➥ CASE SUMMARY OF:
Andee Iheme v Chief of Defence Staff (2018) – CA
by “PipAr” B.C. Chima
➥ COURT:
Court of Appeal – CA/J/264/2017
➥ JUDGEMENT DELIVERED ON:
Friday, 10th August, 2018
➥ AREA(S) OF LAW
Jurisdiction;
Fundamental Human Rights claim.
➥ NOTABLE DICTA
⦿ SUBJECT MATTER OF THE CLAIM THAT DETERMINES JURISDICTION
It is trite 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; ABDULHAMID V. AKAR (2006) 5 SCNJ 43. Making it more explicit, the Apex Court in the case of OLORUNTOBA-OJU & ORS. V. DOPAMU & ORS. (2008) LPELR 2595 (SC) P. 19 PARAS. A-B, Per Oguntade JSC, held thus: “The jurisdiction of the Court will be determined by the subject matter of the claim and not the claim relating to the injunction which was an ancillary relief and depend on the primary claim.” — U. Onyemenam, JCA.
⦿ PURPORT OF SECTION 34 OF CFRN – RIGHT TO DIGNITY
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. — U. Onyemenam, JCA.
⦿ WHERE SUBJECT MATTER OF FUNDAMENTAL HUMAN RIGHT APPLICATION IS WITHIN FHC, STATE HIGH COURT HAS NO JURISDICTION
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. — U. Onyemenam, JCA.
⦿ FUNDAMENTAL HUMAN RIGHT STANDS ABOVE THE ORDINARY LAWS OF THE LAND
I will reiterate that 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 when 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. These rights are so jealously guarded that no citizen can be shut out from seeking redress when his fundamental right has been allegedly breached unless he suffers any constitutional disability like when he is sentenced to flogging or hard labour by a Court of competent jurisdiction. — U. Onyemenam, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Uchechukwu Onyemenam, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. Micah.
⦿ FOR THE RESPONDENT
Mr. O. M. Atoyebi
Mr. T. A. Gazali
➥ CASE HISTORY
The Appellant (as Plaintiff) vide the Writ of Summons filed on 16th September, 2011 claimed the following:
a) A declaration that the act of brutalization of the Plaintiff by the Defendants’ men, officers and agents is illegal, unlawful, unconstitutional and a gross violation of the Fundamental Human Rights of the Plaintiff. An Order of this Honourable Court directing the Defendants to render public apology to the Plaintiff in two National Dailies.
b) An order directing the Defendants to pay all the medical bills and all other expenses incurred by the Plaintiff.
c) An order of this Honourable Court directing the Defendants to pay to the Plaintiff the sum of N500,000,000.00 (Five Hundred Million Naira) only, as general damages for the pain, anguish, physical and psychological torture and embarrassment inflicted on the Plaintiff by the men, officers and agents of the Defendants.
d) Cost of this action.
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 insult, beat, torture and cruelly brutalize the Appellant and his wife. That they only stopped when the Appellant fainted. Hence the Appellant instituted this action at the trial Court in order to seek redress for the violation of his Fundamental Human Right.
On the part of the Respondents, they filed their Statements of Defence at the lower Court. The 2nd and 3rd Respondents vide a Motion on Notice dated 10th January, 2013 and filed same day objected to the jurisdiction of the trial Court. In response, the Appellant filed a Counter Affidavit and Written Address in opposition to the motion. The Motion was argued on 5th May, 2016 and Ruling delivered on 16th December, 2016. The trial Court in granting the said Motion on Notice declined jurisdiction to entertain the Appellant’s case.
➥ ISSUE(S) & RESOLUTION
[APPEAL ALLOWED]
I. Whether the Learned Trial Judge was right to decline jurisdiction to entertain the Appellant’s case?
RULING: IN APPELLANT’S FAVOUR.
A. From the foregoing and from paragraph 50 of the Appellant’s claim, 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. 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). For what I have said, I hold that the learned trial Judge was wrong to hold that the Appellant’s action was on tort.
B. 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. I hold 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.
C. 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). It follows therefore and I so hold 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. I resolve the sole issue in favour of the Appellant.
.
.
.
✓ DECISION:
“In conclusion, I find merit in the appeal. Appeal No: CA/J/264/2017, hereby succeeds and the same is allowed. I set aside the decision of the Federal High Court in Suit No: FHC/ABJ/CS/799/2011 delivered on 16th December, 2016. I make Order remitting the case file in Suit No: FHC/ABJ/CS/799/2011, to be tried on its merits by another Judge. I make no order as to costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Order II Rule 2 of the FREP 2009 Rules provides that: 1. “An application for the enforcement of the Fundamental Right may be made by any originating process mode accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.”
➥ REFERENCED (CASE)
⦿ FUNDAMENTAL HUMAN RIGHT CLAIM HINGED ON SUBJECT MATTER OUTSIDE FHC JURISDICTION, THE FHC LACKS JURISDICTION
The Supreme Court in ADETONA V. IGELE GENERAL ENTERPRISES LTD. (2011) 7 NWLR (PT. 1247) PG 542 at page 543 held: “Where a person’s fundamental right is breached, being breached or about to be breached, that person may apply under Section 46(1) to the Judicial Division of the Federal High Court in the State or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federation, or the State or the Federal Capital Territory. However it should be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus, fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court.”
Furthermore, the Supreme Court in the most explicit terms interpreted Section 46(2) of the Constitution at P.564, para. E; F, thus: “On Jurisdiction of the Federal and State High Court over action for enforcement of fundamental rights – A High Court of a State lacks Jurisdiction to entertain matters on Fundamental Rights, although brought pursuant to Section 46(2) of the Constitution, where the alleged breach arose from a transaction or subject matter which falls within the exclusive Jurisdiction of the Federal High Court as provided by Section 251 of the Constitution.”
⦿ EXCLUSIVE JURISDICTION IS ON FHC WHERE ANY OF ITS AGENCIES IS A PARTY
ADEGBITE & ANOR. V. AMOSU (2016) LPELR 40655 (SC); wherein it was held that: “The Constitution of the Federal Republic of Nigeria, 1999 (as amended) has conferred exclusive jurisdiction on the Federal High Court in a matter in which the Federal Government or any of its agencies is involved. (Section 251(1) (p), (q), (r) and (s).” Per Ibrahim Tanko Muhammad, J.S.C (p. 16).
⦿ WHERE A PARTY IS A FEDERAL GOVERNMENT AGENCY, THE FHC THAT HAS JURISDICTION
In the case of INEGBEDION V. SELO-OJEMEN & ANOR. (2013) LPELR – 19769 (SC); the Apex Court held: “The effect of Paragraphs (p), (q) and (r) of Section 251 (1) of the 1999 Constitution is to vest exclusive jurisdiction on the Federal High Court over all civil causes and matters in which the Federal Government or any of its agencies is a party. See NEPA V. EDEGBERO (2002) 103 LRCN 2280 at 2281 2282. The provision to Section 251 (1) of the 1999 Constitution does not in any way detract from the exclusive jurisdiction conferred on the Federal High Court by virtue of Section 251 (1) (p), (q) and (r). Consequently the proviso cannot apply.” Per Stanley Shenko Alagoa, J.S.C. (Pp 13 -14 para F – B).
Furthermore the Supreme Court went on to state that: “The law is unequivocally stated by the 1999 Constitution [as amended] in Section 251 (1) (p), (q), (r) and by this Court that where in a matter, one of the parties is the Federal Government or any of its Agencies, it is only the Federal High Court that has exclusive jurisdiction. A State High Court lacks jurisdiction to entertain such a matter. See: NATIONAL ELECTRIC POWER AUTHORITY V. EDEGBERO (2002) 18 NWLR (part 789) 79.” Per Ibrahim Tanko Muhammad, J.S.C (p. 15, paras A – B).
➥ REFERENCED (OTHERS)
