Patrick Nwangwu & Anor V. Barrister John Duru & Anor (2001)
LawGlobal-Hub Lead Judgment Report
CHUKWUMA-ENEH, J.C.A.
This appeal is against the ruling of 19/12/96 delivered by Bioshogun J. of the Federal High Court, Lagos Division. The facts of the matter as against their legal effect are not in controversy.
In that wise, I state the facts as briefly as thus: the applicants (the respondents in this appeal) by an ex parte application have sought three reliefs to enforce their fundamental rights against the respondents. In the light of the thrusts of arguments as will become evident in this matter, I have decided at the onset to identify the respondents at the court below as against the 8th and 9th respondents (the appellants in this case).
The respondents are namely:
- The Inspector General of Police
- Commissioner of Police, Lagos State
- The Attorney General, Lagos State
- The Area Commander, Barracks Police Station, Surulere – Lagos.
- The Controller of Prisons, Lagos State
- The Divisional Police Officer, Bode Thomas Police Station, Surulere-Lagos.
- Inspector Chukwu
- Mr. Patrick Nwangwu
- Mrs. Nonyelum Nwangwu.
The three reliefs that have been claimed in the matters are as follows:
“A. A declaration that the arrest and detention of the applicants at the Barracks Police Station, Surulere, Lagos and the detention of 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 privie from arresting, rearresting or detaining the applicants.
C. An order directing the respondents jointly and severally to pay the applicants damages in the sum of N50,000.000 (Fifty Million Naira.)”
It is the respondent’s (the appellants in this appeal) version of the story that the applicants (the respondents in this appeal) with a court bailiff and some armed policemen broke into the respondents/appellant’s residence for purposes of levying execution of a default judgment in Suit No. LD/4128/93: J.O.O. Investment Company Ltd.and Anor. v.Solace Emams and Securities Ltd. And Anor. Obtained against the 1st appellant. In the process of the execution, some of the respondents/appellant’s properties have to be carted away while some of the properties although carted away have not been manifested on the Inventory of the Execution. Necessary actions have to be taken by the appellants to put further execution on hold. Eventually, the suit No. LD/4128/93 has to be struck out. The 2nd appellant wrote a petition to the Police and applicants/respondents were in consequence arrested and arraigned before the court, charged with house breaking and stealing. The respondents/appellants amongst other persons that is to say all Police Officers and Controller of Prisons having been served an application filed by the applicants/respondents for the enforcement of their fundamental rights have reacted and filed a motion on notice to dismiss or strike out the suit as incompetent on the grounds of want of proper parties to the action that the action has disclosed no cause of action against the appellants and that the court has no jurisdiction to entertain the action as constituted against the appellants.
The court below in a considered ruling held as follows:
“The jurisdiction of this court is as conferred in the statutory provisions enumerated above without exhausting them. Whereas section 42(1) of the 1979 Constitution is more of appropriate provision for the main suit. This conclusion is reinforced by the provision of section 6(1) of the 1979 Constitution. As regards the propriety of parties relating to the 8th and 9th respondents; they are not joined as nominal parties in that the affidavit evidence reflects that there is nexus between the 8th and 9th respondents and the 1st to 7th respondents. This is buttressed by the fact that the melancholy of the applicants is planked on the petition of the 8th and 9th respondents.
On the issue of non-disclosure of cause of action, the averments in the affidavit in support seem to point to the fact that the plaintiffs have a case against the 8m and 9m respondents… In the circumstance, therefore, the preliminary objection is incompetent and it is hereby dismissed… ”
Aggrieved by the decision the respondents/appellants have lodged this appeal having filed 2(two) substantive grounds of appeal to contest the decision. They are set forth as follows:
“1. The learned trial Judge erred in law in holding that he has jurisdiction to entertain the applicant’s action as constituted against the 8th and 9th respondents.
(i) The reliefs sought by the applicants namely unlawful arrest, detention and consequential damages can only be established within the purview of section 32 of the 1979 Constitution.
(ii) Section 32(2-7) are inoperative and ineffectual having been suspended by Decree 107 of 1973.
(iii) The jurisdiction granted by section 42 of the 1979 Constitution as amended cannot be invoked, in the circumstances of the applicants action in respect of claims under section 32 of the said constitution.
(iv) The applicants claim does not come within the un suspended provisions of the 1979 Constitution and form/constitutes no basis for invoking the jurisdiction of the courts jurisdiction.
(v) The provisions of section 32 in any event guarantees rights only against the State and its agencies.
(vi) Within the proper meaning and intendment of section 280 of the 1979 Constitution as amended by Decree 107 the court has no jurisdiction to entertain the claim as constituted against the 8th and 9th respondents.
- The learned trial Judge erred in law in holding that the applicants disclosed a reasonable cause of action against the 8th and 9th respondents.
Particulars
(i) The applicant’s action as delimited by the relief sought seeks declaration that his arrest and detention at several Police stations were illegal and unconstitutional and damages for such arrest and detention.
(ii) The 8th & 9th respondents being private citizens, no relief is properly claimed against them in the applicant’s action.
(iii) Against the background of the reliefs sought the court’s finding is perverse.
(iv)The applicant’s claim for damages is an ancillary relief.
(v) Within the purview of section 32 of the 1979 Constitution, the applicant’s action does not disclose a reasonable cause of action against the 8th and 9th respondents.”
In prosecution of this matter parties have filed and exchanged briefs of argument in compliance with the rules of this court. The issues for determination arising in the appeal as identified by the appellant are as follows:
“(i) Whether the learned trial Judge was right in holding that he had jurisdiction to entertain the respondent’s action as constituted against the appellants.
(ii) Whether the learned trial Judge was right in holding that the respondent’s action disclosed a cause of action against the appellants and that the appellants are proper parties to the action.”
The respondents have however, submitted that the issues for determination in the appeal are as follows:
(i) Whether the learned trial Judge has jurisdiction to entertain the reliefs sought by the respondents in their application for the enforcement of their fundamental rights.
(ii) Whether in resolving the issue of jurisdiction the learned trial Judge was right in holding that the respondents have a cause of action against the appellants.”
In view of the clear concensus between the parties as to the issues for determination for resolving this matter, I have decided to be guided by the issues as identified by the appellants.
Given that the respondents action is for the enforcement of their fundamental rights, the appellants have submitted that the respondents have to bring their rights so infringed within sections 30-41 of Chapter IV of the 1979 Constitution to sustain the action that is as a precondition, as it were. The appellants having argued that the acts complained of come within the scope of section 32 of the 1979 Constitution have contended since section 32 (2-7) of the 1979 has been suspended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 the respondents claims have thus abated. They refer to Peterside v. I.M.B. (Nig.) Ltd. (1993) 2 NWLR (Pt.27S) 712 at 734 per Ubaezonu JCA, Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt.200) 70S at 751 D per Nasir P.C.A.; Ejefor v. Okeke (2000) 7 NWLR (pt.665) 363 and Ubani v. Director of S.S.S. (1999) 11 NWLR (Pt.625) 129 and have therefore disputed the reliance on section 42(1) of the 1979 Constitution to found the action.
As it is, the said section is not a fundamental right provision but the means of enforcing such rights. They (the appellants) have claimed that the rights encompassed under section 32 bring rights only against the state and its agencies cannot avail against the appellants as private individuals. In this regard, the appellants have asserted that at best the respondents on their story could only sue the appellants in false imprisonment but not under Chapter IV of the 1979 Constitution as they neither arrested nor detained or tortured the respondents. The applicants have therefore gone on to surmise that the appellants are not proper parties to the suit. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 per Oputa JSC. In reference to the case of Ezeadukwa v. Maduka (1997) 8 NWLR (Pt.518) 635 at 668 paragraph A; the appellants contend that the police cannot be their agents even though the police action in this matter has been ignited by the petition written by the appellant as the police do not stand as agents to them. See: Mandilas and Karaberis Ltd. v. Apena (1969) NWLR 199; Ejefor v. Okeke (supra); Gbajor v. Ogunburegui (1961) 1 All NLR (pt.l) 882, Onyedinma v. Nnite (1997) 3 NWLR (Pt.493) 333; Adefunmilayo v. Odutan (1958) WNLR 31, Totor v. Aweh (2000) 2 NWLR (Pt.644) 309.
The appellants then submitted that from the respondent’s case they (the respondents) do not have any cause of action against the appellants as defined in Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549 at paragraphs D and G-H, and so, have urged the court to answer the two issues in the negative and allow the appeal.
The respondents, as if to refocus attention on the main issues have referred to the grounds for their claim as stridently stated at page 17 of the records thus:
“That the arrest, detention and torture of the applicant and the threat of arrest and detention of the applicants is not justified by any of the circumstances stated in sections 31,32,33 of 1979 Constitution…”
From the foregoing, the respondents have therefore showed that amongst other sections that section 32(1) of the 1979 Constitution has encapsulated their reliefs. They have maintained that in a fundamental rights application as the instant matter, that the jurisdiction of the court is determined by the reliefs claimed. See: Olisa Agbakoba v. Director of State Security Services (1994) 6 NWLR (pt.351) 475 and that Decree 107 of 1993 is inapplicable.
In support of their view that action under the fundamental rights can lie against government, its agencies as well as private persons they have referred and relied on the dicta in Uzoukwu v. Ezeonu II (supra) . per Nasir JCA and also Peterside v. IMB (Nig.) Ltd. (1993) 2 NWLR (Pt.278) 712, 716 per Tobi JCA on the question of enforceability against private individuals. As to whether the respondent’s main claim against the appellants lies in common law the respondents have reacted by contending that they could elect to sue under the common law or Chapter IV of the 1979 Constitution or even both.See: Ekpu v. Attorney General of the Federation (1998) 1 HRLRA 391 at 399 and Minister of Internal Affairs v. Shugaba (1983) 3 NCLR 915 at 953 and so the present action is well founded.
On whether the action has disclosed a cause of action, the respondents have latched on to the principle established in Sodipo v. Lemminkainen OY (1992) 8 NWLR (Pt.258) 229 and Thomas v. Olufosoye (1986) 1 NWLR (PU8) 669 and the facts averred in support of the application viz paragraphs 10-12, 16-18,26,28-29, 31,33-36 and 39 to buttress the contention that the appellants have been just mere instigators of the matter of the said arrest, detention and torture. To further show that they have a cause of action against the appellant they have referred to Enwere v. Commissioner of Police (1993) 6 NWLR (Pt.299) 342 and John Folade v. Attorney-General of Lagos State and Ors. (1981) 2 NCLR 771 and have therefore urged the court to answer the two issues positively and dismiss the appeal.
The instant action by the plaintiff/respondents is brought under section 42(1) of the 1979 Constitution of the Federal Republic of Nigeria hereafter referred to as “the Constitution” and the Fundamental Rights (Enforcement Procedure) Rules 1979 hereafter referred to as “the Rules” to contend that the arrests and detention of the respondents are unlawful. Personal liberty is one of the fundamental rights guaranteed under the 1979 Constitution as provided for in section 32 of Chapter IV of the Constitution. This right is crucial and so has been eulogised in some ways for example by statutes in some jurisdiction including the United States (the famous statute of liberty). An infraction of the right and this includes unlawful arrest and detentions will attract the sanction as provided in section 32(6) of the Constitution and its remedy results in compensation and an apology from the appropriate authority or person.
From the tenor of the submissions in the parties’ briefs of argument, the questions that immediately contend for resolution have been narrowed down to namely (1) whether the cause of action is cognizable and so redressible under section 32(2-7) of the 1979 Constitution which as one of the provisions of the 1979 Constitution has been suspended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 and (2) whether the respondents have any cause of action against the appellants when they have not been party to the actual arrest nor detention of the respondents that is, are they competent parties in the action as constituted?
To effectively deal with these questions certain general principles to guide the discussion have to be asserted. It is well settled that an applicant for the enforcement of his fundamental right under Chapter IV of the Constitution has the initial onus of showing that the relief he claims comes within the purview of the fundamental rights as encompassed by sections 30-41 of the Constitution. This requirement is clearly borne out by section 42 of the Constitution.
In construing the section in the case of Uzoukwu v. Ezeonu II supra, Nasir PCA has commented thus:
“The section requires that a person who wishes to petition that, and this includes in my opinion a group of persons claiming together, he is entitled to a fundamental right.
(a) must allege that any provision of the fundamental rights under Chapter IV has been contravened, or
(b) is likely to be contravened, and
(c) the contravention is in relation to him.” See also Peterside v. I.M.B. (supra)
The above stipulations have spelt out that for the relief under Chapter IV of the Constitution to be cognizable and so redressible the infractions consisting of the breach of the legal authority or right for the remedy sought by the applicant must fall within the purview of sections 30-41 of the Constitution.
In the instant matter the respondents’ case is that the action is properly constituted and is properly brought under section 42 and the relief being claimed is within section 32 of the Constitution and has been infringed in relation to them. The relief relates to issues of unlawful arrests and detention. The question whether section 32 of the Constitution having been suspended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 could found the present action, I shall come back to later so also the appellant’s contention that the claim is in the circumstances unmaintainable as the respondent’s rights have been deferred. The respondents have in response said that Decree 107 of 1993 is inapplicable and even, that the said section 32 (23-7) does not exist. In accordance with the principle that where there is a right there is a remedy, the respondents have relied on section 32(6) of the Constitution to show that compensation and an apology from the constituted authority or person can avail them as provided.
Notwithstanding, my conclusions (above) it still remains so far in this judgment an open question whether this action as constituted is proper against the appellants. I shall react to this later.
Firstly, 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 nought 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 by either of the parties that the instant cause of action arose during 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.
It is not open to disputation therefore that the said section having been deferred, again in the midst of other provisions of the Constitution, has been rendered inoperative and totally ineffectual.
That is to say, that the jurisdiction clearly conferred by section 42 of the Constitution as regards enforcement of the entrenched rights under Chapter IV of the Constitution with particular references to section 32 becomes unavailing. The language of Decree 107 of 1993 suspending the said section amongst other sections is clear and explicit, and must be given effect irrespective that the consequences may be unfair and inconvenient. See Warburton v. Loveland (1831) 2D & CL (H/L) 480 at 489 per Tindal C.J. Further, no matter the aversion or even repugnance entertained by the courts against violent abridgment of the entrenched rights under Chapter IV of the Constitution as in this case by Decree 107 of 1993 the fact still remains that the court has to give effect to the provisions of the suspension expropriating the fundamental right under section 32 of the Constitution. That right having been expropriated, the respondents appear left without any remedy under section 32 and section 42 of the Constitution. See Ejefor v. Okeke (2000) 7 NWLR (Pt.665) 363 at 381-382 H-B.
The other side of this conclusion and deducible from the majority decision of the Supreme Court in Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228, (2000) 4 SC (Pt.11) 1 per Ogundare J.S.c. as it would seem is that whatever personal liberty is conferred by the African Charter on Human and Peoples Rights has remained unimpaired by the suspension of section 32 of the Constitution. In this regard, his Lordship in the cited case while considering the effect of section 4 of the State Security (Detention of Persons) Act on Chapter IV of the Constitution vis-a-vis the African Charter on Human and Peoples’ Right at p. 26 paragraph 5 remarked thus:
”The position then is that the court’s jurisdiction to give full recognition and effect to the African Charter remained unimpaired.”
The respondents have not constituted this claim under the African Charter on Human and Peoples Rights.
In conclusion, my reasoning as per above boils down to this:
that the respondent’s claim is only cognizable and redressible under section 32 of the Constitution but having been suspended the said section 32 cannot be breached. It therefore naturally follows that the jurisdiction conferred by section 42(1) of the Constitution and the Fundamental Rights (Enforcement Procedure) Rules cannot be invoked on the peculiar circumstances of this matter. Having come to the foregoing conclusion the other issue becomes more or less anon-issue. All the same I have decided to make a very short comment on it.
On the other limb of this matter, assuming but without conceding that my conclusion on section 32 of the Constitution as per above is wrong I still have to decide this case against the respondents. In this regard, I am prepared to agree with the appellants that the respondents cannot seek to enforce their fundamental rights against them. This is so on the further ground that the respondent’s arrests and detention have been the work of the police officers and prison 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. It is settled law that where an individual has lodged the facts of his complaint to the police as in this case by way of petition, and the police have thereupon on their own proceeded to carry out arrests and detention, then the act of imprisonment is that of the police. See Sewell v. National Telephone Co. (1907) 1 K.B. 557.
This matter is therefore not properly constituted against the appellants. They have not arrested nor detained the respondents.
I therefore uphold the appellants’ case and allow the appeal.
In the result the 8m and 9m respondents/appellants are hereby struck off the suit and so also the claims against them with N5,000.00 costs in favour of the appellants.
Other Citations: (2001)LCN/1034(CA)
