Central Bank of Nigeria V. Chief Daniel Obameneke Okemuo & Anor (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
This is an appeal against the ruling of the Ikeja Judicial Division of the Lagos State High Court, per O.A TAIWO J, on the 19th day of May, 2010.
A brief fact of the dispute leading to this appeal will suffice. The 1st Respondent instituted an action via an Originating Motion dated 18th November, 2009 before the Lagos State High Court for the enforcement of his Fundamental Human Right under the Fundamental Rights Enforcement Procedure Rules. After the service of the originating processes upon them, the Appellant herein filed a Conditional Memorandum of Appearance in opposition of the originating application, as well as a Notice of Preliminary Objection accompanied by an affidavit and a written address. The 2nd Respondent herein also filed a written address and a counter affidavit opposing the 1st Respondents application at the lower Court.
After the various applications filed above were argued, the lower Court delivered its ruling. Dissatisfied with part of the ruling of the lower Court, the Appellant appealed vide a notice of Appeal dated 1st April, 2011 and filed
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on 5th April, 2011.
Appellants’ Brief of Argument dated 9th September, 2011 and filed 12th September, 2011 but deemed properly filed on 10th February, 2016 and is settled by Oladele Bello Esq. of Olasupo Ashaolu & co. The Respondent however did not file any brief of argument. A sole issue was formulated for determination in the Appellants’ Brief thus:
Whether considering the special nature of the proceedings under the Fundamental Rights Enforcement Procedure Rules vis-a-vis the finding of fact of the trial Court, the Honourable trial Court had and/or properly exercised its jurisdiction by the grants of reliefs 4 and 5 in the application before it.
As earlier stated, the Respondents did not file any brief. It is pertinent to state, before going into the substance of this appeal, that where a Respondent fails to file a Respondents brief, he will be deemed to be uninterested in the Appeal, and he will further be deemed that he has conceded to be bound by whatever the outcome of the appeal is. Order 18 Rule 10 of the Court of Appeal Rules reads thus:
Where an Appellant fails to file his brief within the
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time provided for in Rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument. Where an Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.
This however does not imply that the Appellant is entitled automatically to judgment in his favour, the matter still has to be heard based on the Appellant’s brief and the success or otherwise of the appeal would be solely based on the strength of the Appellant’s argument and the position of the law but not on the failure of the Respondent to file his brief. See the case of UNITY BANK PLC. V. BOUARI (2008) NSCQR VOL. 33 AT 1296; CAMEROON AIRLINES v. MR. MIKE E. OTUTUIZU (2011) LPELR – 827 (SC).
Thus, we shall now consider the Appeal filed by the Appellant on the sole issue formulated in its brief.
Appellant’s counsel in his brief submitted that only actions based on a breach of the
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constitutional provisions on Fundamental Rights can be brought under the Fundamental Rights (Enforcement Procedure) Rules. He cited the case of WAEC v. AKINKUNMI [2008] 9 NWLR (pt. 1091) 151 AT 172; A.T.A POLY v. MAINA [2005] 10 NWLR (pt. 934) 487 AT 502. He further stated that the 1st Respondents sought for 3 declaratory reliefs, an order of perpetual injunction and an order preventing his arrest. He referred to paragraphs 1-8 of the application at pages 29-33 of the records. Although the said Nation Newspaper attached to the affidavit did not show any alleged threat to his fundamental rights.
Counsel further argues that the lower Court in its ruling dated 19th of May, 2010 arrived at a finding of fact wherein it stated that the Respondents have not infringed the Applicants fundamental rights as envisaged by Section 34 of the Constitution of the Federal Republic of Nigeria. The lower Court also found in its ruling that the mere publication of the Applicant’s name in the newspaper hasn’t subjected him to any form of inhuman treatment.
Counsel on the other hand argues that the lower Court granted the prayers 4 & 5 of the Applicant
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which was for an order of perpetual injunction restraining the Appellant from further publishing the 1st Respondent’s name and also further arrest and/or detention.
Counsel submits that the burden of proving an infringement of fundamental rights lies on the Applicant by providing affidavit evidence to prove same. The 1st Respondent however failed to discharge this burden. He referred to ONAH v. OKENWA (2010) 7 NWLR (PT. 1194) 512 at 535-536. The effect of this failure on the part of the Respondent is that his action commenced under Fundamental Rights Enforcement proceedings is all incompetent. He cited WAEC v. ADEYANJU [2008] 9 NWLR (pt. 1092) 270 at 295-296; WAEC v. AKINKUNMI (supra).
He further submits that a joint reading of the provisions of Section 46(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended and Order 11(1) of the Fundamental Rights (Enforcement procedure) Rules, 2009 is to the effect that a Court assumes jurisdiction over fundamental right matters which claims are for the enforcement of rights protected Chapter 4 of the Constitution. He referred to IGWE v. EZEANOCHIE (2010) 7 NWLR (PT.1192) 61 AT
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85-86.
On the order of the lower Court granting the 4th & 5th prayers of the 1st Respondents, counsel submits that a judgment of a Court of law must be based on the evidence before it. He cited OLADELE v. NIGERIAN ARMY (2004) 6 NWLR (pt.868) 166 AT 182. He therefore contends that the whole case of the 1st Respondent reveals that the claim was not instituted properly under the law. Conclusively, he submits that where a case is not properly instituted, the proceedings therefrom go to a nullity. He referred to JACK v. UNAM (2004) 5 NWLR (pt. 865) 208 AT 231.
Having properly read through the argument of learned counsel for the Appellant, it can be said that the main contention of the Appellant is that the lower Court did not properly exercise its jurisdiction by granting 4th & 5th prayers of the reliefs sought by the 1st Respondent’s at the trial Court.
Let me start by stating that the enforcement of fundamental rights under which the 1st Respondent brought his action at the lower Court is provided for in Chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria. Section 46 of the Constitution provides:
1. “Any person who
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alleges 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 original jurisdiction to hear and determine any application made to it pursuance of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.
3. The Chief Justice may make rules with respect to the practice and procedure of a High Court for the purposes of this Section….
See also Order II Rule 1 of the Fundamental Rights (Enforcement procedure) Rules, 2009.
By the above provisions, any person whose fundamental right is breached, being breached or is likely to be breached, may apply to a High Court in that State for enforcement of his rights. Meanwhile, pursuant to Section 46 (3) of the Constitution, the Chief Justice of the Federation made the
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Fundamental Rights (Enforcement Procedure) Rules, 2009 inter alia for the purpose of advancing and realizing but not for the restriction of the rights contained in Chapter 4 of the Constitution and the provisions of the African Charter of Human and People’s Rights.
It is a condition precedent to the exercise of the Courts jurisdiction that the enforcement of fundamental right or securing the enforcement thereof should be the main or principal claim and not accessory claim. Therefore, before a Claimant/Applicant can successfully bring an action for the enforcement of his/her fundamental rights under the Fundamental Rights (Enforcement procedure) Rules, the main or principal claim being sought by him/her must be restricted to the enforcement of the rights guaranteed under Chapter 4 of the 1999 Constitution and/or at best the provisions of the African Charter for Human and People’s Rights and nothing more. In ABDULHAMID v. AKAR (2006) 13 NWLR (pt. 996) 127; (2006) 5 SC (PT 1) 44; (2006) LPELR 24 (SC) 24 Paras C – G; the Apex Court, Per AKINTAN, JSC held:
“The position of the law is that for a claim to qualify as falling under fundamental rights,
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it must be clear that the principal relief sought is for the enforcement or for securing the enforcement of a fundamental right and not from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim for the enforcement of fundamental right. Thus, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it will be incompetent to constitute the claim as one for the enforcement of a fundamental right.”
The above position was re-echoed by ONU, JSC in UNIVERSITY OF ILORIN v. OLUWADARE [2006] 14 NWLR (pt 1000) 751; (2006) 6-7 SC 154; (2006) LPELR 3417 (SC) 11. paras G – F, where the Learned Justice of the Supreme Court stated:
“In the case of Tukur v Government of Gongola State (1997) 6 NWLR (PT 510) 549 at 574 – 579, this Honourable Court held as follows:-
“When application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental rights or the security of the enforcement
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thereof should be the main claim and not an accessory claim.
Enforcement of fundamental rights as presented and not accessory claim. See The Federal Minister of Internal Affairs & Ors. V. Shugaba Abdulraman Darman (1982) 2 NCLR 915 in which the principal claim was a declaration that the order … was ultra vires and that the same constituted a violation of his fundamental rights to personal liberty, privacy and freedom to move freely throughout Nigeria …
However, where the main or principal claim is not the enforcement or securing the enforcement of fundamental, the jurisdiction of the Court cannot as has been pointed out above, be properly exercised as it will be incompetent by reason of the foregoing feature of the case.
See alsoWAEC v. AKINKUNMI [2008] 9 NWLR (pt 1091) 151 SC; EGBUONO v. BORNO RADIO TELEVISION CORPORATION (1997) 12 NWLR (PT 531) 29.
The reliefs sought by the 1st Respondent as per his application are at pages 6 to 9 of the record and they are:
1. “A DECLARATION that the Applicant’s constitutionally guaranteed right to the dignity of his person was denigrated, violated and stripped by the publication
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by the 1st Respondent, for the 2nd Respondent, in several National dailies, including THE NATION Vol. 4 No. 1182, dated 15th October, 2009 entitled,
CBN rolls out list of five troubled Banks’ debtors”
By which the Applicant was held out, portrayed and castigated as a debtor to the “troubled Spring Bank Plc.” by guaranteeing the Lease facility to Dan Dollars Motors Nigeria Limited, by which “non-performing debt” Spring Bank Plc. is troubled, with instructions to the 3rd & 4th Respondent to arrest, detain, imprison or incarcerate the Applicant until the alleged debt is paid or liquidated, when the lease facility is subjudice vide Suit No: LD/2069/2005 and Appeal No: CA/L/636/2007 and when by being subjudice the 2nd Respondent (and the 1st Respondent vicariously) is forbidden to make adverse pronouncements thereon.
2. A DECLARATION that the threat to arrest, detain, imprison or incarcerate the Applicant and/or the directive to the 3rd and 4th Respondents to arrest, detain imprison or incarcerate the Applicant until the alleged debt to the 2nd Respondent by Dan Dollars Motors Nigeria Limited guaranteed by the Applicant is paid or
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liquidated variously made and/or published in several National Dailies, including THE NATION Newspaper Vol. 4 No. 1182 dated 15th October, 2009 in the pendency of Suit No: LD/2069/2005 and Appeal No: CA/L/636/2007 violates the Applicant’s constitutionally guaranteed rights to the dignity of his person, his personal liberty and Freedom of movement is capricious, licentious and overreaches the Applicant’s right to have his complaint determined by the Judiciary which is the only forum constitutionally empowered to do so and/or is a resort to self-help.
3. A DECLARATION that the Lease Facility taken by Dan Dollars Motors Nigeria Limited and guaranteed by the Applicant from the 2nd Respondent in the course of
Banker/Customer relationship being contractual is a civil dispute not warranting or dehors criminal jurisdiction, so that the threat by the 1st Respondent, for the 2nd Respondent to arrest, detain, imprison or incarcerate the Applicant thereon or the directive to the 3rd & 4th Respondents to do so is capricious, licentious, unconstitutional, illegal and beyond the competence of the Respondents, Jointly and severally, their agents, servants,
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cohorts and/or whomsoever acting for and on their orders jointly and severally.”
4. AN ORDER of perpetual injunction restraining the 1st & 2nd Respondents from further publishing or causing to be published the name of the Applicant as a debtor of the 2nd Respondent for guaranteeing the Lease facility taken by Dan Dollars Motors Nigeria Limited and/or further threatening to arrest, detain, imprison or incarcerate the Applicant, which being subjudice vide Suit No; LD/2069/2005 and Appeal No: CA/L/636/2007 is contemptuous of the Judiciary so to do and overreaches the outcome of the Suit No. LD/2069/2005 and Appeal No: CA/L/636/20107.
5. AN ORDER forbidding/preventing the 3rd & 4th Respondents jointly and severally, their servants, agents, cohorts and/or whomsoever acting for or at their joint and several behest from arresting, detaining, imprisoning, incarcerating, holding and/or howsoever depriving the Applicant of his rights to the dignity of his person, personal liberty and freedom of movement on account of or in relation to the Lease facility between Dan Dollars Motors Nigeria Limited and the 2nd Respondent in the subject of the Suit No:
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LD/2069/2005 and Appeal No: CA/636/2007 and in the pendency thereof.”
It is obvious that the Appellant herein is not challenging the finding and conclusion of the learned trial judge with respect to reliefs (1) to (3). Indeed, the finding and conclusion of the trial Court thereon reflects a true appreciation of the position of the law and same is not the subject of this appeal. Rather, the Appellant is contending that the learned trial judge erred when he granted reliefs (4) and (5) sought by the 1st Respondent having regard to the incompetence of the application before the Court.
At page 135 of the record of appeal, the learned trial judge held:
“The first point that arises from the argument of the 1st Respondent is that the Applicant and Dan Dollars Motors Nigeria Limited are not banks and/or financial institution. Therefore, Section 33 and 53 of Banks and other Financial Institution Act does not apply to them. As at the time then Applicants name was published, there was a subsisting judgment against him in favour of Spring Bank which should have been executed by the 2nd Respondent.
It is my humble view however that the Respondents
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have not infringed the Applicants right to dignity of human person as envisaged by Section 34 of the Constitution of the Federal Republic of Nigeria.”
The Learned trial judge continued at page 136 held:
“Furthermore, there is nothing before this Court to show that the 3rd & 4th Respondents threatened to arrest, detain, imprison or incarcerate the Applicant. The Applicant has failed to exhibit the portion of the Nation publication where such a threat was made.”
(Underlining mine)
I believe it was on the basis of the above findings that the learned trial judge deemed it fit not to have granted the declaratory reliefs sought by the 1st Respondent, having held that the Appellant and the 2nd Respondent have not infringed the 1st Respondents right as envisaged under Section 34 of the Constitution. Quite curiously, the learned trial judge went ahead to grant the order of injunction as sought by the 1st Respondent despite having held that the Appellant’s right was not infringed upon.
In addition, having already held that the 1st Respondent was unable to prove the alleged infringement of his fundamental right, it is incumbent on the
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trial Court to have made an order dismissing the application of the 1st Respondent. A fortiori, reliefs (4) and (5) as sought by the Respondent cannot succeed where the principal claim with respect to the declaratory order has failed. All the reliefs sought by the 1st Respondent are such that cannot be accommodated under an application for the enforcement of fundamental rights. Order IX of the Fundamental Right Enforcement procedure Rules, 2009 makes provision with respect to the effect of non-compliance with the Rules. It reads:
“1. Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to;
(i) Mode of commencement of the application;
(ii) The subject matter is not within Chapter IV of the Constitution or the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.”
Having regard to the above provision, the subject matter being a libellous in relation to
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the injury on the 1st Respondents reputation, though couched as a violation of his fundamental rights under Chapter IV of the 1999 Constitution (as amended).
The learned trial judge, ought to have dismissed the 1st Respondent’s application in its entirety for failure to comply with the provisions of the applicable Rules.
The reliefs sought by the 1st Respondent are not therefore captured under Chapter IV of the Constitution. See MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; SEA TRUCK LTD v. ANIGBORO (2011) 1 SC (PT 1) 56.
Furthermore, I agree with the Appellants counsel that in granting the 1st Respondent’s reliefs (4) and (5), to wit: an order of perpetual injunction restraining the Appellant from further publishing the 1st Respondent’s names and an order forbidding/preventing the arrest, detention, imprisonment, incarceration, holding or howsoever depriving the 1st Respondent of his rights to dignity of his person, the learned trial judge apparently failed to appreciate and avail itself of its definite finding of fact on reliefs (1), (2) and (3) which was predicated on the evidence before it. Having decided that the 1st Respondent is
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not entitled to the grant of the declaratory reliefs as sought under reliefs (1) to (3) based on the evidence on record before the Court, one will then wonder on what the evidence the Court relied upon in granting injunctive reliefs basically on the same act complained of.
In our system of adjudication in this country, it is fundamental that any decision reached by every Court must be based on the evidence before the Court. Whereas a Court cannot act on conjectures and speculations, any decision reached contrary to the evidence before the Court will be held to be perverse. In SAGAY v. SAJERE [2000] 6 NWLR (pt. 661) 360; (2000) LPELR – 2976 (SC) 13 to 14, paras G – D, the Apex Court, per AYOOLA, JSC, held:
“The decision of a Court must be based on the evidence and on reason. It should not be based on the intuition of the Judge or conjecture, or what the judge, untrammelled by the evidence, conceives to be a fair conclusion… The requirement that a judgment must clearly demonstrate that the conclusions arrived at in the case were not based on intuition and whim of the Judge but on evidence properly evaluated, and the law is not an insistence on mere
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form, but derives from the need to ensure and demonstrate that substantial justice has been done in the case.”
See also ANYANKPELE v. NIGERIAN ARMY [2000] 13 NWLR (pt. 684) 209; OLADELE v. NIGERIAN ARMY (2004) 6 NWLR (PT 868) 166. Thus, where as in the instant appeal, an Appellate Court is satisfied that the trial Court failed to base its judgment on the evidence adduced in Court and its finding thereon, such decision of the trial Court shall be set aside. I am therefore of the firm view that the trial Court did not properly exercise its jurisdiction by granting reliefs (4) and (5) as per the 1st Respondent’s application before it. To this extent, the 1st Respondent’s application for the enforcement of fundamental right dated 28th October, 2009 is hereby dismissed in its entirety.
The sole issue in this appeal is resolved in favour of the Appellant.
Therefore, the Appeal is meritorious and is hereby allowed. The Ruling of the High Court of Lagos State, Per O. A. TAIWO J. (MRS), delivered on 19th May, 2010 is hereby set aside particularly with respect to the grant of reliefs (4) and (5) as per the 1st Respondent’s application. No order as to
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costs.
Other Citations: (2016)LCN/8751(CA)
