NWANKWO v. ENUGU EAST L.G. COUNCIL
(2020)LCN/14241(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Tuesday, June 30, 2020
CA/E/396/2016
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
S.I. NWANKWO APPELANT(S)
And
ENUGU EAST LOCAL GOVERNMENT COUNCIL RESPONDENT(S)
RATIO
FUNDAMENTAL HUMAN RIGHTS AS THE PARAMETER BY WHICH SOCIETIES ARE EVALUATED
This issue touches the very core of the parameter by which societies are evaluated, respect for the rights of citizens. By the Nigerian Constitution, fundamental rights proceedings are sui generis and enjoy a pride of place in the firmament of litigation. Chapter of the Constitution is especially protected and preserved as being practically untouchable as the existence of rights is only meaningful where enforcement is ensured. This point was not lost on the framers of the Nigerian Constitution who therefore made the following provisions in Section 46 thereof thus: 46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this Section.
(4) The National Assembly –
(a) may confer upon a High Court such powers in addition to those conferred by this Section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by this Section; and
(b) shall make provisions- (i) for the rendering of financial assistance to any indigent citizen of Nigeria where his right under this Chapter has been infringed or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim, and (ii) for ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal aid is real.
I hold strongly to the view that fundamental rights proceedings are special and do not permit of the luxury envisaged by pre-action notices when a breach is contemplated or has occurred. The rights conferred on the Appellant take their root from the Constitution which is superior to any other piece of legislation and before which any legislation must bow pursuant to Section 1 (3) of the Constitution.
The primacy enjoyed by fundamental rights actions was pointed out by IDIGBE, JSC thus:
There is no doubt that in cases of this nature relating to the Fundamental Rights of the citizens it is very desirable that the matter be dealt with expeditiously and, where possible, procedures which by their nature are cumbersome and prone to delay should be avoided. This is the raison d’etre for the special treatment given to the subject of Fundamental Rights and enforcement thereof in the Constitution (see also Aoko v Fagbemi & Anor (1961) 1 ALL N.L.R. 400 at 403). See AKUNNIA V. A-G OF ANAMBRA STATE (1977) LPELR-394 (SC) at 15-16. PER OYEWOLE, J.C.A.
WHETHER OR NOT THE APPEAL COURT CAN PRONOUNCE ON ACADEMIC ISSUES
As it is a long standing principle of law that the Courts shall not pronounce on academic issues, the two shall no longer be considered. See EPEROKUN VS. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162, OKE & ANOR VS. MIMIKO & ORS (2013) LPELR-20645 (SC) and SARAKI & ANOR VS. KOTOYE (1992) LPELR-3016 (SC). PER OYEWOLE, J.C.A.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Enugu State, Enugu Judicial Division, holden at Enugu delivered on the 17th May, 2016 by ODUGU, J.
The Appellant was reportedly apprehended and his car impounded by men said to be agents of the Respondent sometimes on Friday, 24th July, 2015. The Appellant was reportedly later set free and his car released to him after he paid a fine of N17,000.00. Thereafter, the Appellant took out an action pursuant to the Fundamental Rights (Enforcement Procedure) Rules, 2009 and sought the following reliefs:
1. A declaration that the arrest and detention of the Applicant by agents/servants of the Respondent purporting to act as road traffic controllers along the road leading to Nike Lake resort Hotel after Penoks Filling Station popularly known as NOWAS junction at about 1:20pm on Friday 24th July, 2015 is a contravention of the Applicant’s fundamental right to freedom of movement and right to personal liberty under Sections 35(1) and 41(1) of the Constitution of Nigeria 1999 (as amended)and therefore unconstitutional.
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- A declaration that the seizure of the Applicant’s private sports utility vehicle and its key with registration No. DZ 369 ABJ by the agents/servants of the Respondent until the Applicant paid a fine of N17,000.00 imposed on him by an officer of the Respondent is a contravention of the Applicant’s fundamental right to freedom of movement and right to personal liberty under Section 35(1) and 41(1) of the Constitution (Supra) and therefore unconstitutional.
3. A declaration that the fine of N17,000.00 (Seventeen Thousand Naira) imposed on and paid by the Applicant by an officer of the Respondent who was acting as the presiding officer of an illegal road traffic Court is a contravention of the Applicant’s fundamental right to fair hearing under Section 36(1) of the 1999 Constitution (as amended) and therefore unconstitutional.
4. A declaration that the Respondent has no legal powers to make road traffic regulations or to control traffic or enforce road traffic regulations or to arrest or detain any person or motor vehicle or seize any motor vehicle and its key or set up any road traffic Court or Tribunal or impose fine or collect
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fine from the Applicant or any person at all under the Constitution of Nigeria (Supra) or under any law in force in Nigeria.
5. An order of Court directing the Respondent to refund to the Applicant the sum of N17,000.00 (Seventeen Thousand Naira) unlawfully imposed and collected from the Applicant by the agents/servants of the Respondent.
6. An order of Court directing the Respondent to pay the sum of N5,000,000 (Five Million Naira) to the Applicant for breach of his fundamental rights to personal liberty, freedom of movement, and fair hearing.
7. An order of perpetual injunction restraining the Respondent and its agents or servants or representatives or privies from engaging in road traffic control, regulation, management or in enforcing any road traffic regulation whatsoever.
8. An order of Court disbanding the illegal road traffic organisation set up by the Respondent.
GROUNDS
The grounds in support of this application and upon which the relief are sought are as follows.
1. The unlawful arrest and detention of the Applicant with his private sports utility vehicle at about 1:20pm on Friday 24/7/15 near Penoks Filling
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Station at the junction popularly known as NOWAS Junction along the road leading to Nike Lake Resort Hotel, Nike, Enugu East Local Government Area by the agents/servants of the Respondent.
2. The unlawful detention of the Applicant and his private motor vehicle at the premises of the Respondent at Nike from that 1:20pm to 3:3pm.
3. The unlawful imposition of and collection a fine of N17,000.00 (Seventeen Thousand Naira) from the Applicant by an agent of the Respondent who acted as the presiding officer of an illegal road traffic Court.
4. The unconstitutional and illegal acts of the Respondent and its agents/servants in engaging in unlawful activities.
On being served, the Respondent filed a counter-affidavit and raised a preliminary objection to the competence of the action on grounds including failure to serve a pre-action notice on the Respondent before commencing the action as required by Section 137 of the Local Government Law of Enugu State.
The learned Trial Judge took arguments from counsel for the two sides and delivered a considered decision wherein his lordship found that the action was incompetent for having been commenced
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without a pre-action notice and consequently struck it out.
Dissatisfied, the Appellant invoked the Appellate jurisdiction of this Court via a Notice of Appeal filed on the 28th July, 2016 containing three grounds.
At the hearing of the appeal, Mr. Nwankwo, the learned counsel for the Appellant, adopted the Appellant’s brief filed on the 2nd November, 2016 as well as the Reply brief filed on the 13th May, 2020 but deemed properly filed and served on the 9th June, 2020 as the arguments of the Appellant in furtherance of his appeal.
For the Respondent, their learned counsel, Mr. Aneke adopted the Respondent’s brief filed on the 10th April, 2019 but deemed properly filed and served on the 9th June, 2020 as the arguments of the Respondent in contesting the appeal.
The Appellant distilled and formulated three issues for determination which were adopted by the Respondent. The said issues are as follows:
1. Whether service of pre-action notice is a condition precedent before the Application for enforcement of fundamental rights can be brought by the Appellant against the Respondent.
2. Whether the learned trial Judge was
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right in law when he failed to resolve the issue as to whether or not the Notice of Preliminary Objection filed by the Respondent was competent.
3. Whether the learned trial Judge can raise suo motu without inviting counsel to address him on the issue of some relief sought by the Appellant falling outside the scope of the application of Chapter IV of the Constitution of Nigeria 1999 (as amended).
I shall take the issues seriatim beginning with the first issue. Arguing this issue, Mr Nwankwo submitted that the right to apply for the enforcement of fundamental rights was conferred by Section 46 (1) of the Constitution and regulated by Rules made by the Chief Justice of Nigeria pursuant to sub (3) thereof and that having not provided for pre-action notices, Section 137 of the Local Government Law Cap 109 of the Revised Laws of Enugu State (hereinafter referred to as the Local Government Law) must give way for being inconsistent. He referred to Section 1(3) and 4(5) of the Constitution, Order III rule I of the African Charter on Human and Peoples Rights Act and ABACHA & ORS VS CHIEF GANI FAWEHINMI (2000) 2 SCNQR 489 at 492-496 and AG ANAMBRA STATE VS OKEKE & ORS
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(2002) 10 NSCQR (PT 2) 792 at 797.
The counter-argument of the Respondent was that the provisions of Sections 137 and 138 of the Local Government Law were mandatory for pre-action notices to be served in all proceedings against the Local Governments in Enugu State and that where the condition for pre-action notice was not satisfied, the suit would be incompetent. He referred to IFEZUE VS MBADUGHA (1984) SCNLR 40, AMOKEODO VS IGP (1999) 6 NWLR (PT 607) 467, ODESCO INTEGRATED RESOURCES LTD & ANOR VS INTERCONTINENTAL BANK PLC (2010) LPELR-4676(CA), NIGER CARE DEVELOPMENT CO. LTD VS ASWB (2005) 9 NWLR (PT 1093) 498, NNPC VS TIJANI (2006) 17 NWLR (PT 1007) 29 andNNPC VS EVWORI (2007) ALL FWLR (PT 369) 1324 at 1346.
Learned counsel further expounded the position of the law with regards to the nature of pre-action notices and submitted that where the law prescribes the mode of a doing a thing, that mode must be complied with as a breach of a condition precedent renders the process incompetent. He referred to SAUDE VS ABDULLAHI (1989) 4 NWLR (PT 116) 387 at 422, INAKOJU & ANOR VS ADELEKE & ANOR (2007) Vol. 143 LRCN 31, MADUKOLU VS NKEMDILIM
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1 ACLC 228 and AGIP (NIG) LTD VS AGIP PETROL INTL (2010) ALL FWLR (PT 520) 119 at 1205.
In his reply argument, Mr Nwankwo reiterated his earlier arguments and added that pre-action notices would be unconstitutional where it seeks to prevent access to Court constrain the exercise of constitutional rights. He referred to PORT HARCOURT REFINING CO. LTD VS OKORO (2010) LPELR 4861 and NNPC VS EVWORI (supra).
This issue touches the very core of the parameter by which societies are evaluated, respect for the rights of citizens. By the Nigerian Constitution, fundamental rights proceedings are sui generis and enjoy a pride of place in the firmament of litigation. Chapter of the Constitution is especially protected and preserved as being practically untouchable as the existence of rights is only meaningful where enforcement is ensured. This point was not lost on the framers of the Nigerian Constitution who therefore made the following provisions in Section 46 thereof thus:
46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High
8
Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this Section.
(4) The National Assembly –
(a) may confer upon a High Court such powers in addition to those conferred by this Section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by this Section; and
(b) shall make provisions- (i) for the rendering of financial assistance to any indigent citizen of Nigeria where his right under this Chapter has been infringed or with a view to enabling him to engage
9
the services of a legal practitioner to prosecute his claim, and (ii) for ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal aid is real.
I hold strongly to the view that fundamental rights proceedings are special and do not permit of the luxury envisaged by pre-action notices when a breach is contemplated or has occurred. The rights conferred on the Appellant take their root from the Constitution which is superior to any other piece of legislation and before which any legislation must bow pursuant to Section 1 (3) of the Constitution.
The primacy enjoyed by fundamental rights actions was pointed out by IDIGBE, JSC thus:
There is no doubt that in cases of this nature relating to the Fundamental Rights of the citizens it is very desirable that the matter be dealt with expeditiously and, where possible, procedures which by their nature are cumbersome and prone to delay should be avoided. This is the raison d’etre for the special treatment given to the subject of Fundamental Rights and enforcement thereof in the Constitution (see also Aoko v Fagbemi & Anor (1961) 1 ALL N.L.R. 400 at 403)
10
See AKUNNIA V. A-G OF ANAMBRA STATE (1977) LPELR-394 (SC) at 15-16.
I endorse the lucid arguments of Mr. Nwankwo that the pre-action notice provided for in Sections 137 and 138 of the Local Government Law of Enugu State cannot apply to the enforcement of fundamental rights guaranteed by the Constitution and I am not persuaded by the arguments of Mr.Aneke to the contrary.
I therefore resolve the first issue in favour of the Appellant and against the Respondent.
Having come to the above conclusion, the second and third issues have become academic. As it is a long standing principle of law that the Courts shall not pronounce on academic issues, the two shall no longer be considered. See EPEROKUN VS. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162, OKE & ANOR VS. MIMIKO & ORS (2013) LPELR-20645 (SC) and SARAKI & ANOR VS. KOTOYE (1992) LPELR-3016 (SC).
In totality therefore, I find merit in this appeal and I allow it.
The judgment of the trial Court striking out Suit No. E/127M/2015 is hereby set aside. The said Suit No. E/127M/2015 is hereby restored to the cause-list and remitted to the Chief Judge of Enugu
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State for re-assignment to another Judge of the Enugu State Judiciary other Hon. Justice R. O. Odugu.
Parties shall bear their respective costs.
IGNATIUS IGWE AGUBE, J.C.A.: Having perused the draft of the Judgment prepared and delivered by my Learned Brother JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA, I am in agreement with the reasoning and conclusion contained therein which culminated in the Appeal being allowed, and it is hereby allowed by me.
Hence, the Judgment of the High Court of Enugu State, Enugu Judicial Division, holden at Enugu, delivered on the 17th May 2016 by Honourable Justice R. O. ODUGU, J. is hereby set aside.
Parties shall bear their respective costs.
ABUBAKAR SADIQ UMAR, J.C.A.: As I have had the opportunity of reading before now the judgment just delivered by my learned brother JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA allowing this appeal, the appeal is also allowed by me for the reasons given in the said lead judgment.
Fundamental right proceeding is special in nature. It is a constitutional right which take root from the constitution as any legislation that tends to whittle it down is null and void to such
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Inconsistency. See Section 1 (3) of 1999 Constitution of the Federal Republic of Nigeria (as amended).
To that extent pre-action notice provided for in Section 137 and 138 of Local Government Law cannot apply to cases of fundamental right proceedings.
For the reasons lucidly set out in the leading judgment, I also allow the appeal, and abide by the consequential orders therein.
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Appearances:
Mr. K. C. Nwankwo For Appellant(s)
Mr. P. C. Aneke For Respondent(s)
