NASIRU & ANOR v. EFCC & ORS
(2022)LCN/17175(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, January 04, 2022
CA/KN/43/2020
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
1. LABARAN NASIRU 2. DAHIRU IDRIS APPELANT(S)
And
1. ECONOMIC & FINANCIAL CRIMES COMMISSION 2. MICHAEL WETKA 3. ALH. YUNUSA SALE RESPONDENT(S)
RATIO
WHETHER OR NOT GROUNDS OF APPEAL ARE ARGUED BY THE COUNSEL AND CONSIDERED BY THE COURT
It is settled law and practice of appellate Courts that issues and not grounds of appeal are argued by Counsel and considered by the Court. Issues are therefore formulated to cover grounds of appeal. Hence a ground of appeal not having any argument proffered to cover it is deemed abandoned and must be struck out for that reason. See the cases of: (1) Agbareh & Anor V. Mimra & Ors (2008) LPELR – 43211 (SC); (2) Husseni & Anor V. Mohammmed & Ors (2014) LPELR – 24216 (SC) and (3) Patrick V. State (2018) LPELR – 43862 (SC). PER OMOLEYE, J.C.A.
THE POSITION OF LAW ON JURISDICTION OF THE COURT
Jurisdiction simply means a Court’s power to decide a case or issue. It also refers to the authority that a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. See amongst a myriad of precedents the cases of: (1) Mobil Producing (Nig.) Unlimited v. LASEPA (2002) 18 NWLR (Pt. 798) P.1 and (2) Audu v. APC & Ors. (2019) LPELR-48134 (SC).
The issue of jurisdiction is threshold as it is very fundamental and goes to the competence of the Court to hear and determine a suit. Where a Court does not have jurisdiction to hear a matter but goes to adjudicate over the matter, the entire proceedings, no matter how well conducted and decided, would amount to a nullity. It is therefore very crucial that a Court decides first the issue of its jurisdiction at the commencement of a trial particularly where there is a challenge to the same, before looking into the extent of judicial power exercisable under that jurisdiction.
The law is quite trite that jurisdiction is vested in Courts only by the legislations that created them, such as, the Constitution, Decrees, Laws, Acts and Edicts. This is so sacrosanct that outside of the enabling legislations, the Court cannot by itself or by the agreement of the parties cloak it with jurisdiction. The jurisdiction of a Court is thus confined, limited and circumscribed by the statute that created the Court. See the cases of: (1) Galadima v. Tambai (2000) 11 NWLR (Pt. 677) p.1; (2) Onuorah v. KRPL & Ltd (2005) 6 NWLR (Pt. 921) p.393; (3) Afribank (Nig.) PLC v. Akwara (2006) 5 NWLR (Pt. 974) p.619; (4) Dangana & Anor v. Usman & Ors. (2012) LPELR-25012 (SC) and (5) Nweke v. FRN (2019) LPELR -46946 (SC). PER OMOLEYE, J.C.A.
THE POSITION OF LAW ON TERRITORIAL JURISDICTION
Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Just like other forms of jurisdiction, territorial jurisdiction is statutory and it is conferred on the Court by the statute which created it. Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area. To put it in different words, territorial jurisdiction refers either to the geographical area in which a cause of action arose for adjudication or the jurisdiction of the Court to entertain cases involving persons residing within the confines of a defined territory. See the cases of: (1) Dariye v. FRN (2015) LPELR-24398 (SC) and (2) Golit v. IGP (2020) LPELR-50636 (SC). There is no doubt, indeed, it is good sense that the territorial jurisdiction of a High Court of a State, like the trial Court herein, is limited to the territorial boundaries of the State. The High Court of a State is a creature of the grund norm, that is, the Constitution of the Federal Republic of Nigeria, 1999, as amended. It is therefore the said Constitution and indeed other laws duly enacted in line with the provisions of the same Constitution that vest in the High Court of a State the extent of its jurisdiction. See Section 272 of the Constitution. PER OMOLEYE, J.C.A.
WHETHER OR NOT A BREACH OF A FUNDAMENTAL RIGHT IN ONE STATE CAN BE LITIGATED UPON IN ANOTHER STATE
The law is well grounded that a complaint of a breach of a fundamental right in one State cannot be litigated upon in another State. See the cases of: (1) Kraus Thompson Organisation Ltd v. University of Calabar (2004) 9 NWLR (Pt. 879) p.631 at p. 663; (2) Nigerian Navy & Ors v. Garrick (2005) LPELR-7555 (CA) and (3) Anyaeche v. Nwankwo (2015) LPELR-40677 (CA). In the case of Jack v. University of Agriculture, Makurdi (2004) LPELR-1587, the Supreme Court per Katsina-Alu, JSC (as he then was, later CJN, now of blessed memory) had the following to say:
“A person whose fundamental right is breached, being breached or about to be breached may therefore, apply to a High Court in that State for redress. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which came into force on 1 January, 1980 defines “Court” as meaning. “The Federal High Court or the High Court of a State”. PER OMOLEYE, J.C.A.
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision in the ruling of the High Court of Jigawa State, sitting in Birnin Kudu per A.Y. Suleiman, J. (hereinafter referred to as “the trial Court”) in Suit No. JDU/FHR/05/2019, delivered on the 14th of November, 2019.
The Appellants herein were Applicants before the trial Court where on the 27th of September, 2019, they filed against the Respondents an application for the enforcement of their Fundamental Rights under the Fundamental Rights (Enforcement Procedure) Rules, 2009 seeking the following reliefs:
“1. A DECLARATION that the Invitation, Arrest, Detention, Intimidation, Threat, Harassment of the Applicants by the 1st and 2nd Respondents acting on the complaint by the 3rd Respondent which arose from a civil transaction which completely took place in Gwaram l.G.A., Jigawa State is unconstitutional, unlawful and ultra vires which constitutes violations of the Applicants Fundamental Human Rights; Right to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Fair Hearing and Right to Freedom of Movement, as guaranteed by Sections 33, 34, 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
2. AN ORDER of perpetual injunction restraining the 1st, 2nd and 3rd Respondents either by themselves, agent, privies or associates from further; inviting, arresting, handcuffing, intimidating, harassing, detaining and threatening, the Applicants and/or their sureties over the civil transaction entered between the Applicants and the 3rd Respondent.
3. AND ORDER of this Honourable Court directing the 1st, 2nd and 3rd Respondents either by themselves, agents, privies or associates to forthwith withdraw from having any further dealings in respect of the civil transaction entered between the Applicants and the 3rd Respondent.
4. AN ORDER of this Honourable Court directing the Respondents to pay to the Applicants jointly and severally a total sum of N5,000,000:00 (Five Million Naira) only as damages for breach of their Fundamental Rights; Right to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Fair Hearing and Right to Freedom of Movement, as guaranteed by Sections 33, 34, 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999, (as Amended).”
The grounds upon which the foregoing reliefs were sought are reproduced verbatim as follows:
“1. The Applicants are indigenes of Jigawa State and are both residing at Fagam, Gwaram Local Government Area of Jigawa State.
2. The 1st Respondent is a Federal Government Agency in charge of prosecuting financial crimes all over Nigeria.
3. The 2nd Respondent is the Zonal Head of the 1st Respondent before whom a complaint was lodged by the 3rd Respondent.
4. The 3rd Respondent is a business man and individual residing at Bauchi town, Bauchi State.
5. The 3rd Respondent reported the Appellants at the 1st and 2nd Respondent’s office in Gombe State claiming some money out of a purely civil transaction between him and the Applicants.
6. The 3rd Respondent decided to report the Applicants before the 1st and 2nd Respondents in both Bauchi and later Gombe State despite the fact that all the elements of the transaction entered between the Applicants and the 3rd Respondent happened in Gwaram, Jigawa State as a result of which the Applicants were arrested, invited by both Police in Bauchi State and 1st and 2nd Respondents in Gombe State respectively,
7. Consequent upon their arrest and invitation by both Police at Bauchi and the 1st and 2nd Respondents at Gombe State, the applicants were unlawfully detained, harassed, intimidated, threatened, embarrassed and starved which occasioned breach to their unconstitutionally guaranteed Human rights.
8. The Applicants did not commit any offence or reasonably suspected to have committed any criminal offence known to law SAVE that the Respondents wanted to intimidate and embarrass the Applicants, of which the Respondents have succeeded through their unlawful invitation and detention before releasing the Applicants on bail without affording them right of fair hearing with strong warning to the Applicants to pay the money claim against them in favour of the 3rd Respondent, failure of which will force the 1st and 2nd Respondents to further detain and deal with the Applicants at the next appointed day which is 30th September, 2019.
9. The Applicants’ Rights to Life, Dignity of Human Person, Personal Liberty, Fair Hearing and Freedom of Movement, as guaranteed by Sections 33, 34, 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) have been infringed by the Respondents.”
The application of the Appellants was supported with an affidavit of twenty-four paragraphs and some annexures. The affidavit was deposed personally by the 1st Appellant. The relevant averments in the said affidavit are contained in paragraphs 4 to 21 thereof. For good grasp and easy referencing, I hereunder set out the said paragraphs 4 to 21 unedited as follows:
“4. That sometimes in 2017, the 3rd Respondent was introduced to me by one Ali Chiroma of Fagam Town, Gwaram Local Government Area, Jigawa State.
5. That the 3rd Respondent in company of the said Ali Chiroma met me at Fagam Town Gwaram L.G.A, Jigawa State with the view to get some Economic Woods Known as Madrid Wood for the 3rd Respondent from some of our Forest at Gwaram L.G.A. of Jigawa State.
6. That I rendered my assistance to the 3rd Respondent by facilitating and securing permits from relevant authorities allowing the 3rd Respondent to get some quantities of the woods from Gwaram L.G.A. Jigawa State.
7. That the 3rd Respondent incurred all necessary expenses which include payment made in favour of the Ministry of Environment, Jigawa State in a total sum of N560,000 (Five Hundred and Sixty Thousand Naira) only which was paid through me for the Woods.
8. That after settling all the financial commitments by the 3rd Respondent with the relevant authorities, the 3rd Respondent sent his men (about 30 in number) to Jigawa State with Machines where they cut and arranged the Madrid Woods in three (3) different Forests at Shalin Village, Dangulam Village, and Shinau Village all of Gwaram L.G.A. Jigawa State.
9. That the agent of 3rd Respondent loaded the Madrid Wood in their trucks with the view to transport the same outside Jigawa State but was intercepted by men and Officers of Nigerian Police Force (Special Anti-Robbery scout) who were on duty within Gwaram L.G.A., Jigawa State.
10. That after series of consultations with relevant authorities in Jigawa State, two (2) out of the Three (3) trucks of the intercepted goods were released to the 3rd Respondent.
11. That later on towards the end of year 2017, the 3rd Respondent reported the matter before C.I.D office at Police Headquarters in Bauchi State demanding the refund of all his monies paid in respect of the transaction as a result of which Six (6) of us (me, the 2nd Applicant alongside Four (4) other persons which include; Aminu, Ahmad, Ibrahim, and Yakubu) were arrested and taken to C.I.D. office at Bauchi where we were humiliated, intimidated, harassed and detained by Police from the period of 8:00am to about 6:30pm before we were released on bail upon payment of N80,000 (Eighty Thousand Naira) only to the Police as money for bail.
12. That after a series of reporting at the C.I.D office at Bauchi and with intervention of our then Counsel Barrister M.A. Gausu, the Police later removed their hands from the case around the beginning of the year 2018.
13. That recently in the month of August 2019, the 3rd Respondent further reported the case to the 1st Respondent at Gombe claiming a total sum of N1,329,500 (One Million Three Hundred and Twenty Nine Thousand Five Hundred Naira) only against me, the 2nd Applicant alongside Four (4) other persons which include; Aminu, Ahmad, Ibrahim, and Yakubu, as the amount he spent in the course of the transaction, as a result of which we were all arrested by the 1st Respondent.
14. That one Barkindo who is an officer of the 1st Respondent acted as the investigating officer under the instruction of the 2nd Respondent, who is the zonal head of the 1st Respondent, subjected us to series of intimidation, harassment, threat, and starvation all in the name of interrogation in respect of the money claimed by the 3rd Respondent.
15. That the 1st and 2nd Respondents did not afford us the opportunity to explain our own side of the story in respect of the transaction between us and the 3rd Respondent which was purely civil in nature and never within the ambit of a criminal case and which completely took place in Jigawa State to the exclusion of any other place.
16. That we were forced to report at Gombe State on three (3) different occasions and was forced by the officers/agents of the 1st and 2nd Respondents to sign an undertaking for payment of the money claimed by the 3rd Respondent in a total sum of N1,329,500 (One Million Three Hundred and Twenty Nine Thousand Five Hundred Naira) only which shall be done on or before the end of September, 2019.
17. That one Barkindo as officer/agent of the 1st and 2nd Respondents sounded a warning to us which is to the effect that upon our failure to pay that money on or before that date, they are going to detain us further and deal with us at our next return date which is coming up on the 30th day of September, 2019.
18. That the collective and joint actions of the Respondents have greatly and/or about to cause breach to our Fundamental Rights enshrined in the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and also damaged our image and reputation as highly respected family men in our community.
19. That it was on this basis that we have instructed our lawyers to institute this action before this Honorable Court with the view to enforce our Fundamental Human Rights as guaranteed by the Constitution.
20. That I and 2nd Applicant have jointly perfected the brief of our lawyers by paying a total sum of N500,000 (Five Hundred Thousand Naira) only in order to handle this matter to its logical conclusion. I hereby annex the receipt of the money paid to our lawyer in the sum of N500,000.00 (Five Hundred Thousand Naira) only and we marked the same as Exhibit A.
21. That there is an urgent need to grant this Application in order to avoid further embarrassment and breach of our Fundamental Human Rights by the Respondents in this matter.”
In response to the application of the Appellants, the 1st and 2nd Respondents jointly and the 3rd Respondent filed their respective Counter-Affidavits to controvert the Appellants’ claims. In addition to that, the two sets of Respondents filed notices of preliminary objections on points of law to the competence of the Appellants’ application- see pages 30 to 90 of the record of appeal for their full details.
In summary, the grounds upon which the preliminary objections are hinged are: misjoinder of parties and wrong Court venue for the ventilation of the Appellants’ action. To put it in other words, the Respondents are of the view that the Appellants ought to have filed separate applications rather than a joint application. Also, that since the alleged infraction of the Appellants’ fundamental rights took place in Gombe State, their application ought to have been filed in Gombe State, hence the trial Court is devoid of jurisdiction to adjudicate upon the matter.
The Appellants responded to the processes of the Respondents by filing a further and better affidavit and replies to the preliminary objections – see pages 91 to 112 of the record of appeal.
The Appellants’ application and the Respondents’ preliminary objections were all heard together by the trial Court on the 24th of October, 2019. Sequel to that, the trial Court in its considered ruling delivered on the 14th of November, 2019 upheld the preliminary objections of the Respondents, declined jurisdiction to adjudicate upon the Appellants’ substantive application and therefore terminated the application “in limine.” “Inter alia”, the trial Court in striking out the Appellants’ substantive application, held verbatim as follows:
“On the second leg of the objections raised by the 1st and 2nd Respondents, i.e. that the applicants in the substantive suit cannot join hands or team up to bring an action under the FREP Rules, I have to agree with the submissions of the Respondents counsel that Order 2, Rule 1 of the Rules do not allow or even contemplate a joint or community action, as far as the enforcement of fundamental rights are concerned ……
The contention that it is proper in law for two or more persons to apply jointly for the enforcement of their fundamental rights cannot be sustained ……
I hold in the circumstance that it is not proper to join several applications in one application for the purpose of securing the enforcement of their fundamental rights.
The “only one party rule” highlighted in the above quotation is only relaxable under Order vii of the FREP Rules, where the Court is allowed to consolidate two or more cases dealing with the same subject matter and issues. Of more critical and decisive importance is the legal objection raised by the 3rd Respondent on the ground that the cumulative and series of acts of violations of rights alleged by the applicants against the Respondents were acts or actions that took place in Gombe State, which is the official Headquarters or Zonal operational site of the 1st and 2nd Respondents.
This assertion by the 3rd Respondent was confirmed and corroborated by paragraphs 13, 14 and 16 of the applicants supporting affidavit, deposed to by Labaran Nasiru (the 1st applicant) …….
Going by the above provisions of Order 2 Rule 1 and the deposition in paragraphs 13, 14 and 16 of the applicant supporting affidavit, the most suitable venue for seeking regress of the applicants grievances is a High Court in Gombe State.
It is immaterial that the applicants were indigenes of Jigawa State, and were either invited, picked or arrested in an area within Jigawa State, if the acts complained of occurred outside Jigawa State.”
The Appellants are not happy with the said decision of the trial Court and had filed this appeal against it to this Court. The six grounds of appeal contained in the Appellants’ Notice of Appeal dated and filed on the 14th of November, 2019 with their particulars are for good understanding and ease of reference hereunder set out unedited as follows:
“GROUND ONE:
The learned trial judge erred in law when his Lordship upheld the Preliminary Objection filed by the Respondents, on the ground of lack of jurisdiction on the suit, thereby occasioned a miscarriage of justice on the Appellants.
PARTICULARS OF ERRORS
1. The provision of Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 makes it clear on the appropriate Court with territorial Jurisdiction when the rights of the Applicants has been or is likely to be infringed.
2. From the totality of the affidavit evidence, the cause of action arose in Gwaram Local Government Area of Jigawa State and the infringement of the Applicants’ rights occurred and likely to occur more in Jigawa State.
GROUND TWO:
The learned trial Judge misdirected himself on the facts before him and thereby came to a wrong conclusion when he dismissed the Appellants’ application based on the preliminary objection filed by the Respondents.
PARTICULARS OF MISDIRECTIONS:
1. The fact that the invitation letter from the 1st Respondent originated from Gombe State was not conclusive evidence that it’s the Gombe State High Court that should have entertained the Applicants’ application.
2. That upon any failure by the Appellants to meet up with the date line given to them by the 1st and 2nd Respondents, the Appellants’ right may likely be infringed through their subsequent arrest by the Respondents.
GROUND THREE
The learned trial Judge erred in law and misapplied the law as laid down in the case of YAKI v. BAGUDU (2015) 17 NWLR (Pt. 1491) 288. S.C in relying on the 3rd Respondent’s processes filed when there was none before the Court.
PARTICULARS OF ERRORS:
1. The 3rd Respondent’s processes filed in Court are in clear breach of Rule 10 (1), (2) and (3) of the Rules of Professional Conduct for Legal Practitioners.
GROUND FOUR
The learned trial Judge erred in law when he held that the 1st Respondent has the duty to investigate the financial activities of the Appellants and this occasioned a miscarriage of Justice to the Appellants.
PARTICULARS OF ERROR
1. That the transactions between the Appellants and the 3rd Respondent were purely civil in nature and that the law establishing the 1st Respondent does not empower it to collect debt or intervene in civil transactions between parties.
2. That the matter is still pending before the Nigeria Police Force, Bauchi State Command when the 3rd Respondent wrote a petition to the 1st Respondent.
GROUND FIVE
1. The learned trial Judge misdirected himself when His Lordship held in his ruling that the Appellants cannot jointly sue the Respondents under Enforcement of Fundamental Right Procedure Rules, thereby occasioned miscarriage of justice on the Appellants.
PARTICULARS OF ERROR:
1. The Appellants had common cause of action, which is enforceable in law before the Lower Court.
2. By the provision of Section 18 of the Interpretation Act, it defines ‘person’ to include ‘persons.’
GROUND SIX:
The judgment is against the documentary evidence adduced at the hearing of the Appellants’ application.”
In line with the rules of practice of this Court, briefs of argument were settled for the parties by their respective Counsel.
The Appellants’ Counsel, Mr. Yakubu A.H. Ruba of the Yakubu A. H. Ruba & Co. Law Firm filed the Appellants’ Joint Brief of Argument dated 11th of March, 2020, filed on the 24th of June, 2020 and deemed properly filed on the 2nd of February, 2021. The two issues formulated from the six grounds of appeal for determination in the brief state verbatim as follows:
“(i) Whether or not the learned trial judge of the lower trial Court was right when His Lordship held that the high Court in Jigawa state has no territorial jurisdiction to assume jurisdiction in the Appellants’ Application. (Grounds 1,2,3,4 and 6)
(ii) Whether or not the Appellants can jointly institute an action under the Fundamental Right Enforcement (Procedure Rules) 2009 to enforce their fundamental rights as guaranteed by Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).”
The 1st and 2nd Respondents’ Brief of Argument dated the 12th of July, 2020, filed on the 13th of July, 2020 and deemed properly filed on the 2nd of February, 2021 was settled by their Counsel, Mr. Abubakar Aliyu of the Economic and Financial Crimes Commission (EFCC). In the brief, the three issues identified for the determination of the appeal state verbatim thus:
“1. Whether the cause of action in this case arose in EFCC office in Gombe, Gombe State and whether Jigawa State High Court has Jurisdiction to hear and determine the suit. (Distilled from grounds 1 and 2 of the Appellants’ Notice of Appeal).
2. Whether the 1st Respondent is empowered by law to investigate complaints or allegations of financial crimes. (Distilled from ground 4 of the Appellants’ Notice of Appeal).
3. Whether the Originating Motion of the Applicants dated 26th September, 2019 and filed 27th September, 2019 is competent in law having been jointly initiated. (Distilled from ground 3, 5 and 6 of the Appellants’ Notice of Appeal).”
On the third part, the 3rd Respondent’s Brief of Argument is dated the 6th of October, 2020, filed on the 7th of October, 2020 and deemed properly filed on the 2nd of February, 2021. The brief was settled by Mr. Abbas Mu’azu, the 3rd Respondent’s Counsel. In it, the sole issue crafted for the determination of the appeal states verbatim thus:
“Whether the lower Court had jurisdiction to grant the applicants’ application as prayed?”
By way of prefatory remarks, I consider it apposite to state that, upon service of the Appellants’ brief of argument on the Respondents, the 1st and 2nd Respondents by their Notice of Preliminary Objection dated the 12th of July, 2020 filed on the 13th of July, 2020, challenged the competence of the appeal. The arguments in support of the Preliminary Objection are contained in paragraphs 1.5 at page 2 to paragraph 2.6 at page 4 of the 1st and 2nd Respondents’ brief of argument. However, before the oral hearing of the appeal, the learned Counsel for the 1st and 2nd Respondents withdrew the said Notice of Preliminary Objection on the 2nd of February, 2021 and the Notice of Preliminary Objection was duly struck out by this Court that day. The submissions proffered by Counsel in support of the objection on points of law in their said brief are therefore hereby discountenanced and consequentially struck out.
I have perused the three sets of issues donated for determination in the parties’ briefs of argument. In the Appellants’ brief, although issue one was allegedly distilled from grounds 1, 2, 3, 4 and 6 of the grounds of appeal, I found that issue one does not relate to grounds 3 and 4 and no arguments were proffered on grounds 3 and 4 under the said issue one.
It is settled law and practice of appellate Courts that issues and not grounds of appeal are argued by Counsel and considered by the Court. Issues are therefore formulated to cover grounds of appeal. Hence a ground of appeal not having any argument proffered to cover it is deemed abandoned and must be struck out for that reason. See the cases of: (1) Agbareh & Anor V. Mimra & Ors (2008) LPELR – 43211 (SC); (2) Husseni & Anor V. Mohammmed & Ors (2014) LPELR – 24216 (SC) and (3) Patrick V. State (2018) LPELR – 43862 (SC).
It is for this reason that I hereby strike out grounds 3 and 4 of the Appellants’ Notice of Appeal as same are deemed abandoned.
Concomitantly, in the 1st and 2nd Respondents’ brief of argument issue two distilled from the struck out ground four of the grounds of appeal and the submissions proffered in support of the struck out ground three under issue three are hereby discountenanced.
It is equally worthy of note to state that the Appellants failed to link their issue two to any ground of appeal as required by law and practice. However, upon examination, I found that the submissions canvassed under issue two are centered on the complaints raised by grounds 5 of the grounds of appeal. The Appellants will however not be penalized for this, rather issue two will be left to stand. Hence, in resolving the appeal, I will adopt and resolve together issues one and two contained in the Appellants’ brief, which have been responded to under issue one and part of issue three contained in the 1st and 2nd Respondents’ brief and the sole issue contained in the 3rd Respondent’s brief albeit the said sole issue is not linked to any of the grounds of appeal. However, I will modify the Appellants’ two issues slightly:
“(i) Whether or not the learned trial Judge was right when he held that the High Court of Jigawa State has no territorial jurisdiction to assume jurisdiction in the Appellants’ application?
(ii) Whether or not the Appellants can jointly institute an action under the Fundamental Rights (Enforcement Procedure) Rules, 2009 to enforce their fundamental rights as guaranteed by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended?”
THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANT’S COUNSEL:
The learned Counsel submitted that it is settled in law that jurisdiction is the bedrock of litigation and a Court can only entertain a matter if it possesses the requisite jurisdiction over the particular matter before it. It has been held in a series of judicial decisions, that proceedings and decisions of a Court which acted without jurisdiction are complete nullities. By the decision of the Supreme Court in the case of ONI v. CADBURY NIG. PLC (2016) 9 NWLR (Pt. 1516) S.C p. 80, a Court is competent to hear a matter when:
i. It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
ii. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction: and
iii. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
It is pertinent to note that the Appellants’ case at the trial Court is centered on items (ii) and (iii) above.
The law is also trite that being the creation of the Constitution and other enabling laws, Courts draw their powers and jurisdiction for adjudication from the relevant legislations. See the cases of: (1) RODA v. F.R.N. (2015) NWLR (Pt. 1468) p. 427 S.C.; (2) UTOO v. APC (2018) 12 NWLR (Pt. 16.34) p. 507 S.C; (3) GARBA v. MOHAMMED (2016) 16 NWLR (Pt. 1537) p. 114 at 154-155, paras. H-B. and (4) LEKWOT v. JUDICIAL TRIBUNAL (1997) 8 NWLR (Pt.515) p. 22. On this point, Counsel referred to the provisions of Sections 6 (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Counsel also referred to Section 46 (3) of the Constitution which provides that:
“The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purpose of the Section.”
It is in the exercise of the powers conferred on the Chief Justice of Nigeria that the Fundamental Rights (Enforcement Procedure) Rules, 2009 was promulgated. By virtue of the provision of Order II Rule 1 of the said Rules, it is obvious and certain that every victim of human rights violation is entitled to seek redress in a High Court located in any State of the Federation of Nigeria where their fundamental rights have been or are likely to be infringed. Section 46 of the Constitution has also conferred special jurisdiction on the Court to hear and determine any application relating to violation of human rights. See ISUAMA v. GOVERNOR OF EBONYI STATE (2007) 20 WRN p. 170.
Counsel further referred to Article 7 (a) of the African Charter on Human and Peoples’ Rights, which also guarantees the rights of an individual to seek redress against fundamental rights violations. See ZAKARI v. INSPECTOR-GENERAL OF POLICE and ANOR. (2000) 6 NWLR (Pt. 607) p. 66.
It is therefore clear beyond peradventure, that the State High Court located where the human rights violation occurred or is likely to occur has the constitutional and territorial jurisdiction to entertain an application for the enforcement of such violated or likely to be violated rights. See (1) MADUKOLU v. NKEMDILIM (1962) 2 SCNLR p. 341 and (2) BAKOSHI v. CHIEF OF NAVAL STAFF (2004) 15 NWLR (Pt. 896) p. 268 at p. 290.
It was further submitted by Counsel that from the Appellants’ Affidavit evidence, it is the Jigawa State High Court that has the territorial jurisdiction to entertain the Appellants’ application and not any other Court in Bauchi and/or Gombe States as wrongly held by the learned trial Judge. See OHAKOSIN v. COMMISSIONER OF POLICE IMO STATE (2009) 15 NWLR (Pt. 1164) p. 229 and GARBA & ORS v. UNIVERSITY OF MAIDUGURI (1986) 1 ALL NLR p.1.
It is of interest to note that the 1st and 2nd Respondents filed a counter-affidavit in opposition to the Appellants’ Originating Summons before the trial Court. Therein the 1st and 2nd Respondents clearly admitted that the Appellants reside in Jigawa State and that the cause of action that led to the arrest and detention of the Appellants in this suit occurred in Jigawa State. Counsel contended that the Appellants were arrested in Jigawa State and taken to the 1st and 2nd Respondents’ office in Gombe before they were granted administrative bail by the 1st and 2nd Respondents.
The law is settled that, if the fundamental rights split across more than one State, it is the High Court of any of the States that can entertain an Applicant’s application. See MADIEBO v. NWANKWO (2002) 29 WRN p. 1337.
Counsel opined that the decision of the trial Court to the effect that the Jigawa State High Court does not have territorial jurisdiction to entertain the matter ignored the very essentials for the determination of territorial jurisdiction. The trial Court cannot go outside the ultimate grievances ventilated in the Applicants’ suit in search of other events for the purposes of determining territorial jurisdiction. See ARJAY v. AIRLINE MANAGEMENT SUPPORT LIMITED (2003) 7 NWLR (Pt. 820) p. 577.
The word “person” as used in the provisions of Order II Rule 1 of Fundamental Human Rights (Enforcement Procedure) Rules, 2009 and Section 46 (1) of the Constitution can be interpreted to mean “persons” as provided for under the provision of Section 18 of the Interpretation Act, Cap. 123, LFN, 2004. Section 18 provides that, “person” includes anybody of persons corporate or unincorporated.
The trial Court was therefore wrong to hold that the Appellants could not jointly institute their claims. Under the rules, several applications against several persons in relation to the same infringement of fundamental rights can be consolidated. It is safe to submit therefore that many Applicants may be joined together in the same application once a common cause of action can be established. See (1) UZOUKWU & ORS v. EZEONU II & ORS (1991) 6 NWLR (Pt. 200) p. 708 at p. 751; (2) GARBA AND ORS v. UNIVERSITY OF MAIDUGURI (SUPRA) and (3) KALU v. STATE (1998) 13 NWLR (Pt. 583) p. 531.
The processes filed by the parties at the trial Court as contained in the record of this appeal leave no doubt that the Appellants herein have a common cause of action in their application by the principle of stare decisis. The learned trial Judge thus greatly erred in law in relying on the Court of Appeal case of: UDO v. ROBSON & ORS (2018) LPELR – 45183 (C.A), rather than the Supreme Court decisions in: (1) YAKI v. BAGUDU (2015) 18 NWLR (Pt. 1491) p. 288; (2) A.P.C. v. I.N.E.C. (2015) 8 NWLR (Pt. 1462) p. 531 and (3) NOBIS-ELENDU v. I.N.E.C. (2015) 16 NWLR (Pt. 1485) p. 197.
This Court is urged to allow this appeal and set aside the ruling of the trial Court.
THE SUMMARY OF THE SUBMISSIONS OF THE 1ST AND 2ND RESPONDENTS’ COUNSEL:
The learned Counsel submitted that the cause of action is the germane subject matter that draws the jurisdiction of the Court to limelight. The cause of action is what gives the right to an action. See ZUBAIR v. KOLAWOLE (2019) LPELR – 46928, p. 19, paras. D – F. The territorial jurisdiction where the cause of action arises is the proper jurisdiction of either the High Court or the Federal High Court to hear and determine matters.
The purported infringement which caused the Appellant to institute the said fundamental rights suit at the trial Court occurred at the office of the 1st and 2nd Respondents in Gombe, Gombe State when the 1st Appellant eventually honoured the invitation for investigation upon persuasion. The 2nd Appellant also reported separately and he was granted administrative bail the same day.
The Appellants wrongly believe that their fundamental rights were infringed after their visit to the office of the 1st Respondent. The main complaint of the Appellants is that, upon their visit to the office of the 1st Respondent, they were forced to make statements, intimidated, harassed, threatened with detention and starved in the guise of interrogation. However, the Appellants were not arrested, they only honoured the 1st Respondent’s invitation via a letter sent to Gwaram Local Government Council in Jigawa State.
The mere fact that the Appellants reside in Jigawa is not tenable to institute an action in Jigawa State without reckoning the moment the cause of action arose. The Appellants have therefore wrongly initiated their application in Jigawa, Jigawa State. The proposition that the cause of action that led to the purported arrest and detention of the Appellants occurred in Jigawa State is a misconception of facts of this case.
The contention of the Appellants that the investigation or invitation is what led to the action they instituted, is not tenable. The action was instituted after they were invited and voluntarily visited the office of 1st and 2nd Respondents in Gombe. What the Appellants are complaining of occurred in the office of the 1st and 2nd Respondents in Gombe.
The learned Counsel further argued that the suit of the Appellants cannot be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules, 2009. Fundamental Rights proceedings being “sui generis” remain an integral part of this Country’s judicial process. It is trite that litigants and their counsel are bound to abide by the legislations in pursuit of their suits.
The 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules have created a special procedure for proceedings under this peculiar category of action. It is only by these procedures that an action can be brought to enforce rights and it is the provisions of the said Rules that guide the conduct of all actions to enforce the rights.
By the provisions of Section 46(1) and (2) of the 1999 Constitution (as amended) and Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 under which the instant application was brought, the adjective used in both provisions in qualifying who can apply to a Court to enforce a right is “any”, this denotes singular and does not admit pluralities in any form. It is individual rights and not collective rights that are being referred to under the Rules and the Constitution. Any application filed by more than one person under the Rules and the Constitution is therefore incompetent and liable to be struck out. See UDO v. ROBSON & ORS. (2018) LPELR – 45183 pgs.13-25, paras. C – A.
The Originating Motion of the Appellants before the trial Court thus remain incompetent in law and incurably bad and liable to be struck out, in that the Appellants in this case have jointly sued and brought the action in a community of themselves. The proper procedure to adopt by the Appellants in this case is to separately institute the action at the trial Court and thereafter apply for the consolidation of the actions.
The cases cited by the Appellants’ Counsel to justify the consolidation are all cited out of context. The issue in the instant case is not the same as in those cases.
The learned Counsel is at one with the decision of the trial Court that upheld the preliminary objections of the two sets of Respondents and that declined to assume jurisdiction on two grounds of improper venue and mis-joinder. According to Counsel, the line of reasoning of the trial Court in the circumstances of this matter is apt, on point and has the force of law.
This Court is urged to dismiss this appeal and affirm the ruling of the trial Court.
THE SUMMARY OF THE SUBMISSIONS OF THE 3RD RESPONDENT’S COUNSEL:
The learned Counsel submitted that a close look at the reliefs sought by the Appellants as Applicants in their application before the trial Court, leaves no doubt that the Appellants were only troubled by their invitation for interrogation by the 1st Respondent. The 1st and 2nd Respondents acted upon a complaint made to them by the 3rd Respondent. All of the allegations of infringement of their fundamental rights were carried out at the 1st and 2nd Respondents’ office in Gombe, Gombe State. It is pertinent to reiterate that nothing outside these allegations has the qualification of being a part of the Applicants’ cause of action before the trial Court. Efforts by learned counsel to the Appellants to introduce the facts of the transaction that transpired between the Appellants and the 3rd Respondent, in Jigawa and Bauchi State, as part of their cause of action are misconceived. What truly confers jurisdiction on a Court is the peculiar facts of a case as they relate to time and space. In the instant case, the space wherein the cause of action was generated is Gombe, Gombe State. The Appellant failed to supply any facts that could point at the tendency, that they were arrested within Jigawa State.
This Court is urged to dismiss the appeal with heavy costs against the Appellants.
RESOLUTION OF ISSUES ONE AND TWO:
Jurisdiction simply means a Court’s power to decide a case or issue. It also refers to the authority that a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. See amongst a myriad of precedents the cases of: (1) Mobil Producing (Nig.) Unlimited v. LASEPA (2002) 18 NWLR (Pt. 798) P.1 and (2) Audu v. APC & Ors. (2019) LPELR-48134 (SC).
The issue of jurisdiction is threshold as it is very fundamental and goes to the competence of the Court to hear and determine a suit. Where a Court does not have jurisdiction to hear a matter but goes to adjudicate over the matter, the entire proceedings, no matter how well conducted and decided, would amount to a nullity. It is therefore very crucial that a Court decides first the issue of its jurisdiction at the commencement of a trial particularly where there is a challenge to the same, before looking into the extent of judicial power exercisable under that jurisdiction.
The law is quite trite that jurisdiction is vested in Courts only by the legislations that created them, such as, the Constitution, Decrees, Laws, Acts and Edicts. This is so sacrosanct that outside of the enabling legislations, the Court cannot by itself or by the agreement of the parties cloak it with jurisdiction. The jurisdiction of a Court is thus confined, limited and circumscribed by the statute that created the Court. See the cases of: (1) Galadima v. Tambai (2000) 11 NWLR (Pt. 677) p.1; (2) Onuorah v. KRPL & Ltd (2005) 6 NWLR (Pt. 921) p.393; (3) Afribank (Nig.) PLC v. Akwara (2006) 5 NWLR (Pt. 974) p.619; (4) Dangana & Anor v. Usman & Ors. (2012) LPELR-25012 (SC) and (5) Nweke v. FRN (2019) LPELR -46946 (SC).
In the instant matter, the general issue before the trial Court was one of jurisdiction. A challenge to the jurisdiction of a Court could be based on varied and diverse points. For instances:
(a) Whether the judge was properly appointed.
(b) Whether the subject-matter of the claim is within the limits of the territorial jurisdiction of the Court.
(c) Whether the claim is within the justifiable power of the adjudicating Court.
(d) Whether the period allowed the Court to embark upon the hearing of the case has not expired.
(e) Whether the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
(f) Whether there are proper parties before the Court; etc.
See the cases of: (1) Madukolu & Ors. v. Nkemdilim (1962) 2 NSCC p. 374; (2) Ejiofodomi v. Okonkwo (1982) LPELR – 1070 (SC); (3) Oni v. Cadbury (Nig.) PLC (2016) LPELR- 26061 (SC); (4) Oko v. State (2017) LPELR-42267 (SC) and (5) A.-G., Federation v. Kashamu (No.2) (2020) 3 NWLR (Pt. 1711) p.281.
From the above therefore, matters of jurisdiction in our Courts can generally be categorized into three compartments, that is, territorial jurisdiction, subject-matter jurisdiction and jurisdiction on persons.
The instant appeal is centred on both whether the subject-matter of the Appellants’ action is within the limitation of the territorial jurisdiction of the trial Court and whether the Appellants as a team are properly constituted to institute the action.
Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Just like other forms of jurisdiction, territorial jurisdiction is statutory and it is conferred on the Court by the statute which created it. Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area. To put it in different words, territorial jurisdiction refers either to the geographical area in which a cause of action arose for adjudication or the jurisdiction of the Court to entertain cases involving persons residing within the confines of a defined territory. See the cases of: (1) Dariye v. FRN (2015) LPELR-24398 (SC) and (2) Golit v. IGP (2020) LPELR-50636 (SC).
There is no doubt, indeed, it is good sense that the territorial jurisdiction of a High Court of a State, like the trial Court herein, is limited to the territorial boundaries of the State. The High Court of a State is a creature of the grund norm, that is, the Constitution of the Federal Republic of Nigeria, 1999, as amended. It is therefore the said Constitution and indeed other laws duly enacted in line with the provisions of the same Constitution that vest in the High Court of a State the extent of its jurisdiction. See Section 272 of the Constitution.
Furthermore, the jurisdiction of the High Court of a State is circumscribed by the provisions of Sections 6(2) and 270 of the Constitution which established a High Court for each State of the Federation and judicial powers are duly vested in the High Court. However, because each State is an independent federating unit, if a cause of action arises in any of the States of the Federation, jurisdiction over the cause of action resides in that particular State. In other words, the territorial jurisdiction of the High Court of a State is limited to the territorial boundaries of the State. Hence, where a suit ought to have been brought in one State is brought in another State, the latter Court would have no jurisdiction to adjudicate upon the suit. It is equally trite that jurisdiction cannot be conferred by any of the parties or by agreement of the parties. Where therefore a complaint is consummated outside the territorial jurisdiction of the Court approached to adjudicate over the subject-matter, such a Court being devoid of jurisdiction should not assume jurisdiction over the matter.
In the instant case, the subject-matter of the Appellants’ complaint before the trial Court is their alleged unlawful arrest, detention, intimidation, threat and harassment by the 1st and 2nd Respondents at the behest of the 3rd Respondent. This is visible from the originating motion of the Appellants who were the Applicants before the trial Court. Indeed, that is the only process it behooved the trial Court to examine in determining if it has territorial jurisdiction over the Appellants’ action.
The Appellants have placed much emphasis on the background facts of the transactions between them and the 3rd Respondent in proposing that in view of those sets of facts which occurred in Jigawa State, the High Court of Jigawa State has territorial jurisdiction over their actions. With respect, I must state that I do not agree with the said proposition, this is because those transactions between the Appellants and the 3rd Respondent are not the subject-matter of the action of the Appellants under scrutiny. As stated hereinbefore the action of the Appellants is for the enforcement of their fundamental human rights on grounds of their unlawful arrest and detention allegedly by the 1st and 2nd Respondents at the behest of the 3rd Respondent.
I have earlier on at the inception of this judgment set out the grounds upon which the application of the Appellants was predicated. For emphasis and easy referencing, I hereby reiterate grounds 6 and 7 of the grounds upon which the application of the Appellants were predicated as follows:
“6. The 3rd Respondent decided to report the Applicants before the 1st and 2nd Respondents in both Bauchi and later Gombe States despite the fact that all the elements of the transactions entered between the Applicants and the 3rd Respondent happened in Gwaram, Jigawa State as a result of which the Applicants were arrested, invited by both Police in Bauchi State and 1st and 2nd Respondents in Gombe State respectively.
7. Consequent upon their arrest and invitation by both Police at Bauchi and the 1st and 2nd Respondents at Gombe States, the Applicants were unlawfully detained, harassed, intimidated, threatened, embarrassed and starved which occasioned breach to their constitutionally guaranteed human rights.”
From the above stated grounds 6 and 7, it is crystal clear that although the Appellants are residents of Jigawa State, they were invited by the 1st and 2nd Respondents to the office of the 1st Respondent in Gombe State where they were allegedly formally arrested, detained, harassed, intimidated, threatened, embarrassed and starved. There is no question in my mind that the arrest and detention of the Appellants occurred in Gombe State. Hence, the trial Court has no territorial jurisdictional competence to adjudicate over the application of the Appellants. The law is well grounded that a complaint of a breach of a fundamental right in one State cannot be litigated upon in another State. See the cases of: (1) Kraus Thompson Organisation Ltd v. University of Calabar (2004) 9 NWLR (Pt. 879) p.631 at p. 663; (2) Nigerian Navy & Ors v. Garrick (2005) LPELR-7555 (CA) and (3) Anyaeche v. Nwankwo (2015) LPELR-40677 (CA). In the case of Jack v. University of Agriculture, Makurdi (2004) LPELR-1587, the Supreme Court per Katsina-Alu, JSC (as he then was, later CJN, now of blessed memory) had the following to say:
“A person whose fundamental right is breached, being breached or about to be breached may therefore, apply to a High Court in that State for redress. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which came into force on 1 January, 1980 defines “Court” as meaning. “The Federal High Court or the High Court of a State”. What this means is this, both the Federal High Court and the High Court of a State have concurrent jurisdiction. An Application may therefore be made either to the Judicial Division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur. In Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) p.517, this Court observed as follows: “In this case, Alhaji Umaru Abba Tukur is complaining that there has been a breach of one or the other of his fundamental rights to his liberty or his freedom of movement. This contravention allegedly took place in Gongola State. From Section 42(1) above, he has to apply to a High Court in that State, that is, the High Court where the contravention or breach occurred……
It is therefore my view that by choosing a Court outside the territorial boundaries of Gongola State where his fundamental rights were breached, the Appellant in this case did not apply to a High Court in that State as required by Section 42(1) of the 1979 Constitution.”
The above view was adhered to by me in the case of: Federal Polytechnic Bauchi & Anor v. Aboaba & Anor (2013) LPELR-21916 (CA). My said position remains unchanged.
In sum, it is my firm view and I hold that the trial Court rightly declined to entertain the application of the Appellants to enforce their fundamental rights for want of its territorial jurisdiction.
The first issue is therefore resolved against the Appellants and in favour of the two sets of Respondents.
The contention of the Appellants under the second issue is that the trial Court erred to have held the opinion that a joint application cannot be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules. The Appellants herein are of the view that many persons may be joined together in the same application once a common cause of action can be established.
Before I proceed to the consideration and resolution of this issue, I would like to straightaway state that the Apex Court authorities relied upon by the Appellants in support of their view do not in any way advance their case. The case of Uzoukwu & Ors v. Ezeonu II & Ors. (Supra) is not a case for the enforcement of fundamental rights. Furthermore, the question, whether two or more persons can file a joint application for the enforcement of their fundamental rights did not come up for consideration in the cases of: (1) Garba & Ors. v. University of Maiduguri (Supra); (2) F.B.N. v. A.-G., Federation (Supra) and (3) Kalu v. State (Supra), also relied upon by the Appellants.
I am not unmindful of the two schools of thoughts of this Court on the issue under discourse. The first school of thought is that, a joint action filed by more than one person to ventilate the breach of their fundamental rights arising from one and the same action of a defendant or defendants is competent. See the cases of (1) Maitagaran & Anor v. Dankoli & Anor (2020) LPELR-52025 (CA) and (2) Govt. of Enugu State of Nig. & Ors v. Onya & Ors (2021) LPELR-52688 (CA). This position in my view and with respect was hinged not on the provisions of the enabling law, that is, the Fundamental Rights (Enforcement Procedure) Rules (Supra) but on the rules of the High Courts in those cases.
The second school of thought, which I buy, is that, there must be separate applications of persons in the first instance where there are more than one persons seeking an enforcement of their fundamental rights even where the applications flow from the same cause of action. As rightly proposed in support of the second school of thought, actions for the enforcement of fundamental rights of citizens of this Country although are civil actions, they are nonetheless sui generis, peculiar and in a unique class of their own. Hence, such actions are governed not by the general Civil Procedure Rules of Court but by the special and unique rules of procedure specifically laid down under the Fundamental Rights (Enforcement Procedure) Rules. What is more, the said fundamental rights being very important are enshrined in Section 46(1) and (2) of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). As the name portends, the procedure for the enforcement of the fundamental rights are as stated in the Fundamental Rights (Enforcement Procedure) Rules. The rules are rules of general application in all the thirty-six States of Nigeria and Federal Capital Territory.
There must therefore be strict compliance with the provisions of the Rules and recourse should not be had to any other Rules of Court when it comes to the enforcement of any of the fundamental rights under the Constitution.
It is equally a misconceived proposition that because there is no express provision in the Fundamental Rights (Enforcement Procedure) Rules permitting or forbidding two or more persons to file a joint application to enforce their fundamental rights, recourse should be had to the Civil Procedure Rules of the Court for the time being in force by virtue of Order XV Rule 4 of the Rules. The provision of Order XV Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules will only be applicable where, in the course of a Fundamental Rights proceedings, a situation arises for which there is or appears to be no adequate provision in the rules. That is not the situation in the matter under discourse.
The provisions of both the Rules and indeed the 1999 Constitution do not give room for a group of persons to file a sole application in any fundamental rights enforcement proceedings. Rather Order VII Rule 3 of the Rules allows consolidation of applications after individual applications have been filed. Where therefore two or more persons believe that any of their fundamental rights has been infracted in the course of the same cause of action, the starting point for them in the process of enforcing the rights in Court, is to file their individual applications and thereafter an order for the consolidation of all the applications could be sought and obtained under Order VII Rule 3 of the Rules. A trial Court has the discretion to make an order of consolidation of different applications of several persons after due consideration of the sets of facts from which the applications flow. It is the legally bounden duty of the trial Court to decide if the individual applications of several persons are in respect of the same matter, on the same grounds and involving the same issues. It is not the prerogative of the parties to conclude that their individual rights could be jointly enforced under a single application.
The clear intention of the drafters of the Fundamental Rights (Enforcement Procedure) Rules is as proposed by the second school of thought that two or more persons cannot jointly file an application for the enforcement of their fundamental rights. See amongst a plethora of authorities of this Court the cases of: (1) Chief of Naval Staff Abuja & Ors v. Archibong & Anor (2020) LPELR-51845 (CA); (2) Finamedia Global Services Ltd v. Onwero (Nig.) Ltd & Ors (2020) LPELR-51149 (CA); (3) Abubakar v. Dauda & Ors (2020) LPELR-51417 (CA) and (4) Abuja Electricity Distribution Company Plc & Ors v. Akaliro & Ors. (2021) LPELR-54212 (CA).
In sum, I hold that the joint application of the Appellants before the trial Court amounts to a misjoinder of action and it is incompetent. The trial Court was right to uphold the objection of the Respondents in that regard and properly declined jurisdiction to entertain and determine the said application for incompetence thereby striking out the same.
Issue two is therefore equally resolved against the Appellants and in favour of the Respondents.
The two issues of the Appellants having been resolved against them, it is unequivocal that this appeal is without a jot of merit. The appeal is hereby declared a failure and accordingly dismissed. The decision of the trial Court striking out the application of the Appellants before it for incompetence and want of jurisdiction is hereby affirmed.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Oyebisi Folayemi Omoleye, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I abide by the conclusion that the appeal lacks merit but disagree with part of the reasoning.
The matter in the lower Court was commenced by an application filed under the Fundamental Rights (Enforcement Procedure) Rules 2009 and it was a joint application by the two Appellants for the enforcement of their fundamental rights. The lower Court heard the matter on the merit and dismissed the case of the Applicants on the grounds that it, the High Court of Jigawa State, lacked the territorial jurisdiction to entertain allegations of breach of fundamental rights that occurred in the office of the Respondents in Gombe State and that it was not permissible for the two Appellants to file a joint application for the enforcement of their fundamental right.
There are two germane issues for determination in the appeal, these are (i) whether the lower Court was correct when it found that he lacked the requisite territorial jurisdiction to entertain the claims of the Appellants, and (ii) whether the lower Court was correct when it held that the Appellants could not file a joint application for the enforcement of their fundamental rights.
On the first issue for determination, a read through the processes filed by the Appellants shows that their entire allegations of harassment, maltreatment, thereat starvation and detention took place at the office of the Respondents in Gombe State. They did not allege in any of the processes that any of the alleged acts took place or was commenced in Jigawa State, contrary to the submission of their counsel in his brief of arguments. It is settled law that it is either the High Court of the State of the Federal High Court in the State where the breach of fundamental rights occurs that possesses the requisite jurisdiction to enforce the breach. I am thus in agreement with the reasoning and finding in lead judgment that the lower Court was correct when it found that it had no territorial jurisdiction to entertain the claims of the appellant.
It is the reasoning in the lead judgment on the second issue for resolution that I disagree with. The lead judgment is of the view that the lower Court was correct when it held that the Appellants could not file a joint application to enforce breach of their fundamental human rights and that the Appellant must come with separate applications. I do not, with respect, share this view. As stated in the lead judgment, there are presumably two schools of thought in this Court on the issue. The first school of thought postulates that the law and rules governing enforcement of fundamental rights do not allow for the filing of a joint application by two or more applicants even where their complains flow from the same cause of action and that such a joint application is incompetent. This is the decision of this Court in the cases of Kporharor vs Yedi (2017) LPELR – 42418 (CA), Udo v. Robson (2018) LPELR – 45183 (CA), Finamedia Global Services Ltd v. Onwero (Nig.) Ltd (2020) LPELR – 51149(CA), Abubakar v. Dauda (2020) LPELR -51417(CA), Chief of NAval Staff, Abuja v. Archibong (2020) LPELR – 51845 (CA) and Abuja ELectricity Distribution Company Plc v. Akaliro (2021) LPELR – 54212.
The second school of thought maintains that the law and the rule governing enforcement of fundamental rights do allow for the filling of a joint application by two or more applicants where their complaints flow from the same cause of action and that such a joint application is competent. This is the decision of the Court in the cases of Uzoukwu Vs Ezeonu II (1991) 6 NWLR (Pt. 200) 708 at 761, Ihejiobi Vs Ihejiobi (2013) LPELR 21957 (CA), Ubochi vs Ekpo (2014) LPELR 23523 (CA), Orkater Vs Ekpo (2014) LPELR 23525 (CA), Maitagaran Vs. Dankoli (2020) LPELR 52025 (CA) and Government of Enugu State Vs Onya (2021) LPELR 52688(CA).
In determining which of the two schools of thought to follow, it is necessary to interrogate the reasoning that birthed them. The locus classicus of the first school of thought is the case of Kporharor Vs Yedi supra. It was this decision that was quoted and followed by the other cases cited above under the school of thought. In Udo Vs Robson supra, Adah, JCA, who read the lead judgment, after referring to and quoting the decision on Kporharor Vs Yedi state thus:
“The decision of this Court in Kporharor case (supra) is the current decision of this Court. By the doctrine of stare decisis I am bound by the earlier decision of this Court, I cannot deviate from it.”
Similarly, in Chief of Naval Staff Abuja Vs. Archibong supra, Shuaibu, JCA, after referring to the decision in Kporharor Vs Yedi supra and Udo Vs Robson supra, state that: “I cannot therefore deviate from the previous decision which prohibits joint or group application for the enforcement of fundamental rights”. Also, Mustapha, JCA, in Finamedia Global Services Ltd Vs Onwero (Nig) Ltd supra, Mukhtar, JCA, in Abubakar Vs Dauda supra, and Agube, JCA in Abuja Electricity Distribution Company Plc Vs Akaliro supra, all relied on the reasoning in Kporharor Vs Yedi supra, and as followed in Udo Vs Robson supra, in disallowing a joint application for the enforcement of fundamental rights.
Now, what was the reasoning in Kporharor Vs Yedi supra, Bada, JCA, who gave the lead judgment in the case, after stating the peculiar nature of fundamental rights enforcement proceedings and the inalienability of fundamental rights, deliberated thus:
“The right to approach a Court to enforce a Fundamental Right is conferred by Section 46(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Section 46 (1) of the 1999 Constitution provides thus:
“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 for redress.
In this appeal under consideration, the application was brought by two separate Applicants (1) Mr. Michael Yedi and (2) Onodje Yedi Nig. Ltd the words used under Section 46(1) of the Constitution set out above is very clear. The same provision is made in Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The adjective used in both provisions in qualifying who can apply to a Court to enforce a right is any which denotes singular and does not admit pluralities in any form. It is individual rights and not collective rights that is being talked about.
In my humble view, any application filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules is incompetent and liable to be struck out.
The above view is supported by the case of R.T.F.T.C.I.N VS IKWECHEGH (2000) 13 NWLR Part 683 at page 1, where it was held among others that:
“If an individual feels that his Fundamental Rights or Human Rights has been violated, he should take out action personally for the alleged infraction as rights of one differs in content and degree from the complaint of the other …. Is a wrong joinder of action and incompetent.”
Also in the case of OKECHUKWU VS ETUKOKWU (1998) 8 NWLR Part 562 Page 511, it was held amongst others per Niki Tobi, JCA (as he then was) that:
“As I indicated above, the Umunwanne family is the centre of the whole matter. A family as a unit cannot commence an action on infringement or contravention of Fundamental Rights. To be specific, no Nigeria family or any foreign family has the locus to commence action under Chapter IV of the Constitution or by virtue of the 1979 Rules. The provisions of Chapter 4 cover individuals and not a group of collection of individuals. The expression every individual, every person, any person, every citizen are so clear that a family unit is never anticipated or contemplated.
The contention of learned Counsel for the Respondents that it is proper in law for two or more persons to apply jointly for the enforcement of their fundamental rights cannot be sustained.”
In other words, the Court reasoned that (i) since the words used in Section 46 of the Constitution and in Order II Rules 1 of the Fundamental Rights (Enforcement Procedure Rules) 2009 are “any person”, the provisions refer to the singular and they circumscribe more than one person filing of a joint application for enforcement of fundamental rights and (ii) the Court relied on the judgments of this Court in the cases of R.T.F.T.C.I.N VS Ikwechegh supra and Okechukwu Vs Etukokwu supra as supporting the view that joint applications are not allowed.
It is correct that Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure Rules) 2009 say that “any person” who alleges that any of the Fundamental Rights provided for in the Constitution to which he is entitled has been, is being or likely to be infringed, may apply to Court for redress. However, it is an elementary rule of statutory construction that where the singular is used in a statute it includes the plural and vice-versa. Thus, in the case of Public Citizen, Inc. Vs Mineta 340 E 3d 39 (2d Cir. 2003) where a statue provided for the provision of warming systems that indicate “when a tire is significantly under inflated”, the United State Court of Appeals, Second Circuit, held that the Act’s “a tire” plainly meant one tire, two tires, three tires, or all four tries, under the elementary rule of statutory construction that the singular (“a tire”) includes the plural (“tires”).
This principle is captured in Section 14 (b) of the interpretation Act, 1964 which reads that “in an enactment, words in the singular include the plural and words in the plural include the singular.” By Section 315 of the 1999 Constitution (as amended) the Interpretation Act is an Act of the National Assembly which has been incorporated by reference into the Constitution and Section 318(4) of Constitution provides explicitly that the “Interpretation Act shall apply for the purpose of interpreting the provisions of this Constitution”. (underlining for emphasis). Theses facts were confirmed by the Supreme Court in the case of Saraki Vs Federal Republic of Nigeria (2016) 3 NWLR (Pt. 1500) 531. What these translate to is that the phrase “any person” used in Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order II Rule I of the Fundamental Rights (Enforcement Procedure Rules) 2009 admits the plural and can be interpreted as referring to more than one person.
The law is settled that in interpreting the Constitution mere technical rules on interpretation of statutes are, to some extent, inadmissible in order to avoid defeating the principles of government enshrined in the Constitution. Accordingly, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purpose of the Constitution – Rabiu Vs State (1980) 8 – 11 SC 130, Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt. 1590) 24, Abubakar Vs Independent National Electoral Commission (2020) 12 NWLR (Pt. 1737) 37, National Unity Party Vs Independent National Electoral Commission (2021) 17 NWLR (Pt. 1805) 305. In All Progressives Congress Vs Enugu State Independent Electoral Commission (2021) 16 NWLR (Pt. 1801) 1 at 67 – 68 H-D, the Supreme Court put the point thus:
“The Supreme Court’s approach to construction and interpretation of the Constitution of the Federal Republic of Nigeria is one of liberalism. This is so because anything contrary thereto would tantamount to defeating the very end which the Constitution was enacted. It is the duty of the Supreme Court which has the ultimate responsibility of declaring and interpreting provisions of the Constitution always to bear in mind that the Constitution itself is an mechanism under which law is. Accordingly, where the question is whether the Constitution has used an expression in the wider or in the narrower sense the Court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.”
In other words, the Court should adopt a broad and liberal approach in interpreting the provisions of the Constitution. Thus, where an expression used in the Constitution is capable of a wider or narrow interpretation, the broader interpretation is to be preffered – In Re Maduike (2019) 7 NWLR (Pt. 1671) 255, Central Bank of Nigeria Vs Rahamaniyya Global Resources Ltd (2020) 8 NWLR (Pt. 1726) 314, Crestar Integrated Natural Resources Ltd Vs Shell Petroleum Development Co. Ltd (2021) 16 NWLR (Pt. 1800) 453. It follows therefore that the phrase “any person” used in Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order II Rule I of the Fundamental Rights (Enforcement Procedure Rules) 2009 cannot, and should not, be given a constricted, narrow and limiting interpretation that it refers to only one person as held in Kporharor Vs Yedi supra, and as suggested in the lead judgment. It should be given the wider interpretation to include more than one person or individual.
This approach to the interpretation of the phrase “any person” used in Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order II Rule I of the Fundamental Rights (Enforcement Procedure Rules) 2009 accords with the overriding objectives of the Fundamental Rights (Enforcement Rules) 2009 as provided in its Preamble. The Preamble to the Rules enjoins the Court to constantly and conscientiously seek to give effect to the overriding objectives of the rules at every stage of human rights action, especially whenever it exercises any power given it by the rules or any other and whenever it applies or interprets any rule. And the first overriding objective says that Constitution as well as the African Charter shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the acts and freedom contained in them and affording the protection intended by them. (underlying for emphasis)
These statements enjoin the Courts not to allow a conservative approach to interpretation of the Constitution and of the rules and peripheral technical rules to defeat and/or impede a person seeking the enforcement of his fundamental rights. See Emukeme Vs Mazi (2014) LPELR-23540(SC). This point was succinctly made by the Supreme Court in the case of Federal Republic of Nigeria Vs Ifegwu (2003) 15 NWLR (Pt. 842) 113 when it stated thus:
“The manner in which the Court is approached for enforcement of a fundamental right does not matter once it is clear that the originating Court process seeks redress for the infringement of the right so guaranteed under the Constitution. The Court process could be by the fundamental Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons. The concerns in regard to redressing a contravention of a fundamental right have been underlined by liberalizing the type of originating process without the person affected being inhibited by the form of action he adopts. It is enough if his complaint is understood and deserves to be entertained.”
Uwaifo, JSC, stated the rationale for this position at page 184 B-E thus:
“It is the Constitution which, as the organic law of a country, declares in a formal, emphatic and binding principles the rights, liberties, powers and responsibilities of the people, both the government and the governed. It is the duty of the authorities including the judiciary, to ensure its observance. The position of the Courts is quite crucial in this regard for the purpose of safeguarding the constitutional rights of persons through effective intervention whenever, in an appropriate case, it is shown that such rights have been violated. In such a situation, the matter should be examined with close and anxious scrutiny to make sure that what is arrived at is objectively in conformity with the spirit of the constitutional guarantee. And, for the Supreme Court of Nigeria, the trend is now that whenever an aspect of personal liberty is properly raised in any proceeding, the focus on the constitutional question is intent and intensive, and a solution which projects the essence of the constitutional guarantee is proffered.”
The above underscores the wisdom in the reasoning and statements of Mbaba, JCA in Government of Enugu State Vs Onya supra when he commented that:
“…I also think the Appellants were in error to say that the 34 Applicants were wrong to bring this suit together, alleging misjoinder of parties. Parties are rather always encouraged to come together … when they have a common interest or grievance, seeking redress in Court. It would even amount to multiplicity of actions and abuse of Court process, in my view, if the parties (like the 34 Applicants) who have identified their common interest and grievance in the suit were to have filed separate actions – 34 applications, in the same Court, seeking same reliefs, thereby overwhelming and over burdening the Court, and increasing the cost of litigation and the judicial cost/time …
I think the principle relating to representative action also governs a suit by two or more applicants in a Fundamental Rights action, once common grievance and common interest originated from the same factual situation, like in this case, where the 34 Applicants (Respondents) were allocated stalls or spaces to build shops at the park; they established an association, together and held their interest together and the cause of action (demolition of their stores) also happened at the same time, at the instance of the Appellants, throwing them (Respondents) into common grievance and they had common interest in the suit.
… I do not therefore think the interest of justice in a fundamental rights action case be defeated or truncated by allegation, on appeal, that the Applicants, who had a common interest and/or common grievance in the violation of their fundamental rights, brought a joint action, not separate actions. Such holding would completely negate the essence and purpose of the 2009 Fundamental Rights (Enforcement Procedure) Rules, in my opinion. After all, the law is also that judgment is not defeated by reason of non-joinder or misjoinder of parties …”
The reality is that, contrary to the assertion in the lead judgment, there is not express provision in the Fundamental Rights (Enforcement Procedure) Rules 2009 forbidding two applicants from filing a joint petition for enforcement of their fundamental rights, Order XV Rule 4 of the Rules provides that where in the course of any Fundamental Rights proceedings, any situation arises for which there is or appears to be no adequate provision in the Rules, the Civil Procedure Rules of the Court for the time being in force shall apply. The High Court Rules of the lower Court, the High Court of Jigawa (Civil Procedure) Rules, contain provision allowing all persons to be joined in one action as plaintiffs in whom any right to relief is alleged to exist whether jointly or severally. The Courts have interpreted this provision as permitting persons who have rights arising from one common cause to file a joint action as co-claimants to ventilate the rights – Hyson (Nigeria) Limited Vs Ijeoma (2008) 11 NWLR (Pt. 1097) 18, Fode Drilling (Nig) Ltd Vs Fabby (2017) LPELR 42822(CA), AbdulRaheem Vs Oduleye (2019) LPELR 48892(SC).
This was the basis for this Court holding in the cases of Ihejiobi Vs Ihejiobi supra, Ubochi Vs Ekpo supra, Orkater Vs Ekpo supra and Maitagaran Vs Dankoli supra that a joint action filed by more than one person to ventilate breach of their fundamental rights arising from one and same action of a defendant or defendants is competent.
Further, and as stated earlier, the decision of this Court in Kporharor Vs Yedi supra also relied on the decisions of this Court in the case of RTFTCIN Vs Ikwechegh supra and Okechukwu Ve Etukokwu supra in coming to the conclusion that a joint application for fundamental rights enforcement was incompetent. With respect, the reliance placed on these decisions was faulty for two reasons. Firstly, the cases of R.T.F.T.C.I.N Vs Ikwechegh supra and Okechukwu Vs Etukokwu supra were decided on the basis of the Fundamental Rights (Enforcement Procedure) Rules 1979 and not on the provisions of the Fundamental Rights (Enforcement Procedure) Rules of 2009. The Provisions of the two Rules are not the same and their provisions are miles-years away from each other. There are major and far reaching differences between them. The 2009 Rules are more much more permissive and expansive and allow more classes of people to file applications for enforcement of fundamental rights. It is settled law a judicial decision cannot be relied upon as a precedent when the legislation, the basis for the decision, is different from that applicable in the subsequent case – Clement Vs Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39, Olafisoye Vs Federal Republic of Nigeria (2004) 4 NWLR (Pt. 864) 580 and Ugwuanyi Vs NICON Insurance Plc (2013) 11 NWLR (Pt. 1366) 546.
Secondly, it is trite law that the doctrine of judicial precedent recognizes that decisions of Court draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case – Fawehinmi Vs Nigerian Bar Association (No. 2) (1989) 2 NWLR (Pt 105) 558, Ndu Vs Onuaguluchi (1999) 11 NWLR (Pt. 625) 152, Anaedobe Vs Ofodile (2001) 5 NWLR (Pt. 706) 365, Abubakar Vs Nasamu (No. 2) (2012) 17 NWLR (pt. 13330) 523. The doctrine says that it is improper to try and force the ratio of a case on facts to which it cannot be assimilated, the ratio of any case should not be pulled by the hair of the head and made to apply to cases where the surrounding circumstances are different – Mortune Vs Balonwu (2000) 5 NWLR (Pt. 655) 87 and Emeka Vs Okadigbo (2012) 18 NWLR (Pt. 1331) 55.
In Okechukwu Vs Etukokwu supra, the tussle was over headship of family and the Respondents filed a fundamental rights application for enforcement of the fundamental rights of the family, Tobi, JCA, (as he then was) Commenced at page 532 C-E thus:
“As I indicated above, the Umunwanne family is the center of the whole matter. A family as a unit cannot commence an action on infringement or contravention of fundamental rights. To be specific, no Nigerian family or any foreign family has the locus to commence action under Chapter 4 of the Constitution or by virtue of the 1979 Rules. The provisions of Chapter 4 cover individuals and not a group or collection of individuals. The expressions, ‘every individual’, ‘every person’, ‘every citizen’, and ‘a citizen’ are so clear that a family unit is never anticipated or contemplated.” (underlining for emphasis)
It is clear that this decision is as regards whether a family as a unit could file for the enforcement of fundamental rights. The case of Kporharor Vs Yedi supra was in respect of a joint application for enforcement of fundamental rights filed by two persons, not by a family unit or a group of persons. The decision in Okechukwu Vs Etukokwu supra did not thus constitute a viable judicial precedent for the Court in Kporharor Vs Yedisupra.
In The Registered Trustees of Faith Tabernacle Congregation Church Nigeria Vs Ikwechegh supra, the application for enforcement of fundamental human rights was filed by the Respondent, for and behalf of the entire Aggrieved Members of the Faith Terbanacle Congregation Church Nigeria, except the Appellant. Pats Acholonu, JCA, (as he then was) said at page 8 G-H thus:
“Another point is that the action is brought in a representative capacity. How can all the people supposedly represented have the same cause of action. Indeed, while Uche Ikwechegh and Alex Akugo are complaining of ex-communication, Simon Aliobu and others in the matter are complaining about suspension. If an individual feels that his fundamental rights or human right has been violated, he should take action personally for alleged infraction as rights of one differs in content and degree from the complaints of the other. It is wrong joinder of action and incompetent.” (underlining for emphasis)
In Kporharor Vs Yedi supra, the point application was filed by two persons in their personal names, and not in a representative capacity, and their complaints against the respondents were the same. It was not to enforce different alleged breaches caused by different actions of the respondents. The facts and circumstances of the case of The Registered Trustees of Faith Terbanacle Congregation Church Nigeria Vs Ikwechegh supra are thus different and the case cannot also qualify as useable judicial precedent by this Court in Kporharor Vs Yedi supra.
The decisions of this Court that were available for use as judicial precedent to the Court in Kporharor Vs Yedisupra were the cases of Ihejiobi Vs Ihejiobi supra, Ubochi Vs Ekpo supra and Orkater Vs Ekpo supra decided in 2013 and 2014, and on the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, and which upheld the propriety and competence of a joint application for the enforcement of fundamental rights filed by more than one applicant. The Court in Kporharor Vs Yedi supra made no references to these cases and it reached its decision in ignorance of their existence. It is trite law that by the doctrine of stare decisis the Court of appeal is bound by its previous decisions on similar matters in similar circumstances – Osho Vs Foreign Finance Corporation (1991) LPELR-2801 (SC), Oyeyemi Vs Irewole Local Government (1993) 1 NWLR (Pt. 270) 462, Amaechi Vs Independent National Electoral Commission (2008) LPELR 146(SC), National Inland Waterways Authority Vs Shell Petroleum Development Co. Ltd (2020) 16 NWLR (Pt. 1749) 160. In Abacha Vs Attorney General, Federation (2021) 10 NWLR (Pt. 1783) 129, the Supreme Court opined that:
“The principle of stare decisis postulates that a point or principle of law once officially and authoritatively decided or settled by the same Court should no longer be open to examination or new ruling by the same Court or by those Courts or Tribunals bound by its decision, unless the decision is shown to be per incuriam or for some other exceptional reasons.”
In legal jurisprudence, the necessary consequence of a Court reaching a decision in ignorance of binding judicial precedents, where that decision goes against the position of law as established by those precedents, is that the decision will be classified as having been reached per incuriam – Rossek Vs African Continental Bank Ltd (1993) 8 NWLR (Pt 312)382, Buhari Vs Independent National Electoral Commission (2008) 19 NWLR (Pt. 1120) 246, Makun Vs Federal University of Technology Minna (2011) 18 NWLR (Pt. 1278) 190, Emeribe Vs Opara (2021) 2 NWLR (Pt 1760) 271. Speaking on the point, this Court in State Vs Ali (2020) 18 NWLR (Pt 1755) 69 states thus at 103 B-F:
“Per incuriam is a Latin phrase which generally means ‘through advertence’. Per incuriam in law means the Judge giving a judgment in ignorance or forgetfulness of an enabling statute or some binding authority on the Court. A case decided per incuriam includes a situation where the Court forget to take into consideration a previous decision to which the doctrine of stare decisis applies … it is also a situation where a statute or rule having statutory effect or other binding authority, which would have affected the decision, had not been brought to the attention of the Court. The principle appears to be that a decision can only be said to be per incuriam if it is possible to point to a step in the reasoning and show that it was faulty because of a failure to mention a statute, a rule having statutory effect or an authoritative case which might have made the decision different from what it was.”
In other words, the decision reached in Kporharor Vs Yedi supra was, with respect, given per incuriam, it is trite law that a judgment reached per incuriam by the Court of appeal has no binding effect on the Court and should not be followed by the Court in subsequent decisions – Odido Vs State (1994) 3 NWLR (Pt. 333) 504, Njoku Vs Commissioner of Police (1999) 10 NWLR (Pt. 622) 192, Dina Vs Daniel (2010) 11 NWLR (Pt. 1204) 137, Ajayi Vs Nomiye (2012) 7 NWLR (Pt. 1300) 593 Emeribe Vs Opara (2021) 2 NWLR (Pt. 1760) 271. Therefore, the decision in Kporharor Vs Yedi supra is not a viable decision that should have been followed by any panel of this Court. This contaminates and renders the decisions in Udo Vs Robson supra, Finamedia Global Services Ltd Vs Onwero (Nig) Ltd supra, Abubakar Vs Dauda supra, Chief of Naval Staff, Abuja Vs Archibong supra, and Abuja Electricity Distribution Company Plc Vs Akaliro supra, which followed the judgment in kporharor Vs Yedi supra, as judgment also reach per incuriam.
What these translate to is that the first school of thought which exists in this Court, and which forbids the filing of a joint application by two or more applicants for the enforcement of fundamental rights even where their complaints flow from the same cause of action, was built on a quicksand; it is a mirage. The second school of thought which supports the filling of a joint application by two or more applicants where the complaints flow from the same cause of action was erected on a solid rock and it is the only viable and sustainable one. It is for this reason that I differ from the position taken in the lead judgment approving the decision of the lower Court that the joint application for enforcement of fundamental rights filed by the Appellants is incompetent, it is my view that the application is competent and valid.
These said, however, in view of the finding on the first issue for resolution in the appeal that the lower Court lacked the requisite territorial jurisdiction to entertain the claims of the Appellants, I agree that the appeal fails, but only in part. I too hereby dismiss the appeal and affirm the decision contained in the ruling of the High Court of Jigawa State in Suit No. JDU/FHR/05/2019 delivered by Honourable Justice A. Y. Suleiman on the 14th of November, 2019.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother O.F. Omoleye, JCA and I am in complete agreement with the reasoning and conclusion reached therein that this appeal is unmeritorious and be dismissed. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
Y. A. H. Ruba, SAN, with him, A. Hussaini and S. S. Shehu. For Appellant(s)
Y. Muntaka – for 1st and 2nd Respondent.
A. M. Usman – for 3rd Respondent. For Respondent(s)
