NATIONAL SECURITY ADVISER & ANOR v. TABE & ORS
(2022)LCN/17180(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 23, 2022
CA/A/493/2019
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
1. NATIONAL SECURITY ADVISER 2. ATTORNEY GENERAL OF THE FEDERATION APPELANT(S)
And
1. MR. SISUKU AYUK TABE 2. MR. WILFRED TASSANG 3. DR. NFOR NGALA NFOR 4. PROF. AUGUSTINE AWASUM 5. DR. CORNELIUS KWANGA 6. DR. HENRY KIMENG 7. ELIAS EYAMBE, ESQ. 8. NALOVA BIH, ESQ. 9. DR. OJONG OKONGO 10. DR. FIDELIS NDE CHE 11. SHUFAI BLEASE BERINYU 12. (MRS.) NALOVA BIH, ESQ. RESPONDENT(S)
RATIO
WHETHER OR NOT AFFIDAVIT EVIDENCE FILED IN SUPPORT OF AN ORIGINATING PROCESS DETERMINES A CAUSE OF ACTION
It is therefore settled, that the statement of claim, and in our case, the affidavit evidence filed in support of the originating process, determines the cause of action between the parties. See Owuru & Anor vs. Adigwu (2017) LPELR – 42763 (SC). In Ibor vs. Usani & Ors (2015) LPELR – 24670 (CA), this Court per Otisi JCA, relying on AG of the Federation vs. AG Abia State & Ors (2001) 11NWLR (pt. 725) 689, held the view that it is sufficient for a Court to hold that a cause of action is reasonable once the statement of claim in a case discloses some cause of action or some questions fit to be decided by a judge notwithstanding that the case is weak or not likely to succeed. Eko JSC, in the recent case of CIL.R & A.M. Ltd vs. Ekiti State Government (2020) 12 NWLR (pt. 1738) 203 AT 247 shed more light on the issue having held that:
“For so long as the statement of claim discloses the cause the plaintiff has to complain to the Court against the defendant for violation, infraction or imposition of undue burden on his legal rights or obligations, or raises some questions fit to be decided by the Court or the judge: a reasonable cause is disclosed thereby: Yusuf & Ors vs. Akindipe & Ors (2000)8 NWLR (pt. 669) 376 (SC).
In my view, a reasonable cause of action is disclosed once the statement of claim sets out the plaintiffs legal rights qua the defendants obligations towards him, and goes further to set out the facts constituting the infraction of the plaintiffs legal rights or failure of the defendant to fulfill his obligations towards the plaintiff. See Rinco Construction Co. Ltd. v Veepee Ind. Ltd. & Anor (2005) 9NWLR (Pt. 929)85. Once the statement of claim discloses a reasonable chance that the plaintiff will succeed, if not traversed, on his allegations as pleaded; a reasonable cause of action will be said to have been disclosed. That is the substance in the English decision in Drummond-Jacokson v. British Medical Association (1970) 1 WLR 688; (1970) 1 ALL E.R 1094 (C.A) cited with approval in Thomas & Ors v. Olufosoye (supra). It is not material at this stage whether the case of the plaintiff is strong or weak. The only thing important at this stage is whether the Court can decipher from the statement of claim if there is a prima facie triable case or issue or there is a reasonable chance of success if no defense were offered.”
See also Rinco Construction Co vs. Veepee Ind. Ltd (supra) and Iliyasu vs. Rijau (2019) 16 NWLR (pt. 1697) 1 AT 22-23. PER BARKA, J.C.A.
WHETHER OR NOT A PERSON CAN BE HELD LIABLE FOR AN ACT WHICH IS NOT DIRECTLY LINKED TO HIM
It is the law, that a man intends the legal consequence of his acts, and if no act is directly linked to the person accused, he cannot be held liable. This legal preposition applies in respect of statutory bodies and agencies. It is therefore logical that where the respondents before this Court intends to sue the appellants as nominal parties, the actual security agencies that perpetrated the alleged action complained of ought to have been joined as a party, to enable the principle of vicarious liability to flow there from. For instance, if as Mr. Falana would want us to believe, that respondents were detained in the underground cell of the Defence Intelligence Agency, nothing stops the said agency being made a party. In the same vein, it is only where the complaint is against the Federal Government or a State, which qualifies the Federal Attorney-General being called upon to answer. The case of the AG Kano State vs. AG Federation (2007) 6NWLR (pt. 1029) 164 AT 192 is directly on the point. PER BARKA, J.C.A.
THE INTERPRETATION OF THE WORD “ANY” IN SECTION 46(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Now Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended makes the following provision:
“Any person who alleges that any of the provisions of the chapter has been is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.”
What calls for resolution is the definition of the word “any” as contemplated in Section 46(1) of the Constitution. This Court while giving an expansive interpretation to the word “any”, Nweze JCA as he then was greatly influenced by the decision of the Apex Court in Skye Bank vs. Iwu (2017) LPELR – 42595, per Kekere – Ekun JSC, having stated that in the interpretation of the constitution, the Court must bear in mind as stated in Agbaje vs. Fashola (2008) ALL FWLR (pt. 443) 1302 AT 1337, a liberal approach to the interpretation of the Constitution or statute be adopted, see also AG Bendel State vs. AGF of the Federation & Ors (1981) LPELR – 605 (SC), held that:
“Now the adjective “any” is a word of enormous amplitude which admits of no limitation or qualification., Duck vs. Batey 1QBD 79 and indeed has been construed to mean as wide as possible., Beckett vs. Sutton 51 LJ CH. “some out of many”, an indefinite number, one indiscriminately of whatever kind or Guantity Federal deposit Ins. Corporation vs. Winton CCA Tenn 131, F2 780, 782, Texaco Panama Inc vs. SPDC (Nig) Ltd (2002) LPELR – 3146 (SC). Put differently the word any has a diversity of meanings and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject matter of the statute. “PER BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal arose as a result of the judgment of the Federal High Court, Abuja, coram A.I. Chikere J, delivered on the 1st day of March, 2019. By the said decision, the Court dismissed the preliminary objection filed by the respondents before it, and thereby entered judgment for the applicants now respondents herein, further awarding damages in the sum of N200,000.00 in favor of each of the respondents.
In brief, the respondents herein by way of an originating motion on notice brought pursuant to Order 1 Rules 2, 3 ,.4 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Sections 35, 36, 37, 40, 41 and 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Order II, Order XI, and Order XII of the Fundamental Rights (Enforcement Procedure) Rules, 2009, sought for the following orders:
i. A declaration that the arrest of the applicants in Abuja on January 7th, 20018 at Nera Hotel Abuja by the armed agents of the respondents without a warrant of arrest is illegal and unconstitutional as it violates the applicants fundamental right to dignity of the person and personal liberty enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Article 5 and 6 of the African Charter of Human and Peoples Right (Ratification and Enforcement Act) Cap A10 Laws of the Federation of Nigeria, 2004.
ii. A declaration that the detention of the applicants since January 7, 2018 till date by the respondent in an underground detention center at the defense intelligence agency headquarters at Abuja is illegal and unconstitutional as it violate the applicants fundamental rights to dignity of the person and personal liberty enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Article 5 and 6 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004.
iii. A declaration that the detention of the applicants since January 7, 2018 till date by the respondent without access to their lawyers and family members is illegal and unconstitutional as it violates the applicant’s fundamental rights to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004.
iv. A declaration that the arrest of the applicants on January 7, 2018 at Nera Hotel, Abuja by the armed agents of the respondent is illegal and unconstitutional as it violate their fundamental rights to freedom of assembly and association, Section 39 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 10 and 11 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004.
v. An order of this Honourable Court directing the immediate and unconditional release of the applicants from the illegal custody of the respondent forthwith.
vi. An order of this Honourable Court compelling the Respondents to pay each of the Applicants the sum of N200,000,000 (Two million naira) as general and aggravated damages for the illegal violation of their fundamental rights to life, dignity of person, fair hearing, health, freedom of movement and freedom of association.
vii. An order of perpetual injunction restraining the Respondent from further violating the Applicants fundamental rights in any manner whatsoever and however without lawful justification.
The grounds upon which the reliefs are sought, the affidavit in support of the motion, and other sundry documents, were hinged on the motion papers. A written address in support of the application was also filed on the 26th day of January, 2018.
On the 26th of September, 2018, Appellants filed a notice of preliminary objection pursuant to Order 29 of the Federal High Court Civil Procedure Rules 2009 and Section 46 of the Constitution of the Federal Republic of Nigeria 1999 as amended, praying for the following reliefs:
i. An order striking out or dismissing the applicant’s suit for being incompetent and for want of jurisdiction.
ii. Any other order(s) this Court will make in the circumstance of the case.
In support of the preliminary objection is a five paragraph affidavit deposed to, by one Friday Atu, a litigation officer in the Chambers of the Hon. Attorney–General of the Federation and a written address. The claimants, now respondents, responded by filing a counter-affidavit in opposition to the respondents notice of preliminary objection on the 22nd day of November, 2018 and a written address also filed on the same date. Also attached to the counter affidavit are documents upon which the counterclaimant seeks to place reliance there upon, and on the 28th day of January, 2019, Mr. Falana of counsel for the applicants introduced the claimant’s claim. The learned senior counsel then referred to the preliminary objection filed, urging the Court to dismiss the preliminary objection and to grant the reliefs sought. Mr. Jubril, the learned counsel for the respondent before the lower Court referred to the preliminary objection filed, praying the Court to strike out the suit. On the 1st day of March, 2019, the lower Court considered all the arguments proffered, dismissed the preliminary objection and conclusively held that:
i. That the arrest of the Applicants in Abuja on January, 7th, 2018 at Nera Hotel, Abuja by the armed agents of the respondents without a warrant of arrest is illegal and unconstitutional and violates the applicants’ fundamental rights to dignity of the person and personal liberty enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Article 5 and 6 of the African Charter on Human and Peoples right (Ratification and Enforcement) Act Cap A10 Laws of the Federation of Nigeria 2004.
ii. That the detention of the Applicants since January 7, 2018 by the Respondents in an underground detention center at the Defense intelligence Agency Headquarters at Abuja is illegal and unconstitutional as it violate the Applicants’ fundamental rights to dignity of the person and personal liberty enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 5 and 6 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004.
iii. That the detention of the Applicants since January 7, 2018 by the Respondents without access to their lawyers and family members is illegal and unconstitutional as it violate the applicants’ fundamental rights to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the federation of Nigeria, 2004.
iv. That the arrest of the Applicant on January 7, 2018 at Nera Hotel, Abuja by the armed agents of the respondents is illegal and unconstitutional as it violates their fundamental rights to freedom of assembly and association as enshrined in Section 39 and 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended and Article 10 and 11 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004.
v. An order of this Honourable Court compelling the Respondents to pay each of the Applicants the sum of N5,000,000 (Five Million Naira) as general and aggravated damages for the illegal violation of their fundamental rights to life, dignity of person, fair hearing, health, freedom of movement and freedom of association.
vi. An order of Perpetual Injunction restraining the Respondents from further violating the Applicants Fundamental Rights in any manner whatsoever and however without lawful justification. Utterly dissatisfied with the decision of the lower Court, appellants on the 15th day of March, 2019, filed a Notice of Appeal predicated upon twelve grounds of appeal. The appeal having been properly entered to this Court on the 3rd day of June, 2019, appellant filed a brief on the 20th of December, 2019, but deemed filed on the 2nd of February, 2022. Having received the respondents’ brief filed on the 28th of June, 2021, though properly deemed filed on the 2nd day of February, 2022, with the leave of Court, filed a reply brief on the 1st of February, 2022, consequentially deemed on the 2nd of February, 2022. The appeal having come up for hearing on the same 2nd February, 2022, learned counsel on both sides, identified their processes, adopted the same and urged the Court to grant their respective prayers.
The appellants’ brief was settled and argued by T.D. Agbe, a Principal State Counsel in the office of the Honourable Solicitor General of the Federation, Federal Ministry of Justice. At page two of the brief, learned counsel promulgated the following issues for the resolution of the appeal:
i. Whether the learned trial Judge was right to have held that deciding the issue of non-disclosure of cause of action was delving into the substantive matter at an interlocutory stage.
ii. Whether the respondent suit disclosed a cause of action against the appellants.
iii. Whether the learned trial was right to have held that the respondent’s action was properly constituted.
iv. Whether the learned trial judge was right to have held that the affidavit of the respondents in support of the application was competent.
v. Whether the learned trial judge was right to have entered judgment in favor of the respondents, grant damages in their favour and restrained the Appellants perpetually from further arresting detaining and deporting the respondents.
And for the respondents, at page 3 of the brief settled and argued by Marshall Abubakar, adopted all the issues formulated by the appellants in the resolution of the appeal which for the avoidance of doubt are as follows:
i. Whether the learned Trial (sic) was right to have held that deciding the issue of non-disclosure of cause of action was delving into the substantive matter at an interlocutory stage.
ii. Whether the respondent’s suit disclosed a cause of action against the appellants.
iii. Whether the learned trial Judge was right to have held that the respondent’s action was properly constituted.
iv. Whether the learned trial Judge was right to have held that the affidavit of the respondents in support of the application was competent.
v. Whether the learned trial Judge was right to have entered judgment in favor of the respondents, grant damages in their favor and restrained the appellants perpetually from further arresting, detaining and deporting the respondents.
I have in the circumstance, studied the grounds of appeal, the record of proceedings and accorded the submissions of learned counsel a dispassionate consideration, and my humble view agrees with that of the learned counsel for the respondent, that the appeal be determined based upon those issues formulated by the learned counsel for the appellant and adopted by him. In so doing, it is my intention to consider the issues serially even though some of the issues protrude into one another.
Issue One
Whether the learned Trial (sic) was right to have held that deciding the issue of non-disclosure of cause of action was delving into the substantive matter at an interlocutory stage.
I understand the issue as being whether the learned Trial Judge was right to have held that deciding the issue of non-disclosure of cause of action was delving into the substantive matter at an interlocutory stage. This issue was argued by the learned counsel for the appellant from pages 3 – 6 of the brief, wherein it was contended that the position of the lower Court, to the effect that deciding the issue of non-disclosure of the cause of action against the appellants at the preliminary stage will amount to the consideration of the substantive matter at the interlocutory stage was wrongful. Counsel then alluded to the holding by the lower Court at pages 108 of the record, submitting that the Court misconceived appellants’ argument, since it never argued that the Court determine the issue on the merit, but rather to determine whether appellants were the right persons to be sued in the face of the allegation against a set of unknown security men. Counsel relying on the pronouncement made in the case of Nworika vs. Ononeze-Madu (2019) 7 NWLR (pt. 1672) 422 AT 437, to the effect that cause of action of necessity touches upon the issue of jurisdiction, as well as the case of Orji vs. PDP (2009) 14NWLR (pt. 1161) 310 AT 362, contended that in the matter at hand, appellants had no control over any security agency of the Federation and as such the suit of the respondents alleging that respondents were arrested by armed security agencies of the appellants cannot be sustained. He argued that the question on whether the respondents’ application failed to disclose a cause of action against the appellants would have been properly decided without touching or delving into the substantive matter, and thereby urged the Court to settle the issue in favor of the appellants.
The learned counsel for the respondent responded to the issue from pages 4 – 8 of the brief. In so doing, counsel drew the Court’s attention to the finding of the trial Court with regards to the appellants’ affidavit evidence, and contended that the trial Court’s decision was on a strong wicket and cited the case of Mobil Producing Unlimited vs. Lasepa (2002) LPELR (1887) (SC) 30. Also responding on the case of Nworika vs. Ohoveze-Madu (supra) cited by the appellants, counsel was of the position that in the determination of whether a Court is imbued with the requisite jurisdiction to entertain an action before it, it is the writ and the statement of claim that is looked into and not the statement of defense, nor the interpretation placed on it by the opponent. Counsel now referred to parts of the respondent’s affidavit in support of the application before the lower Court, which were not countered by the appellants, and further submitted that a respondent cannot use the occasion of disputed applicant’s affidavit evidence to disprove jurisdiction. He emphasized still that where want of jurisdiction is in issue on account of reasonable cause of action, it is the applicant’s originating process that holds sway as against the interpretation given to it by the appellants, and cited the case of Inakoju vs. Adeleke (2007) 29 NSCQR 958 amongst many others on the point.
Responding on points of law, specifically on issue one contended upon, learned counsel submitted that the respondent’s position is unfounded in law and thereby urged the Court to disregard the same. He maintained that the issue as to whether a suit discloses a cause of action or not is a preliminary issue and one touching on the jurisdiction of the Court, and maintained that it’s trite law that jurisdictional issues must first be determined, and the case of Nworika vs. Ononeze-Madu (supra) apt.
Having given serious thought to the submissions of learned counsel on the issue, it seems to me that the substance of appellants’ argument hinges upon the contention that applicants’ affidavit evidence before the lower Court failed to disclose any cause of action against the appellants, thus depriving the Court of the necessary jurisdiction to entertain the same, and therefore the finding by the lower Court at page 110 of the record to the effect that:
“The submission of the learned counsel to the respondents that the applicants have failed to identify the nameless and faceless officers is a matter of evidence and so inconsequential because the reasonable cause of action is not dependant on the defense but on the claim of the applicant. It would seem to the Court that following the line of argument of the learned counsel to the respondents will mean that the Court will determine the merit of the case at this interlocutory stage”, is erroneous.
It is evident from the records, as pointed out by the learned counsel for the respondent, that this issue was unsuccessfully canvassed before the trial Court by the appellants, and appellants seemingly poised to raise the issue again.
It should be understood that the term cause of action has been variously defined to mean those factual situation(s) or a combination of facts or acts relied upon by him as entitling him to a remedy against the defendant. Adekoya vs. FHA (2008) LPELR – 105 (SC), Ransome Kuti vs. AG of the Federation (1985) 2NWLR (pt. 6) 211, Savage vs. Uwechia (1972) 3 SC 71, Owie vs. Ighiwi (2005) LPELR – 2846 (SC), Adimora vs. Ajufo (1988) 3 NWLR (pt. 80) 1, Zubair vs. Kolawole (2019) LPELR – 46928 (SC). In the recent case of Zubair vs. Kolawole (supra), the Apex Court per Kekere Ekun JSC, opined that a cause of action arises the moment a wrong is done to the plaintiff by the defendant and the wrong, which is the basis of the dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement.
It is therefore settled, that the statement of claim, and in our case, the affidavit evidence filed in support of the originating process, determines the cause of action between the parties. See Owuru & Anor vs. Adigwu (2017) LPELR – 42763 (SC). In Ibor vs. Usani & Ors (2015) LPELR – 24670 (CA), this Court per Otisi JCA, relying on AG of the Federation vs. AG Abia State & Ors (2001) 11NWLR (pt. 725) 689, held the view that it is sufficient for a Court to hold that a cause of action is reasonable once the statement of claim in a case discloses some cause of action or some questions fit to be decided by a judge notwithstanding that the case is weak or not likely to succeed. Eko JSC, in the recent case of CIL.R & A.M. Ltd vs. Ekiti State Government (2020) 12 NWLR (pt. 1738) 203 AT 247 shed more light on the issue having held that:
“For so long as the statement of claim discloses the cause the plaintiff has to complain to the Court against the defendant for violation, infraction or imposition of undue burden on his legal rights or obligations, or raises some questions fit to be decided by the Court or the judge: a reasonable cause is disclosed thereby: Yusuf & Ors vs. Akindipe & Ors (2000)8 NWLR (pt. 669) 376 (SC).
In my view, a reasonable cause of action is disclosed once the statement of claim sets out the plaintiffs legal rights qua the defendants obligations towards him, and goes further to set out the facts constituting the infraction of the plaintiffs legal rights or failure of the defendant to fulfill his obligations towards the plaintiff. See Rinco Construction Co. Ltd. v Veepee Ind. Ltd. & Anor (2005) 9NWLR (Pt. 929)85. Once the statement of claim discloses a reasonable chance that the plaintiff will succeed, if not traversed, on his allegations as pleaded; a reasonable cause of action will be said to have been disclosed. That is the substance in the English decision in Drummond-Jacokson v. British Medical Association (1970) 1 WLR 688; (1970) 1 ALL E.R 1094 (C.A) cited with approval in Thomas & Ors v. Olufosoye (supra). It is not material at this stage whether the case of the plaintiff is strong or weak. The only thing important at this stage is whether the Court can decipher from the statement of claim if there is a prima facie triable case or issue or there is a reasonable chance of success if no defense were offered.”
See also Rinco Construction Co vs. Veepee Ind. Ltd (supra) and Iliyasu vs. Rijau (2019) 16 NWLR (pt. 1697) 1 AT 22-23.
Let me make it clear that for resolution under the issue is whether there is a cause of action, as against whether there is a cause of action against the appellants, which are two different scenarios, and I dare say that the examination of whether there exists a cause of action in favor of the respondents would in no way transmute to determining the substantive case at this stage, as the two are completely different. I have in that regard, undertaken a critical examination of the originating processes filed by the respondents, and my humble but firm view is that the law is in support of the lower Court’s holding pointing to the fact that in the determination of whether the plaintiff’s suit disclosed a cause of action or not, the Court must find his answer from the statement of claim filed, as well as the reliefs sought, and in the instant case from the supporting affidavit filed.
Looking at the case at hand, it appears evident to me that a close look at the originating processes filed, it would be seen that the originating process filed by the respondents raised some pertinent questions for which the Court is obligated to determine, and going by the guide in Mobil Producing Unltd vs. Lasepa (2002) LPELR 1887 (SC), once the allegations in the pleadings show a real controversy capable of leading to a relief, the pleadings cannot be rightly said to disclose no reasonable cause of action. In other words, once the process disclose triable issues capable of leading to the grant of the reliefs sought against the wrongs complained of, the Court will hold that a reasonable cause of action has been disclosed, as at this stage of the proceedings, the Court does not look at the statement of defense or as in the instant case, the statement of defense or the affidavit supporting the preliminary objection, and there being no statement of defense filed, must limit itself to the process filed by the respondent, most particularly the affidavit evidence filed in support of the application in reaching that decision. In any case, having also taken a preliminary examination of the processes filed by the appellants before the Court, particularly, the affidavit supporting the preliminary objection showed that the by preliminary objection filed, particularly paragraph 3 thereof, appellants obviously set out and are shown as making efforts joining issues with the respondents over the salient issues being complained against them, and therefore even though appellants opted not to file any statement of defense to the claim against them, it is fool hardy to state that the statement of claim filed by the respondents failed to or does not disclose any cause of action. See CIL.R & A.M. Ltd vs. Ekiti State Government (supra) AT 248. The lower Court was therefore on solid ground having rejected the appellants’ submission based on his issue one, emphasized in the reply brief, that respondent’s position was unfounded in law, and this issue accordingly resolved against the appellants.
Issue Two
Whether the respondent’s suit disclose a cause of action against the appellants.
It was the contention of learned counsel for the appellants that considering the deposition in the respondents’ affidavit in support of their application, taken along with the statutory functions of the appellants, and appellants not being in control of the alleged armed security men, there was no cause of action disclosed against them; and further that respondents failure to pinpoint the particular armed security agency that carried out the alleged act, makes it legally impossible to apportion blame to the appellants. Making reference to the case of SPDC (Nig.) Ltd vs. XM Fed Ltd (2006) 16NWLR (pt. 1004) 189, on what constitutes cause of action, counsel submitted that from the totality of the affidavit evidence placed before the trial Court and the exhibits attached by the respondents, and there being nothing on record to show that appellants permitted or authorized the alleged arrest or detention of the respondents, appellants cannot be held responsible. Counsel emphasized the point that respondents having failed to identify the armed men or to establish a nexus between those faceless or unidentified armed security men, appellants cannot be vicariously held liable for the alleged unconstitutional acts. He further argued that there were no factual allegation of wrong done by the appellants, thus urging the Court to hold that no cause of action was disclosed against the appellants and the case ought to have been dismissed as it relates to the appellants.
In their response on the issue, the learned counsel for the respondent, held the view that the instant issue and that earlier argued are two sides of the same coin. While adopting his previous arguments marshaled in respect of issue one in aid of issue two, counsel sought to distinguish the cases of the APC vs PDP (supra) and Ransome Kuti & Ors vs. AG of the Federation (1985) 6SC 245, all cited and relied upon by the appellants, and rather placed reliance on AG Ogun, Bendel and Borno State vs. AGF & 2 Or (1982) vol. 102 (SC) to submit that the failings complained of vested the applicants with a cause of action against the Chief Law Officer of the country.
This issue raises the vexed question whether a cause of action was disclosed against the appellants, entitling respondents to seek redress against them. The appellants had contended before the trial Court that considering the deposition in the respondent’s affidavit in support of the application, Exhibit A attached and going by the statutory functions of the appellants, who are not in control of the alleged armed security men, there was no cause of action disclosed against them. It was also argued by the appellants that due to the failure of the respondents to pinpoint the particular armed security agency that carried out the alleged act, it cannot be legally possible to apportion blame to the appellants and thereby determine the action against them. It was further contended that from the totality of the affidavit evidence and the exhibits attached, there was nothing to show that appellants permitted and or authorized the alleged arrest and detention of the respondents and or directed any armed security agent or any person to arrest and detain the respondents. Appellants thus complained that they cannot be held liable for the unconstitutional acts of unknown or unidentified armed security operatives. I agree with the learned counsel in line with the decision of the Assistant Inspector General of Police vs. Ezeanya (2016) ALL FWLR (pt. 830) 1349 AT 1373; that any question bordering on the infringement of fundamental rights is largely a question of fact, and in that case, the facts disclosed in the affidavit filed in support of the alleged breach will be the determinant factor in discerning whether the fundamental rights of the individual (s) were breached in a manner contrary to the constitutional provisions. It is true as contended, that neither of the two appellants were mentioned in the supporting affidavit, save where the deponent stated that respondents’ armed agency was mentioned, nor was their involvement in the arrest and detention of the respondents made out, therefore legally impracticable to institute an action against a party without linking the said party to the action or inaction complained of. I think learned counsel is correct in that regard. It is the law, that a man intends the legal consequence of his acts, and if no act is directly linked to the person accused, he cannot be held liable. This legal preposition applies in respect of statutory bodies and agencies. It is therefore logical that where the respondents before this Court intends to sue the appellants as nominal parties, the actual security agencies that perpetrated the alleged action complained of ought to have been joined as a party, to enable the principle of vicarious liability to flow there from. For instance, if as Mr. Falana would want us to believe, that respondents were detained in the underground cell of the Defence Intelligence Agency, nothing stops the said agency being made a party. In the same vein, it is only where the complaint is against the Federal Government or a State, which qualifies the Federal Attorney-General being called upon to answer. The case of the AG Kano State vs. AG Federation (2007) 6NWLR (pt. 1029) 164 AT 192 is directly on the point.
I have closely studied the affidavit evidence adduced by the respondents in support of the originating motion deposed to by one Paul Oshayi, at page 11 of the record, wherein it was stated that:
i. Apart from the 4th applicant who is a citizen of Cameroon and the United States of America who is on a visit to Nigeria the applicants are Cameroonian nationals who have been in Nigeria for years with valid permanent resident status or on political asylum.
ii. That of Saturday 7th January, 2018, the applicants assembled for a meeting at Nera Hotel, Abuja. However before the commencement of the meeting, a team of armed operatives from the office of the 1st respondent invaded the venue, arrested the appellants and took them away to an unknown destination.
iii. The applicants had gathered at Nera Hotel Abuja on 7th January, 2018 for a meeting to discuss the challenges being faced by several Cameroonians who have sought asylum in Nigeria.
iv. That before the commencement of the meeting the armed agents of the respondents invaded the venue and arrested the applicants.
v. That no reason whatsoever has been given for the arrest and continuous detention of the applicants.
vi. That the respondents have failed to inform applicants’ relatives of the arrest and detention of the applicants.
vii. That the 1st respondent has refused the applicant’s access to their families, lawyers, and their medical doctors.
viii. That all requests made to the respondents to visit the applicants have been rejected.
ix. That the respondents have refused to inform the relatives of the appellants of their arrest and detention.
4. That the applicants have not committed any offence in Nigeria.
5. The applicants are usually attended to by their doctors on a regular basis but the respondents have refused to allow the applicant’s doctors to visit them.
6. The 12th defendant is pregnant but the defendants have refused to allow her doctor to visit her.
7. That since the arrest of the applicants on 7th January, 2018 they have been held incommunicado by the respondents.
8. The applicants are being detained in an underground cell at the Defense Intelligence Agency Headquarters, Abuja.
9. That when the 1st respondent refused to release the applicants, the law firm of Falana & Falana’s chambers wrote letter to the Inspector-General of Police to demand for the release of the applicants but the letter was ignored. A copy of the letter is hereby attached and marked Exhibit A.
10. That unless this Honourable Court intervenes by ordering the respondents to release the applicants forthwith and pay them compensation for their illegal detention, the applicants will continue to languish in the respondent’s custody without being charged to Court.
I have equally looked at the paragraphs of the applicants counter-affidavit in opposition to the respondents’ notice of preliminary objection, most particularly paragraphs 5, 6 and 7 thereof, a calm review of the preceding paragraphs not only showed that the perpetrators of the alleged acts being complained of were described as the armed agents of the appellants, but that whereas one Mrs Brigitte Mukang-Eno, The United Nations Commissioner for Refugees visited the respondents on the authorization of the 1st respondent, but denied the deponent a right to such visit, there was no further evidence indicating that it was the appellants and or their agents that were involved in the unconstitutional acts being complained of. Indeed, one is tempted to ask whether appellants are in possession of armed agents as part of their service, and or whether any action or inaction perpetuated by unnamed armed agents, or unidentified security agents creates a liability for the appellants. I am swayed by the argument that the affidavit evidence adduced failed to specify which of the Nigerian security agents, arrested the respondents, nor that the alleged agency that carried out the alleged acts against the respondents were actually identified, and that being so, how can the appellants be held liable for acts, alleged to have been committed by armed group of people not so identified. It is not uncommon, judging from the recent experience of so called security men that had the guts to visit the house of a serving Supreme Court Justice with sinister motives, later found out to be fake agents. I am not unmindful of the contention made by the respondents to the effect that 1st respondent was mentioned as responsible for the arrest and detention of the respondents, and that by the intendment of Exhibit A, attached to the application, the allegations made against appellants was thus corroborated. I do not accept that contention. The stated Exhibit A, happens to be a letter written to the Inspector General of Police, Police Headquarters, by the lead counsel to the respondents, titled: Request to investigate the abduction of Southern Cameroonian leaders at Abuja by the State Security Service. If the learned senior counsel is indeed sure that respondents were abducted by the State Security Service, a service that is identifiable with a head of its own, it would then be illogical asserting that the perpetrators of the unconstitutional acts were unknown, described only as agents of the respondents, and whereas it can be said that Exhibit A, is a letter of request to investigate, as against a report of the alleged acts, paragraph (iv) of the deposition which talks of armed agents of the respondents cannot be leveraged upon to tie in the respondents as the perpetuators of the alleged acts committed by unidentified persons, since the law does not admit of any unfounded presumptions. The ratio in the case of the All Progressive Congress vs. Peoples Democratic Party (2015) 15NWLR (pt. 1481) 1 AT 62, to the effect that:
In paragraphs 6 and 7, the status of the 4th and 5th Respondents was stated. In paragraphs 68 to 101, the only reference to the 4th and 5th Respondents was in the phrase “officers and men of the 4th and 5th Respondents”. The said officers and men were alleged to have committed series of acts which are criminal in nature. The soldiers against whom the allegation of crime were made were unknown and could not therefore be said to be servants of the 4th and 5th Respondents in order to invoke the fiction that the master had impliedly commanded his servant to do what he did. The Appellant did not show the basis of holding the 4th and 5th Respondents vicariously liable for the criminal acts of the un-named soldiers. Iko v. John Holt & Co. (1957) SCNLR 107]” seems apt.
With due respect to the learned counsel for the respondent, the cases of Ransome–Kuti & Ors vs. AG of the Federation (1985) 6 SC 245 AT 276-277, and Mrs. Olufunmilayo Kuti vs. AGF (1985) NWLR (pt. 6) 211, contrary to the contention made for the respondents, can be to have shed more light with regards to the question relating to the identity of the perpetrators of the act complained about, for unlike the instant case, the perpetrators in the cases cited were well known and identified. It flows therefore as indicated in the case of AG, Ogun, Bendel and Borno States vs. AGF & 2Ors (1982) 102 SC 13 AT 86, cited by the learned counsel for the respondent that, whereas the Attorney–General of the Federation as the Chief Law Oficer of the Federal Republic of Nigeria has an interest in the interpretation of the Constitution, and can be sued as a defendant in all civil matters in which a claim can be properly made against the Federal Government or any of its authorized agencies, it is a precondition that the acts committed must emanate from the Federal Government or any agency of the Federal Government for the AGF, to have any interest. Put simply, and mildly, the acts being complained about having been stated as perpetuated by persons unknown, or as casually put armed agents of the respondents, appellants herein cannot be lawfully held liable for the acts of such unidentified agents, and I so hold. In answer to the question therefore whether the lower Court was right or wrong, having held that a cause of action accrued to the respondents and against the appellants, I firmly hold that no such link whatsoever had been established against the appellants with the perpetrators of the acts complained of, and the lower Court wrong to have so held, and consequently, whereas, it can be said that respondents action disclosed a cause of action, such cause of action was not disclosed against the appellants. The consequence is that the issue is resolved in favor of the appellants.
Issue Three
Whether the learned trial Judge was right to have held that the respondent’s action was properly constituted.
The contention of the learned counsel is that the respondents’ application before the lower Court was incompetent having been commenced by more than one applicant. Alluding to the provisions of Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, it was contended that the section establishes that the right to approach the Court for the enforcement of the right accrues to only one person, and does not permit or recognize two or more persons commencing an action under the section. Relying on the decisions of the Registered Trustees of FTCN vs. Ikwechegh (2000) 13 NWLR (pt. 42418) (CA) and Archibong Udo vs. Ibanga Udo Robson & 4 ors (2018) LPELR – 45183 (CA), counsel submitted that fundamental rights enforcement proceedings are a special class of proceedings whose procedure is regulated by the provisions of Section 46 of the Constitution, and the Fundamental Rights Enforcement Procedure Rules 2009, for which respondents cannot enlarge its scope. He maintained that the action having been commenced by more than one person rendered the suit incompetent and liable to be struck out.
In reply to the issue canvassed, learned counsel submitted that each case is decided on its own peculiarities, and denied the fact that the decision in Opara vs. SPDCN (supra) cited and relied upon by the appellants constituted a blanket pronouncement on the issue, but that this Court and indeed the apex Court had enforced several fundamental rights actions commenced by more than one applicant. He alluded to the ruling of the lower Court on the issue captured at page 111 – 113, contending that the 2009 FREP Rules has indeed widened the scope and jurisprudence of fundamental human rights suit in Nigeria. Learned counsel made mention of case law and statute which interpreted person to mean and includes any company or association or body of persons corporate, maintaining that Courts have consistently sustained a joint fundamental right application filed by several applicants who complain of joint infringement, most particularly LCP Bankole Taiwo & 3 Ors vs. Nigerian Army (unreported) Appeal No. CA/A/10c/2017 per Abubakar Datti Yahaya JCA, amongst many others. Learned counsel then alluded to a portion of the judgment of the lower Court, stating that appellants’ insistence is not based on the issue of substantive justice and or merit of the case, but rather that respondents be denied justice on account of imaginary non-compliance with procedural rules. He urged the Court to pursue substantial justice and to void the dangerous invitation by the appellants to strangle justice.
Evidently, lower Court in appreciating the arguments of learned counsel appeared not to have agreed with the position taken by the appellants as respondents before it. The trial Court rather was of the opinion that by the coming in to force of the current Fundamental Rights (Enforcement Procedure) Rules, 2009 the issue of locus standi was removed, and what he termed technical hiccups hitherto prevalent in the 1979 Rules also removed. The lower Court leaned on what he termed the overriding objectives of the rules, as well as the cases of Odubu vs. Stephen & Ors (2012) LPELR – 19792(CA) and Sambo & Ors vs. Okon & Ors (2013) LPELR – 20394 (CA) to debunk the assertion by the appellants that the provisions of the rules are in conflict with the almighty Constitution.
For consideration, therefore, is whether the action before the lower Court brought as a class action was competently brought in view of the provisions of Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended?
Now Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended makes the following provision:
“Any person who alleges that any of the provisions of the chapter has been is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.”
What calls for resolution is the definition of the word “any” as contemplated in Section 46(1) of the Constitution. This Court while giving an expansive interpretation to the word “any”, Nweze JCA as he then was greatly influenced by the decision of the Apex Court in Skye Bank vs. Iwu (2017) LPELR – 42595, per Kekere – Ekun JSC, having stated that in the interpretation of the constitution, the Court must bear in mind as stated in Agbaje vs. Fashola (2008) ALL FWLR (pt. 443) 1302 AT 1337, a liberal approach to the interpretation of the Constitution or statute be adopted, see also AG Bendel State vs. AGF of the Federation & Ors (1981) LPELR – 605 (SC), held that:
“Now the adjective “any” is a word of enormous amplitude which admits of no limitation or qualification., Duck vs. Batey 1QBD 79 and indeed has been construed to mean as wide as possible., Beckett vs. Sutton 51 LJ CH. “some out of many”, an indefinite number, one indiscriminately of whatever kind or Guantity Federal deposit Ins. Corporation vs. Winton CCA Tenn 131, F2 780, 782, Texaco Panama Inc vs. SPDC (Nig) Ltd (2002) LPELR – 3146 (SC). Put differently the word any has a diversity of meanings and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject matter of the statute.”
The learned author of Casebook on Human Rights Litigation in Nigeria by Frank Agbedo at page 176, stated therein that by the new rules made to address the procedural pitfalls associated with the 1979 rules, and particularly paragraph 3 of the preamble to the rules, stated thereto no human rights case may be struck out for want of locus standi. The learned author holds the view that by the stated rules, unfettered access to Court was granted to any person or group seeking judicial intervention for the enforcement of fundamental rights whether in their personal capacity or in any of the above mentioned capacities, i.e:
i. Public interest litigation in human rights field.
ii. Human rights activists, advocates or groups as well as any non-governmental organizations.
iii. Anyone acting in his own interest.
iv. Anyone acting on behalf of another
v. Any one acting as a member of, or in the interest of a group.
vi. Anyone acting in the public interest.
vii. Association acting in the interest of its members or other individuals or group.
Mr. Ikechukwu D. Uzo, also in his treatise, Fundamental Rights Litigation, second Edition, page 91, towed the same line. The Court has variously also made pronouncement to the effect that the singular shall include the plural. See also Section 18 (1) and 14 (b) of the Interpretation Act Cap. 192 LFN 2004, as well as Section 318 of the CFRN, 1999 as amended. I am swayed and therefore in agreement with the learned counsel for the respondent as well as the lower Court, that the pendulum has since departed from that narrow circuit on locus, to a more expansive definition giving class actions as in the instant case legal cover. I reject the contention by the appellant counsel that the action of the respondents having been commenced by 12 of them as applicants at the trial Court rendered the application incompetent. I have in that regard been referred to the decision of this Court in the case of Kporharor & Anor vs. Yedi & Anor (2017) LPELR- 42418 (CA) per Adah JCA, in support of the respondent’s contention. Contrariwise, numerous cases were cited including the Supreme Court case of Diamond Bank Plc vs. HRH Eze (DR) Peter Opara & Ors (2018) LPELR – 43907 (SC), and the more recent decision of this Court in Alhaji Maitagaran vs. Dankoli & Ors, unreported in appeal with No. CA/KN/289/2019, all to the effect that joint applications allowing litigants to enforce their fundamental rights, thus liberalizing the approach to Court for the enforcement of their fundamental rights by joint or class litigants. Having said that, I am of the humble view that the decision of this Court in Kporharor & Anor vs. Yedi & Anor (supra) does not reflect the extant state of the law and I so hold. This issue is thus resolved against the appellants.
Issue Four
Whether the learned trial Judge was right to have held that the affidavit of the respondents in support of the application was competent.
The grouse of the appellant herein is against the lower Court’s ruling with regards to the competency of the respondent’s affidavit in support of the application for the enforcement of their rights. He argued that the appellant’s contention hinged on two grounds was discountenanced by the lower Court on the grounds that the objection was a technicality. He complained that the lower Court refused to decide on the issue of Section 115 of the Evidence Act, and placing reliance on AG Leventis (Nig) Plc vs. Akpu (2007) LPELR – 5 (SC), argued that his objection on the issue of the incompetence of the respondents’ affidavit in support of their application on the ground that it failed to comply with Section 115 of the Evidence Act, 2011 was not pronounced upon, and thus occasioned a miscarriage of justice against the appellants. In further argument, counsel still submitted that the affidavit of Ochayi Paul in support of the claim of the respondent failed to comply with Section 115 of the Evidence Act, 2011, being hearsay. This counsel argued is because the entire facts deposed thereto in the affidavit of the respondents were not facts within the knowledge of the informant, Femi Falana SAN, and further argued that the affidavit being incompetent robbed the lower Court of the competence or jurisdiction to entertain the suit. Further still, counsel was of the view that the Chief Justice of Nigeria having made specific provisions on who is permitted under the law to depose to the affidavit in support, referring to the holding of this Court in the case of EFCC vs. Mr. Oladapo Afolabi & ors (2018) LPELR – 43565 (CA) on who qualifies to depose to an affidavit in support of the enforcement of fundamental rights, contended that Mr. Falana SAN who purportedly gave deponent Mr. Paul Oshayi information did not state the source of his information, nor was there any nexus between the deponent and the applicants. Also referring to the holding in Ukegbu vs. NBC (2007) 14NWLR (pt. 1055) 551 AT 579 – 580 argued that where the Court process containing the facts or materials upon which the claim is based is defective, or incompetent, that defect affects the substratum of the entire case, rendering the evidence contained therein inadmissible, and the cases of Oyemaizu vs. Ojiako (2010) 4NWLR (pt.1185) 504 and Daminabo vs. Alalibo (2011) LPELR-4525 relied upon. He then argued that the principle of law contained in the cases cited having not been complied with, the lower Court erred to have held that appellant’s objection was a technicality taken too far, and thereby urged the Court to set aside that finding of the lower Court and to dismiss respondent’s case.
Contrariwise, respondents’ counsel argued that the appellant’s allegation is misconceived and does not reflect the judgment and finding of the lower Court evidently seen at pages 14 and 15 of the record. He submits that the findings of the Court below on the issue put paid to the contention on the competence of the affidavit, also positing that the contention by the appellants to the effect that the entire facts in the affidavit of the respondents are not facts within the knowledge of the informant unavailing, and the cases cited inapplicable. He referred to documents filed which were not countered or opposed to, stating that fundamental right proceedings are sui generis, in that even a busy body or meddlesome interloper can institute an action on behalf of the person whose rights has been infringed upon, and the deponent can depose to facts fed him by a person who is aware of the facts and circumstances of the case. On this, counsel relied on Nosiru Bello vs. AG Oyo State (1986) 5 NWLR (pt. 45) 828 and Gani Fawehinmi vs. Akilu (supra). Still alluding to the findings of the lower Court on the issue, learned counsel referred the Court to Exhibits 2, 3 and 4, as well as the depositions made with regards to the arrest of the respondents, positing that where a deponent merely deposes to facts led by him by someone fully aware of the facts and circumstance of the case, the FREP rules would accommodate it, as the affidavit deposition is permissible. Salami vs. OlaOye (2019) 13 WRN 73 (CA). He also submitted on the authority of Bello vs. Gov. Gombe State (2016) 8NWLR (pt. 1514) 280, that where further documentary evidence are exhibited to corroborate the affidavit depositions already on oath, and same is neither challenged nor discredited, a trial Court is at liberty to act on same. He argued that the supporting affidavit religiously complied with the above provisions of the Fundamental Rights Enforcement Procedure Rules, and relied on UBA Plc vs. Adigwu (supra) to posit that a Court may permit an affidavit to be used, notwithstanding some defects in form. Counsel further drew the Court’s attention to the provision of Order IX Rule 1 of the 2009 Rules on non-compliance, contending that technicalities and frivolities have no pride of place in our legal jurisprudence, and thereby urged the Court to discountenance the submissions of the appellants’ counsel.
Now Section 115 of the Evidence Act 2011, provides as follows:
i. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
ii. An affidavit shall not contain extraneous matters by way of objection, prayer or legal judgment or conclusion.
iii. When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
iv. When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.
The substance of the appellants’ complain with regards to this issue, is to question the credibility of the affidavit evidence adduced by the respondents in support of their application. The lower Court gave consideration to the question whether the affidavit in support of the originating summons was defective as contended, and in that regard looked at the contents of Order II Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009, which stipulated that:
“The affidavit shall be made by the applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts by the applicant, stating that the applicant is unable to depose personally to the affidavit.”
And relying on the case of EFCC vs. Chukwurah (2018) LPELR – 43972, held that such is a mere irregularity which does not render the affidavit incompetent, but failed and or shied away from pronouncing on the second arm of the submission pertaining to the credibility of the affidavit itself. The learned counsel for the appellant did argue and rightly too, that a Court has a duty to pronounce on all material issues raised before it. See Okonji vs. Njokanma (1991) NWLR (pt. 202) 131, Adesina vs. Ojo (2012) 10NWLR (pt. 1309) 552. This onerous duty placed on the Court, was unfortunately not done by the lower Court, leaving us with no choice other than to delve into the consideration of the issue.
I have earlier in the judgment produced the provisions of Section 115 (1) – (4) of the Evidence Act, 2011. From the intendment of the section, it is clear that where deposition contained in the affidavit are not facts within the knowledge of the deponent, and the deponent fails to supply the necessary information as mandatorily required by the section, then such paragraphs are liable to be struck out. Abiodun vs. CJ Kwara (2007) 18NWLR (pt. 1065), Orji vs. Zaria Industry Ltd (1992) 1NWLR (pt. 216) 124.
This Court in the case of Alhaji Gidado Ba’a vs. Adamawa Emirate Council & ors (2013) LPELR – 22068 (CA) held that:
“Section 115 stipulates the form of facts that ought to be contained in affidavit evidence… Where the facts deposed to in an affidavit by a person is derived from information received from another person, the name of his informant must be stated and reasonable particulars given in respect of the information and the time and the place and circumstance of the information. In effect, the deponent must disclose the source of his information and knowledge of the averment when he has no personal knowledge of the facts.”
See also Sambo & Ors vs. The Nigerian Army Council & Ors (2015) LPELR – 40636 (CA). Learned counsel now argued that the deponent in the case at hand failed to satisfy the mandatory legal requirements of Section 115 of the Evidence Act, 2011. For instance, counsel argued that paragraph 3 (1) – (X) of the deposition cannot stand, because the informant himself, had no personal knowledge of the facts deposed to. He argued also that there was no paragraph stating that the learned senior counsel was at the meeting, wherein applicants were arrested, and or that respondent’s relatives briefed him. I have no hesitation agreeing with the learned appellants’ counsel in that regard, being correct. A critical perusal of the affidavit evidence failed to show, and at nowhere was it stated that the Senior Counsel, who purportedly supplied the information now being deposed to by the deponent was in fact an actor or part of the acts or witnessed the acts being complained about, nor did he state where the information passed to the deponent was derived from. If such information was derived from his clients being their lead counsel, which was not so stated anyway, that information to my understanding would amount to hearsay. The contention therefore that the affidavit evidence is defective is well made. Further still, it seems clear to me that Order II Rules 3 and 4 was observed in the breach. This Court, in EFCC vs. Mr. Oladapo Afolabi & Ors (2018) LPELR 43565 (CA) per Ogakwu JCA, held that: “The quiddity of the Appellant’s submission calls for a construction of provisions ofOrder II Rules 3and 4 of the Fundamental Human Rights (Enforcement Procedure) Rules. They read: “3. An application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the facts upon which the application is made. 4. The affidavit shall be made by the Applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit”. The Respondents’ application before the lower Court was a joint application for the enforcement of their fundamental rights. Order II Rule 3, which is set out above requires that the application shall be supported by an affidavit. There is nothing therein requiring each applicant in the case of a joint application for enforcement of fundamental rights to depose to an affidavit.
Therefore in keeping with the trite principle of law that a party need not testify in an action if he can prove his case through his witnesses, there was no obligation on the 3rd respondent to depose to an affidavit. See OJUAWO vs. UBA PLC (2013) LPELR (22180) 1 AT 20 and PDP vs. NWANKWO (2015) LPELR (40568) 1 AT 15. Now, Order II Rule 4 provides for three distinct persons who can depose to an affidavit in support for an application for enforcement of fundamental human rights. The first is the applicant himself. Secondly, where the applicant is in custody or for any reason cannot personally swear to the affidavit, then the affidavit can be deposed to by a person who has knowledge of the facts. Thirdly, the deponent of the affidavit in circumstances where the applicant cannot depose to the affidavit personally, can be a person who the applicant informed of the facts and who would state that the Applicant is unable to depose to the affidavit personally, in the instant case, the supporting affidavits were deposed to by persons who had personal knowledge of the facts, so there was no need of the affidavit to state that it was being deposed on behalf of the 3rd respondent or that the 3rd respondent could not personally depose to the affidavit. The conflating of the foregoing is that I am unable to agree with the appellant that there is no evidence adduced by the 3rd respondent and that the 3rd respondent had no claim before the lower Court. There is no legal requirement for the 3rd respondent to personally depose to the affidavit, if he can otherwise establish his case by other evidence.”
This position of the law amplified in the case cited, agrees with the extant established legal position to the effect that:
“Where a special procedure is prescribed for enforcement of a particular right or remedy such as the one under the Fundamental Human Rights (Enforcement Procedure) Rules, non-compliance with or departure from such a procedure is incurably fatal to the enforcement of the remedy or right. See [Unegbu v. Unegbu (2004) 11 NWLR (pt. 884) 332, Dongtoe v. Civil Service Commission, Plateau State (2001) 9 NWLR (pt.717) 132;] In Re: Udo (1987) 4 NWLR (pt. 63) 120 referred to (Pp. 177-178, paras. H-B).”
I have carefully studied the affidavit under consideration as earlier said, and my humble conclusion is that the affidavit being defective, there was no legally competent affidavit in support of the respondent’s application, and the lower Court was in error, holding otherwise. This issue is similarly determined in favor of the appellants.
Issue Five
Whether the learned trial Judge was right to have entered judgment in favor of the respondents, grant damages in their favor and restrained the appellants perpetually from further arresting, detaining and deporting the respondents.
Learned counsel for the respondent argued this issue extensively from pages 23 – 33 of the brief. His contention is that the trial Court wrongly entered judgment in favor of the respondent based on hearsay and inadmissible affidavit evidence, and while of the opinion that it is the party that asserts that has the burden of proof, Section 137 of the Evidence Act 2011, and that in Fundamental Rights matters, affidavit evidence is used by the applicant in discharging that burden of proof; Fort Royal Homes Ltd & Anor vs. EFCC & Anor (2017) LPELR – 42807 (CA), the trial judge seems to have been overwhelmed by the principle of law that facts not controverted or challenged in an affidavit are deemed admitted and thereby failed to evaluate the affidavit evidence placed before it. Learned counsel then drew the Court’s attention to the affidavit of Paul Ochayi, and in particular, paragraphs 1 – 10 thereof, contending that the entirety of the affidavit is not credible and the lower Court wrong in failing to evaluate it. Also adopting his argument in respect of issue four, and the case of Josien Holdings Ltd & Ors vs. Lornamead Ltd & Anor (1995) LPELR – 1634 (SC), submit that since the deponent has to depose to facts within his personal knowledge, in case he receives the information from a third party, that third party can only do so within the informant and not from information coming from an undisclosed source. On this, counsel cited and relied on the decision of this Court in NDIC vs. Chief Elder Ita Onoyom Ette (2015) LPELR – 40607 (CA).
He argued that Mr. Falana (SAN). from the records was not at the hotel where the alleged arrest took place, and further relying on Ahmed & Ors vs. CBN (2013) LPELR – 20744 (SC) stated that there was nothing supporting the source of the information which the trial Court relied upon, and contended still that it is not in all cases that a counter affidavit needs to be filed, calling in aid the decisions of Mohammed vs. Wammako & Ors per Nweze JSC, and Ogunbiyi JSC, submitting that to be entitled to the reliefs sought, it is incumbent on the respondent to exhibit or to discharge the high proof required in establishing entitlement to those declaratory reliefs. It is the conclusion of learned counsel that the trial judge’s statement that the Court is bound to take that averment in the respondents supporting affidavit as the truth does not represent the position of the law where declaratory reliefs are being sought.
The learned counsel for the respondent holds the view that what was in issue was whether the learned judge was availed with sufficient facts and evidence to justify the grant of the reliefs awarded. He made reference to the counter-affidavit filed by the appellants as well as the further affidavit of the respondents to which exhibits Ambazonia 1 – 4 were attached, contending that since no further evidence was forthcoming from the appellants, disproving those assertions, the pendulum tilts in favour of the appellants, and the case of Forson vs. Calabar Municipal Government (2003) LPELR – 7273 (CA) and State vs. Commissioner for Boundaries (1996) 37 LRCN 603 AT 613 were cited in that regard. With regards to the offices of the two respondents sued, counsel argued that the office of the NSA is a creation of the National Securities Act and coordinator of national security, and irrespective of whether the men were officers of the Nigerian Army, Navy, Air force or police or any other security network of government that carried out the abduction, the 2nd respondents as Attorney–General of the Federation and Chief Law Officer of the federation can competently be joined.
It needs to be mentioned at the outset that the reliefs sought by the applicants are declaratory reliefs. It is the law as variously held, that a declaratory judgment is discretionary, granted only where the Court is of the opinion that the party seeking it is, when all the facts of the case are taken together and into account, it can be said that they are entitled to the grant of the discretion in their favor. See Egbunike & Anor vs. Simon Muonweokwu (1962) LPELR – 25051 (SC), Ogundairo & Ors vs. Okanlawon & Ors (1963) LPELR – 25403 (SC), Atunrase & Anor vs. Alhaji Abdul Mojid Sunmola & Anor (1985) LPELR – 634 (SC), Obi vs. INEC & Ors (2007) LPELR – 24347 (SC) per Aderemi JSC.
The evidence with respect to the case at hand is that borne at pages 11 -12 of the record, most particularly the affidavit of Paul Ochayi, a senior litigation clerk in the law office of Falana and Falana, the lead counsel handling the matter. There is also the counter-affidavit filed to the preliminary objection deposed to by Mr. Falana (SAN). That affidavit deposed to in support of the application as contended was not opposed by way of a counter-affidavit, and learned counsel for the respondent right in asserting that those depositions not having been challenged are deemed admitted. The cases of Magnusson vs. Koiki (1993) 12 SCNJ 114, Obumseli vs. Uwakwe (2019) ALL FWLR (pt. 1013) 826 AT 847, State vs. Commissioner for Boundaries (1996) 37 LRCN 603, NDIC vs. Ette (2015) LPELR – 40607 (CA), amongst many others. But as stated in the case just cited, this Court threw a caveat to the effect that:
“That general rule notwithstanding, the law expects that for such a preposition to be correct, the facts on the affidavit must have properly been put before the Court… it follows therefore that the absence of a counter-affidavit does not ipso facto amount to a conclusive exercise of a favorable discretion. There is still the burden of proof on the applicant which same could only be discharged on the satisfaction to the Court of material facts placed before it. In other words, an unfettered burden lies on the applicants affidavit to stand or fall on its own merit. This is synonymous to the requirement placed on the plaintiff to succeed on the strength of his own case and not on the weakness of the defense.”
Totally voicing its agreement to the above statement, the Apex Court per C.C. Nweze JSC, in Mohammed vs. Wammako & Ors (2017) LPELR – 42667 (SC), opined that:
“With respect, I entirely endorse the submission of the learned senior counsel for the 1st and 2nd respondents that, since the appellant sought for declaratory reliefs, he had an obligation to advance evidence in proof thereof. The reason is not farfetched, Courts have the discretion to either grant or refuse declaratory reliefs. Indeed their success largely, depends on the strength of the plaintiffs case, it does not depend on the defendants defense. See Maja vs. Samouris (2002) 7NWLR (pt. 765) 78, CPC vs. INEC (2012) 1NWLR (pt. 1280) 106 AT 131. This must be so for the burden on the plaintiff in establishing declaratory reliefs is often guide heavy.”
Emphasizing the point further, Ogunbiyi JSC, in her contribution went further to state that:
“It is further settled and well established that declaratory reliefs are not granted even on admission. The plaintiff who sought for such relief must prove and succeed on the strength of his case and not rely on the weakness of the defense. See the case of Emenike vs. PDP (2012) 50 NSCQR 94 AT 130 per Fabiyi JSC where it was held:- the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.”
From the above state of the law, the lower Court from pages 116 – 118, having noted that the respondents’ counsel before him, now appellants failed to file a counter-affidavit to the originating motion on notice, but rather relied on the preliminary objection, further relying on the case of Omnia Ltd vs. Dyktrade Ltd (2007) 15NWLR (pt. 1058) 576 AT 628 and Digal vs. Nanchang (2005) ALL FWLR (pt. 240) 41 AT 46, and to conclude that since the applicants averments in the affidavit in support were not challenged by way of a counter-affidavit, same is deemed admitted and thereby proceeded on that basis to take the averments as true and acted on same, is totally in error.
The all important question is, did the learned trial Judge evaluate the affidavit evidence before him in ascertaining whether it was cogent and strong enough, and to ensure its veracity and or authenticity? the sad answer is that he didn’t. Appellants now complain that had the trial Court evaluated the affidavit evidence, a different verdict would have been reached, as the affidavit evidence is lacking in authenticity and also lacking in merit. I agree with the statement that affidavit evidence is not sacrosanct, and just like any other evidence, whether oral or documentary, must undergo the rigours of being evaluated and probative value to such evidence apportioned, for as stated in Okoye & Anor vs. Centre Point Merchant Bank Ltd (2008) LPELR – 2505 (SC), some affidavits tell a lie.
I have carefully in the instant studied the affidavit evidence adduced by the applicants, with a view to seeing whether it satisfied the legal criteria established, and thereby supporting the conclusion reached by the lower Court. In doing so, I have studied the affidavit, having in mind the submission of the learned counsel for the parties, and do agree with the appellants’ counsel, that the entirety of the affidavit deposed to by Mr. Ochayi Paul offended the provisions of Section 115 of the Evidence Act, 2011, in that same was in dire conflict most particularly with the provisions of Section 115 (1) (3) and (4) of the Evidence Act 2011. The learned counsel for the appellants in my humble view was correct in asserting that the entirety of the affidavit reproduced by Mr. Ochayi, the deponent who deposed to facts in paragraphs 5 – 10 of the affidavit under consideration without disclosing and or conforming with the mandatory requirements set out by Section 115 (1) – (4) of the Evidence Act, 2011, divested the lower Court of any evidence upon which the exercise of his discretion, which ought to be exercised judicially and judiciously could be exercised. I also agree that even the deposition of the Learned Silk himself and the documents attached thereto failed to add value to the evidence before the lower Court. From all the permutations made above, it seems clear to me that the lower Court was wrong to have entered judgment for the respondents based solely on the fact that the affidavit evidence, which is in any case defective, having not been countered, is an enabling factor for the Court to enter judgment in favor of the respondents. That holding in my view is a slight on standing legal principles, and the law cannot allow the decision to stand. I also resolve this issue in favor of the appellants.
Having determined all the issues, save for issues one and three in favor of the appellants, and the determinant issues being issues 2 and 5, this appeal succeeds and it is hereby allowed. In the event, the judgment of Chikere J., of the Federal High Court, Abuja Judicial Division in suit with No. FHC/ABJ/CS/85/2018, between Mr. Sisiku Ayuk Tabe and 11 Ors and The National Security Adviser and 1 Or, delivered on the 1st of March, 2019 is hereby set aside.
I make no order as to costs.
APPEAL ALLOWED.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Hamma Akawu Barka, JCA gave me the benefit of reading in advance the judgment just delivered.
My learned brother has admirably and exhaustively considered and resolved the issues the parties have raised for the determination by this Court. Particularly, I agree with my learned brother that the affidavit evidence deposed to in support of the originating process discloses a cause of action. However, the facts as deposed to, indicate that, the rights alleged to have been violated, were done by armed agents. It must be judicially noticed that, Nigeria has more than one armed security agency but the affidavit evidence failed to indicate whether it was one or a combination of the security agents that committed the acts complained of. It is also not unreasonable to take judicial notice of the fact that none of the Appellants has direct control over any armed security agency. That is moreso when the said armed security agents were not identified.
It is for the above reason and the detailed reasons commendably heralded in the lead judgment that I agreed that this appeal be allowed in part. However, with the resolution of issues 2, 4 and 5 in favour of the Appellants the judgment of the Court below, cannot be sustained. It is accordingly set aside. I abide by the order on costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Hamma Akawu Barka, JCA which has just been delivered was made available to me in draft and I agree with his reasoning and conclusion that save for issue numbers one and three, the other issues in the appeal ought to be resolved in favour of the Appellants. I however wish to say a few words on issue number three, which was resolved against the Appellants, since the contention raised therein is presently of contemporary legal interest.
The said issue number three interrogates the competence of the Respondents’ application for the enforcement of their fundamental rights, on the grounds that several applicants cannot bring a joint application for the enforcement of fundamental rights. Now, there have been some conflicting decisions of this Court on the point, the recent decisions include GOVT OF ENUGU STATE vs. ONYA (2021) LPELR- 52688 (CA) delivered by the Enugu Division on 28th January, 2021, which held that joint applicants can bring an application to enforce fundamental rights. Au contraire, in AEDC vs. AKALIRO (2021) LPELR – 54212 (CA) which was delivered by the Makurdi Division on 31st 2021, it was held that an application by joint applicants was incompetent.
The other decisions of this Court which reached a similar decision as was reached in GOVT OF ENUGU STATE vs. ONYA (supra) include UZOUKWU vs. EZEONU II (1991) 6 NWLR (PT. 200) 708 at 761, IHEJIOBI vs. IHEJIOBI (2013) LPELR-21957, UBOCHI vs. EKPO (2014) LPELR-23523, ORKATER vs. EKPO (2014) LPELR-23525 and MAITANGARAN vs. DANKOLI (2020) LPELR-52025. On the other hand, some other decisions on this Court that decided along the same line as AEDC vs. AKALIRO (supra) include – KPORHAROR vs. YEDI (2017) LPELR-42418, UDO vs. ROBSON (2018) LPELR-45183, FINAMEDIA GLOBAL SERVICES LTD vs. ONWERO (NIG) LTD (2020) LPELR-511429, ABUBAKAR vs. DAUDA (2020) LPELR-51417 and CHIEF OF NAVAL STAFF, ABUJA vs. ARCHIBONG (2020) LPELR-51845.
The right to seek redress for evisceration of fundamental rights is by Section 46 (1) of the 1999 Constitution vested in any person. The said stipulation reads:
“Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.”
See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which is similarly worded for any person to seek redress. The critical question is whether the phrase any person as used in the provision can be construed to include more than one person or whether it is limited to only one person. Where it is wide enough to include more than one person, then it necessarily follows that joint applicants can bring an application but where it cannot be so construed then an application by joint applicants will be incompetent. Let me hasten to state that even if the phrase any person denotes singular, by Section 14 of the Interpretation Act, in construing enactments, words in the singular include the plural and words in the plural include the singular. See COKER vs. ADETAYO (1996) 6 NWLR (PT 454) 258 at 266, UDEH vs. THE STATE (1999) LPELR (3292) 1 at 16-17 and APGA vs. OHAZULUIKE (2011) LPELR (9175) 1 at24-25.
Furthermore, the adjective employed in the provisions of Section 46 (1) of the 1999 Constitution and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 is any. It qualifies the noun person. The Merriam-Webster Online Dictionary defines the word any as an adjective which could be one or more, an undetermined number and when used as a pronoun, the word any can be singular or plural in construction. See also the online dictionary, Dictionary.com. So the word any and the phrase any person cannot be construed as referable and restricted to an individual. No. It conduces to more than one individual.
In the circumstances, it is my considered and informed view that in so far as the Respondents have a common grievance and common interest, and that it is on the same factual situation that they predicate the evisceration of their fundamental rights, they can bring a joint application for redress. The joint application filed by the Respondents is therefore competent. See INCORPORATED TRUSTEES OF DIGITAL RIGHTS LAWYERS INITIATIVE vs. NIMC (2021) LPELR-55623 (CA) at 51-64 and 67-70 decided by the Ibadan Division of this Court on 24th September, 2021.
It is for the foregoing reason and the more elaborate and comprehensive reasoning and conclusion in the leading judgment of my learned brother, that I avow my concurrence that issue number three must perforce be resolved against the Appellants. This however does not affect the successful destination of the appeal, since the Appellants succeeded on the more pivotal issue numbers two and five, on the disclosure of a cause of action against the Appellants and whether the lower Court was correct in entering judgment in favour of the Respondents, respectively. Ineluctably, I join in allowing the appeal and on the same terms as set out in the leading judgment.
Appearances:
T.O. Agbe, Principal State Counsel, with him, O.D. Okoronkwo (State Counsel) For Appellant(s)
Marshall Abubakar For Respondent(s)
