Whether for an action to be brought under the Fundamental Rights Enforcement Rules, the breach of the fundamental right alleged must be the principal claim? #
MBA & ORS V. I.G.P & ORS (2020) LPELR-51742(CA) #
“Now, the marrow of the appellants’ chief agitation, indeed the foremost on the killer issue, is pegged on the lower Court’s declination to entertain their suit, which was commenced under the canopy of fundamental rights procedure, on the footing of want of subject matter jurisdiction. In reaching at the ultimate finding, the lower Court was highly influenced by the defence, erected by the respondents, that the appellants’ claimed rights and main reliefs were incidental and outside the firmament of fundament rights procedure. The respondents greeted the appeal with the same defence before this Court. It is trite and elementary law that where the main/primary right/claim is not a fundamental right, or where a fundamental right is an ancillary to another claim, then it is improper to seek relief in a Court under the sanctuary of fundamental right procedure as such a situation impinges on the jurisdiction of the Court, see Sea Trucks (Nig.) Ltd. v. Anigboro (supra); WAEC v. Adeyanju (supra); Tukur v. Govt., Gongola State (1989) 4 NWLR (Pt. 117) 517; Jack v. UNAM (2004) 5 NWLR (Pt. 865) 208; Amale v. Sokoto Local Govt. (2012) 5 NWLR (Pt. 1292) 181; Emeka v. Okoroafor (2017) 11 NWLR (pt. 1577) 410, Nwachukwu v. Nwachukwu (2018) 17 NWLR(pt. 1648) 357.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 13 – 14 Paras B – B)
OLIVER V. PRO-LOVE VENTURES LTD & ORS (2022) LPELR-56543(CA) #
“The general rule is that when an application is brought under the Fundamental Rights (Enforcement Procedure) Rules 2009, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental right or securing the enforcement thereof should be the main claim and not an anciliary claim. Thus, enforcement of fundamental right or securing the enforcement thereof should be the bedrock of the applicant’s claim as presented, be the principal or fundamental claim and not an accessory claim. See THE FEDERAL MINISTER OF INTERNAL AFFAIRS & ORS V SHUGABA ABDURAHMAN-DARMAN (1982) 2 NCLR 915, TUKUR V GOVT. OF TARABA STATE & ORS (1997) LPELR-3273 (SC) and NWACHUKWU V NWACHUKWU (2018) LPELR-44696 (SC). However, where the main or principal claim is not the enforcement or securing the enforcement of fundamental right, the jurisdiction of the Court cannot be properly exercised as it will be incompetent.” Per MUHAMMED LAWAL SHUAIBU, JCA (Pp 9 – 10 Paras E – C)
INCORPORATED TRUSTEES OF DIGITAL RIGHTS LAWYERS INITIATIVE & ORS v. NIMC (2021) LPELR-55623(CA)
“The point must be stressed that at the point of determining whether a suit discloses a cause of action under the fundamental rights procedure, the principal complaint must relate to infringement of any of the fundamental rights provided in Chapter IV of the CFRN, 1999.” Per ABBA BELLO MOHAMMED, JCA (Pp 37 – 38 Paras F – A)
HUMAN RIGHTS & EMPOWERMENT PROJECT LTD/GTE v. PRESIDENT OF FRN & ORS (2022) LPELR-58230(CA)
“In law, for an action to be valid to be commenced by means of an Application for the enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), the principal claim or relief or cause of action must be one founded on or is for the enforcement of any of the fundamental right as guaranteed by Chapter IV of the Constitution of Nigeria 1999 (as amended). It is only and only then that such a claim can be commenced under the Fundamental Right (Enforcement (Procedure) Rules 2009, as anything otherwise such a claim would be incompetent if commenced under the Fundamental Right (Enforcement (Procedure) Rules 2009. See Alhaji Umaru Abba Tukr V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA), Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA).” Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 35 – 36 Paras F – D)
Whether Joint Applications can be Filed by more than One Person under the Fundamental Rights Enforcement Procedure Rules #
There are conflicting decisions on this point. For example see the decisions in CHIEF OF NAVAL STAFF ABUJA & ORS V ARCHIBONG & ANOR (2020) LPELR 51845 (CA), CIVILIAN JTF & ORS V. ABDULLAHI & ORS (2020) LPELR-51480(CA), C.O.P., KADUNA STATE POLICE COMMAND & ANOR V. DAUDA & ORS (2020) LPELR-51412(CA) where the Court held joint applications to be incompetent and therefore struck them out.
The case below is however instructive on the issue as it represents the contrary position that allows joint applications –
INCORPORATED TRUSTEES OF DIGITAL RIGHTS LAWYERS INITIATIVE & ORS v. NIMC (2021) LPELR-55623(CA)
“… I would still, even if perfunctorily, consider the legal position on joint applicants in an application for the enforcement of fundamental rights. There has been a good number of conflicting decisions of this Court on the point, the most recent decisions which I was able to find being GOVT OF ENUGU STATE vs. ONYA (2021) LPELR – 52688 (CA) delivered by the Enugu Division on 28th January, 2021, which held that joint applicants can bring an application to enforce fundamental rights. Au contraire, in AEDC vs. AKALIRO (2021) LPELR – 54212 (CA) which was delivered by the Makurdi Division on 31st March, 2021, it was held that an application by joint applicants was incompetent. The right to seek redress for evisceration of fundamental rights is by Section 46 (1) of the 1999 Constitution vested in any person. The said stipulation reads: “Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” See also Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which is similarly worded for any person to seek redress. The critical question is whether the phrase any person as used in the provision can be construed to include more than one person or whether it is limited to only one person. Where it is wide enough to include more than one person, then it necessarily follows that joint applicants can be bring an application but where it cannot be so construed then an application by the joint applicants will be incompetent. Let me hasten to state that even if the phrase any person denotes singular, by Section 14 of the Interpretation Act, in construing enactments, words in the singular include the plural and words in the plural include the singular. See COKER vs. ADETAYO (1996) 6 NWLR (PT 454) 258 at 266, UDEH vs. THE STATE (1999) LPELR (3292) 1 at 16-17 and APGA vs. OHAZULUIKE (2011) LPELR (9175) 1 at 24-25. Furthermore, the adjective employed in the provisions of Section 46 (1) of the 1999 Constitution and Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 is any. It qualifies the noun, person. The Merriam-Webster Online Dictionary defines the word any as an adjective which could be one or more, an undetermined number and when used as a pronoun, the word any can be singular or plural in construction. See also the online dictionary, Dictionary.com. So the word any and the phrase any person cannot be construed as referable and restricted to an individual. No. It conduces to more than one individual. In the circumstances, it is my considered and informed view that in so far as the applicants have a common grievance and common interest, and that it is on the same factual situation that they predicate the evisceration of their fundamental rights, they can bring a joint application for redress. It is for the foregoing reason and the more elaborate and comprehensive reasoning and conclusion in the leading judgment of my learned brother, that I avow my concurrence with the conclusion in the leading judgment that joint applicants can bring an application for the enforcement of their fundamental rights. My learned brother, Abba Bello Mohammed, JCA, referred to the decision of the Supreme Court in the cases of DIAMOND BANK PLC vs. OPARA (2018) 7 NWLR (PT 1617) 92 and FIRST BANK OF NIG. PLC vs. A- G FEDERATION (2018) 7 NWLR (PT 1617) 121, where joint applications for enforcement of fundamental rights were favourably considered and compensation awarded by the apex Court. By all odds, the question of the competence of the action having been brought by joint applicants was never a live issue in the appeal before the Supreme Court, so it made no pronouncement, whether directly or obliquely, in that regard. Howbeit, a question as to whether joint applicants can maintain an action for the enforcement of fundamental rights, is a question which goes to the competence of the action and a fortiori, the competence of the Court to entertain the action, since it is a contention that the action was not initiated by due process of law. See MADUKOLU vs. NKEMDILIM (1962) LPELR (24023) 1 at 10. So, by parity of reasoning or analytical reasoning, it seems to me that the Supreme Court would have made the pronouncement, for good order sake, if the action was incompetent on account of having been initiated by a joint application, instead of proceeding to award compensation in favour of the joint applicants as it did in the said cases, if the actions were otherwise incompetent.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 67 – 70 Paras E – D)
From the lead judgment
“…I have gone through the cases of KPORHAROR’S case (supra) and UDO’s case (supra), which were relied upon by the trial Court in the above decision. As rightly contended by the learned Counsel for the Appellants, even though the case of KPORHAROR (supra), was instituted under the Fundamental Rights (Enforcement Procedure) Rules, 2009, the Court considered the provisions of the 1979 Fundamental Rights (Enforcement Procedure) Rules in determining that joint applications cannot be brought in fundamental rights enforcement actions. In so doing, this Court held at pages 8 – 13, paras. F – A, as follows: “An action under the Fundamental Enforcement Procedure Rules is a peculiar action. It is a kind of action which may be considered as “Sui Generis” i.e. it is a claim in a class of its own though with a closer affinity to a civil action than a criminal action. The available remedy by this procedure is to enforce the Constitutional Rights available to citizens which had been contravened by another person or persons. Fundamental Rights are so basic and inalienable to every man that they have to be enshrined directly in the Constitution. Under the 1999 Constitution of the Federal Republic of Nigeria (as amended) the rights are preserved in Chapter IV i.e. four. See – RAYMOND S. DONGTOE VS CIVIL SERVICE COMMISSION, PLATEAU STATE & ORS (2001) 4 SCNJ Page 131. The Fundamental Rights (Enforcement Procedure) Rules, 1979 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 1979 Rules that guide the conduct of proceedings of all actions to enforce Rights. 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 IKWECHEIGH (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 or 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. The cases relied upon by Counsel for the Respondents are not relevant because the issue of competence of the action as a result of multiple Applicants did not arise in those cases. The position that more than one Applicant cannot competently bring an application under the Fundamental Right Proceedings is further strengthened by the provision of Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which provides that – “in case several applications are pending against several persons in respect of the same matter or on the same grounds, the applications may be consolidated.” The word “may” used is permissive. What it means is that separate applications have to be filed first before they may be consolidated by an order of the Court if necessary. And I am of the view that pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, filing separate applications is a condition precedent to an order of consolidation.” Interestingly in UDO’s case (supra), this Court even after noting that the 2009 Fundamental Rights (Enforcement Procedure) Rules have liberalized the enforcement procedure by conferring locus standi on civil societies to file actions on behalf of victims of rights violations still held as follows: The way the 2009 Enforcement Procedure Rules introduced liberality must be the focus of the Court to enable us adopt purposive interpretation of the rules and advance the interest of justice to the victims of fundamental right violations in Nigeria…. In the 2009 Fundamental Rights (Enforcement Procedure) Rules, there is not joinder provision… But in a situation such as in the instant case, the act complained of is the act of arrest and detention without bail and without an arraignment in Court for any known offence I still believe in the circumstance that the Court in the interest of justice and convenience can allow the parties to file their complaint together for the enforcement of their fundamental rights. But the Court still proceeded to rely on the decision based on the FREP Rules of 1979 made in KPORHAROR’s case, to conclude that: The decision of this Court in Kporharor’s 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. As rightly pointed out by the learned Counsel for the Appellants, the decision in UDO v ROBINSON (supra), relied on the earlier decision of this Court in KPORHAROR v YEDI (supra), which based its decision on the 1979 FREP Rules, this case, which is clearly brought under the FREP Rules, 2009, is distinguishable. There is no doubt that in Section 46(1) of the 1999 Constitution which grants right of action in fundamental rights enforcement it used the singular language. The Section used the words “Any person who alleges…” However, it is trite law of interpretation of statutes that words in the singular which are used in a statute are interpreted to include the plural and words in the plural to include the singular. In interpreting Section 215 of the Criminal Procedure Act, the Supreme Court applied Section 14 of the Interpretation Act in the case of UDEH v THE STATE (1999) LPELR-3292(SC), and the Court, per His Lordship Iguh, JSC, held at pages 16 – 17, paras. F – A, as follows: …Section 14 of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 which stipulates as follows “In an enactment – (a) … (b) words in the singular include the plural and words in the plural include the singular.” It is thus clear, on the application of Section 14(b) of the Interpretation Act, that no violence can be done to the provisions of Section 215 of the Criminal Procedure Act if the word “persons” is read into the word “person” therein used.” Specifically, for fundamental rights proceedings, the preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009 which is the Rules made pursuant to Section 46(3) of the 1999 Constitution, had taken into consideration this basic rules of interpretation and had provided in Paragraph 3(c) of the Preamble that: (c) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following: (i) Anyone acting in his own interest; (ii) Anyone acting on behalf of another person; (iii) Anyone acting as a member of, or in the interest of a group or class of persons; (iv) Anyone acting in the public interest; and (v) Association acting in the interest of its members or other individuals or groups. From the above provisions of the 2009 FREP Rules and the Supreme Court decision on interpretation of statutes in UDEH v THE STATE (supra), it is expressly clear that it is not only individuals that can institute an action for enforcement of fundamental rights. As rightly contended by the learned Counsel for the Applicants, the approach of the Courts has generally been to give vent to the intendment of the Fundamental Rights (Enforcement Procedure) Rules, 2009, to the effect that several parties may institute fundamental rights proceedings provided the basis of the complaint arose from the same cause of action. This position has been given vent by the recent decision of this Court in the case ofOLUMIDE BABALOLA v AGF (2018) LPELR-43808(CA) where Ikyegh, JCA held at pages 12 – 14, paras, D – B as follows: The issue of standing to sue was widened by the Supreme Court in Fawehinmi v. Akilu (supra) in 1987 after Adesanya (supra) was decided in 1981 that “it is the universal concept that all human beings are brothers assets to one another” especially in this country where the socio cultural concept of ‘family’ includes nuclear family or extended family which transcends all barriers (to paraphrase Eso, J.S.C, in Fawehinmi v. Akilu (supra). Then in Fawehinmi v. The President (supra) Aboki J.C.A., held inter alia that – “…since the dominant objective of the rule of law is to ensure the observance of the law, it can best be achieved by permitting any person to put the judicial machinery in motion in Nigeria whereby the citizen could bring an action in respect of a public derelict. Thus, the requirement of locus standi becomes unnecessary in constitutional issues as it merely impede judicial functions.” (My emphasis). To demonstrate that public spirited litigation in fundamental rights related cases is now the norm, the FREPR 2009 made pursuant to Section 46(3) of the 1999 Constitution and thus clothed with constitutional force expanded the horizon of locus standi in fundamental rights cases in paragraph 3(e) thereof thus – “3(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organizations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following: (i) Anyone acting in his own interest; (ii) Anyone acting on behalf of another person; (iii) Anyone acting as a member of, or in the interest of a group or class of persons; (iv) Anyone acting in the public interest, and (v) Association acting in the interest of its members or other individuals or groups. It must also be pointed out that whilst the decision of this Court in KPORHAROR’s case (supra) which was followed in UDO v ROBSON (supra) were essentially based on the 1979 FREP Rules, the decision in OLUMIDE BABALOLA v AGF & ANOR (supra), was based on the 2009 FREP Rules, which is the extant applicable procedure for enforcement of fundamental rights actions. I observe that in refusing to apply the decision of this Court in BABALOLA v AGF (supra), the learned trial judge had at pages 92 – 93 tried to make a distinction between a right to sue and the procedure adopted in bringing an action. With due respect to the learned trial judge, I do not agree with that distinction in respect of this case. The issue clearly deals with whether or not there is a collective right to institute an action under the fundamental rights enforcement procedure rules. It is therefore one which deals squarely with the interpretation of the right of action in fundamental rights enforcement as provided in Section 46(1) of the 1999 Constitution and as furthered by the Fundamental Rights (Enforcement Procedure) Rules, 2009 made pursuant to Section 46(3) of the same Constitution. As shown above, unlike the 1979 FREP Rules, the 2009 FREP Rules has in line with the trite law of interpretation expanded the right of action in fundamental rights proceedings to include joint action by several persons provided the basis of the complaint arose from the same cause of action. Beyond this Court, the Supreme Court had tacitly in its recent decisions countenanced joint applications in fundamental rights cases. In DIAMOND BANK PLC v OPARA & 2 ORS (2018) LPELR-43907(SC), which is an appeal an appeal arising from a fundamental rights joint application initiated at the Federal High Court, Port Harcourt, the Supreme Court upheld the judgment of this Court which granted the prayer of the Applicants. Also in FBN PLC & 4 ORS v AG FEDERATION (2018) 7 NWLR (Pt. 1617) 121, the Apex Court upheld the judgment of this Court in joint application by 5 applicants for enforcement of fundamental rights and even awarded compensation to the 5th Applicant which this Court omitted to award. It is instructive to state that those decisions of the Apex Court have invariably reinforced the preamble of the FREP Rules, 2009 which allows for joint fundamental rights applications, as well as the provisions of Section 14 of the Interpretation Act which requires that in the interpretation of Section 46(1) of the 1999 Constitution, the singular word “any person” should be construed to include “persons”. I need to add that no set of cases foster public confidence in the judiciary as an adjudicatory system of redress, than fundamental rights cases. This is primarily because most human rights enforcement cases are complaints by seemingly “weak” individual members of the public against apparently “powerful” state actors. For this reason, a narrow interpretation of Section 46 of the 1999 Constitution and the FREP Rules, 2009 that springs which restricts access in fundamental rights proceedings to only individuals will unduly retard the objective of ensuring the promotion and due observance by all, of the fundamental human rights so constitutionally guaranteed. It is for all the foregoing reasons that I resolve the third issue in favour of the Appellants and hold that the trial Court was wrong to have relied on the decisions of this Court in UDO v ROBSON (supra) and KPORHAROR v YEDI (supra) to hold that a joint application cannot be validly brought under the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009.” PER ABBA BELLO MOHAMMED
