MR. CHARLES OKECHUKWU & ANOR v. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) & ORS
(2014)LCN/7600(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of December, 2014
CA/L/465/2010
RATIO
PRACTICE AND PROCEDURE: RULE GOVERNING PRACTICE AND PROCEDURE
It is trite and as rightly pointed out by the Appellant the law guiding procedure for the determination of rights and causes of action is the current law and rules of procedure. They operate and are construed retrospectively. Order XV above made specific provision clarifying the position of the law on the issue. See the observation of the Supreme Court in the case of: Owata v Anyigor (1993) 2 NWLR (Pt.276) 380 @ 391 G-H referred to by counsel:
“It is similarly well settled that the rule governing practice and procedure is the rule in force at the time of trial or the application is heard, unless there is any provision to the contrary. This is based on the principle that there is no vested right in any course of procedure – see Costa Rica v. Erlanger (1874) 3 Ch.D. 69. A Litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.” per. CHINWE EUGENIA IYIZOBA, J.C.A.
STATUTORY INTERPRETATION; WHETHER THE COURT SHOULD GIVE THE WORDS THEIR LITERAL MEANING WHERE THE LANGUAGE OF THE STATUTE IS CLEAR AND UNAMBIGUOUS AND THE INTERPRETATION OF ORDER XV RULE 3 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009
The general rule governing interpretation of statutes is that where the language of the statute is clear and unambiguous, the Court should give the words their literal meaning: Egbe v Alhaji & Ors (1990) 1 NWLR (Pt.128) 546. It is clear from the phrase “may continue to be heard and determined”, that the intendment of the draftsmen of this Statute is that Fundamental Rights applications which were part heard under the 1979 Rules would continue to be heard and ultimately determined under the 2009 Rules. The outcome of the proviso appears to differ from the definition of the word ‘Pending’ in Black’s Law Dictionary. It would not be apposite to read the general definition of the ‘word pending’ in the Blacks Law Dictionary into this situation when the relevant statute is clear and unambiguous in its meaning.
The separation of the word ‘determine’ from the word ‘heard’ to arrive at the conclusion that even where it is only the judgment that is pending, the 2009 Rules would apply can create difficulties where hearing has been concluded and all that is left is judgment. As the Appellant noted in the case of Owata v Anyigor (Supra) “A Litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.” per. CHINWE EUGENIA IYIZOBA, J.C.A.
COMPANY LAW: LEGAL PERSONALITY; WHETHER AN ARTIFICIAL PERSON CAN FILE AN ACTION FOR THE ENFORCEMENT OF ITS FUNDAMENTAL HUMAN RIGHT
On Issue two, Counsel rightly submitted that an artificial person such as the 2nd Appellant can file an action for the enforcement of its Fundamental rights since companies/artificial persons can only act through human beings. Learned counsel is right. See Onyekwuluje w Benue State Govt (2005) 8 NWLR (Pt.928) 614 @ 646 B, Assuming a limited liability company is involved in a case where it was denied fair hearing, it has the right to sue for breach of its fundamental Rights to fair hearing. Again if the processes filed by the Appellants were couched in such a way as to show that the 1st Appellant’s ordeal and unwarranted arrests and detention was based primarily on the fact that he is the Managing Director of the 2nd Appellant, then the 2nd appellant has a right to sue for the infringement of the fundamental rights of its Managing Director. per. CHINWE EUGENIA IYIZOBA, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT; HOW TO COMMENCE AN ACTION WHERE A MULTIPLE SET OF FACTS DISCLOSE MULTIPLE CAUSE OF ACTION INCLUDING A CONTRAVENTION OF A FUNDAMENTAL RIGHT
In fact this Court has had cause to advise that where a set of facts disclose multiple causes of action including a contravention of a fundamental right, the aggrieved party would have to commence two different actions; one by writ of summons and the other by motion ex- parte under the (Enforcement Procedure) Rules- Sokoto LG v Amale (2007) 8 NWLR (Pt.714) 224 @ 240 – 241 G-A. per. CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. MR. CHARLES OKECHUKWU
2. HARLIES CHUKS INTERNATIONAL LIMITED Appellant(s)
AND
1. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
2. PENNY SUN
3. GUANGZHOU PENNY (CHAODI) SHOES CO. LIMITED Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Shakarho J. of the Federal High sitting in Lagos in Suit No. FHC/L/CS/727/2007 delivered on the 18th day of March 2010 striking out the Appellants’ application for enforcement of their Fundamental rights.
The Applicants (now Appellants) with leave of the Trial Court brought an application pursuant to Order 2 Rules 1, 3 and 4 of the Fundamental Rights (Enforcement Procedure) Rules, 1979, claiming the following reliefs against the Respondents:-
i. A Declaratory Order that the arrests and detention of the 1st Appellant at the 1st Respondent’s office at 15(a) Awolowo Road, Ikoyi on the 12th, 13th and 17th of July,2007 on a mere allegation that the Applicants were owing the 2nd and 3rd Respondents the sum of US$162,000.00 is illegal, unlawful and unconstitutional.
ii. A Declaratory Order that the 1st Respondent is not a debt collector and is not empowered by the Act that established it to recover moneys for individuals and organizations whether within or outside Nigeria.
iii. A Perpetual Order of Injunction restraining the Respondents either by themselves, their agents, privies, servants or howsoever called from further arresting, detaining or infringing on the Applicants’ right to liberty as enshrined and ensconced in the Constitution of the Federal Republic of Nigeria, 1999.
iv. A Mandatory Order that the Applicants be paid the sums of US$133,000.00 by the Respondents jointly and severally being the money received by the Respondents from the Applicants for a consideration that has failed and was frustrated and US$150,000.00 being compensation for the damages suffered by the 1st Applicant as a result of the violation of his Constitutional rights by the Respondents as aforesaid and also for the humiliation and embarrassment suffered by the 1st Applicant in the hands of the Respondents, their agents and servants.
v. The Applicants demand a Public Apology to be published in a National Daily by the Respondents for the 1st Applicant’s unconstitutional arrests and detentions which have caused him a great embarrassment and untold hardship.
vi. AND for such further or other orders as the Honourable Court may deem fit to make in the circumstances.
The Appellants’ Motion on Notice was filed on the 8th of August 2007. In support of their Motion on Notice the Appellants filed a 44 paragraph Affidavit deposed to by the 1st Appellant. In the said Affidavit, the 1st Appellant deposed that sometime in the year 2003, the 2nd Appellant and the 2nd and 3rd Respondents commenced the business of importation of shoes with the 2nd and 3rd Respondents shipping shoes from the Peoples’ Republic of China to the 2nd Appellant in Nigeria. Sometime in 2006, the 2nd and 3rd Respondents shipped three 40 feet Containers of shoes to Cotonou port in the Republic of Benin to the Appellants. The containers were seized and auctioned by the Customs Authority in Cotonou because according to the 1st Appellant, the 2nd and 3rd Respondents did not release the Bill of Laden to the said goods. The 2nd and 3rd Respondents thereafter engaged the services of the 1st Respondent to collect the alleged sum being the cost of the imported shoes from the Appellants. The 1st Appellant averred that the 1st Respondent arrested and detained him on three different occasions whereupon the 1st Respondent extracted an undertaking from him to repay the alleged sum of US$162,000.00 and that he was consequently made to pay a total sum of $5,000 to the 2nd and 3rd Respondents through the 1st Respondent.
The 1st Respondent filed its Counter Affidavit averring that it carried out its statutory duties by inviting the 1st Appellant to offer an explanation in respect of a petition allegedly written by the 2nd and 3rd Respondents.
The 2nd and 3rd Respondents also filed their Counter Affidavit in which they averred that they wrote a petition to the 1st Respondent alleging that the Appellants defrauded them to the tune of $162,000.000. It was on the basis of the said petition that the 1st Respondent arrested the 1st Appellant. The Appellants in turn filed their Replies to the Counter Affidavits of the 1st, 2nd and 3rd Respondents.
On the 7th of October 2009, the Trial Judge heard arguments from all the Counsel on the application and thereafter adjourned to 10th December 2009 for Ruling. Meanwhile the Fundamental Rights (Enforcement Procedure) Rules, 2009 came into effect on the 1st of December 2009 whereupon on the 3rd of December 2009, the Appellants’ counsel wrote a letter addressed to ‘The Presiding Judge’ Federal High Court Annex, Ikoyi, Lagos, drawing the attention of that court to the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009 “as they affected the case of the Applicants, especially to Order XV Rule 3 as well as Order V Rules 1 and 9.”
The Trial Court in its Ruling delivered on the 18th of March 2009 found merit in the argument of the Appellants that there was no justification for the 1st Respondent demanding money from the 1st Appellant as the 1st Respondent is not a debt collection agency and that the said collection of US$5,000 from the Appellants is “evidence of malaise, fraud, cruelty, insolence and flagrant disregard of law”. The Trial Judge also found that the action of the 1st Respondent is in complete breach of the 1st Appellant’s right to personal liberty guaranteed by Section 35(1)(c) of the 1999 Constitution. Having found merit in the Appellants’ argument in the following terms “I think the applicants are entitled to the reliefs sought. I shall not dwell on them for the reason I should state hereunder,” the trial judge proceeded to strike out the application in agreement with the argument of the 1st Respondent that the Appellants failed to comply with the provisions of Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.
The Appellant, dissatisfied with the Ruling of the trial court has appealed to this Court on 5 grounds, out of which four issues for determination were formulated in the brief of argument as follows:-
1. Whether the Appellants’ application for enforcement of their Fundamental Rights is deemed to be determined under the Fundamental Rights (Enforcement Procedure) Rules, 2009 and whether an alleged non-compliance with Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 ought to defeat the Appellant’s application.
2. Whether from the facts and circumstances of this case, the application was incompetent as it related to the 2nd Appellant.
3. Whether there was not indeed compelling evidence before the Trial Court that the application and its accompanying processes as well as the Order of Court of 7/8/2007 were duly served on the Respondents.
4. Whether the Appellants are entitled to the reliefs sought for in the application dated 8th August, 2007.
The Respondents did not file any Brief in response to the Appellants’ Brief. On 2nd November 2011, the Appellants obtained an order of this Court for this Appeal to be heard on the Appellants brief only. The 2nd and 3rd Respondents subsequently filed their brief on 7th March 2013, but failed to regularize same in compliance with Order 7 Rule 10(1) of the Court of Appeal Rules.
I shall consider this Appeal on the basis of the Appellant’s Brief only. I am of the view that issues 1 and 2 identified by the Appellant’s Counsel sufficiently address the issues raised in this Appeal. I shall therefore consider only Issues 1 and 2 in resolving this appeal.
APPELIANTS’ ARGUMENTS
ISSUE ONE:
Learned Counsel for the Appellants on this issue submitted that as at the 18th day of March 2010, when the Trial Court delivered its Ruling, the Fundamental Rights (Enforcement Procedure) Rules, 1979 had been abrogated and repealed by Order XV Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. Order XV Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, provides as follows:
“Such pending Human Rights applications may continue to be heard and determined as though they have been brought under these Rules”.
Order XV Rule 1 further provides
“Service of the originating application or order of court shall be done by a Sheriff, Deputy Sheriff, Bailiff or other officer of the court”.
Learned Counsel therefore submitted that the Trial Court was wrong to have determined the Appellants application under the Fundamental Rights (Enforcement Procedure) Rules, 1979 which was no longer in existence.
Learned Counsel submitted that in determining the Law applicable to a cause of action a distinction is made between substantive law and procedure. The law guiding procedure for the determination of rights and causes of action is the current law. Thus notwithstanding when a cause of action arose or a case is instituted, the procedure guiding such action is the current law. Counsel submitted that Rules of procedure are therefore construed retrospectively. Counsel referred the Court to the following cases: N.E.R.D.C. v Gonze (NIG) Ltd (2009) 9 NWLR (Pt.673) 532 @ 544 G-H; Fagbola v Titilayo Plastic Industries Ltd (2005) 2 NWLR (Pt.909) 1 @ 18 B-C and Owata v Anyigor (1993) 2 NWLR (Pt.276) 380 @ 391, G-H where the supreme Court stated thus:
“A Litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.”
Counsel submitted that Black’s Law Dictionary 8th Edition defines the word “Pending” as “Remaining undecided; awaiting decision” and that since the Appellants’ application was still awaiting decision when the 2009 Rules came into being, that application should have been decided under the 2009 Rules.
The Trial Court was therefore wrong to have struck out the application for an alleged non compliance with Order 2 Rule 1(4) of the 1979 Rules.
Counsel submitted that the Respondents did not raise the issue of non-service in their Counter Affidavit or raise any objection to the Appellants’ application but rather fully participated in the hearing of the said application. Counsel posited that since the Fundamental Rights (Enforcement Procedure) Rules, 2009 by its Order XV Rule 1 provides that service of the originating application shall be done by a Sheriff, Deputy Sheriff, Bailiff or other officer of the court, the trial court ought not to have struck out the Appellant’s application for non- compliance with Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.
It is the contention of Learned Counsel that a party who wishes to raise an objection to a procedural irregularity should do so at the earliest time and as soon as he becomes aware of the irregularity. Since the Respondents did not raise any objection to the hearing of the application on the ground of non- compliance with the said order 2 Rule 1(4) of the 1979 Rules, they are deemed to have waived their right to complain. On this point, Counsel referred this Court to Duke v Akpabuyo L.G. (2005) 19 NWLR (Pt.959) 130 @ 153 – 154 G-B, where the Supreme Court held that the appropriate time for a party to raise an objection against a procedural irregularity is at the commencement of proceedings or at the time when the irregularity arises. The Supreme court held in that case that a party who sleeps on his right by allowing the proceedings to continue on the irregularity to finality cannot be heard to complain at the conclusion of the proceedings or on appeal. Counsel also cited the case of A.T.A. Poly v Maina (2005) 10 NWLR (Pt.934) 487, the facts of which are similar to the instant case, where this Court held that the effect of the Appellant’s failure to raise the issue of non compliance with Order 2 Rule 1(4) of the 1979 Rules is that the Appellant can be said to have waived that non compliance.
Learned Counsel submitted that the Fundamental Rights (Enforcement Procedure) Rules, 2009 has no provision similar to Order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 and that the 2009 Rules did not make any provision for affidavit of service to be deposed to by an Applicant. Learned Counsel submitted relying on Odu v Fawehinmi (2005) 15 NWLR (Pt.949) 578 @ 598 that the essence of filing an affidavit of service is to convince the Court that the person on whom the process was to be served has been duly served.
ISSUE TWO:
Counsel on issue two submitted that an artificial person such as the 2nd Appellant can file an action for the enforcement of its Fundamental rights. He referred the Court to Onyekwuluje v Benue State Govt (2005) 8 NWLR (Pt.928) 614 @ 646 B, where the Court held that it is incorrect to say that fundamental rights do not apply to companies or artificial persons, the rational being that companies/artificial persons act through human beings. Counsel argued that the arrest and detention of the 1st Appellant by the 1st Respondent was based on the allegation that the Appellants (particularly the 2nd Appellant) were owing the 2nd and 3rd Respondents; and further that the sum of $133,000.00 claimed by the Appellants comprised the sum of $128,000.00 paid to the Respondents by the 2nd Appellant and the $5,000.00 paid by the 1st Appellant to the 2nd and 3rd Respondents through the 1st Respondent. Counsel concluded with the submission that there is no doubt that reliefs sought by the Appellants in their application enured for the benefit of both the 1st and the 2nd Appellants. Counsel submitted relying on the Supreme Court decision in Dangote v CSC Plateau State (2007) 9 NWLR (Pt.717) 132 @ 153 C that where a breach of the provisions of Chapter IV of the Constitution is the principal claim, the Fundamental Rights (Enforcement Procedure) Rules can be invoked even though other claims are made; that a party can therefore seek ancillary reliefs (including monetary claims) in an action for enforcement of fundamental rights once the party can show that the main claim is the enforcement of rights guaranteed under Chapter IV of the Constitution and that the ancillary reliefs are connected with the principal claim. Counsel argued that the appellants are entitled to a refund of the sum of US128,000.00 they paid to the 2nd and 3rd Respondents directly and the US5,000.00 they paid to the 2nd and 3’d Respondents through the 1st Respondent since the infringement of their fundamental rights arose from the transaction of importation of shoes between the Appellants and the 2nd and 3rd Respondents. Counsel called in aid the cases of Din v A.G. Federation (1988) 4 NWLR (Pt.87) 147; Borno Radio Television Corp v Basil Egbuonu (1991) 2 NWLR (Pt.171) 81 @ 89; UBA Plc v BTL Industries Ltd (2006) 12 SC 63 @ 103
RESOLUTION
Order XV of the Fundamental Rights (Enforcement Procedure) Rules, 2009, provides:
1. The Fundamental Rights (Enforcement Procedure) Rules 1979 are hereby abrogated.
2. From the commencement of these Rules, pending Human Rights applications commenced under the 1979 Rules shall not be defeated in whole or in part, or suffer any judicial censure, or be struck out or prejudiced, or be adjourned or dismissed, for failure to comply with these Rules provided the applications are in substantial compliance with the Rules.
3. “Such pending Human Rights applications may continue to be heard and determined as though they have been brought under these Rules”.
In the light of the above provisions of the 2009 Rules all that needs to be determined is whether the Appellant’s Suit in the Lower Court was still pending as at the 1st of December 2009 when the Fundamental Rights (Enforcement Procedure) Rules, 2009 came into effect.
It is trite and as rightly pointed out by the Appellant the law guiding procedure for the determination of rights and causes of action is the current law and rules of procedure. They operate and are construed retrospectively. Order XV above made specific provision clarifying the position of the law on the issue. See the observation of the Supreme Court in the case of: Owata v Anyigor (1993) 2 NWLR (Pt.276) 380 @ 391 G-H referred to by counsel:
“It is similarly well settled that the rule governing practice and procedure is the rule in force at the time of trial or the application is heard, unless there is any provision to the contrary. This is based on the principle that there is no vested right in any course of procedure – see Costa Rica v. Erlanger (1874) 3 Ch.D. 69. A Litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.”
Learned Counsel in his brief referred to Black’s Law Dictionary 8th Edition where the word “Pending” was defined as “Remaining undecided; awaiting decision”. The question then is whether the application in the Lower Court was still pending as at the 1st of December 2009 in the light of the specific provision of Order XV Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, More specifically, is this provision applicable in a case where hearing has been completed and the only thing outstanding is the judgment? Order XV Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, states that “such pending Human Rights applications may continue to be heard and determined…”
The general rule governing interpretation of statutes is that where the language of the statute is clear and unambiguous, the Court should give the words their literal meaning: Egbe v Alhaji & Ors (1990) 1 NWLR (Pt.128) 546. It is clear from the phrase “may continue to be heard and determined”, that the intendment of the draftsmen of this Statute is that Fundamental Rights applications which were part heard under the 1979 Rules would continue to be heard and ultimately determined under the 2009 Rules. The outcome of the proviso appears to differ from the definition of the word ‘Pending’ in Black’s Law Dictionary. It would not be apposite to read the general definition of the ‘word pending’ in the Blacks Law Dictionary into this situation when the relevant statute is clear and unambiguous in its meaning.
The separation of the word ‘determine’ from the word ‘heard’ to arrive at the conclusion that even where it is only the judgment that is pending, the 2009 Rules would apply can create difficulties where hearing has been concluded and all that is left is judgment. As the Appellant noted in the case of Owata v Anyigor (Supra) “A Litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.” Now, where all that is outstanding is the judgment as in the instant case, how would the above statement apply to the Litigant? He is no longer in a position to rely on any procedure; he is no longer in a position to proceed according to any manner, whether in the former or in the altered manner; proceedings are concluded in so far as the Litigant is concerned. Therefore the above statement can only be meaningful to a Litigant where hearing on the matter is still ongoing. This position is further confirmed in the same case of Owata v Anyigor (Supra) 380 @ 395 D-E, cited by the Appellant where the Supreme Court held:
“It is well settled that the rule governing the practice and procedure in an action or in an application is the rule in force at the time of the trial of the action or at the time that the application is heard, unless there is any provision to the contrary”.
At the point when the 2009 Rules were introduced, hearing on the Appellant’s application had concluded. Parties had made their submissions in reliance on the 1979 Rules. At this point, parties no longer had an opportunity to address issues raised in the 2009 Rules. It would therefore have been tantamount to lack of fair hearing if after hearing parties on the basis of the 1979 Rules, the trial court went ahead to determine the case on the basis of the 2009 Rules. But then, Order XV Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, completely abrogated the Fundamental Rights (Enforcement Procedure) Rules 1979. The law is non-existent as at the date the new law came into force. The Court consequently lacked the jurisdiction to determine the case under the old law since the law is no longer in existence. It is pertinent to mention that the new law came into force on the 1st of December, 2009. The Appellants promptly on the 3rd of December 2009 through their counsel wrote a letter to the Presiding judge which was copied the Respondents to intimate his lordship of the new law and the abrogation of the 1979 law. The letter is at pages 154 – 156 of the Record of proceedings. There is no indication from the Ruling of the learned trial judge that his attention was called to this letter. Whatever the case, my view is that the learned trial Judge had no jurisdiction to determine the application under the abrogated 1979 Rules.
In a case where there is need to hear the parties on the matter, the proper procedure would be for the trial judge to re-call the parties for further address. But in the instant case, the issue is not one that required any further input from the parties. Luckily for the appellants, the learned trial judge had evaluated the affidavit evidence of the parties and came to the conclusion that the applicants made out a good case. He could not however grant the reliefs claimed because he concluded that the applicants failed to comply with Order 2 Rule 1(4) of the 1979 Rules and struck out the application. Order 2 Rule 1(4) of the 1979 Rules require the applicant to file an affidavit giving the names and addresses of, and the place and date of service on all persons who have been served with the motion. The applicants did not comply with this 1979 requirement. But under the 2009 Rules, it is not the duty of the Applicant to serve the court processes on the Respondent.
By Order V Rule 1 of the Fundamental Right (Enforcement Procedure) Rules 2009, service of the originating application or Order of Court shall be done by the Sheriff, Deputy Sheriff, Bailiff or other officer of the Court. There is no duty on the Applicant to file affidavit of service under the 2009 Rules. There is evidence on record that all the parties were served. They entered appearance and filed processes. None of the Respondents raised the issue of service or affidavit of service in their counter affidavits or further affidavits. The argument came up in counsel’s final written address. So this is not a case of any of the parties alleging non-service. It was simply a case of the applicants not filing affidavit of service. The learned trial Judge was therefore in grave error to have determined the application under the extant 1979 Rules. His decision on the point cannot therefore be allowed to stand. I am in complete agreement with the appellant’s submissions on this issue. I hold that as at 18/3/10 when this case was decided by the trial court, the Rule of Procedure applicable to the appellant’s suit was the Fundamental Rights (Enforcement Procedure) Rules, 2009. This issue is resolved in favour of the Appellant.
On Issue two, Counsel rightly submitted that an artificial person such as the 2nd Appellant can file an action for the enforcement of its Fundamental rights since companies/artificial persons can only act through human beings. Learned counsel is right. See Onyekwuluje w Benue State Govt (2005) 8 NWLR (Pt.928) 614 @ 646 B, Assuming a limited liability company is involved in a case where it was denied fair hearing, it has the right to sue for breach of its fundamental Rights to fair hearing. Again if the processes filed by the Appellants were couched in such a way as to show that the 1st Appellant’s ordeal and unwarranted arrests and detention was based primarily on the fact that he is the Managing Director of the 2nd Appellant, then the 2nd appellant has a right to sue for the infringement of the fundamental rights of its Managing Director.
In its judgment at page 175 of the Record of Appeal, the trial court held as follows:
“It is obvious that technically, the application of the applicants and on the facts as it relates to the 2nd Applicant, the application is defective, incompetent and unsustainable. There was nothing alleged against the 2nd Applicant which amounted to a breach of its right. Nothing was done to the 2nd Applicant as all the facts alleged in respect of infringement pointed to only the 1st Applicant”.
The learned trial Judge is correct in the sense that none of the averments in the affidavit in support of the application for the enforcement of the fundamental rights of the Appellants alleged any infringement of the fundamental rights of the 2nd Appellant. All averments were directed to the infringement of the rights of the 1st Appellant in his personal capacity and not as an officer of the 2nd Appellant. Rather the submission of Learned Counsel that the fundamental right of the 2nd Applicant was infringed is premised on the contention that the arrest and detention of the 1st Appellant by the 1st Respondent was based on the allegation that the Appellants (particularly the 2nd Appellant) were owing the 2nd and 3rd Respondents; and further that the sum of $133,000.00 claimed by the Appellants comprised the sum of $128,000.00 paid to the Respondents by the 2nd Appellant and the $5, 000.00 paid by the 1st Appellant to the 2nd and 3rd Respondents through the 1st Respondent. I am really at a loss as to how this allegation, assuming that it represents the true situation, infringes the fundamental right of the 2nd Appellant. The trial court was indeed right when it observed that there was nothing alleged to have been done against the 2nd Applicant which amounted to a breach of its right; and that nothing was done to the 2nd Applicant as all the facts alleged in respect of infringement pointed to the 1st Applicant only.
The set of facts presented by the Appellants as far as the 2nd Appellant is concerned; purportedly disclose a breach of contract by the 2nd and 3rd Respondents against the 2nd Appellant. That is the only allegation that concerns the 2nd Appellant and this fact does not amount to a breach of the fundamental right of the 2nd Appellant. As this Court pointed out in the case of Peterside v I.M.B. Nig Ltd, (1993) 2 NWLR (Pt.278) 712 Ratio 7, a party cannot by operation of his own whims and caprices expand the frontiers of constitutional rights beyond the anticipation of the constitution as no person can read into the constitution what is not there. In Peterside v. I.M.B. Nig Ltd (supra) this court found that chapter IV of the Constitution does not give the appellant the right to employment or to remain in the service of his employer in perpetuity or until the contractual age of retirement. Likewise in this application, the Appellants cannot sustain a claim for breach of contract under chapter IV of the Constitution.
Although Counsel is right as held in Dangote v CSC Plateau State (2001) 9 NWLR (Pt.717) 132 @ 153 C that where a breach of the provisions of Chapter IV of the Constitution is the principal claim, the Fundamental Rights (Enforcement Procedure) Rules can be invoked even though other claims are made; and that a party can therefore seek ancillary reliefs (including monetary claims) in an action for enforcement of fundamental rights once the party can show that the main claim is the enforcement of rights guaranteed under Chapter IV of the Constitution and that the ancillary reliefs are connected with the principal claim.
However, the set of facts presented by the Appellants do not in any way indicate that the monetary claims made by the Appellants are ancillary to the enforcement of the 1st Appellant’s fundamental rights. The Affidavits of the parties reveal that the genesis of the relationship between the Appellants and the 2nd and 3rd Respondents was the establishment of the business of importation of shoes. The 2nd and 3rd Respondents shipped shoes from the Peoples’ Republic of China to the 2nd Appellant in 2003; and then the shipment of three 40 feet Containers of shoes through the Cotonou port in the Republic of Benin to the Appellants in the year 2006. Complications from this last transaction in 2006 led to the misunderstanding between the parties. A claim for US$133,000.00 from the Respondents, being money received by the Respondents from the Applicants for a consideration that had failed and was frustrated cannot by any stretch of the imagination be said to be ancillary to the enforcement of the Appellants’ fundamental rights. That claim is clearly a claim for damages for breach of contract. It was obviously on this premise that the trial court advised the Appellants to initiate a fresh claim to recover their money. It is a pity that the Appellants failed to take the hint of the Court.
In fact this Court has had cause to advise that where a set of facts disclose multiple causes of action including a contravention of a fundamental right, the aggrieved party would have to commence two different actions; one by writ of summons and the other by motion ex- parte under the (Enforcement Procedure) Rules- Sokoto LG v Amale (2007) 8 NWLR (Pt.714) 224 @ 240 – 241 G-A.
I agree with the conclusion of the learned trial judge that the application is incompetent as it relates to the 2nd appellant as its rights were not alleged to have been infringed in the affidavit deposed to by the 1st Appellant.
The learned trial Judge in his Ruling at pages 157 – 176 of the Record of appeal correctly evaluated the affidavit evidence and came to the following conclusions:
1. That the failure of the Respondents to exhibit the petition written by the 2nd & 3rd Respondents which caused the 1st Respondent to arrest and question the 1st applicant severally called into play the presumption in Section 149(d) of the Evidence Act that there was nothing in the petition to suggest that a crime was committed by the 1st Applicant and that the 2nd and 3rd Respondents in the petition merely asked the 1st Respondent to assist them recover the money allegedly owed them by the 1st Applicant.
2. That the 1st Respondent, not being a debt collecting agency had no business demanding from the 1st Applicant payment of the amount due to the 2nd & 3rd Respondents and actually collecting from him the sum of $5000.
3. That the 1st Respondent was in complete breach of the 1st Applicant’s fundamental rights guaranteed by Section 35(1)(c) of the 1999 Constitution.
The learned trial judge continued thus:
“What then is the offence alleged against the 1st applicant? None in my view. The 1st applicant was invited on the 12th, 13th and 17th of July, 2007. What explanation was the 1st applicant expected to give in 3 days. The purpose of the 3 days invitation in my view was to hoodwink the applicants to part with money for the 2nd and 3rd respondents thereby making the 1st respondent a debt collector.
It is my candid opinion that foreigners are entitled to carry on business in Nigeria when they come to do legitimate business. But it is a sad affair when foreigners come into this country and they use government agencies or departments to oppress fellow Nigerians, most often for a small plate of porridge. Nigerians when protecting the rights of foreigners must avoid oppressing Nigerians for any reason whatsoever.”
The learned judge then set out the applicants’ 5 prayers and stated that he thinks the applicants are entitled to the reliefs sought but that he shall not dwell on them for the reason he would state hereunder. The learned trial judge then regrettably somersaulted and struck out the entire case based on the fact that the applicants did not file an affidavit giving the names and addresses of, and the place and date of service on all persons who have been served with the motion as required by Order 2 Rule 1(4) of the 1979 Rules which Rules had ceased to exist by its abrogation by the 2009 Rules. This appeal is consequently meritorious. It is hereby allowed. The Ruling of the learned trial judge striking out the suit is hereby set aside. In its place reliefs I, II, III, part of relief IV and relief V are granted as prayed to wit:
i. It is hereby declared that the arrests and detention of the 1st Appellant at the 1st Respondent’s office at 15(a) Awolowo Road, Ikoyi on the 12th, 13th and 17th of July, 2007 on a mere allegation that the Applicants were owing the 2nd and 3rd Respondents the sum of US$162,000.00 is illegal, unlawful and unconstitutional.
ii. It is hereby declared that the 1st Respondent is not a debt collector and is not empowered by the Act that established it to recover moneys for individuals and organizations whether within or outside Nigeria.
iii. A Perpetual Order of Injunction is hereby granted restraining the Respondents either by themselves, their agents, privies, servants or howsoever called from further arresting, detaining or infringing on the Applicants’ right to liberty as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 based on the facts of the present application.
iv. The sum of N250.000.00 (Two hundred and fifty thousand naira) is hereby awarded the 1st Applicant against the Respondents jointly and severally as compensation for the damages he suffered as a result of the violation of his Constitutional rights by the Respondents and also for the humiliation and embarrassment he suffered in the hands of the Respondents, their agents and servants.
v. It is ordered that a Public Apology be published in a National Daily by the Respondents for the 1st Applicant’s unconstitutional arrests and detention which have caused hlm a great embarrassment and untold hardship.
Part of relief IV asking for mandatory order that the Applicants be paid the sum of US$133,000.00 by the Respondents jointly and severally being the money received by the Respondents from the Applicants for a consideration that has failed and was frustrated is hereby struck out, not being ancillary to the fundamental rights claim. I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading, in draft, the lead Judgment just delivered by my brother CHINWE EUGENIA IYIZOBA J.C.A.
I agree with his reasoning and conclusion and I have nothing to add.
I adopt the Judgment as mine and abide by the consequential order made as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: My lord Chinwe Iyizoba JCA, has afforded me the opportunity of reading in print before today the lead judgment just delivered.
I agree with the reasoning and conclusions contained therein. I have nothing useful to add.
Appearances
F.E, Eke Esq.For Appellant
AND
No representation for the RespondentsFor Respondent
