms repealed or suspended the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983 in relation to detention of persons. In the circumstance, I think the said African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983 remained effective and in full force at all times material to the respondent’s alleged detention. I entertain no doubt also that the Courts below, with profound respect, were in definite error when they held that there was no jurisdiction in the law Courts to entertain the respondent’s claims for the entire period of his alleged detention. I think such jurisdiction exists. This is by virtue of the fact, firstly, that the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983 was at no time suspended or repealed. There is, secondly, Section 1 of that Act which stipulates that from the date of its commencement, the provisions of the African Charter on Human and Peoples’ Rights shall, subject as provided thereunder, have full force of law, in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive and judicial powers in Nigeria. Thirdly, and finally, is the fact that the respondent’s action was expressly founded in his originating summons, not only under the 1979 Constitution, but also under the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act, Cap.10, Laws of the Federation of Nigeria, 1990 which, as I observed, remains fully in force and enforceable in Nigeria. It is my view, therefore, that there is ample jurisdiction in the law Courts to entertain the respondent’s claims under the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983.”
The Rules of Practice and Procedure cannot confer jurisdiction on a competent Court of record or take it away.
See Guaranty Trust Co. of New York vs. Hannay & Co. (1914-15) All E.R. 24 at 35; The State vs. Onagoruwa (1992) 2 SCNJ (Pt. 1) 1 at 19; and Onuorah vs. Kaduna Refining Petrochemical Co. Ltd. (2005) 21 NSCQR 130 at 140. The legislative intention is made clearer in the Fundamental Rights (Enforcement Procedure) Rules, 2009 with commencement date from 1st December, 2009 pursuant to Section 46(3) of the Constitution of the Federal Republic of Nigeria, 1999 as follows:
“1. The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule.
2. Parties and their legal representatives shall help the Court to further the overriding objectives of these Rules.
3. The overriding objectives of these rules are as follows:
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.
(b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include:
(i) The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights system.
(ii) The Universal Declaration of Human Rights and other instruments (including Protocols) in the United Nations human rights system.
(c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.
(d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and the unrepresented.
(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organizations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following:
(i) Anyone acting in his own interest;
(ii) Anyone acting on behalf of another person;
(iii) Anyone acting as a member of; or in the interest of a group or class of persons;
(iv) Anyone acting in the pubic interest; and
(v) Association acting in the interest of its members or other individuals or groups.
(f) The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
(g) Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency.”
Order III rule 1 of the Rules (supra) finally provides that:
“1. An application for the enforcement of Fundamental Right shall not be affected by any limitation statute whatsoever.”
Thus under the Fundamental Rights (Enforcement Procedure) Rules, 2009 a. “Fundamental Right” is defined under Order 1 rule 2 of the Rules to mean and include “…any of the rights provided for in Chapter IV of the Constitution, and includes any of the rights stipulated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.” That is to say that the legislative intention is to read Chapter IV of the 1999 Federal Constitution together with the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act together to come to a definite term as what constitutes “Fundamental Rights” or “Human and Peoples’ Rights” as envisaged by the National Assembly. Whether the action was instituted under the Fundamental Rights (Enforcement Procedure) Rules, 1979 or 2009 or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9, Laws of the Federation, Vol. 1 of 2004. I am of the humble view that no limitation statute or law, example the Public Officers Protection Act or Law can be invoked by any litigant to cause a Court of law and justice to decline jurisdiction when the cause or matter in controversy involves fundamental or human rights of an aggrieved person as occurred; in the lower Court.
Accordingly, I also join my learned brother in allowing this appeal. I abide by whatsoever consequential orders his Lordship has made in this circumstance.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the opportunity of reading in draft the lead judgment delivered by my learned brother, Adumein, JCA.
My learned brother has exhaustively dealt with the issues involved in this appeal. I entirely agree with his lordship’s reasonings and eventual conclusion that this appeal has merit and it is hereby allowed.
Appearances
Bamidele Aturu, Esq. with M. Kenbonkwu, Esq.For Appellant
AND
J. J. Usman, Esq. for the 1st, 2nd and 4th respondents.
E. M. Asawalam, Esq. for the 5th respondent.
U. B. Eyo, Esq. for the 6th respondent.For Respondent
