Alhaji Lawwani Zakari V. Inspector-general of Police & Anor (2000)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE,J.C.A.

This is an appeal against the ruling of Oniyangi J. of the High Court of Justice F.C.T., Abuja – now lower court – dismissing the plaintiff/applicant’s application for leave to enforce his Fundamental Rights. The applicant before that court is henceforth referred to as the appellant.

Facts leading to the above application appeared to be straight forward. The appellant, a business man, was alleged to have been arrested on 10/3/97 by men of the Criminal Investigation Department Force Headquarters of the Nigerian Police Force, Abuja and subsequently detained. The arrest was sequel to a formal complaint, by one Wale Opeyemi from Lagos in 1995. The complainant claimed to be the appellant’s business partner to whom the appellant was indebted to the tune of N922,000.00 and had paid N200,000.00 before the said Opeyemi used the Police to collect the balance.

The appellant then filed a motion Exparte before the lower court to enforce his Fundamental Rights pursuant to the Fundamental Rights Enforcement Rules Cap 62, Laws of the Federation of Nigeria 1990 seeking for the following orders:

1. An order for leave of this Honourable Court to enforce the Fundamental Rights of the applicant.
2. An order for the absolute release of the applicant or in the alternative an order for the release of the applicant on bail.

The appellant filed a seven-paragraph affidavit in support, sworn to by one Haruna Mustapha. He relied on all the paragraphs especially paragraphs 3, 4, 5 and 6 thereof. He also filed statement, grounds and affidavit of urgency. I reproduce paragraphs 3 – 6 thus:-

3. That I was informed by the application on 28/3/97 at about 1 p.m. at the Force Headquarters, Abuja and I verily believe same as follow:-
4. That the appellant was arrested on 10/3/97 by C.I.D men from C.I.D. Force Head Quarters, Abuja.
5. That since his arrest, he has been detained at the Force Headquarters from 10/3/97 up to today 23/10/97, the day of making this application a period of 226 good days.

iii. That the relations and counsel for the applicant have made several frantic and systematic efforts to get him released on bail but the police have refused to co-operate or grant same.

1. That the police appear to have no interest in releasing the applicant on bail or charging him to any competent court of jurisdiction.
2. That the police intend to keep him (applicant) in custody for a very long time unless the applicant agree to do what they want him to do.
3. That it is only this Honourable court who can intervene in this matter to save the applicant from the shackles of police brutality, inhumanily and prejudicial indiscretion.
4. That I was informed by the applicant on the date and the time first above mentioned and I verily believed same to be true that:-

(a) The applicant formed a business partnership with one Mr. Wale Opeyemi at Lagos in 1995.

(b) That Mr. Wale Opeyemi contributed the sum of N922,000.00 towards the partnership.

(c) That for no good reason, Mr. Wale Opeyemi decided to pull out of the partnership unilaterally and demanded the refund of his (Wale’s) contribution at a very short notice.

(d) That the applicant refunded to Wale the sum of N200,000.00 (Two Hundred Thousand Naira) and made further arrangements to refund the rest since Wale Opeyemi’s sudden “U Turn” was not expected.

5. That I was informed by the applicant at the date and time mentioned above and I verily believed same to be true that the applicant had travelled to Abuja from Kano in order to transact business of contract with the Federal Government when Mr. Wale Opeyemi, his former partner caused his arrest by men of the Force Headquaters, C.I.D. Zone 10 Abuja.
6. That I was informed by the applicant and I verily believed same to be true that the Police from Force Headquarters, Abuja since his arrest have grossly trampled upon his fundamental rights and that there is the need to enforce same before this Honourable Court.

According to the affidavit in support, the applicant was detained for a period of 226 days. The Appellant’s therefore sought the following reliefs as follows:-

1. An order for the leave of the Honourable Court to enforce the fundamental rights of the applicant.
2. An order for the absolute release of the applicant or in the alternative an order for the release of the applicant on bail.
3. An order restraining the respondents, their agents and servants from harassing, threatening by any means, embarrassing the applicant or forcing the applicant to enter into any contract or payment proposal to one Wale Opeyemi.
4. The sum of N10 Million being damages for the unlawful arrest and detention of the applicant.
5. An order releasing the applicant’s motor vehicles seized and detained by the respondents without any cause or lawful justification Mercedes Benz 200. Registration No. Lagos AE 209 Ikorodu. The motion Ex parte was about to be moved on 26/1/97 when the learned judge of the lower court Oniyangi J. raised suo motu the issue of jurisdiction, as to whether his court would have power to entertain the issue of enforcement of the Fundamental Rights of a citizen in view of the provisions of Decree No. 107 of 1993. He then, rightly in my view, directed that the appellant shall put the other party on Notice so that both counsel can address him on that issue. Before the counsel to both parties could comply with the courts order, the respondents filed a Notice of preliminary objection challenging that the court has no jurisdiction to entertain the application in view of the combined effect of the provisions of Section 230 (1) (S) of Decree No. 107 and Section 42 of the 1979 Constitution as amended. That the jurisdiction to entertain application for leave to enforce the Fundamental Rights of individual has been exclusively vested on the Federal High Court.

Consequently, the lower court heard arguments on the preliminary objection on 3/12/97 where both counsel addressed the court. In a considered ruling delivered on 8/12/97, Oniyangi J. held that his court, High Court of Justice FCT Abuja, has no jurisdiction to entertain the matter. Its power to so entertain has already been taken away and vested in the Federal High Court. He then proceeded to dismiss the application before him. Aggrieved by the decision of the lower court the appellant lodged an appeal in this court and filed a Notice of Appeal containing the following three grounds of appeal:-

Ground 1

The trial Judge misdirected himself in law when he held that by virtue of Section 230(1)(s) of Decree 107 of 1993, the power of the High Court of a State which the High Court FCT, Abuja also shares under Section 42 of the 1979 constitution as it concerns the Enforcement of Fundamental Rights has been taken away and vested exclusively on the Federal High Court.

Particulars of Misdirection

1. Decree 107 of 1993 preserves S. 42 of the 1979 constitution.
2. S.230(1) (s) dues not relate to enforcement of fundamental right.
3. Both federal and state High courts share concurrent power on enforcement of fundamental rights.

Ground 2

The trial court erred in law when it held that the Federal High Court has exclusive jurisdiction on matters touching on the Enforcement of Fundamental right as entrenched under S.42 of the 1979 constitution as amended.

Particulars of Error

1. By virtue of S.230 (1) (s) of the said decree 107 of 1993, it relates only to an action for declaration and injunction.
2. That Fundamental Rights procedure is a creation of statute and it not restricted to declaratory action and injunction which are common law and equitable remedies respectively.
3. The provision of the said S.230(1)(s) contradicts the main head and is of no effect.

Grounds 3

The learned trial Judge erred in law by dismissing the Suit/application on the ground that it lacks jurisdiction.

Particulars of Error

1. Only the issue of jurisdiction was canvassed as a preliminary point before the court and not the while case on merit.
2. That suit ought to have been struck out instead of being dismissed.

Pursuant to the rules of this court, parties through their respective counsels filed and exchanged briefs. On 25/1/2000, the day the appeal was fixed for hearing, none of the parties or their counsel was in court. The Registrar of this court drew the attention of the court to the effect that both parties have duly filed their respective briefs and both were duly served with hearing notices for today fixture. We decided to adopt their respective briefs for them and the appeal before us was taken as heard under Order 6 Rule 9(5) of the Court of Appeal Rules 1984 as amended.

The appellant’s briefs, dated 3rd April, 1998 filed on 6th day of April, 1998, in it, two issues were distilled for the consideration of the appeal. While the respondent’s brief dated 4th June, 1998 was filed on the same date. He formulated three issues for our determination of this appeal. The two issues formulated by the appellant could be found on page 3 of his brief as follows:-

1. Whether by virtue of S. 230 (1)( s) of Decree 107 of 1993, and S.42 of the 1979 Constitution, the jurisdiction of the High Court of FCT Abuja as it concerns the enforcement of Fundamental Rights has been taken away and vested exclusively on the Federal High Court.
2. Whether the order of dismissal made by the lower court was the appropriate order after holding that it had no jurisdiction.

On their part, the respondents on page 2 of their brief, postulated the following three issues as arising for determination.

1. Whether by virtue of S.230(1)(s) of Decree 107 of 1993 and S.42 of the 1979 Constitution, the jurisdiction or the High Court of Federal Capital Territory Abuja as it concerns the enforcement of Fundamental Rights has been taken away and vested exclusively on the Federal High Court.
2. Whether the order of dismissal made by the lower court was the appropriate order after holding that it had no jurisdiction.
3. Whether the reliefs sought by the appellant, inspite of its wordings did not amount to injunctive reliefs so as to bring same within the purview of S.230 (1)(s) of the Constitution’s amended by Decree 107 of 1993.

I wish to state that since the issues as formulated by the parties are more or less the same. I will adopt, for convenient reasons, the issues as set down by the appellant in consideration this appeal. Now to the consideration of the issues:-

Issue No.1

“Whether by virtue of S.230(1)(s) of Decree 107 of 1993 and Section 42 of the 1979 Constitution, the jurisdiction of the High Court of Justice FCT Abuja as it concerns the enforcement of Fundamental Rights has been ousted and vested exclusively on the Federal High Court.”

The learned counsel for the appellant Chief A. A. Izinyon, SAN in his brief argued forcefully that the lower court has the jurisdiction to entertain the matter relating to the enforcement of Fundamental Rights. He relied on Section 42 of the 1979 Constitution of the Federal Republic of Nigeria which provides thus:-

“(1) 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.

(2) Subject to the provisions of this constitution, a High Court shall have jurisdiction to hear and determine any application made to it in pursuance of the provision of this section and may make such order, issue such writs and given such direction as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person who makes the application may be entitled under this chapter.”

(italics mine for emphasis)

He further contended that the said Section 42 of the Constitution of the Federal Republic of Nigeria 1979 as amended, herein called 1979 Constitution, was actually presented. He referred this court to schedule one of the said Decree 107 of 1993. With regard to Section 230(1)(s) of the Suspension and Modification Decree 107 of 1993 the learned SAN, submitted that the said section is quite in applicable to the present action, as this action does not relate to any executive and administrative action of the agents of the Federal Government. He therefore submitted that both the State High Court and the High Court, Abuja have concurrent jurisdiction with the Federal High Court on the issue of enforcement of Fundamental Rights.

On the contrary, the learned counsel to the respondents submitted, inter alia, though the jurisdiction of the State High Court including that of the High Court of the Federal Capital Territory to hear and determine suits involving human right is preserved. However, this preservation had been modified by the extant provisions of Decree 107 supra. He therefore submitted that by virtue of Section 230(1) (s) of Decree 107 supra since the actions complained of is that of an agent of the Federal Government, the proper venue is Federal High Court.

In the resolution of this issue, it is necessary to critically look at the applicable laws and relate same to the subject matter in this case. Section 42 of the 1979 Constitution which I reproduced earlier on, it specifically and un-equivocally provided for the much needed venue for the enforcement of Fundamental Rights in cases of breach.

Pursuant to the provisions of Section 42 (3) of the 1979 constitution, the Chief Justice of Nigeria made rules for the enforcement of Fundamental Rights i.e. “Fundamental Rights (Enforcement Procedure) Rules 1979, wherein by the provisions of Order 1 Rule 2, court was defined as “Court means the Federal High Court or the High Court of a State.” It is pertinent to state that it is trite that rules made pursuant to the Constitutional Provisions also possess constitutional flavour.

It is equally important to observe that both learned counsel agreed, on authorities, that these provisions of section 42 supra were preserved by Decree 107 of 1993. It follows therefore that the unsuspended provisions of the 1979 Constitution i.e Section 42 thereof and Decree 107 of 1993 operates simultaneously as the organic laws of the country. See the case of the Military Governor of Ondo State and Anor. v. Adewunmi (1988) 6 SCNJ 151 at 157; (1988) 3 NWLR (Pt.82) 280 SC where the Supreme Court per Nnaemeka-Agu JSC in the interpretation of Decree 1 of 1984, which is similar to Decree 107 of 1993 held as follows:-

“It appears clear to me that by these provisions, it is the intendment or Decree No. 1 of 1984 that the Organic laws of Nigeria shall be:-

1. Decree No. 1 of the 1984 or any other Decree, and
2. Unsuspended Section of the Constitution of the Federation. It follows from this that whatever is in accord with the above provisions is intended by the Decree but whatever is in conflict with it is unconstitutional.”

That being the case, it is therefore my view that the specific provisions made by the 1979 Constitution and preserved by Decree 107 of 1993 for the enforcement of the 1979 Constitution supra. Moreso, when this section confers original jurisdiction on the High Courts, which has been defined by the provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 as including ‘High Court’ and ‘Federal High Court’. See Nemi v. The State (1994) 10 SCNJ 1 at 20 where the Supreme Court, per Bello CJN, (as he then was) held as follows:-

“The second category of the Fundamental Rights comprise those rights that are enforceable by the High Courts under Section 42 of the Constitution. Because the Constitution Expressly Confers Original jurisdiction for their enforcement on High Courts, this court has no jurisdiction as a Court of first instance over them:’

(Italics mine for emphasis)

I have closely and carefully too considered the provisions of Section 230(1) of Decree No. 107 of 1993 and after serious analysis of it I respectfully arrive at the following conclusions:-

“(1) That the said section does not in any way inhibit the operations of Section 42 of the 1979 Constitution, since in law there can be no repeal of a Constitutional Provisions by implication.

(2) The said Section 230 is a general provisions relating to the jurisdiction of the Federal High Court, while Section 42 of the 1979Constitution relates to a specific jurisdiction for the enforcement or the Fundamental Human Rights provided for in Chapter IV of the 1979 Constitution. The position of the law is that where there are enactments, one making general provisions and the other specific provisions on a subject matter, the specific provisions are construed to be excluded by implication from the general provisions – See the case of Governor of Kaduna State v. Kagoma (1982) 6 S/C 87 at 107-108. Falayi Williams CJN (as he then was) states thus;-

“Before answering this question, I must point out that it is now trite that where there are two enactments, one making general provisions, as in the case of the provisions of Section 2 of the Commission of Inquiry Law (Cap. 25) and the other making specific provisions, as in the case or the provisions of Section 98 of the Local Government Law (No.1 of 1977), the specific provisions are, by implication, excluded from the general provisions.”

See also Section 251 (1) of the 1999 Constitution.

I therefore hold that both the High Court and the Federal High Court have concurrent and contemporaneous jurisdiction to enforce the Fundamental Rights provided for in the constitution in case of a breach. I will men lion in passing that looking close by at the provisions or Section 230(1) (s) of the said Decree 107 of 1993 one will be tempted to agree with the submissions of the learned SAN that the said provisions are ambiguous and equivocal. In that it does not expressly exclude Fundamental right. I therefore resolve this issue in favour of the appellant.

On issue 2 which reads thus:-

“Whether the Order of dismissal made by the lower court was the appropriate Order after holding that it had no jurisdiction:’

It is true that the lower court after holding that its jurisdiction has been ousted and same has been vested exclusively on the Federal High Court proceeded and made a consequential order dismissing the application. His words:-

“In consequence of this therefore, is that the court (sic) disqualifies itself based on lack of jurisdiction and as such the application is accordingly dismissed.”

In dealing with the above issue, learned Senior Advocate of Nigeria appearing for the appellant submitted that the lower court was in grave error to have dismissed the application having declined its jurisdiction. The position of the law, according to him, is clear on this issue. Once a court has ruled that it has no jurisdiction, the consequential order to make is one of striking out and not dismissal. He cites in support Yakubu v. Governor of Kogi State (1997) 7 NWLR (part 511) 66 at 84-85; Oloriode v. Oyebi (1984) 1 SCNLR 390 at 407; and The Road Transport Employers Association of Nigeria v. The National Union of Road Transport Workers (1992) 2 NWLR (Pt.224), 381; (1992) 2 SCNJ 251 at 260.

The respondent on page 5 of their brief contended that courts do not grant prayers not sought by parties, and submitted that whether an order of striking out or dismissal is made, once the court lacked jurisdiction, the appellant could not go back to that court. Either way, the effect of the court decision would have had the same implication.

It is my view that this issue (issue No.2) does not deserve much dissipation and evaporation of energy, the order to make where a court declines jurisdiction in a matter is that of striking out. I rely on the cases of:-

(a) Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (Part 145) 420 at 423 and;

(b) Ezeonu v. Agheze (1991) 4 NWLR (Part 187) 631.

Finally, this issue had been settled by the Supreme Court in the case of Leonard Okoye & Ors. v. Nigeria Construction & Furniture Company Ltd. (1991) 6 NWLR (Pt.199), 501; (1991) 7 SCNJ 365/388-389 per Akpata JSC (of blessed memory) as follows:-

“I now turn to the question of whether the trial court was right to have dismissed the suits of the appellants or whether the majority decision of the Court of Appeal substituting an order of striking out the suits was proper in the circumstances. Although, Order 29 Rule 3 States that the court shall either dismiss the suit or order the defendant to answer the plaintiffs allegation of fact. I am in agreement with Oguntade and Uwaifo JJCA, that the proper Order to make in the circumstance was an order striking out the plaintiff’s suits for lack of jurisdiction. While Rules 1 and 2 of Order 29 are applicable to this case, Rule 3 is inapplicable since the defence of the defendants was that the court had no jurisdiction and the court so found, The reason is that where a court hold that it has no jurisdiction to entertain an action it does not dismiss the action but merely strikes it our. Striking out will enable the plaintiff certain case to file his action in the appropriate court with jurisdiction.

(Italics mine for emphasis).

With due respect, I have nothing more to add to the above pronouncement of the Supreme Court. That court said it all. In the whole, and after considering the third issue formulated by the respondent I hold that this appeal is pregnant with merits. The appeal is accordingly allowed. The decision of the lower court declining jurisdiction is set aside. The case is transferred to another High Court of the Federal Capital Territory Abuja for hearing before another Judge other than Oniyangi J. Costs shall be in the cause.

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Other Citations: (2000)LCN/0712(CA)