Emmanuel Nwokorie & Ors V. Mr. Columba Opara & Ors (1998)
LawGlobal-Hub Lead Judgment Report
ATINUKE OMOBONIKE IGE, JCA
This is an appeal by the defendants against the Ruling of Ojutalayo J. of the Federal High Court Kano delivered on
3/6/94 in Suit No. FHC/CS/18/M1/94. The substantive suit was brought by the 3 plaintiffs/applicants against the Commissioner of police and 6 others by way of a Motion on Notice praying for the following orders:-
“1. An order granting the applicants the enforcement of their fundamental human rights as guaranteed by the Constitution.
- An order granting unconditional bail to the applicants.
- An order granting the applicants compensation assessed at N50, 000.00 each for deprivation suffered since 10th March 1994 till date.
- An order directing the 1st, 2nd and 3rd respondents and their agents or subordinates, to desist from further harassment of the applicants.”
It is pertinent at this stage to mention that there had been an earlier report of an armed robbery case in March 1994 in Dala Local Government Area of Kano state.
During Police Investigation, the 3 applicants along with others were arrested in connection with the armed robbery. The respondents were detained in custody for over a month without being charged to court. Later they were arraigned before a Magistrate Court for armed robbery who refused to grant them bail. The respondents then brought the above action to the Federal High Court Kano to enforce their fundamental human rights.
In their supporting affidavit to the application the respondents stated that their arrest and subsequent detention by the police was as a result of a conspiracy by the appellants to falsely implicate them in a charge of robbery.
The appellants denied the allegation in their own counter affidavit.
On 12th May 1994 the appellants by way of a motion challenged the competence of the respondents’ suit and the jurisdiction of the lower court to entertain same.
The Commissioner of Police Kano State and 2 other filed a notice of preliminary objection to the suit challenging the jurisdiction of the lower court on the following grounds:-
“1. That the Federal High Court has no jurisdiction to entertain armed robbery offence and matters related thereto.
- That it is only the Robbery and Fire Arms Tribunal that is competent to hear matters related to armed robbery.”
During the pendency of the action one of the applicants died.
The two applications were argued together and in addition the lower court was urged to strike out the names of the appellants as being improperly joined in the suit as well as the remaining respondents for being non-juristic persons.
The learned trial Judge on 3rd of June 1994 delivered a Ruling wherein he struck out the names of the 2nd, 3rd & 8th respondents i.e. the D.P.O., Sabon Gari Police Station, D.P.O., Dala Police Station and the Attorney-General of Kano State. He also dismissed the other objections as to competence of the suit against the appellants as well as the issue of jurisdiction.
The appellants were dissatisfied with this decision and have filed 3 grounds of appeal. The following are the grounds of appeal with their particulars:-
“1. The learned trial Judge erred in law in refusing to decline jurisdiction to entertain the plaintiffs’ claim as presented when it lacks jurisdiction to entertain same.
PARTICULARS OF ERRORS
(a) The 1st and 3rd applicants (the 2nd being deceased) have been arraigned before a court of law on a charge of armed robbery hence the Federal Court has no jurisdiction to entertain application for the enforcement of any alleged fundamental rights relating to the offence.
(b) S.12(3) & 14(3) of the Robbery and Fire Arms Special Provisions Act removes the jurisdiction of the court in a matter like this suit.
- The learned trial Judge erred in law in holding that the applicants could maintain the present suit in which the main relief is for an unconditional bail against the 4th-7th respondents who are not authorities or bodies or investigating or charging the applicants for an offence of Armed Robbery.
PARTICULARS OF ERRORS
(a) The 4th – 7th respondents are mere individuals who are not holding the applicants on custody or detaining the applicants hence not proper parties to an application for bail and no application for the enforcement of any alleged right provided for in S.32 of the 1979 Constitution could be instituted against the 4th-7th respondents.
(b) S.32 of the 1979 Constitution does not permit or create a right to bring this suit (which is basically for the bail of the applicants against the 4th-7th respondents.
(c) The applicants’ suit is an abuse of the process of court and embarrassing to the 4th-7th respondents.
- The learned trial Judge erred in law in holding that the 2nd applicant who is dead could maintain the present suit which is basically for bail.
PARTICULARS OF ERRORS
(a) The 2nd applicant who is dead no longer has any right of personal action for the relief claimed in this suit enforcement by him.
(b) The 2nd applicant cannot maintain the present action from his grave.
(c) A court can only entertain actions brought or instituted for the enforcement of fundamental rights which are personal as in the present suit by living human beings and not by the dead.”
The appellants also formulated 3 issues as follows:-
“1. Whether or not the respondents/applicants in the court below charged with the offence of armed robbery could maintain this action for the enforcement of their fundamental rights as commenced notwithstanding the provisions of S.12(3) & S.14(3) of the Robbery and Fire Arms Special Provisions Act CAP 398, Laws of the Federation of Nigeria forbidding the institution of the action.
- Whether or not the appellants who were not complainant nor involved in the investigation of the respondents for armed robbery by the Police were improperly joined in this suit.
- Whether or not the 2nd respondent who is dead could still maintain the present action as it is for the enforcement of his fundamental right to liberty.”
Parties are agreed on the 3 issues formulated by the appellants. With regard to Issue No.1, the appellants have submitted that the Federal High Court Kano lacked jurisdiction to entertain the respondents’ application under Fundamental human rights in view of the provisions of S.12(3) of the Robbery and Fire Arms Special Provisions Act CAP 398, Laws of the Federation which expressly removed the jurisdiction of the lower court in cases of fundamental human rights when the subject matter of the offence is armed robbery.
As far as the respondents were concerned, the arrest and detention of the respondents were not done in pursuance of the Robbery and Fire Arms Special Provisions Decree CAP 398 hence the Kano Federal High Court had jurisdiction to entertain the respondents’ application to enforce their fundamental human rights.
The lower court ruled that it had jurisdiction to entertain the suit.
In cases brought under the fundamental rights enforcement procedure rules of 1979, it is condition precedent to the exercise of the court’s jurisdiction, that the enforcement of fundamental right or the securing of the enforcement thereof should be the main and not an accessory claim. See the case of FEDERAL MINISTER OF INTERNAL AFFAIRS & ORS. V SHUGABA ABDULRAHMAN DARMAN (1982)3 NCLR and TUKUR V GONGOLA STATE GOVT. (1989) 4 NWLR (PT.117)517.
There is no doubt that a state High Court or a Federal High Court has jurisdiction to entertain an application for the enforcement of fundamental rights under S.42 of the 1979 Constitution.But the alleged breach of the fundamental right under S.33 of the Constitution must flow from the main action or claim and not an accessory claim.In this case the respondents and others were brought before the Magistrate Court Gidan Murtala upon a FIRST INFORMATION REPORT (F.I.R) by virtue of the provisions of S.12(7) of the Robbery and Fire Arms (Special Provisions Act) CAP 398 the learned Magistrate remanded them in prison custody. The respondents then brought the present action before the Kano Federal High Court for the enforcement of their fundamental rights to liberty by praying the court for unconditional bail and N50,000.00 each as compensation for their deprivation.
It is the claim before the court that has to be looked at or examined to ensure that it comes within the jurisdiction of the court. Normally, the High Court should have had jurisdiction to hear the respondents’ application for bail but when there is an express provision in the law governing the main action i.e. Robbery, ousting the jurisdiction of the court, the court cannot do anything further but to remove its hands off the case. S.12(3) of the Robbery & Fire Arms Special Provision Act CAP 398 of the Laws of the Federation has expressly ousted the jurisdiction of the lower court in cases of fundamental rights when the subject matter is armed robbery.
In this case the main action is application for bail flowing from a charge of robbery against the respondents.
The question of proper court of trial and whether proper procedure was followed by the Police in bringing the respondents to court are different and separate issues – which should be dealt with at the court of trial. The Kano Federal High Court had no jurisdiction and should not try the application.
The proper venue to hear such application is the Robbery & Fire Arms Special Tribunal.
I therefore rule that the learned trial Judge was wrong in holding that he had jurisdiction to try the application.
This is a case in which the learned trial Judge would normally have jurisdiction but he ceases to have jurisdiction in view of the provisions of S.12(3) of the Decree on Robbery & Fire Arms (Special Provision) CAP 398.
It reads thus:-
“The question whether any provision of Chapter IV of the Constitution of the Federal Republic of Nigeria has been, is being or would be contravened by anything done or proposed to be done in pursuance of this Act shall not be enquired into in any court of law.”
The provision of Chapter IV of the 1979 Constitution deals with fundamental rights and the procedure for their enforcement.
In view of the above clear provisions of the law, I hold that the learned trial Judge was wrong in deciding to entertain the respondents’ application. He has no such jurisdiction.
The Ruling of the learned trial Judge delivered on 3/6/94 in Suit No. FHC/CS/18/M1/94 IS HEREBY DECLARED NULL AND VOID AND SET ASIDE FOR LACK OF COMPETENCE. In its place the objection of the respondents/appellants is HEREBY UPHELD and the respondents’ application is struck out.
Having ruled that the lower court lacked jurisdiction, there is no need to go into the other 2 Issues in this appeal.
The appeal succeeds and is allowed. Respondents are to pay N2,000.00 costs to the appellants.
Other Citations: (1998)LCN/0385(CA)
