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UWANGUE v. OFFIAH & ANOR (2021)

UWANGUE v. OFFIAH & ANOR

(2021)LCN/15859(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, December 16, 2021

CA/B/11/2011

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

BARRISTER GODWIN O. UWANGUE APPELANT(S)

And

1. MR. ODUCHE OFFIAH 2. ECONOMIC AND FINANCIAL CRIME COMMISSION RESPONDENT(S)

 

RATIO

WHETHER OR NOT AN ACTION UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 IS A PECULIAR ACTION

It is trite law as submitted by the parties and particularly by the 2nd Respondent the (EFCC) that an action under the Fundamental Rights (Enforcement Procedure) Rules 2009 is a peculiar action. It is a special action. The procedure is made pursuant to Section 46(3) of the 1999 Constitution.
The procedural Rules have the force of law under the Constitution and must be strictly followed; see ABIA STATE UNIVERSITY UTURU V. ANYAIBE (1996) 3 NWLR (PT. 439) 646 AT 660-661.
​In this regard, the strict compliance is watered down by the exception if it relates to time, place or form of the action. It is only where if the non compliance relates to the subject matter of the action and or the procedure of the suit that it shall not be held to be a mere irregularity.
See Order 9 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. PER DANJUMA, J.C.A.

WHETHER OR NOT RULES OF COURT MUST BE COMPLIED WITH

There has been compliance with the Rules of procedure relevant, such that the admonition of the apex Court in owners of MV. ARABELLA VS NIGERIA AGRICULTURAL CORPORATION (2008)11 NWLR (PT. 1097) 182 AT 205 – 206 PARAGRAPHS GC and C – D thus:
“Rules of Court are not mere rules. They partake of the nature of subsidiary legislation by virtue of Section 18(1) of the Interpretation Act. Consequently, Rules of Court have the force of law. That is why Rules of Court must be obeyed. And where there is a non-compliance with Rules of Court, the Court should not remain passive and helpless but should sanction the non-complaint party otherwise the purpose of enacting the rules of Court will be defeated.
In other words, Rules of Court are not only meant to be obeyed they are binding on all parties before the Court and any party who fails to obey the Rules of Court bears the consequence of his failure or omission,” is not against this Appellant who has complied.
PER DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal challenges the Ruling of the Federal High Court sitting at Benin and presided over by Honourable Justice A.A. Okeke delivered on 25-5-2010 in suit NO.FHC/B/CS/50/2010 where at the trial Court, upon the preliminary objection of the Respondents raising the challenge to the jurisdiction of the Court to hear the motion of the Appellant challenging the violation of and seeking the enforcement of the Applicant/Appellant’s fundamental human rights, had ordered for the taking of the preliminary objection first; it raising the question of jurisdiction of the Court. See the Ruling on pages 126 – 127 of the Record of Appeal.

For the avoidance of doubt, the Appellant as Applicant had in his application for the Enforcement of his Fundamental Rights pursuant to the Fundamental Rights (Enforcement procedure) Rules 2009 and under the Constitution of the Federal Republic of Nigeria, 1999 prayed for:
1. An order allowing for the Enforcement of his Fundamental Rights guaranteed under Sections 35(1), 36(1) and 37 of the constitution of the Federal Republic of Nigeria and had sought the following reliefs:

(a) A declaration that it is an infringement on the right of the Applicant to the privacy of his home for the 1st Respondent to invade his residence with thugs on 25-5-2009 and 22-2-2010, threatening to kill him and his household.
(b) A declaration that it is an infringement on the right of the Applicant to personal liberty and fair hearing for the 2nd Respondent acting under the auspices of the 1st Respondent to threaten to arrest, detain and subject him to untold hardship over a business transaction between him and the 1st Respondent which business has no criminal content at all.
(c) An order of injunction restraining the Respondents whether by themselves, their servants agents and or persons acting for an and on their behalf from further threatening to arrest, detain and or subject him to untold hardship contrary to his right as guaranteed under Sections 35(1), 36(1) of the constitution of the Federal Republic of Nigeria.

​Upon the filing, exchange, adoption of the processes of written Addresses filed, the learned counsel for the 1st Respondent/Applicant Onyechi Egwuonwu argued his client’s Notice of preliminary objection filed on 21st April, 2010 praying the Court to strike out the Applicant’s/Appellant’s motion on Notice for the Enforcement of the Fundamental Right in the suit NO. FHC/B/CS/50/2010 filed on 5th March, 2010 upon 7 grounds for the objection in compliance with Order 8 Rule 2 of the Fundamental Rights Procedure Rules.

The trial Court, in his Ruling had held as follows:
“The issue in the instant application is one of venue. Learned counsel to Applicant urged the Court to deem the issue of instituting the action in wrong venue as a mere irregularity. With respect, I think learned counsel should have referred me to an authority on venue that has overruled the decision in TUKUR VS GOVERNMENT OF GONGOLA STATE (supra).
The learned Author, Femi Falana, in his book entitled Fundamental Rights Enforcement 1st Edition captured the scenario in this case at pages 55 – 58 paragraph 3:41 – 3:46 that:
“If an application to secure the enforcement of the Fundamental Rights of any person is filed outside the state where the infringement took place, the action is incompetent see MILITARY ADMINISTRATOR BENUE STATE VS ABAYILO (2001) FWLR (PT. 45) 602 where an action is incompetent, any proceedings no matter how well conducted is void and of no effect. See MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 589.”
The Court therefore lacks the vires and competence to take this application for Fundamental Right. Applicant is in the wrong forum. The Federal High Court sitting in Benin is not “a High Court in that state.
Applicant being apprehensive of the letter of invitation from EFCC, Enugu should seek for redress in that state. Consequently, this suit is struck out for want of jurisdiction. The Application be and is hereby struck out.”

THE FACTS AS ALREADY CAPTURED IN THE RULING Appealed are as follows:-
See (page 2 of Appellant’s Brief) Thus:
The Appellant is the Chairman/CEO of Govals Nigeria Ltd. The company approached the 1st Respondent an Onitsha – based business man for financial assistance to sponsor the supply contract the company had with same institutions in Benin City.

​Somewhere along the line the business went sour as a result of which the 1st Respondent reported the matter to the 2nd Respondent who then wrote and invited the Appellant who is based in Benin City for interview in their office in Enugu.

The Appellant was apprehensive that the 2nd Respondent will deny him his liberty in Enugu as a result of which he went to Court to enforce his fundamental right to freedom of liberty of his person at the Federal High Court sitting at Benin City where he resides.

The Federal High Court in Benin City struck out his case on the ground that the Federal High Court in Benin has no jurisdiction but the Federal High Court in Enugu, hence this appeal.

ISSUE FOR DETERMINATION.
The Appellant’s Brief of Argument filed on 21-3-11 and deemed filed on 22-1-19 and adopted on 11-10-21 raised the sole Issue thus:
Whether from the circumstances of the case the Court was right in striking out the case of the Appellant for want of jurisdiction?

​The learned counsel argued that the lower Court was wrong in striking out the Application of the Appellant, as the mode of the commencement of the application was proper and the matter falling squarely within the chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as Amended. That the matter is covered by the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.

The learned counsel referred to Order IX of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which provides as follows:
“where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or matter or form the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to:
(i) Mode of commencement of the application;
(ii) The subject matter is not within chapter IV of the constitution on the Africa Charter on Human and People’s Rights (Ratification and Enforcement) Act.”

That the action should not have been struck out but transferred to the appropriate venue if the Court was unwilling to hear or thought the venue was wrong.

​It was argued that Benin City was the proper venue for the action and not Enugu in that the Applicant was resident in Benin, where his right to personal liberty was threatened. FRN VS. IFEGWU (2003) 15 NWLR (PT. 842) 133 AT 216-217 was relied on.

Counsel said the Fundamental Rights Enforcement Procedure Rules, 2009 cited came after the TUKUR VS GOVT OF GONGOLA STATE case was decided.

That the words used in Order XV of the Fundamental Rights (Enforcement Procedure) Rules, 2009 are not ambiguous and same should be given their ordinary and natural meaning OGUNYOMBO V. OOKOYA (2002) 16 NWLR (PT. 793) 250 AND ABIOYE V YAKUBU (1991) 5 NWLR PT. 190 PAGE 130 were relied upon.

That Applicant was at the right of forum and the trial Judge was wrong. That the appeal be allowed and the judgment be set aside and matter set down for hearing at the Federal High Court Benin before another Judge for hearing.

The 1st Respondent in its Brief of Argument deemed adopted at the hearing on 11th October, 2021 having been filed on 7th February, 2013 but their counsel absent to adopt, argues as relating to the issue of the jurisdiction raised that the trial Court was right in holding that it had no jurisdiction. The learned counsel urged this Court to take judicial Notice of the deposition of the Appellant in paragraphs 4, 8 and 11 of his supporting affidavit admitting that Appellant was invited for an interview vide Exhibit B to the 2nd Respondent’s office at Enugu.

That the Appellant had admitted further in paragraphs 2 and 3 of his Written Brief of Argument in this appeal that “sometime along the line the business went sour as a result of which the 1st Respondent reported the matter to the 2nd Respondent who then wrote and invited the Appellant who is based in Benin City for interview in their office in Enugu.

Paragraph 3 “the Appellant was apprehensive that the 2nd Respondent will likely deny him his liberty in Enugu as a result of which he went to Court to enforce his fundamental right to freedom of liberty of his person at the Federal High Court sitting at Benin City where he resides.”

That by the aforesaid, there was no cause of action arising in Benin but Enugu if ever the invitation disclosed a cause of action.

That on the authority of Tukur’s case and the Order II Rules 1 of the Fundament Human Rights (Enforcement Procedure) Rules 2009, the Appellant can only apply to the High Court in the State where the infringement took pace.

​Counsel urged that the appeal be dismissed and the decision appealed be affirmed.

On his part, the 2nd Respondent adopted its Brief of Argument filed on 31st January, 2012 which was deemed on 22nd January, 2019 and argued that the infringement must have occurred or likely to occur in a state, before the action may be brought thereat; he contended that there was nothing to show that as existing, in relation to Benin City, but rather Enugu. That the trial Court was right in holding that it had no jurisdiction.

RESOLUTION
It is trite law as submitted by the parties and particularly by the 2nd Respondent the (EFCC) that an action under the Fundamental Rights (Enforcement Procedure) Rules 2009 is a peculiar action. It is a special action. The procedure is made pursuant to Section 46(3) of the 1999 Constitution.
The procedural Rules have the force of law under the Constitution and must be strictly followed; see ABIA STATE UNIVERSITY UTURU V. ANYAIBE (1996) 3 NWLR (PT. 439) 646 AT 660-661.
​In this regard, the strict compliance is watered down by the exception if it relates to time, place or form of the action. It is only where if the non compliance relates to the subject matter of the action and or the procedure of the suit that it shall not be held to be a mere irregularity.
See Order 9 of the Fundamental Rights (Enforcement Procedure) Rules, 2009.
In this matter, at hand, the challenge related to the venue or place of the institution of the suit. It was, therefore, an irregularity; and that did not vitiate the action as it could be remedied, if it was found to be wrong. The suit must not, for that reason, be struck out as done by the trial Court. The Appellant was right in so contending against the action of the trial Court when it held that the suit was incompetent and to be struck out.

​The trial Court’s jurisdiction existed in respect of the competent suit under the Fundamental Rights Enforcement Rules. That suit, being competent and the Federal High Court being competent, the only question to answer is – at which venue of the Federal High Court or State High Court may the action lie? The Appellant had pleaded in his Affidavit that he was resident in Benin City and it was there, that an invitation was sent to him by the 2nd Respondent at the instance of the 1st Respondent alleging the commission of a Crime, for which the Appellant said it was a soar contractual relationship, oozing from a contract created in Onitsha to be executed in Benin City.
That being the case, the transaction spanned two (2) States of Anambra where Onitsha is situate, and Edo State where the contract was to be performed and where the Appellant resides and where the invitation to him was sent. If anything, the threatened breach was anticipated in Benin City-Edo State where the Appellant lived and had his liberty, and where the invitation and possible invasion of liberty feared was more imminently to be executed as the execution was to be in Benin Edo State.
It cannot be at Enugu where the invitation to go to the zonal office of the 2nd Respondent was as, there was no imminent threat there at. Appellant not being there yet and no transaction took place there between the parties.
The action could only be validly and conveniently brought either at the Judicial Division of the Federal High Court at Benin City or the High Court of Edo State.
​Having elected the Federal High Court Benin City amongst the High Courts in Edo State, the Appellant’s Suit was properly instituted at a Court with the vires and jurisdiction. It could not have been rightly instituted in a Court outside the State where the infringement occurred; or what was the likely occurrence of an infringement against an Appellant not within Enugu State, the zonal headquarters of the 2nd Respondent herein? I cannot see. 2nd Respondent’s counsel can not be right when he submits that the purported infringement or breach of the alleged rights of the Applicant occurred in Enugu. See page 6 of its Brief of Argument.
What a contradiction by a Respondent who had contended that no cause of action had been disclosed by a sheer invitation letter from the 2nd Respondent to the Appellant! There is no doubt that the only procedure for the Enforcement of Fundamental Right is, as provided by the Rules of 2009, but I cannot see any departure from this specially prescribed procedure shown. The action was not, therefore, a nullity as contended by the 1st and 2nd Respondents’ respective counsel relying on the case of RAYMOND DONGTOE VS CIVIL SERVICE COMMISSION OF PLATEAU STATE (2001) NWLR (PT.717) 132 AT 153 Per Karibi Whyte JSC (as he then was).

There has been compliance with the Rules of procedure relevant, such that the admonition of the apex Court in owners of MV. ARABELLA VS NIGERIA AGRICULTURAL CORPORATION (2008)11 NWLR (PT. 1097) 182 AT 205 – 206 PARAGRAPHS GC and C – D thus:
“Rules of Court are not mere rules. They partake of the nature of subsidiary legislation by virtue of Section 18(1) of the Interpretation Act. Consequently, Rules of Court have the force of law. That is why Rules of Court must be obeyed. And where there is a non-compliance with Rules of Court, the Court should not remain passive and helpless but should sanction the non-complaint party otherwise the purpose of enacting the rules of Court will be defeated.
In other words, Rules of Court are not only meant to be obeyed they are binding on all parties before the Court and any party who fails to obey the Rules of Court bears the consequence of his failure or omission,” is not against this Appellant who has complied.

​The motion was not incompetent and was indeed instituted at the right venue with jurisdiction to hear it. The trial Court had rightly acceded to the prayer to take the jurisdictional question first, as it could be raised at any stage GAJI VS PAYE (2003) 8 NWLR (PT. 776) 512.

However, the Court was wrong in declining to exercise same on the wrongful abdication of its jurisdiction, when the venue was indeed the proper one to institute the suit, as done.

Accordingly, I resolve the lone issue in favour of the Appellant and hold that the trial Court had jurisdiction and had wrongly declined same. Consequently, the Ruling striking out the suit is set aside and the suit NO. FHC/3/CS/50/2010 shall be and is hereby re-instated in the cause list of the Federal High Court Siting in Benin City, Edo State and to be heard by any other Judge other than Hon. Justice AA Okeke, to be designated by the Chief Judge of the Federal High Court for the purpose.

I shall make no comment on the merit of the application which is yet to be heard, for its prejudicial effect.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, MOHAMMED AMBI-USI DANJUMA, JCA and I am in agreement with the reasoning and conclusions in adjudging this Appeal as meritorious. 

I subscribe to the consequential orders made the lead judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft the judgment just delivered by my learned brother MOHAMMED AMBI-USI DANJUMA, JCA. For the more detailed reasons contained in the lead judgment, I also agree that the trial Court had jurisdiction and had wrongly declined same, I abide by all the consequential orders.

Appearances:

Chief H.O. Ogbodu KSC, AC Arb. (N) Ogbodu & Co. For Appellant(s)

Onyechi Egwuonwu, Esq, Onyeachi Egwuonwu & Co. – for 1st Respondent

Sir Steve Ehi Odiase Esq, KSJ legal and prosecution unit, Economic and Financial Crimes Commission (EFCC), No.2 Ibrahim Taiwo Road, Aso villa, Abuja. – for 2nd Respondent For Respondent(s)