No citizen can be shut out from seeking redress for his fundamental right

In the Court of Appeal
In the Jos Judicial Division
Holden at Jos

Respondents
LEAD JUDGMENT DELIVERED BY UCHECHUKWU ONYEMENAM, J.C.A.
FACTS OF THE CASE

The Appellant’s case was that on 18th June, 2011, one Major M. Sule who is an officer of the Nigerian Army, serving at the time with 33 Artillery Brigade, Bauchi, violated the Fundamental Human Rights of the Appellant and his wife by insulting, cruelly beating, torturing and brutalizing them for daring to ask him to allow them drive through a public road which he blocked with the army vehicle he was driving.

He also ordered soldiers under his command to further torture and cruelly brutalize the appellant and his wife.

The soldiers only stopped when the appellant fainted.

Hence the appellant as plaintiff took out a Writ of Summons against the respondents who were the defendants at the Federal High Court, Bauchi Judicial Division seeking redress for the violation of his Fundamental Human Right.

The 2nd and 3rd respondents vide a Motion on Notice objected to the jurisdiction of the Federal High Court.

The learned trial Judge in a considered ruling delivered on 16th December, 2016 granting the said Motion on Notice declined jurisdiction to entertain the appellant’s case.

The appellant being dissatisfied with the ruling of the trial Court appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court considered the appeal on a sole issue for determination:

“Whether the Learned Trial Judge was right to decline jurisdiction to entertain the Appellant’s case.”

COUNSEL SUBMISSIONS

Counsel for the appellant submitted that the learned trial Judge was wrong to have declined jurisdiction to entertain the appellant’s case.

He noted that the basis for the trial Court’s decline of jurisdiction is that the claim of the appellant is on tort and that the Federal High Court lacks the subject matter jurisdiction to determine the appellant’s case.

He submitted that the decision of the learned trial Judge is flawed, as the issue donated for determination in the instant case stems strictly on Fundamental Human Rights of the appellant particularly the rights to Personal Liberty and Dignity of the Human Person.

He referred to the Appellant’s Writ of Summons and the Statement of Claim to argue that the Federal High Court is empowered in law to entertain claims founded on Fundamental Human Rights.

He referred to: P & C.H.S. CO. LTD. & ORS. V. MIGFO (NIG.) LTD. & ANOR. (2012) VOL. 212 LRCN 1; (2012) LPELR-9725(SC), OLORUNTOBA-OJU & ORS. V. DOPAMU & ORS. (2008) LPELR – 2595 (SC) P. 19 PARAS. A-B.

Learned counsel for 1st, 2nd and 3rd respondents in reaction agreed that it is trite law that the Court will look at the plaintiff’s claim in order to determine whether it has jurisdiction to entertain the matter or not.

He also conceded that a succinct look at the reliefs sought by the plaintiff at the trial Court makes it clear that the plaintiff is seeking that the Court should declare that his Fundamental Human Right has been infringed upon.

The learned counsel for the referred respondents however argued that being that the claim of the appellant is for the enforcement of Fundamental Human Right, the procedure through which an aggrieved party who feels that his/her right has been or is likely to be infringed upon is expressly provided for in the FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009.

He submitted that for the appellant’s claim to have been properly instituted, it ought to have complied with the provisions of Order 2 Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009.

He further submitted that the requirements of the law are fundamental to the appellant’s claim and having failed to comply with this provision, the claim is not properly constituted and ought to be struck out.

He cited: Chukwuogor v. Chukwuogor (2006) 7 NWLR (PT. 979) 302; (2005) LPELR-12894 (CA).

The learned counsel further submitted that the jurisdiction of the Federal High Court as in this case is ousted by the provisions of S. 251 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

He contended that even when some of the parties are Federal Government Agencies in a suit, the Court must always look at the subject matter to decide jurisdiction.

Learned counsel for the 4th respondent responded that the trial Court was right to hold that it does not have jurisdiction.

He relied on Section 46 (1) of the Constitution. The learned counsel reproduced Section 46 (2) of the CFRN 1999 which is impari materia with Section 42 of the 1979 Constitution; he referred to the Apex Court’s decision in TUKUR V. GOVERNMENT of GONGOLA (1989) 4 NWLR (Pt. 117) 517; (1989) LPELR-3272 (SC) and submitted on the phrase “subject to” in a statue.

He referred to: GAFAR V. GOVERNMENT Of KWARA NSCQR Vol. 29; (2007) LPELR-8073 (SC) to submit that the Federal High Court, rightly declined jurisdiction on ground that the claim is tortious in nature and tort does not fall within the Jurisdiction of the Federal High Court.

He also reproduced the claim of the appellant at the trial Court to submit that the claim is for torts and not for the Enforcement of Fundamental Rights since direct claim was not made against the respondents but an indirect claim of vicarious liability.

He relied on: RANSOME KUTI V. AGF (1985) 2 NWLR (PT 6); (1985) LPELR – 2940 (SC).

RESOLUTION OF SOLE ISSUE

The Court commenced the resolution of the sole issue by stating the position of the law that it is the claim of the plaintiff that determines the jurisdiction of the Court. P & C.H.S CO. LTD. & ORS. V. MIGFO (NIG.) LTD. & ANOR.(2012) VOL. 212 LRCN 1; (2012) LPELR-9725(SC).

On the question whether the action before the trial Court was that of tort or one seeking to secure the enforcement of the appellant’s fundamental right.

The Court cited YUSUF BUKAR V. THE HON. MINISTER, FEDERAL MINISTRY OF HEALTH GARKI, ABUJA & ANOR. DELIVERED ON 23RD MAY, 2018, Per Onyemenam, JCA thus: “A fundamental right is a right guaranteed in the Nigerian Constitution.

It is a right, which every citizen is entitled to by reason of being a human being unless if a person suffers any of the disabilities set out in the Constitution. ODOGU V. A.G. FEDERATION (2000) 2 HRLRA 82 AT 102; FAJEMIROKUN V. COMM. BANK (NIG.) LTD. (2009) 21 WRN 1.

Fundamental rights stand above the ordinary laws of the land. RANSOME KUTI V. A.G. FEDERATION (1985) 2 NWLR (PT. 6) 211.

There are therefore constitutional provisions and rules of procedures contrived for the enforcement of those rights specifically entrenched in the Constitution.

These rights are so jealously guarded that it is only when a party’s right that has been so breached are such that are well clearly protected by the Constitution that the Constitutional provision can be exploited to remedy whatever wrong the party would have suffered.

TUKUR V. GONGOLA STATE GOVERNMENT (1989) 4 NWLR (PT. 117) 517; NWOKORIE V. OPARA (1999) 1 NWLR (PT. 587) 389; EJEFOR V. OKEKE (2000) 7 NWLR (PT. 665) 363.”

The Court found that the claim of the Appellant is based purely on Fundamental Human Rights, particularly the right to Personal Liberty and Dignity of the Human Person.

The Court held that the learned trial Judge, in holding that the Appellant’s claim is based on tort, failed to take into cognizance, the very nature and elements constituting the Right to Dignity of the Human Person.

The Court further stated that the purport of Section 34 (1) (a) of the Constitution is that no one should be inflicted with intense pain on his body or mind nor subjected to physical or mental cruelty so severe that it endangers his life or health.

Anything amounting to brutalization is synonymous to torture or inhuman treatment and is actionable under the claim for Fundamental Human Rights as provided for by the 1999 Constitution of the Federal Republic of Nigeria (as amended). KALU V. THE STATE (1998) 13 NNLR (PT. 583) @ 531.

From the foregoing and from the appellant’s claim, the Court held that it is clear that the appellant sought for a declaration that his right to personal liberty and human person which is provided for under Chapter IV of the 1999 Constitution, has been violated.

The Court held that this certainly brought the claim of the appellant at the trial Court under the enforcement of fundamental human rights, as other reliefs are merely ancillary to this main relief. EMEKA V. OKOROAFOR (2017) LPELR – 41738 (SC) & UNILORIN & ANOR. V. OLUWADARE (2006); (2006) LPELR-3417(SC).

On the contention that the learned trial Judge has no jurisdiction to entertain the action because it was not Fundamental Rights (Enforcement Procedure) Rules 2009 compliant in that it was brought under a wrong originating process to wit: by writ of Summons.

The Court stated that the commencement and mode of application of enforcement of fundamental rights actions have been stipulated in the 2009 Rules.

From the Rules the Court held that an applicant seeking to enforce his right under Chapter IV of the 1999 Constitution has the option to come by way of Motion, Originating Summons, Writ of Summons or by any other form of commencement of an action in Court accepted by the adjudicating Court.

This is also in consonance with Order 3 Rule 1 of the Federal High Court Civil Procedure Rules 2009.

The Court held that the mode of commencement of the action which is in conformity with Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and Order 3 Rule 1 of the Federal High Court Civil Procedure Rules 2009; having not been rejected by the trial Court was a proper originating process for the commencement of the Appellant’s action for the enforcement of his alleged right guaranteed by the Constitution.

On whether the trial Court was in error to hold that it lacked the subject matter jurisdiction to hear and determine the case. All the counsel relied strongly on the Apex Court’s decision in ADETONA V. IGELE GENERAL ENTERPRISES LTD.(2011) 7 NWLR (PT. 1247) PG 542; (2011) LPELR-159(SC) to support their position.

The Court after reproducing the decision of the Apex Court stated that the seeming import of the judicial authority is that whereas both the State and Federal High Courts have concurrent jurisdiction in the determination of Fundamental Right cases, the phrase “subject to the provision of the Constitution” as embodied under Section 46 (2) demarcated the respective Jurisdictions of the State and Federal High Courts.

In essence, a State High Court cannot for instance rightly and validly determine allegations of breach of Fundamental Rights emanating from acts of Terrorism or Treason and Treasonable felonies, which fall under the jurisdiction of the Federal High Court.

Likewise, a Federal High Court cannot except where circumstances permit, validly determine alleged violation of human rights that arise from torts, rape or armed robbery etc. as the same ordinarily fall within the jurisdiction of the State High Courts.

In conclusion, the Court held that once the Federal Government or any of its agencies is a party in an action where a party seeks to enforce the breach of his fundamental human right, it is of no moment that the aspect of the fundamental human right sought to be secured has a subject matter flavour that only the State High Court seem to have jurisdiction on; the Federal High Court will be the right Court to be approached to hear and determine the question arising from the breach of the citizen’s right. ADEGBITE & ANOR. V. AMOSU (supra).

HELD

On the whole, the Court held that it is the Federal High Court that has the jurisdiction to entertain the appellant’s action.

The trial Court therefore was in error when it held that it lacked the jurisdiction to hear and determine the suit.

The appeal was allowed and the decision of the Federal High Court delivered on December 16, 2016 was thereby set aside.

Appearances:

Y.M. MICAH holding the brief of K. K. IHEME – For Appellant(s)

O.M. ATOYEBI – For 1st – 3rd Respondents

Mr. T.A. GAZALI Chief State Counsel, Federal Ministry of Justice with him, B.A. NAIYEJU Esq. State Counsel and C.A. OKORONKWO Esq. State Counsel – For 4th Respondent

Compiled by Lawpavilion