Barrister John Duru V. Patrick Nwangwu (2006)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, JSC

The Appellants herein had on 14 December 1995 filed at the Federal High Court, Lagos a motion ex parte under the Fundamental Human Rights (Enforcement Procedure) Rules 1979 seeking: (a) leave to apply to the court for the enforcement of their Fundamental Rights as guaranteed by the 1979 Constitution of the Federal Republic of Nigeria (as amended). (b) that the granting of this leave shall operate as a stay of all actions or matters relating to or connected with this complaint until determina-tion of the application. (c) that the motion paper and all the processes in this suit shall be served on all the Respondents within 14 days. The motion was heard and granted by Bioshogun J. on 18 January 1996. Following the leave granted by Bioshogun J. the appellants on 31 January 1996 filed a motion at the Federal High Court, Lagos praying the court for: (a) A DECLARATION that the arrest and detention of the Applications at the Barracks Police Station, Surulere, Lagos and the deten-tion of the 1st Applicant at Bode Thomas Police Station, Surulere, Lagos and Ikoyi Prisons for periods ranging from 2 days to 10 days without justification and the threat of detention or further detention of the Applicants is unconstitutional unlawful, illegal, null and void. (b) AN ORDER restraining the Respondents, their Agents or privies from arresting, re-arresting or detaining the Applicants. (c) AN ORDER directing the Respondents jointly and/or severally to pay to the Applicants damages in the sum of =N=50,000.000 (Fifty million Naira). Upon being served with the processes, the 8th and 9th Respondents (the respondents herein) filed a motion on Notice dated 1st day of April 1996 for an order dismissing or striking out the action as against the 8th and 9th respondents or in the alternative for an order striking out the names of the 8th and 9th Respondents upon the following grounds: 1. The Federal High Court has no jurisdiction to entertain the applicants’ action as constituted against the 8th and 9th Respondents/Applicants. 2. The 8th and 9th Respondents are not proper parties to this suit and the court has no jurisdiction to entertain the action as constituted which joins the 8th and 9th Respondents with the 1st to 7th Respondents. 3. The claim discloses no cause of action against the 8th and 9th Respondents and constitutes an abuse of court process. PAGE| 2 On 19 December 1996 the trial Judge delivered a ruling whereby he dismissed the Respondents’ application. He held that: 1. The Federal High Court had jurisdiction to entertain the matter. 2. The 8th and 9th Respondents are proper parties in that there is a nexus between the 8th and 9th Respondents and the 1st – 7th Respondents particularly as the melancholy of the Applicants was planked on the petition of the 8th and 9th Respondents. 3. The averments in the affidavit in support seem to point to the fact that the Appellants have made a case against the 8th and 9th Respondents. The Respondents’ appeal to the Court of Appeal was allowed. That court held that S.32 of the 1979 Constitution upon which the court could grant remedy to the Appellants had been suspended by Decree 107 of 1993 and therefore the jurisdiction conferred by section 42 of the 1979 Constitution and the Funda-mental Rights Enforcement Rules could not be invoked. The Court of Appeal further held that the Respondents could not be held liable for the arrest and detention of the Appellants and consequently struck off the names of the 8th and 9th Respondents. The Appellants have appealed to this court upon a number of grounds. The Appellants, in their joint brief of argument, have submitted two issues for determination. These are: 1. Whether appellants’ claim in toto is only cognizable under S.32 of the 1979 Constitution and whether the said section had been suspended by Act No. 107 of 1993? (otherwise known as Constitution (Suspension and Modification) Decree 1993). 2. If the answers to the question above are in the negative, whether it was proper for the lower court to have made definitive pronouncements on the substantive case upon a hearing of an interlocutory application. For their part, the Respondents also raised two issues for determination which read as follows: 1. Whether the learned Justices of the Court of Appeal were right in holding that the Applicants’ claim as constituted against the Respondents are (sic) not cognizable under section 32 of the Constitution of the Federal Republic of Nigeria 1979, the section having been suspended by the Constitution (Suspension and Modification) Decree No. 107 of 1993. 2. Whether the learned Justices of the Court of Appeal erred in law whereby the judgment should be set aside by pronouncing on the substantive case by holding at page 12 of the Judgment/ruling that “I am prepared to agree with the Appel-lants (the Respondents herein) that the Respondents cannot seek to enforce their fundamental Rights against them, this is so on the further ground that the Respondents’ arrests and detention have been the work of the Police Officers and Prison PAGE| 3 Officers and have nothing to do with the appellants. All that the 2nd appellant has done was to petition the Police who in their judgment have carried out the arrests and detention of the Respondents.” The main issue in this appeal is whether section 32 of the 1979 Constitution was suspended by the Constitution (Suspension and Modification) Decree No. 107 of 1993. The Court of Appeal held that section 32 of the 1979 Constitution was suspended by the Constitution (Suspension and Modification) Decree No. 107 of 1993. That Court per Chukwuma-Eneh JCA reasoned thus: “I now go on to deliberate upon the effect of the suspension of Section 32 of the Constitution and how it has impacted on this matter. This action would definitely come to naught if the fundamental right being contested in this case has been effectively and effectually deferred. The remedy being claimed by the Respondent is predicated on Section 32 of the Constitution being extant. If otherwise the action collapses. There is no dispute the currency of the Constitution (Suspension and Modification) Decree No. 107 of 1993. What is in dispute is its applicability to this matter. In spite of the printer’s devil in the provision which has put the Section as 32(23-7), the provision as lifted from Constitution (Suspension & Modification) Act Cap.64 Laws of the Federation 1990 has been set forth as Section 32(3-7). The argument that the section is non existent must therefore have been made inadvertently.

SC. 255/2001