Chukwudi Nwanna V. Attorney General Of The Federation & Anor (2010)

LawGlobal-Hub Lead Judgment Report

HUSSEIN MUKHTAR, J.C.A.

This appeal is against the judgment of the Federal High Court Lagos (the lower court) delivered on the 13th December, 2004 by Lewis-Allagoa, J wherein the learned trial Judge dismissed the appellant’s application for enforcement of fundamental right for want of jurisdiction on ground of non-joinder of the Inspector General of Police whom the court viewed as a necessary party. The appellant was aggrieved by that decision and appealed against it on two grounds, which are reproduced hereunder less their particulars:

1)”The lower court erred in law when it held that in the instant case before me the Inspector General of Police is a necessary party whose action is complained of the applicant has not joined him as a necessary party therefore this court has no jurisdiction to grant the applicant the relief he is seeking.

2) The lower court erred in law and in fact when it held that the arrest by the 2nd respondent on 15th July, 1997 was lawful.”

From these two grounds both parties raised the following two common issues for determination:

1) Whether the arrest and detention of the applicant was lawful?

2) Whether the Inspector General of Police is a necessary party to the action and whether his non joinder is fatal to the action?

The first issue for determination seems to contradict the very essence of the proceedings initiated by the appellant before the lower court for enforcement of fundamental right. Unless the violation or breach of the appellant’s fundamental right was allegedly wrongful, the issue of enforcement of such right would have been reduced to a non-starter.

The lower court had already pronounced that the appellant’s arrest and detention was lawful. For the avoidance of doubt the learned trial Judge stated (at page 289 of the record) as follows:

“In the circumstance the court can safely rely on exhibit NDLEA I II wherein the applicant was seriously indicted by the person MESSRS STEPEHN OKEY ONWURAH AND IKEM A. U. NWADIKE as being involved in a drug offence. That to my mind is proper ground for reasonable suspicion though not proof.

What is required for purpose of the arrest is reasonable suspicion and not proof. I therefore hold that the arrest by the 2nd respondent of the applicants on the 15th July, 1997 was lawful.”

The learned counsel for the appellant has a duty to show perversity in the decision of the lower court to justify tempering with it by the Court of Appeal. An appellate court does not ordinarily disturb or temper with findings of the lower court except it is perverse or misconceived or some how over reached the other party thereby occasioning a miscarriage of justice. The Supreme Court per Akintan, JSC in GARUBA VS YAHAYA observed thus:

“An appellate court should not ordinarily disturb or tamper with the findings of facts made by a trial court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraising evidence given at a trial is pre eminently that of the trial court that saw and heard the witnesses. But an exception to the above rule is where there is a misdirection by the trial court. A misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised, or considered or misconceived or the law applicable is incorrectly applied by the trial court. As a result, there would be a miscarriage of justice if the decision erroneously reached is allowed to stand.”

The findings of the lower court in this case, are based on reasonable suspicion against the appellant as being involved in drug offences contrary to section 32 of the N.D.L.E.A. Act, Cap. 253 laws of the Federation of Nigeria 1990. An arrest or detention the subject of the Fundamental Rights Enforcement Procedure Rules is only that which violates any provision in the constitution or any Federal or State Law for the time being in force. An arrest or detention under reasonable suspicion is supported by section 35 (1) (c) of the 1999 Constitution which provides thus:

“For the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.”

I am unable to fault the reasons and conclusion reached by the learned trial Judge that the arrest and detention of the appellant based on reasonable Suspicion were lawful. The first issue is therefore resolved against the appellant and the second ground of the appeal to which it is related consequently fails.

The second issue, which is double edged, queries the necessity of joining the Inspector General of Police (I.G.P) as a party and whether the non joinder is fatal to the application.

The learned counsel for the appellant argued that the Inspector General of Police was not a necessary party. He added that there was no justification for the conclusion reached by the lower court that the Inspector General of Police was a necessary party. He submitted that the proper parties were the Attorney General of the Federation and the N.D.L.E.A who were already before the court. He added that even if it was necessary to join the Inspector General of Police the court would have invoked the provision of order 12 rule 5 of the Federal High Court (Civil Procedure) Rules 2000 which provides thus:

“If it appears to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be.”

The appellant’s counsel further submitted that the matter before the court is still valid and the court may join any person it deems necessary to join in the proceedings even suo motu. The action should not have been defeated by reason of non joinder. See NABARUMA VS OFFODILE (2005) 1 WRN 47.

The appellant’s counsel also argued that the Attorney General represents all Government agencies including the Inspector General of Police. One, however, wonders why he decides to join N.D.L.E.A. which, like the Nigeria Police, is also an agency of the Federal Government. The case of ATTORNEY GENERAL OF THE FEDERATION VS AJAYI (2000) 12 NWLR (pt 682) 509 where the Attorney General of the Federation was sued in a cause of action against the State Security Services is distinguishable from the present case where the appellant alleges an improper or illegal infraction on his fundamental right enshrined in chapter 4 of the 1999 Constitution. While in the former case the Federal Government through the Attorney general takes vicarious liability of wrongs committed by an agency of the Federal Government in the later any person or authority directly involved in the said violation of a fundamental right will be a necessary party to the application for enforcement of the fundamental right which is allegedly being or likely to be contravened the case of UDOMA-EGBE VS GOVERNMENT OF CROSS RIVER STATE (1991) 4 NWLR (pt. 188) 773 the Court of Appeal per Niki Tobi JCA (as he then was) held that Attorney General has locus standi to commence and defend actions or behalf of the Government as having sufficient interest in the case. This case is similarly distinguishable where persons or authorities that are sui juris are directly involved in alleged human rights violation. The need or necessity to join such persons depends on whether the order sought for the enforcement of human right will be or is likely to be made against or affecting such person or authority.

The learned counsel for the respondent submitted that the Inspector General of Police was directly responsible for the arrest and detention of the appellant and also ordered the extradition of the appellant to Niger Republic. The Inspector General of Police being the key player in the acts that allegedly constituted an infraction to the appellant’s fundamental right. The respondent’s counsel also similarly distinguished the case of NDOMA EGBA VS GOVERNMENT OF CROSS RIVER STATE (supra.)

A necessary party in a case is one who is not only interested in the subject matter of the proceedings but in the absence of whom the question or issue in dispute cannot be properly and finally settled unless he is made a party. The Inspector General of Police who allegedly ordered the arrest and detention and also extradition of the appellant is an obvious necessary party to proceedings seeking to challenge the legality of his actions. It is rather incredible that such a necessary party should ever have been omitted to be joined as a party on the ground that the Attorney General was so joined. Much as the Attorney General may joined as a defendant in all actions against the Government, whether Federal or State as the case may be, failure to join the Inspector General of Police will tantamount to a material non-joinder where the cause of action or subject matter of the proceedings is directly against the acts done by him as rightly observed by the learned trial Judge. The Supreme Court in ATTORNEY GENERAL KANO STATE VS ATTORNEY GENERAL OF THE FEDERATION (2007) 6 NWLR (pt. 1029) 164 at p. 192 paras B-F held thus:

“The Attorney General of the Federation of a State can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal or State Governments or any of their authorized agencies, in respect of any act or omission complained of by the claimant. However, the claim or complaint must directly be against the State or Federal Government concerned. In the instant case, the Federal Government was not directly concerned and no relief was sought against it by the plaintiff. In the circumstance the provisions of section 232 of the 1999 Constitution under which the action was instituted was inapplicable.”

The Supreme Court specifically noted with approval, (at p 192 paras C-D per Kalgo, JSC) the need to join the Inspector General of Police where the actions of the Nigeria Police Force is the subject matter of the proceedings.

The learned jurist observed as follows:

“The Inspector General of Police is the head of the Nigeria Police Force which is recognized by the Federal and State Governments of Nigeria; and it is a separate body created by the constitution with special powers and responsibilities. Therefore, it can properly be sued.”

However, the non-joinder of a necessary party will not ground a dismissal of the action as the lower court did in this case nor does it derobe the court of jurisdiction to hear the case as held by the learned trial Judge. If, as the lower court held, it lacked jurisdiction to hear the matter, one wonders where drove its competence to deliver a judgment and make far reaching pronouncements on the legality of the appellant’s arrest and detention. If a court lacks jurisdiction to hear a case, then it also lacks the competence to make any pronouncement except of course to strike out the case but not dismissal as the lower court did which must only be made on the merits of the case. In this case, however, the mere failure to join the Inspector General Police does not render the action incompetent as erroneously held by the court below. This position of the law is aptly provided under order 12 rule 5 of the Federal High court (Civil Procedure) Rules 2000 (supra). In the case of DAPIALONG VS LALONG (2007) 5 NWLR (pt. 1026) 199 at 212 paras E-F this court per Akhaas, JCA held thus:

“An action cannot be rendered incompetent simply because all the necessary parties have not been joined in the suit. It suffices if the parties before the court are competent parties and the cause of action, if substantiated by the plaintiff, entitles him to a remedy against the defendant. In the instant case, the reliefs sought by the respondents could be determined between the parties to the suit without joinder of other parties. In the circumstance, the trial court was right when it held that the parties to the suit were the necessary parties, and assumed jurisdiction to determine the suit.”

The Supreme Court had similarly held in the case of BABA YEJU v. ASHAMU (1998) 9 NWLR (pt. 567) 546 at 557 paras E-F per Ogundare, JSC (of blessed memory) as follows:

“By virtue of order 3 rule 19 of the High Court of Lagos State (Civil Procedure) Rules 1973 (applicable to this case) non-joinder of necessary parties would not defeat an action, otherwise properly constituted.”

The lower court acted in error in dismissing the appellant’s case on the simple ground that the Inspector General of Police was not joined as a party. The second issue is resolved in favour of the appellant and the first ground to which it is related succeeds accordingly.

The appeal is allowed on ground one but fails on the second ground. The order made by the lower court on the 13th December, 2004 declining jurisdiction on ground of non-joinder and dismissing the application is perverse and same is hereby set aside. The application for enforcement of fundamental right, if it is still live, shall subject to the relevant provisions of the law as to its competence be assigned by the Chief Judge of the Federal High Court to another Judge of that court for profer determination.

There shall be no order as to costs.

Other Citations: (2010)LCN/3538(CA)