SSS v. WECHIE
(2021)LCN/15575(CA)
In The Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, July 22, 2021
CA/PH/FHR/453/2017
Before Our Lordships:
Paul Obi Elechi Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
STATE SECURITY SERVICE (A.K.A. DSS) APPELANT(S)
And
LIVING STONE WECHIE RESPONDENT(S)
RATIO:
FACTS UNCHALLANGED BY AN OPPOSING PARTY ARE DEEMED ADMITTED
It is time-honored principle of law that every piece of evidence that is unchallenged is deemed admitted and the Courts are bound to give effect to the said evidence. See Mabamije vs. Otto (2016) LPELR-26058 (SC).
The trial Court was therefore right in reaching a finding and holding that “the law is that where an Applicant fails to file a further affidavit challenging new facts disclosed in a counter-affidavit, they are deemed not disputed and a Court of law and equity will deem same admitted. Failure to do so means the facts are admitted. This was decision of Court in the case of ALHAJI JIBRIN BABALE vs. MR. INNOCENT EZE (2011) 11 NWLR (PT. 1257) 48 at …” Reproduced from page 114 of the Records. PER PAUL OBI ELECHI, J.C.A.
WHERE ALLEGATIONS ARE MADE AGAINST A PERSON IN AN ACTION SUCH A PERSON MUST BE JOINED AS A PARTY TO THE ACTION
It is trite that where allegations or claims are raised against a person, such a person(s) must be joined as a party to the suit and given the opportunity to present this case and defend himself before a decision is taken against them. See Maxi Okwu & Anor vs. Chief Victor Umeh & Ors. (2015) LPELR-26042 (SC). PER PAUL OBI ELECHI, J.C.A.
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This Respondent’s Brief is brought pursuant to the rules of this Honourable Court in opposition to the Appellant brief herein filed. The Appellant’s appeal is against the decision of the Court below which entered judgment against the Appellant for the abuse of the fundamental rights of the Respondent. The said decision was entered by the High Court of Rivers State on the 20th day of February, 2017 in Suit No.: PHC/1294/2016 between LIVING STONE WECHIE vs. STATE SECURITY SERVICE (A.K.A. DSS) under the hand of the Hon. Justice G.O. Omereji sitting in the Port Harcourt Judicial Division.
The Appellant being dissatisfied with the said decision has now appealed against the same by a Notice of Appeal dated the 2nd day of March, 2017 which said Notice of Appeal contains five Grounds of Appeal.
BRIEF STATEMENT OF FACTS
The Respondent herein commenced this suit against Appellant for the enforcement of his fundamental rights at the trial Court seeking the reliefs as contained in the endorsement.
Issues were joined wherefore the Respondent filed his counter-affidavit together with a preliminary objection challenging the jurisdiction of the lower Court upon the grounds as set out in pages 58-59 of the records and the Applicant (now Respondent) filed his reply on points of law together with a counter-affidavit challenging the preliminary objection filed by the Respondent necessitating a further and better affidavit and parties canvassed their legal positions on the issues raised on the 24th day of November, 2016 and the Court delivered its ruling dismissing the preliminary objection as same was lacking in merit and proceeded to enter judgment in favour of the Applicant (now Respondent).
The Respondent (now Appellant) has now appealed the ruling/judgment seeking to set aside the said ruling/judgment of the lower Court.
ISSUES FOR DETERMINATION
The Appellant formulates the following issues for determination by this Honourable Court:
i. Whether the learned Judge of the State High Court was right when he assumed jurisdiction to hear and determine a suit, subject matter of which hinged on exercise of executive powers of the State Security Service, an agency of the Federal Government of Nigeria?
ii. Whether the learned Judge of the Court below was right to have held State Security Service liable for acts of persons who were not its agent and who were not given fair hearing?
iii. Whether the Court below was right to hold that there was threat on Respondent’s life when same was not proved beyond reasonable doubt?
iv. Whether the learned Judge of the Court below was right when he hinged his decision on Respondent’s affidavit and further affidavit alone, without recourse to Appellant’s counter-affidavit?
v. Whether the High Court Judge was right when he restrained State Security Service, a Federal Government Security Agency from performing its statutory functions.
vi. Whether the learned Judge of the High Court was right when he held that mere invitation and interview of Respondent for a few hours on a matter capable of breaching national security was violation of his right?
Issue 1 provides argument in support of Ground 1 in the Notice of Appeal. While Issues 2, 3, 4, 5 and 6 provides argument in support of Grounds 2, 3, 4, 5 and 6 respectively in the said Notice of Appeal.
ISSUE 1
Whether the learned Judge of the State High Court was right when he assumed jurisdiction to hear and determine a suit, subject matter of which bothered on exercise of executive powers of the State Security Service, an agency of the Federal Government of Nigeria.
To argue this issue, it is submitted that the learned Judge of High Court had no jurisdiction to hear and determine the Respondent’s application for enforcement of his fundamental rights against the Appellant. In his motion on Notice and Supporting affidavit, Respondent alleged that in the exercise of its executive powers, the State Security Service (SSS) violated his fundamental human rights.
And that by virtue of Section 1(c) of the National Security Agencies (NSA) Act, Cap N74, Laws of the Federation of Nigeria (LFN) 2004, the SSS is established as an intelligence/security agency of the Federal Government of Nigeria. A perusal of Respondent’s prayers in his originating processes show clearly that he sought for declarative and injunctive orders against the SSS or acts allegedly done in exercise of its powers. It is therefore his view that the proper forum with requisite jurisdiction to hear and determine the application is the Federal High Court (FHC). This is on the strength of provision of Section 251(1) (r) of the 1999 Constitution (as amended) to the effect that the FHC, to the exclusion of the State High Court, shall have jurisdiction to determine any action or proceedings for declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of the agencies.
In furtherance, the Court is urged to hold that the above Section 251(1) (r), which is latter in time, takes precedence over and supersedes the provision of Section 46 of the 1999 Constitution. See Osunde vs. Baba (supra); Grace Jack vs. University of Makurdi NSCQLR Vol. 17 (2004) 92.
It is submitted that to assume jurisdiction, a High Court should consider the parties and the cause of action, where the party is an agency of the Federal Government and the complaint falls under Section 251 of the Constitution. Further submitted that a State High Court lacks jurisdiction to hear the case. See the cases of Gafar vs. Kwara State Government (2007) 29 NSCQR, P.37, RATIO 4; NIMASA vs. Iheanacho & Ors (2016) LPELR-40565, the Court of Appeal held as follows: “even in fundamental human rights cases where the Constitution confers jurisdiction on both the Federal and State High Court, the State High Courts are still devoid of jurisdiction whether that subject matter falls within the exclusive jurisdiction of the Federal High Court.”
See Director of SSS (Bayelsa State vs. Miss Tari Akandi (unreported) Appeal No. CA/PH/281/2016) delivered on 28/7/2017 where it was held that a State High Court lacks the requisite jurisdiction to entertain and determine fundamental right cases falling within the provisions of Section 251 (1) (r) of the 1999 Constitution (as amended). See Aniako vs. Police 2014 15 NWLR (Pt. 1429) 155 at 170, CBN vs. Aite Okojie (2015) LPELR – 24740 (SC).
The Court is urged to uphold our above submissions and hold that the Court below erred in law when it assumed jurisdiction to entertain and determine a fundamental right case against an agency of the Federal Government for acts within the exclusive jurisdictional competence of the Federal High Court.
ISSUE 2
Whether the Court below was right to have held State Security Service liable for acts of persons who were not its agents and who were not given fair hearing?
It is submitted from the judgment complained of, the learned Judge of the lower Court held the Appellant liable mainly on the strength of Respondent’s claim that one CHUDI and BEN allegedly tortured and threatened the Respondent’s life.
Also, that where allegations or claims are raised against a person, such a person(s) must be joined as a party to the suit and given the opportunity to present his case or defend himself before a decision is made. Further, it is contended that where such a person is not joined as a party and given an opportunity to be heard, that it is fatal to the case, robs the Court of requisite jurisdiction and renders the proceedings, a nullity. It is trite law that although a Court might typically have the jurisdiction to hear a suit, the absence of a proper or necessary party before the Court renders the entire suit an exercise in futility. A Court cannot validly make an order or decision which will affect a stranger to the suit, who was never heard or given an opportunity to defend himself. See Chief Maxi Okwu & Anor vs. Chief Victor Umeh & Ors.; LN – e–LR/2016/46 (SC) and (2015) LPELR-26042 (SC).
It is further contended that it amounts to an express breach of the fundamental right to fair hearing of the so called BEN, CHUDDY and BASSEY (whoever they may be) as guaranteed under Section 6 and 36 of the 1999 Constitution as amended for the Court to decide a case against them without hearing them. It is a violation of the hallowed principle of audi alteram partem.
It is equally submitted that the High Court Judge erred when he held SSS liable for acts allegedly done by persons who are not its officers and who were not joined as parties to the suit. The Court below relied on the Respondent’s further affidavit, which according to him was not denied by the Appellant. The Court of first instance ignored very relevant depositions in paragraphs 6, 8, 9, 12, 15, 16 and 17 (iv) of Appellant’s counter-affidavit. The said paragraphs outrightly and clearly denied allegations of torture and threat made against SSS by the Respondent.
It is submitted that having failed to prove that CHUDDY, BEN and BASSEY are agent of SSS, and having failed to join them in this suit, it was erroneous for the Court below to have assumed jurisdiction over this suit or to hold SSS liable for acts of aliens, who only exist in Respondent’s further affidavit. It is the view that for a principal to be held liable for acts of his agent, it must be proved, among others, that there is a master/servant relationship between them.
The Court is urged to resolve this issue in their favour.
ISSUE 3
Whether the Court below was right to hold that there was threat on Respondent’s life when same was not proved beyond reasonable doubt?
The Court below, relying on Respondent’s further affidavit, held that he (Respondent) was tortured and his life threatened by some individuals named CHUDDY, BEN and BASSEY. The three were not joined as parties so as to defend themselves. Also, Respondents did not prove his allegation of crime beyond reasonable doubt. Rather, relying on depositions in Respondent’s further affidavit, the Court technically found CHUDDY, BEN and BASSEY ‘guilty’ of a crime without fair hearing and without proof beyond reasonable doubt.
The Court below placed reliance on the further affidavit, which according to the Court, was not denied by Appellant in arriving at above decision. It is pertinent to point out here that allegations in the said further affidavit were not proved in any way, they were based on nothing but suspicion as clearly stated by Respondent in the said further affidavit.
It is trite law that where a person makes an allegation of crime in a civil suit, the onus, which must be beyond reasonable doubt is on him to prove the said allegation. Also that where he pleads allegation of crime but fails to lead evidence (NOT SUSPICION) to prove same, the pleading/allegation is deemed abandoned and goes to no issue. See Mrs. Dele Akingboye vs. Latifa Salisu & Ors. (1999) 7 NWLR (Pt. 611); Joseph vs. Joseph & Anor. CA/J/137/2016 ANCA 6/20/2016.
Therefore, the Court is urged to hold that having failed to discharge the burden of prove, the Court below erred by holding DSS liable for alleged acts of crime by persons unknown to it and who were not joined as parties and the said crime not proved beyond reasonable doubt.
ISSUE 4
Whether the learned Judge of the Court below was right when he hinged his decision on Respondent’s further affidavit alone, without recourse to Appellant’s counter-affidavit?
It is submitted that the Court below, ignored salient and relevant paragraphs of Appellant’s counter-affidavit, which clearly denied Respondent’s claims, in arriving at his conclusion. The High Court recourse mainly to Respondent’s further affidavit, which was based on nothing but suspicion.
As a result, the Court is urged to find for Appellant on this point and hold that suspicion, no matter how strong cannot be a basis to hold a party liable in the absence of cogent facts. It is also contended that Appellant’s counter-affidavit clearly and effectively traversed the depositions in Respondent’s affidavit and further affidavit.
Also to resolve this issue in favour of the Appellant.
ISSUE 5
Whether the High Court Judge was right when he restrained State Security Service, a Federal Government Security Agency from performing its statutory functions.
It is stated that while granting the Respondent’s prayers, the Court below made an order inter alia restraining the Appellant from inviting the Respondent.
In the discharge of its statutory duties, the Appellant invites persons of security interest for interview as part of investigation activities. Also, that stopping Appellant from taking such investigative steps against the Respondent, if need be, amounts to restraining a security agency from discharging its statutory functions and same should be upturned. See Dan Fulani vs. EFCC (2016) 1 NWLR (Pt. 1493) Pg. 48.
The Court is urged to resolve this issue in favour of the Appellant.
ISSUE 6
Whether the Court below was right to hold that mere invitation and interview of Respondent for a few hours on a matter capable of breaching national security was violation of his right?
On this issue, it is submitted that mere invitation and interview does not amount to violation of Respondent’s right in his affidavit, Respondent averred that he was invited with a phone call. He honoured the invitation (without arrest). He was questioned and educated on the security implications of his planned protests and was allowed to go on the same day. The claim that he was allowed to go at midnight is not tenable as security agencies do not have the practice of releasing suspects, let alone a mere invitee by that ungodly period. Also, not tenable is his allegation of torture and threat.
It is submitted that Appellant did not breach Respondent’s right simply by inviting and interviewing him as same does not violate Section 35 of the 1999 Constitution in anyway.
CONCLUSION
In the light of above submissions, the Court is urged to allow this appeal and set aside the judgment of the Court below in its entirety.
The Respondent proposed two issues for determination viz:
1. Whether the lower Court was right in dismissing the Appellant’s preliminary objection challenging its jurisdiction to determine this suit.
2. Whether the lower Court was right to determine the material issues in the substantive suit in favour of the Applicant (now Respondent).
ARGUMENT ON THE ISSUES
Whether the lower Court was right in dismissing the Appellant’s preliminary objection challenging its jurisdiction to determine this suit.
The Appellant contended at the trial Court, that the trial Court lacks the jurisdiction to hear and determine this suit, the suit having been commenced against an institution of the Federal Republic of Nigeria that is to say that the matter ought to have been filed at the Federal High Court relying on Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the case of Adetona vs. Igele Ent. Ltd. (2011) ALL FWLR, (Pt. 569) at P. 1031, Ratio 4.
The Appellant further contends that the Applicant (now Respondent) did not and has not presented any fact generating any cause of action to inure any relief of the Court in his favour.
It is intrinsic at this stage to reiterate the fact that this matter was brought under the Fundamental Rights Enforcement Procedure Rules 2009 and the main and ancillary claims together with the facts in support of the claim therein are purely founded on abuse of fundamental rights of the applicant (now Respondent) without more, thus the subject matter qua cause of action founded purely on the enforcement of fundamental right.
It is trite and there are a legion of authorities to the effect that condition precedent to the exercise of the jurisdiction of the Courts in fundamental rights enforcement suits is that the enforcement of fundamental rights must be the main claim as well as the ancillary claim; that where the main claim or principal claim is not for securing the enforcement of a fundamental right, the jurisdiction of the Courts cannot be properly exercised and the action will be incompetent. See Abdulhamid vs. Akar (2006) 13 NWLR (Pt. 996) Pg. 127.
It has been stated several times by both intermediary and the apex Court, that an action founded on Fundamental Rights (Enforcement Procedure) Rules is sui generis, and is not subject to the other rules of Court, except where expressly adopted, to fill a lacuna in the Fundamental Rights (Enforcement) Rules 2009. See the case ofEnukeme vs. Mazi (2014) LPELR-23540 CA, where this Court said: “I must start by stating the obvious, that fundamental rights enforcement procedure is sui generis, being specially and specifically designed, with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under Constitution.” Of course, consideration of issues founded in breaches of fundamental rights, in this case, must be handled within the exclusive confines of the Fundamental Rights (Enforcement Procedure) Rules of 2009, which actually came to correct some, perceived wrongs and hardship which the 1979 Rules (fashioned after 1979 Constitution) caused to Applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications. SeeAgbaso vs. Iwunze & Ors. (2014) LPELR-24108 (CA); Enukeme vs. Mazi (supra).
It is submitted that the venue for commencing the enforcement of the fundamental rights of applicants is not in dispute because it is properly settled and rested in Section 46 of the Constitution of Federal Republic of Nigeria 1999 (as amended) which states: “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.” Clearly, the High Court of the State is the constitutionally designated Court to handle all cases of abuse of fundamental rights no matter who the act complained against as in the instant case.
Appellant’s counsel has made so much weather about the Adetona vs. Igele Ent. Ltd (supra) case but has failed to address his mind to the fact that the case is not impari material with this case, the case only insists on the cause of action. Thus, if the enforcement of fundamental rights falls outside the subjects and cause of action contemplated by Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Federal High Court would lack jurisdiction because the Federal High Court by the way it is created is a Court of exclusive jurisdiction while the State High Court is Court of general jurisdiction thus Adetona’s case has nothing to do with party jurisdiction as the Appellant may want this Court to believe.
The subject matter giving rise to this action is without more the breach of fundamental rights of the Applicant and whoever this complain is made against, whether Federal or State Government Agency can be safely brought before the State High Court pursuant to S.46 (1) of the Constitution of Federal Republic of Nigeria.
It is trite law that when an objection is raised that the statement of claim does not disclose a reasonable cause of action, it is the statement of claim that has to be examined to ascertain whether or not there is a reasonable cause of action. See Ogbimi vs. Ololo (1993) 7 NWLR (Pt. 304) 128. Are there facts placed before the trial Court for which the Court was invited to determine against the Respondent? The answer with respect is in the affirmative – yes.
It is time-honored principle of law that every piece of evidence that is unchallenged is deemed admitted and the Courts are bound to give effect to the said evidence. See Mabamije vs. Otto (2016) LPELR-26058 (SC).
The trial Court was therefore right in reaching a finding and holding that “the law is that where an Applicant fails to file a further affidavit challenging new facts disclosed in a counter-affidavit, they are deemed not disputed and a Court of law and equity will deem same admitted. Failure to do so means the facts are admitted. This was decision of Court in the case of ALHAJI JIBRIN BABALE vs. MR. INNOCENT EZE (2011) 11 NWLR (PT. 1257) 48 at …” Reproduced from page 114 of the Records
Furthermore, it can be gleaned from the counter affidavit filed by the Appellant in opposition to the affidavit in support as per pages 5 and … of the records, the Appellant as Respondent admitted the fact that the Applicant now Respondent was invited for questioning on his planned strike in protest of the fuel hike policy of the Federal Government and that he was cautioned from taking any further steps in that regards is in itself an admission of an infringement of the Applicant’s fundamental right to freely move, associate and hold and propagate opinions.
The Court is urged to resolve this issue in favour of the Respondent.
ISSUE 2
Whether the lower Court was right to determine the material issues in the substantive suit in favour of the Applicant (now Respondent).
In arguing the issues, the learned counsel for the Appellant stated that the lower Court failed to consider the issues raised in the Appellant’s counter-affidavit dated 3rd day of June, 2016 and filed same day and thereby breaching the right of fair hearing of the Appellant and that resulted in miscarriage of justice.
It is submitted that the lower Court gave equal opportunity to all the parties who were also heard before the ruling of the lower Court now being challenged by the Appellant. The facts of the case showed that the Appellant filed his Notice of Preliminary Objection on 11th October, 2016 while the Applicant now Respondent filed his reply on points of law on 19th October, 2016. Meanwhile, the Respondent now Appellant who by the trial Judge had filed his counter-affidavit to the substantive application dated 3rd day of June, 2016 while the Respondent’s Counter-Affidavit was filed on the 24/10/2017. The Applicant now Respondent then filed a further affidavit filed and dated 24th November, 2016 which said further affidavit was unchallenged till date. The Preliminary Objection was taken together with the substantive application wherein party fiercely canvassed and argued their position on 24th November, 2016.
The learned trial Judge in determining this suit examined all the affidavit evidence before him and found the case of the Applicant now Respondent meritorious whilst also striking out the preliminary objection for want of merit.
It is a general principle of law that the Court has a duty to consider and make a pronouncement on issues that arises, were raised and canvassed upon by parties for determination. That general position is not untouchable on or a principle without exception as the Court would desist in tackling all the issues where the effect would negate the adjudicatory of prejudice or compromise the justice of the matter.
It is further submitted that for the Appellant to succeed in this argument, he must show that the lower Court has failed to consider issues raised and properly canvassed before it and he must show also how the decision of the lower Court in the ruling before it and must show that the lower Court has failed to consider issues raised and properly canvassed before it and must also show how the decision of the lower Court in the ruling on appeal has resulted in a miscarriage of justice as alleged by him. See Egharevba vs. FRN (2016) 2 SC (Pt. III) 192.
On the strength of the above, the Court is urged to discountenance the argument of the learned counsel for the Appellant and decline the invitation to resolve the issues canvassed in this appeal in their favour.
The Court is urged to resolve the issues formulated in favour of the Respondent and dismiss the Appellant’s appeal with substantial cost for lack of merit and hold thus:
1. That the lower Court was right in dismissing the Appellant’s preliminary objection challenging its jurisdiction to determine this suit.
2. That the lower Court was right to determine the material issues in the substantive suit before it.
3. The lower Court has a mandatory duty to consider and determine all material issues properly raised before it.
RESOLUTION OF ISSUES
This appeal will be considered and determined on its merit by considering the following issues as formulated by the Appellant.
i. Whether the learned Judge of the State High Court was right when he assumed jurisdiction to hear and determine a suit, subject matter of which hinged on exercise of executive powers of the State Security Service, an agency of the Federal Government of Nigeria?
ii. Whether the learned Judge of the Court below was right to have held State Security Service liable for acts of persons who were not its agent and who were not given fair hearing?
iii. Whether the Court below was right to hold that there was threat on Respondent’s life when same was not proved beyond reasonable doubt?
iv. Whether the learned Judge of the Court below was right when he hinged his decision on Respondent’s affidavit and further affidavit alone, without recourse to Appellant’s counter-affidavit?
v. Whether the High Court Judge was right when he restrained State Security Service, a Federal Government Security agency from performing its statutory functions?
vi. Whether the learned Judge of the High Court was right when he held that mere invitation and interview of Respondent for a few hours on a matter capable of breaching national security was a violation of his right?
ISSUE ONE
This issue seeks to know whether the learned trial Judge of the State High Court was right when he assumed jurisdiction to hear and determine a suit, subject matter of which bothered on the exercise of executive powers of the State Security Service, an agency of the Federal Government of Nigeria.
From the on-set, the Appellant submitted that the State High Court had no jurisdiction to hear and determine the Respondent’s application for enforcement of his fundamental rights against the Appellant. In his Motion on Notice and Supporting Affidavit, Respondent alleged that in the exercise of its executive powers, the State Security Service (SSS) violated his fundamental human rights.
Also that by virtue of Section 1 (c) of the National Security Agencies (NSA) Act, Cap N74, Laws of the Federation of Nigeria (LFN) 2004, the SSS is established as an intelligence/security agency of the Federal Government of Nigeria. It is submitted that the proper forum with requisite jurisdiction to hear and determine the Application is the Federal High Court (FHC) pursuant to the provisions of Section 251(1)(r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The originating summons show clearly that what is being prayed for is for a declaration and injunctive orders against the SSS for acts allegedly done in the exercise of its executive powers and therefore the proper forum with requisite jurisdiction to hear and determine the instant application is Federal High Court pursuant to the provisions of Section 251 (1) (r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to the effect that the Federal High Court to the exclusion of the State High Court, shall have jurisdiction to determine any action or proceedings for declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
In the case of Adetona vs. Igele Ent. Ltd (2011) ALL FWLR (Pt. 569) 1031 where the Supreme Court in its dictum posited that: “The jurisdiction of both the Federal and State High Courts to determine fundamental rights action is limited to subject matter within their respective jurisdiction” as spelt out in the 1999 Constitution.
The Court of Appeal in its own wisdom has under the doctrine of stare decisis adopted the above position of the Apex Court when it held in the case of Osunde vs. Baba (2015) ALL FWLR (Pt. 781) 1504 when it held as follows:
“Thus, the issue of who has jurisdiction between the State and Federal High Courts is only circumscribed by the Federal High Court in matter provided under Section 251 of the Constitution …”
For a High Court to assume jurisdiction over a matter, it should consider the parties involved and the cause of action. Where the party is an agency of the Federal Government and the act complained of falls under Section 251 of the Constitution, the High Court of the State lacks jurisdiction to hear this case. See Gafar vs. Kwara State Government (2007) 29 NSCQR 37.
Even this Court has in the case of Nimasa vs. Iheanacho & Ors. (2016) LPELR-40565, held as follow that:
“Even in fundamental human rights cases where the constitution confers jurisdiction on both the Federal and State High Courts are still devoid of jurisdiction where the subject matter falls within the exclusive jurisdiction of the Federal High Court.”
This matter was brought under the Fundamental Rights Enforcement Procedure Rules 2009 and the main and ancillary claims together with the facts in support of the claim therein are purely founded on abuse of the fundamental rights of the Applicant (now Respondent) without more, thus the subject matter qua cause of action all founded purely on the enforcement of fundamental rights.
The Appellant contend that the trial Court lacks the jurisdiction to hear and determine this suit, having been commenced against an institution of the Federal Republic of Nigeria and that the matter ought to have been filed at the Federal High Court relying on Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the case of Adetona vs. Igele Ent. Ltd (supra).
An action founded on Fundamental Rights (Enforcement Procedure) Rules is sui generis and is not subject to the other rules of Court except where expressly adopted to fill a lacuna in the Fundamental Rights (Enforcement Procedure) Rules 2009.
Appellant relied heavily on the authority of Adetona vs. Igele Ent. Ltd (supra) but with respect to him, the authority is not in pari material with this case because the case only exist on the cause of action and thus if the enforcement of the Fundamental rights outside the subject and cause of action contemplated by Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Federal High Court would lack jurisdiction because the Federal High Court by the way it is created, is a Court of exclusive jurisdiction while the State High Court is a Court of general jurisdiction. So the authority of Adetona’s case therefore has nothing to do with party jurisdiction as the Appellant is moving this Court to believe.
The learned trial Judge erred in law when he relied on the authorities of NEPA vs. Edegbero & 15 Ors. (2002) 12 NSCQR 105 at 108; University of Ilorin Teaching Hospital vs. Akilo (2000) FWLR (Pt. 28) 2286-2288 to hold that once a matter is for Enforcement of Fundamental rights, a State High Court has the requisite jurisdiction to entertain and determine this suit.
This suit is resolved in favour of the Appellant and against the Respondent.
ISSUE TWO
Whether the Court below was right to have held State Security Service liable for acts of persons who were not the agents and who were not given fair hearing?
It was observed from the judgment of the lower Court that the Court held the Appellant liable mainly on the strength of Respondent’s claim that one Chidi and BEN allegedly tortured and threatened Respondent’s life. It is trite that where allegations or claims are raised against a person, such a person(s) must be joined as a party to the suit and given the opportunity to present this case and defend himself before a decision is taken against them. See Maxi Okwu & Anor vs. Chief Victor Umeh & Ors. (2015) LPELR-26042 (SC). This was not done in this case as Chidi and BEN were not joined in this case.
This issue is therefore resolved in favour of the Appellant and against the Respondent.
ISSUE THREE
Whether the Court below was right to hold that there was threat on Respondent’s life when same was not proved beyond reasonable doubt?
The Respondent’s further affidavit was relied upon by the learned trial Judge to hold that the Respondent was tortured and his life threatened by Chuddy, Ben and Bassey. These three individuals were however not joined as parties to the suit. The said allegation in the Respondent’s further affidavit was not proved in any way. Also, where a party pleads allegation of crime but fails to lead evidence to prove same, the allegation/pleading is deemed abandoned and therefore goes to no issue. See Mrs. Dele Akingboye vs. Latifu Salisa & Ors. (1999) 7 NWLR (Pt. 611).
The Respondents having failed to discharge the burden of proof, the Court below erred by holding SSS liable of the alleged acts of crime by unknown persons to it and worse still, who were not joined as parties and the said crime not proved beyond reasonable doubt.
This issue is resolved in favour of the Appellant and against Respondent.
ISSUE FOUR
Whether the learned trial Judge was right when he based his decision on Respondent’s further affidavit alone without recourse to Appellant’s counter-affidavit.
A perusal of the judgment of the learned trial Judge shows that the Court below overlooked and ignored all the salient and relevant paragraphs of the Appellants counter-claim which clearly denied Respondents claims on arriving at his conclusion. The Appellant’s counter-affidavit clearly and effectively traversed the depositions in Respondent’s affidavit and further affidavit.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE FIVE
Whether the High Court Judge was right when he restrained State Security Service, a Federal Government Security agency from performing its statutory functions?
As part of the discharge of its statutory duties, the Appellant invites persons of security interest for interview as part of investigation activities. With the present volatile security situation in this country today, I think that it would be unwise for any Court to make an order restraining security agencies such as the SSS from performing their constitutional functions. See A-G Anambra State vs. Chris Uba (2005) 11 NWLR (Pt. 947) 48; Asari Dokubo vs. FRN (2008) ALL FWLR (Pt. 433) 1392.
Also under the National Security Agencies Act LFN 2004, the law empowers the Respondent (SSS) to detect crimes against the State and to preserve and protect the internal security of Nigeria with strict adherence to the rule of law.
The Appellant was not just invited ordinarily like that by the Respondent. From the facts deposed to into the counter-affidavit that intelligence was procured that some miscreant were planning to hijack the mass protest which was being organised by the Applicant to protest the recent hike in the pump price of PMS in order to cause breakdown of law and order. It was in recognition of the Appellant’s right to peaceful assembly and the need to prevent breakdown of law and order that the Respondent invited the Appellant and educated him on the need to preserve the existing peace in the State. So, I do not think that a mere invitation of the Applicant by telephone on a tension-packed atmosphere does not amount to harassment. Even spending a few hours in the office of the Respondent (SSS) in order to preserve the security of the State does and cannot translate to detention strictly so called.
On the allegation of torture, incarceration, there was no cogent evidence established to convince the Court that the Appellant was unlawfully arrested and detained by the Respondent in a gross violation of his Fundamental Rights as guaranteed by statutes.
This issue is hereby resolved in favour of the Appellant and against the Respondent.
ISSUE 6:
Whether the Court below was right when he held that mere invitation and interview of Respondent for a few hours on a matter capable of breaching national security was a violation of his right?
I have dealt extensively on this issue in issue five herein before and still maintain my stand that mere invitation and interview does not amount to violation of Respondent’s right. In his affidavit, Respondent averred that he was invited via a phone call. He honoured the invitation (without arrest). He was questioned and educated on the security implications of his planned protest and was allowed to go on the same day.
Under this issue, I hold the strong opinion that the Appellant did not breach Respondent’s right simply by inviting and interviewing the Respondent as same does not violate Section 35 of the 1999 Constitution (as amended) in any way.
This issue is resolved in favour of the Appellant and against the Respondent. The Court is urged to allow the appeal and set aside the judgment of the lower Court.
The whole issues canvassed in this appeal have been resolved in favour of the Appellant. This appeal is highly meritorious. It is hereby allowed. Consequently, the judgment of the lower Court delivered by Hon. Justice G.O. Omereji delivered on the 20th day of February, 2017 in Suit No. PHC/1294/2016 is hereby set aside.
Appeal Allowed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Paul Obi Elechi, JCA, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add.
The appeal is meritorious and it is accordingly allowed by me. Judgment of the lower Court in Suit No. PHC/1294/2016 is hereby set aside.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I read in advance, the judgment of my learned brother Paul Obi Elechi, JCA. I agree with him that the appeal has merit and is allowed.
His Lordship thoroughly and extensively examined the issues involved in the appeal. I wholeheartedly align my thoughts with his reasoning and conclusion.
The appeal is meritorious and is allowed. I abide by the consequential orders made therein.
Appeal allowed.
Appearances:
C. S. Eze, Esq. For Appellant(s)
Chief E. O. Odey For Respondent(s)