CAN AN ACTION FOR A CIVIL WRONG IN TORT BE BROUGHT AS AN ACTION FOR ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS?

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CASE TITLE: ABDULLAHI & ORS v. NIGERIAN ARMY & ORS (2019) LPELR-46925(CA)

JUDGMENT DATE: 14^TH MARCH, 2019

PRACTICE AREA: ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS

LEAD JUDGMENT: BOLOUKUROMO MOSES UGO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Enforcement of Fundamental Human Rights.

FACTS

This appeal is against the Ruling/decision of the Federal High Court, Bauchi Division delivered by M.S. Abubakar J., on 8th March 2017.

Appellants, in their action which they commenced by way of Writ of Summons on 8th of March 2016, claimed against respondents:

1. A Declaration that the act of the defendants, their agents and servants of shooting at an official vehicle – a black Toyota Prado Jeep with Registration Number: 06H 02 BA, the plaintiffs were travelling in on 17th March, 2015, at Tirwun Village along Bauchi – Maiduguri Road as well as the threat to further shoot the plaintiffs amounts to assault, battery, intimidation, threat to life and damage to property.
2. An order directing the defendants to pay the plaintiffs the sum of ₦200,000,000.00 (Two Hundred Million Naira) only as general damages for assault and battery, threat to life, shock, embarrassment, harassment and damage to property.
   3. An order directing the defendants to pay the plaintiffs the sum of ₦200,000,000.00 (Two Hundred Million Naira) only estimated to be the cost of this action including lawyer’s fee.
3. Any other relief incidental to or consequential upon the plaintiffs’ claims.

On or about 17th March 2015 the respondents were travelling to the main campus of the Bauchi State University in a black Toyota Prado Jeep with official Reg. No.06H 02 BA and on reaching Turum Village along Bauchi-Maiduguri road, they got to a convoy of military vehicles moving in the same direction but at a speed lower than that of the plaintiffs/respondents. That as the 1st respondent was in a hurry to go to the University in order to chair a meeting in his capacity as the Pro-Chancellor of the University, his driver i.e. the 2nd respondent, attempted to overtake the military convoy but the pilot car warned him not to do so. However, the 2nd plaintiff did not heed the warning and he increased the speed of the car with a clear intention to overtake the convoy, and as he was about to overtake, one of the soldiers in the convoy shot the front tyre of the plaintiffs’ Jeep and immobilized it instantly. None of the occupants of the Jeep was hurt or injured.

The writ of summons was accompanied by a statement of claim, written statements of witnesses on oath and a list of documents to be relied upon at the trial. Upon being served with the processes, the Respondents filed a memorandum of conditional appearance and a notice of preliminary objection praying for the striking out of the matter in limine on the ground that the Appellants’ right of action had been extinguished by the operation of Section 2 (a) of the Public Officers Protection Act; that the act complained of was allegedly committed on the 18th of March, 2015 while the action was commenced on the 8th of March, 2016.

The trial Court took arguments on the notice of preliminary objection and delivered a considered Ruling on the preliminary objection where he found and held in the Ruling that the action of the Appellants was caught by the provisions of Section 2 (a) of the Public Officers Protection Act and was statute barred. The trial Court further found and held that the cause of action of the Appellants, being one predicated on tortuous liability, was not within its subject matter jurisdiction as spelt out in Section 251 (1) of the 1999 Constitution (as amended).

Being dissatisfied with the decision of the trial Court, the appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal based on the following issues for determination:

1. Whether the learned trial judge was right when he held that the appellants’ action was not bordering on fundamental rights of the appellants or breach of Chapter IV of the Constitution of the Federal Republic of Nigeria 1999.
2. Whether the learned trial judge was right when he refused to strike out the respondents’ Notice of Preliminary Objection notwithstanding the fact that there was apparent non-compliance with the time of filing as stipulated by the Rules of the Court.
3. Whether the learned trial judge was right when he dismissed appellants’ suit on grounds of non-compliance with the procedure for bringing an action under the Fundamental Rights (Enforcement Procedure) Rules.
4. Whether the learned trial judge was right when he held that appellants’ action was statute barred notwithstanding the nature of their claim before the Court.
   5. Whether the learned trial judge was right when he suo motu raised the issue of applicability or otherwise of Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 without giving the parties an opportunity to address him thereon.

DECISION/HELD

In the final analysis, the Court of Appeal found that the appeal was bereft of merit. The Court dismissed the appeal and affirmed the Ruling of M. Shittu Abubakar, J., of the Federal High Court, Bauchi Division.

RATIOS:

• CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether an applicant can commence an action for the enforcement of fundamental rights via a writ of summons
• LIMITATION LAW- LIMITATION OF ACTION: Whether a rule of Court can limit the application of a statute of limitation
• LIMITATION LAW- STATUTE OF LIMITATION: Whether the statute of limitation can be raised at any stage in the litigation
• PUBLIC OFFICER- PUBLIC OFFICERS PROTECTION ACT: Conditions for the provision of Section 2(a) of the Public Officers’ Protection Law to avail any person
• PUBLIC OFFICER- PUBLIC OFFICERS PROTECTION ACT: Instance(s) when the Public Officers’ Protection Act/Law will and will not avail a Public Officer