In The Supreme Court of Nigeria

On Friday, the 5th day of May 2006

S.C. 240/2001

Between

Alhaji Ibrahim Abdulhamid           .......                      Appellant

And

Talal Akar                                        .......                      Respondents

Major G. Ofochie

Judgement of the Court

Delivered by

Idris Legbo Kutigi, J.S.C.

The proceedings, which gave rise to this appeal commenced at the Kano State High Court holden at Kano where the Applicant instituted an action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 against the Respondents after obtaining leave of Court to do so. The reliefs sought by the Applicant against the Respondents read -

“Reliefs sought by Applicant:

(a)       To restrain the Respondents, their agents and servants from harassing, intimidating and subjecting the applicant and members of the applicants’ family and employees to degrading treatment.

(b)       To secure the release of the Applicant’s vehicle with Registration No KN 7292 KQ forcefully seized and detained by the Respondents.

(c)        To perpetually restrain the Respondents and their agents from seizing and detaining any of the Applicant’s property movable or immovable.

(d.)      To claim the sum of N1, 000.000.00 (One Million Naira) from the Respondents jointly and severally as a compensation for several harassments, intimidation and degrading treatment of the Applicant and employees and members of the Applicant’s family by soldiers and airforcemen who are agents of the Respondents in consequence of which the Applicant lost and still losing his personal and business reputation and also suffering loss of business goodwill and prosperity.”

The grounds upon which the reliefs were sought are stated to be –

“Grounds upon which reliefs are sought:

(a)       The applicant received threats and intimidating letters on 14/12/89 and 18/12/89 from one Major G. Ofoche of third field ambulance Bukavu Barracks of the Nigeria Army Kano at the instigation of the first Respondent in an attempt to intimidate the Applicant to settle a debt owed to the first Respondent by the Applicant.

(b)       On 1/3/90, one John Tella Hussain, an Airforce Officer and former Kano State Chairman of Task Force on Tax Recovery went to the Applicant's house at about 7.00 a.m, drove members of the Applicant’s family from their main house and locked them up in a room in the Boys’ Quarters together with the Applicant's employees.  Same John Tella Hussain also took away the Applicant's Peugeot 404 Pick Up van with Registration No KN 2848 KQ fully loaded with animal skins for sale and gave some to the first Respondent. Furthermore, the said John Tella Hussain later confirmed to the Applicant that the first Respondent requested him to take the action and deal with the Applicant because of the debt the Applicant owed the first Respondent.

(c)        Sometime in May 1990, the same John Tella Hussain led about eight Airforcemen to the Applicant’s house forcefully ceased the Applicant's Peugeot 505 car with Registration No KN 9272 KQ and forcefully took same to the first Respondent in order that the first Respondent could value the car and offset the Applicant debt to the Respondent with the value of the car. The said car was detained and impounded for one week after certain vital documents missed inside the car.

(d)       On 12/6/90 at about 7.00 a.m one Yahaya, an Airforce officer and Secretary to the Task Force on Tax Recovery led seven Airforcemen to The Applicant’s house and forced the Applicant to drive his 505 car registration no. KN 7292 KQ to the airforce Base, Kano where the Applicant’s freedom of movement was restricted only to an office in the Airforce base, between 7.00 a.m and 12.00 noon the Applicant was led to the second Respondent who detains the Applicant’s 505 car in and insisted that unless the Applicant pays up the debt he (the Applicant) owes to the first Respondent, the Applicant’s car would not be released.

(e)        The Applicant’s 505 car presently detained by the Respondents is the only car with which the Applicant moves about in the conduct and pursuit of his business and as a result of constant harassment and intimidation of the Applicant by soldiers and Airforcemen who are Agents of the Respondents the Applicant is now seen by his personal and business Associates as a person of questionable integrity and the Applicant's hitherto flourishing business is being seriously affected as a result of loss of personal and business reputation.”

The application was supported by affidavit, further or reply affidavits. The Respondents filed Counter-affidavits. At the hearing of the application the Applicant testified for himself and called five other witnesses. The Respondents testified for themselves and called no other witness. Upon the conclusion of evidence by the witnesses, Counsel on both sides then addressed the Court and judgment was reserved.

The learned trial judge in a considered judgment spanning 58 pages of closely typed foolscap-size sheets, found in favour of the Applicant when he concluded his judgment on pages 211 - 212 of the record thus -

“Finally as I have earlier held in this judgment, the Applicant is entitled to all the reliefs sought by him in the application to enforce his fundamental rights. Consequently, I hereby make the following orders -

1.         The 1^st, 2^nd and 4^th Respondents and their agents are restrained from harassing, intimidating and subjecting the Applicant and members of this family to any further degrading treatment.

2.         The Applicant’s vehicle, Peugeot 505 with registration number KN 7292 KQ seized and detained by the Respondents until it was temporarily released to the Applicant pursuant to an Order of this Court granted by Hon. Justice Tijani Abubakar, Judge as he then was, is now unconditionally and permanently released to the Applicant.

3.         The 1^st, 2^nd and 4^th Respondents and their agents are hereby perpetually restrained from illegally seizing and detaining any of the Applicant's properties, movable or immovable.

4.         I hereby award damages of (N250, 000.00) two hundred and fifty thousand Naira) being (i.e. general and aggravated) compensatory and exemplary damages against the 1^st, 2^nd and 4^th Respondents jointly for several harassments, intimidation and degrading treatments of the Applicant personally and members of his family by soldiers and Airforcemen who are agents of the Respondents and by the Respondents themselves which actions culminated in the infringement of the Applicant’s fundamental rights under Sections 31(l)(a), 32(1), 34 and 40(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended and the same actions amounted to different types of torts such as assault and battery, trespass to land, trespass to chattel or goods detinue and even false imprisonment as disclosed by the evidence adduced at the trail.”

(Emphasis is mine)

Dissatisfied with the judgment of the trial Court, the Respondents appealed to the Court of Appeal holden at Kaduna. The Applicant also cross-appealed. Both sides filed and exchanged briefs of argument in that Court. The principal and one of the four (4) issues submitted by the Applicant for resolution in the Court of Appeal was -

“Whether the case against the Appellant (Plaintiff) on the evidence before the trial Court was a case for Enforcement of Fundamental Rights, and if so, whether the necessary procedure and process were complied with and taken out by the trial Court, and if not, whether failure to do so occasioned a miscarriage of justice.”

The Court of Appeal in a unanimous judgment allowed the Respondents’ Appeal and dismissed Applicant’s cross-appeal. Part of the judgment on pages 330 - 332 of the record read thus -

“It is observed from the record that the action was commenced in the trial Court under the Fundamental Right (Enforcement Procedure) Rules Cap. 62 of the Laws of the Federation of Nigeria, 1990. There were four reliefs sought and none of them touches upon violation of fundamental rights, second and third reliefs (b) and (c) touch upon detinue ..............  It is settled by a long line of decisions of both this Court and the Supreme Court that remedy other than those touching upon fundamental rights cannot be sought under the Fundamental Rights (Enforcement Procedure) Rules (supra) ......................  The first relief in respect of which damages for N1, 000,000.00 was sought and granted under relief (d) equally does not fall within the contemplation of fundamental rights ..............  There was therefore no claim before the learned trial judge seeking for a declaration of violation of the Respondents’ fundamental rights. In the result bringing the action under Fundamental Rights (Enforcement Procedure) Rules (supra), is incompetent. The whole proceedings is therefore null and void ab initio and it is set aside.  The appeal succeeds and it is allowed. The decision of the trial Court is set aside and the Respondent’s claim struck-out.”

Aggrieved by the decision of the Court of Appeal, the Applicant has now appealed to this Court. The parties filed and exchanged briefs of arguments in accordance with the Rules of Court. The Applicant in his brief has submitted two (2) issues for determination as follows -

The Respondents adopted these issues.

The two issues are in my view clearly inter-related.   They will therefore considered and answered together. The submissions of learned Counsel for the Applicant on the issues can be summarised as follows -

(i)         That the Court of Appeal was wrong in its conclusion that the reliefs sought by the Applicant cannot be sought or entertained or adjudicated upon in an action under the Fundamental Rights (Enforcement Procedure) Rules 1979, because the Rules do not stipulate or prescribe the form or nature a relief should take or have. He referred to Section 42 of the 1979 Constitution and to Order 1 Rule 2 and Order 6 Rule 1 of the Rules.

(ii)        That the reliefs sought by the Applicant were simply to enforce his fundamental rights under Sections 31(l)(a.) 32(1) & 40(1) of the 1979 Constitution. He said relief (a) sought to enforce his rights under Sections 31(l)(a) and 32(1) of the 1979 Constitution. Reliefs (b) & (c) sought to enforce his rights under Section 40 of the Constitution while Relief (d.) seeks for monetary compensation for the violation of his fundamental rights as complained of and as established at the trial.  He cited the cases of Att. Gen. of Bendel State v. Aideyan (1989) 4 N.W.L.R (Pt. 118) 646 at 674. He also referred to Section 42(2) of the 1979 Constitution and to Order 6 Rule 1(1) of the Rules.

(iii)       That the Court of Appeal failed to properly interprete the relevant provisions of the Constitution as well as the Rules by not giving them their ordinary meaning and came to the wrong conclusion that the Applicant's action was not competent.  A number of cases were cited in support which include - Uwaifo v. Bendel State (1983) 4 N.C.L.R.L; Nafiu v. The State (1980) 11-12 S.C. 130; Aqua Limited v. Ondo State Sports Council (1988) 4 N.W.L.R. (Pt. 91) He said the Court below was under a duty to have adopted a liberal approach in its construction or interpretation of the relevant provisions of Constitution herein which it failed to do.

(iv)       That there is nothing to suggest that under the provisions of the Constitution an action commenced or filed under the Rules in pursuance of the Fundamental Rights provided under the Constitution cannot be employed to seek relevant common law reliefs or remedies in appropriate cases.  In other words even if the Applicant’s reliefs are premised on detinue, injunction and damages etc which are actionable under the common law, such reliefs can equally be sought under the Rules especially when the embodiment of the Applicant's case is premised solely on allegations of infringement of his fundamental rights.  That there is nothing in the Rules preventing the Courts from entertaining Reliefs bordering on Common law remedies.  He cited Section 42(1) & (3) of the Constitution and Order 6 Rule 1(1) of the Rules and the cases of Federal Minister of Internal Affairs v. Abdur-rahman Shugaba Darman (1982) 3 N.C.L.R. 915, (1982) 1 F.N.R. 200; Abioye v. Yakubu (1991) 5 N.W.L.R. (Pt. 190) 130; Lawal v. G. B. Olivant (1972) 3 S.C. 124, Aya v. Henshaw (1972) 5 S.C. 87). Where therefore an Applicant for enforcement of fundamental rights prays for a relief or reliefs that have common law features, the Court would be entitled to look into such reliefs and in appropriate cases grant same in the spirit of Order 6 Rule 1(1) of the Rules.

(v)        That the question of whether or not the Applicant’s action was competent under the Rules was raised suo motu and decided by the Court without inviting the parties to address on it In addition the Court of Appeal concerned itself with the nature of the reliefs sought and not with the substance of Applicant's case. Consequently the Applicant as a result was not given a fair hearing when his case was dismissed. This has occasioned a miscarriage of justice. That the Court below ought to have looked beyond the reliefs claimed as the totality of processes filed by the Applicant sufficiently showed that complaints against the Respondents were premised clearly on violations of fundamental rights of the Applicant by the Respondents.  That the law is well settled that in dispensing justice the Court should rely or look into the substance of a case rather than its form.  The following cases were cited in support - Bolaji v. Bamgbose (1986) 4 N.W.L.R. (Pt. 37) 632 Bello & Ors. v. Att. Gen. Of Oyo State (1986) 5 N.W.L.R. (Pt. 45) 828.

We were urged to allow the appeal, set aside the judgment of the Court of Appeal and restore that of the trial High Court.

I say straight away that the issue was not raised suo motu by the Court. The briefs of the parties in that Court prove the point. The main issue has also been reproduced by me earlier in this judgment.

The Respondents in their joint brief of argument replied as follows -

(i)         That the Court of Appeal was right in its decision that the reliefs sought by the Applicant before the High Court were not maintainable under the Fundamental Rights (Enforcement Procedure) Rules, because the fundamental rights covered by the 1979 Constitution include - right to life, right to dignity of human person, right to personal liberty, right to fair hearing, right to acquire and own property and right to compensation for property compulsorily acquired.  But that the reliefs before the High Court and as found by trial judge himself were for assault and battery, trespass to land, trespass to chattel or goods, detinue and false imprisonment which are torts covered by different procedure under the Rules of the High Court.

(ii)        That issue (i) now before this Court was one of the four issues raised by the Respondents in the Court of Appeal as shown on pages 263 and 266 of the record.

(iii)       That it is trite law that the competency of suits and indeed the jurisdiction of Courts, are determined by the claims and or reliefs of the Plaintiff or Applicant and nothing else.  And that the Court of Appeal was right in determining the competency of the Applicant’s action by reference to the nature of the reliefs sought.

(iv)       That the Applicant has not shown any error of law or a miscarriage of justice to warrant interference or the setting aside of the judgment.

The Court was urged to dismiss the appeal and affirm the judgment of the Court of Appeal.

I am in agreement with the Respondent’s submissions above.

It is most convenient for me however to answer the Applicant’s issue (2) first as that will lead me directly into the heart of issue (1).

Issue (2) relates to the competency of the Applicant’s action and whether or not its competence could have been determined by reference solely to the nature of the reliefs or claims sought as was done by the Court of Appeal. The answer to me is simply ‘yes’, in the affirmative. The Court of Appeal was right to have considered the reliefs or claims only, and without reference to anything. It is settled and a fundamental principle that jurisdiction is determined by the Plaintiffs claim or relief. In other words it is the claim before the Court that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction conferred on the Court (see for example Western steel works v. Iron & Steel Workers (1987) 1 N.W.L.R. (pt. 49) 284; Tukur v. Government of Gongola State (1989) 4 N.W.L.R. (pt. 117) 517, Adeyemi v. Opeyori (1976) 9-10 S.C. 311. Issue (2) therefore fails.

I now go back to issue (1) which is whether or not the Court of Appeal was right in its conclusion that the reliefs or claims sought by the Applicant were not maintainable under the Fundamental Rights (Enforcement Procedure) Rules. Having come to the conclusion in issue (2) above that the Court of Appeal applied the correct or proper principle by solely examining the reliefs or claims of the Applicant, the task before me now is to see whether the examination of the reliefs was thoroughly and properly conducted or carried out in coming to its conclusion.

The starting point in resolving this issue is the judgment of the trial High Court itself, The learned trial judge in his judgment on pages 207 - 208 of the record had this to say on the claims or reliefs of the Applicant. He said -

“The actions of the Respondents in this case are not only infringement of the Applicant’s fundamental rights but are also tortious in nature.  For instance, the forceful entry of the Applicant’s house by the 3^rd Respondent leading other armed military men is an act of trespass while the arrest of the Applicant by military men led by A. D. Yahaya involved the tort of assault and battery because the Applicant said in his evidence that he was forced to enter his car to follow the military men to the Air Force Base Kano. At the Airforce Base Kano, the restriction of the Applicant’s movement by detaining him in a room close to the 2^nd Respondent’s office also amount to a tort of false imprisonment or wrongful confinement. The Respondent’s tampering with the Applicant’s vehicles is also a tort of trespass to goods or chattel as well as detinue. From the totality of the evidence adduced by the Applicant, which I believe the Respondents, are also liable in tort in addition to their liability for the infringement of the Applicant’s fundamental rights. This will be duly considered in the determination of the actual amount payable to the Applicant in form of compensatory, general, aggravated and exemplary damages.”

(emphasis is mine)

Also the last of the four (4) orders which the learned trial Judge made at the end of his judgment on page 212 of the record concluded thus -

“4.       ........... and the same actions amount to different types of torts such as assault and battery, trespass to land, trespass to chattel or goods, detinue and even false imprisonment as disclosed by the evidence adduced at the trial.”

(emphasis mine)

Thus, there is no doubt that the learned trial Judge himself realised that the reliefs sought by the Applicant are tortious in nature. In other words these are common law reliefs. These could only have been claimed strictly by following the common law procedure by issuing a writ of summons and filing pleadings thereof.

Now, the Court of Appeal in its judgment as earlier stated, concluded that none of the reliefs sought by the Applicant touched upon the violation of fundamental rights and consequently the action under the Fundamental Rights (Enforcement Procedure) Rules is wrong and incompetent. The claims were then struck-out. So both the High Court and the Court of Appeal in effect found the reliefs to be tortious in nature.   Needless to say that in the instant case the tortious claims are the principal claims even if there existed some fundamental rights infringement as found by the trial judge. And that being the case the Court of Appeal would have been entitled to hold that a wrong procedure has been adopted under the Fundamental Rights (Enforcement Procedure) Rules, instead of by the issuance of a Writ of Summons (see for example, Federal Minister of Internal Affairs & Ors. v. Darman (1982) 3   N.C.L.R. 15, B.R.T.C. v. Egbuonu (1991) 2 N.W.L.R. (Pt. 171) 81. Tukur v. Government of Gongola State (1989) 4 N.W.L.R. (Pt. 117) 517, Anigboro v. Sea Trucks Nigeria Ltd. (1998) 1 HRLRA 291, Kokoro-Owo & Ors v. Lagos State Government & Ors. (1988) 1 HRLRA, 322).

I have no doubt at all that a claim under the common law can properly be joined in an application under Section 42 of the 1979 Constitution, where such a claim is secondary, ancillary or incidental to the complaint of a breach of fundamental right.   In the instant case, the claims as found by both the High Court and the Court of Appeal were common law claims or reliefs which were wrongly brought under the Fundamental Rights (Enforcement Procedure) Rules instead of by Writ of Summons.   This is a fundamental breach and not a mere technicality, which can be waived or ignored. One of the indicia of jurisdiction as laid down in Madukolu v. Nkemdilim (1962) All N.L.R. (part 2) 581 at 589, is that the action is initiated by due process of law, which in this case is by writ of summons. That is lacking here (see Tukur v. Gongola State   (supra); Federal Minister of Internal Affairs v. Shugaba Darman (supra).

The trial High Court clearly has the jurisdiction to determine all the issues in this case but a proper procedure must be followed. The Court of Appeal was therefore properly guided and came to the correct conclusion. Issue (1) also fails.

All the two issues having been resolved against the Applicant, the appeal fails. It is dismissed with N10, 000.00 costs against the Applicant/Appellant and in favour of the Respondents/Respondents.

 Judgement delivered by

Aloysius Iyorgyer Katsina

I have had the advantage of reading in draft the judgment delivered by my learned brother Kutigi. J.S.C. in this appeal. I agree with it and, for the reasons given therein, I also would dismiss the appeal with N10, 000.00 costs in favour of the Respondent.

Judgment delivered by

Ignatius Chukwudi Pats Acholonu, J.S.C.

I have read the judgment of my learned and noble Lord Kutigi J.S.C. in draft and I agree with him. I must state that it is becoming fashionable nowadays for litigants to institute an action by way of asking for relief for infraction of their Constitutional rights in a matter where the facts reveal that an action should conceivably lie in tort or contract. It is difficult to say whether recourse to this inelegant procedure is borne out of the ignorance of Counsel or a mistake. Whichever is the case, it is important to state and emphasize that in a case of the nature before us, Counsel should have studied the facts of the case very well. Facts are the springboard of law. It is the facts of the case that determine the appropriate remedy. This case is lost because of the unpardonable procedure resorted to by the Appellant’s Counsel. An action by way fundamental rights may sound romantic and prosily prosaic, but it could lead to a loss of a case because of a parade of abysmal ignorance as to what to do.

I abide by the consequential order.

Judgement delivered by

Sunday Akinola Akintan. J.S.C.

I had the privilege of reading the draft of the leading judgment just delivered by my learned brother, Kutigi, J.S.C. The facts of the case and all the issues raised in the appeal are fully set out in the judgment. I therefore need not repeat them.

The main issue to be resolved in the appeal is whether the Appellant was right in commencing the action under the Fundamental Rights (Enforcement Procedure) Rules 1979. In resolving that issue, the claim of the Appellant has to be examined. The Appellant’s cause of action, as set in the supporting affidavit at the trial High Court, arose from the steps taken by the 1^st Respondent to recover a debt due from the Appellant. The Appellant believed that the steps the man took were directed at intimidating him.

The facts disclosed in the supporting affidavit show that the Appellant and the 1^st Respondent were both dealers in hides and skin in Kano. The Appellant admitted that he received some undisclosed sum of money from the 1^st Respondent for which he was to supply hides and skin. He failed to make the supplies. The Appellant deposed as follows in paragraphs 9,10,11,12 and 13 of his supporting affidavit:

“9.       That despite my promise and sincerity to liquidate the debt the first Respondent have threatened and vowed to use his influence and connections with Military Officers to intimidate and terrorise me to pay the debt without taking the matter to the court as the law requires.

10.       That in carrying out this threat I have received several threats, intimidation and harassment (in person and through members of my family) from Military Officers who have confirmed one way or the other that their action  (i.e. harassment, intimidation and degrading treatment) were at the instance of the first Respondent in respect of the debt 1 owe him.

11.       That in 14/12/89 and 18/12/69, I received threatening letters from one Major G. Ofoche of the Nigeria Army Bukavu Barracks Kano at the instigation of the first Respondent and that the same Major also harassed and intimidated members of my family when he came without meeting me.

12.

(a)       That in 1990 one John Telia Hussain (an Airforce Officer and former Kano State Chairman of Task Force on 'fax Recovery) visited   my   house   with 14 Airforcemen, drove members of my family from our main house to a room in the Boy's Quarters and locked them up to the evening of that day.

(b)       That the same John Telia Hussain took away my pick up Van with Registration No KN 2848 KQ fully loaded with skins and upon my enquiry for his reason, he confirmed to me that his action was to hurry me to pay up the debt I owe the first Respondent.

13.       That sometime in May, 1990 the same John Tella Hussain led about eight Airforcemen in my house, seized my Peugeot 505 car with Registration No KN 7292 KQ and forcefully took the car to the first Respondent in order   that the first Respondent should value the car and offset my debt to the first Respondent with the value of the car which was the thing and impounded by the first Respondents for one week”.

It is quite clear from the above averments that the allegations of harassment and intimidations were not authorized by any of the military authorities or the Kano State Tax Authority. It was founded on a dispute between two individuals, that is, the Appellant and the 1^st Respondent. The question therefore is whether the Appellant’s redress could properly be initiated by way of an application for the enforcement of the Appellant’s fundamental rights guaranteed in Chapter IV of the 1979 Constitution.

The position of the law is that where fundamental rights are invaded not by government agencies but by ordinary individuals, as in the instant case, such victims have rights against the individual perpetrators of the acts as they would have done against state actions. It follows therefore that in the absence of clear positive prohibition   which precludes an individual to assert a violation or invasion of his fundamental right against