Unraveling the Legal Web: Can You Seek Redress in Tort Via Fundamental Rights Enforcement Procedure?

CASE TITLE: SHU’AIBU v. A.G. OF THE FEDERATION & ANOR (2023) LPELR-61565(CA)

JUDGMENT DATE: 23RD NOVEMBER, 2023

JUSTICES: ITA GEORGE MBABA, JCA
BOLOUKUROMO MOSES UGO, JCA
USMAN ALHAJI MUSALE, JCA

DIVISION: KANO

PRACTICE AREA: CONSTITUTIONAL LAW

FACTS:
This appeal emanated from the decision of the Federal High Court in Kano.

The case was brought by the Appellant as an originating summons, posing questions related to the violation of his rights. The Appellant sought declarations that his rights to personal liberty, a fair hearing within a reasonable time, human dignity, freedom from torture, degrading and inhuman treatment, and the right to privacy were violated by the Respondents.

The trial Court, after considering the issues, ruled that the matter should have been brought as a malicious prosecution case rather than a fundamental rights action. The Court also held that no cause of action accrued against the 1st Respondent and noted the non-joinder of necessary parties, namely the Commissioner of Police and Controller of Prisons in Kano State. The trial Court struck out the case for lack of jurisdiction.

The Appellant, dissatisfied with this decision, appealed.

ISSUES FOR DETERMINATION:
The Court determined the appeal on the following issues, viz:
(1) Whether Appellant’s case ought not to have been filed before the lower Court under Fundamental Human Rights (Enforcement Procedure) Rules and whether the lower Court was right when it struck it out.
(2) Whether non-joinder of the Commissioner of Police and prison Authorities was fatal, the Appellant having joint the Respondents as necessary parties before the lower Court.

COUNSEL SUBMISSIONS:

Appellant’s Counsel argued that the trial Court erred in its decision regarding the foundational nature of the case on Fundamental Rights. He cited the case of WAEC vs. . Adeyanju (2008), MJSC Vol. 6, page 1, at 23, indicating that a suit can be founded on Fundamental Rights claims upon disclosure of a breach of fundamental rights. Counsel contended that the facts and grounds of the case demonstrated multiple breaches of the Appellant’s fundamental rights during detention and trial, as outlined in grounds 1 to 3 of the suit. He emphasized that even if elements of tort were present, it would not divest the trial Court of jurisdiction, especially when such tortious acts constitute breaches of fundamental rights. Counsel referenced the case of NUT & Ors vs. . Conference of Secondary School Tutors (CSST) & Ors (2005) LPELR-5953, highlighting the right of election for redress between fundamental rights actions and ordinary civil claims. Additionally, he argued that all human rights cases inherently involve tortious elements, citing Jaiyesimi vs. . Darlington (2022) 3 SCNJ (Pt. T1) 1 at 37. Counsel further pointed out that under Order IX of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a fundamental rights enforcement case can only be nullified if the mode of commencement is not recognized by law or if the subject matter falls outside Chapter IV of the 1999 CFRN.

In response, the 1st Respondent’s Counsel asserted that the trial Court rightly struck out the suit, as the main claim was tortious in nature and not primarily founded on fundamental rights. He argued that for an application under the enforcement of fundamental rights, the fundamental rights must be the main claim, not ancillary, emphasizing that the main claim of the Appellant was malicious prosecution, as determined by the trial Court.

DECISION/HELD:
In the final analysis, the Court allowed the main appeal as the trial Court was wrong for striking out the suit.

Upon considering the merit of the suit, the Court dismissed the suit of the applicant at the trial Court for lacking a justiciable right to enforce it.

RATIO:
CONSTITUTIONAL LAW – ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether an action in tort can be commenced under fundamental rights enforcement procedure
“Learned Counsel for the Appellant had however cited and relied on the more recent decision of the Supreme Court, in the case of Jaiyesimi v. Darlington (2022) 35 CNJ (Pt. 1) 1 at 37, on the issue of Malicious Prosecution, as tortious action, being also founded in fundamental rights, and the fact that most of the complaints of fundamental rights breaches, are also actions in tort, and it is for the litigant to elect which cause of action to take. In that case, the Supreme Court held:

“An action to enforce fundamental rights is almost invariably a complaint against a tortious act. An applicant may choose to attain redress by way of Fundamental Rights Procedure which is quicker or by writ of summons. As I stated earlier, it is apparent that the learned Senior Counsel for the Appellants does not appreciate the nature of the proceedings chosen by the Respondent for obtaining redress from the Appellants for violation of his fundamental rights.”

In that case (above), the Applicant/Respondent took out the fundamental rights action, after being discharged by the Magistrates Court for enforcement of his fundamental rights to personal liberty and dignity and for damages for his unlawful incarceration at various Police stations for several days for no just cause. After hearing the application, the trial Court held for the Applicant, that his rights had been infringed and awarded him ten million naira (N10,000,000) in exemplary damages and Seven Million five Hundred Thousand Naira (N7,500,000.00) against the Appellants. Appeal against that decision to the Court of Appeal failed, but on subsequent appeal to the Supreme Court, it succeeded, in part, in respect of only the damages awarded, which were reduced to Five Million (N5M) and N2.5Million, respectively.

In that case, Jaiyesimi Vs Darlington (Supra), my lord Ogunwumiju, JSC, further held:

“The rationale for this mode of commencement of enforcement of fundamental rights procedures was amply explained in EMEKA v. OKOROAFOR & ORS (2017) LPELR-41738 (SC). It was held that enforcement of this right is a special breed amongst the various means of approaching the Courts for justice in that the procedure is peculiarly structured to achieve speed and uphold the constitutionally guaranteed freedom of the aggrieved party. It is governed by specific and special rules that have bypassed the normal rules of procedure in order to give effect to the overriding need for speedy justice in these cases, which in the past were originated by the writ of habeas corpus to force the state to bring up prisoners in its custody.

The procedure adopted by the Respondent was proper according to law, as it renders meaningful the provisions of the Constitution dealing with the enforcement of fundamental rights.”

I cannot see any major differences between this case at hand and that cited above. Applicant in this case had elected the fundamental right procedure to seek redress for his incarceration and other breaches of his fundamental rights in the course of his arrest, detention, trial, and confinement in crowded prison cells, as well as the health hazards that he suffered in the process. I do not think it was for the lower Court to dictate as to what procedure Appellant should adopt to seek redress. See the case of Jaiyesimi v. Darlington (Supra).

I have not seen the appellant, anywhere in the questions for determination and reliefs sought, it mentioned the phrase “malicious prosecution” and/or sought relief for the same (malicious prosecution). It appears it was all the trial Courts inference that the claim centred on malicious prosecution, since Appellant had gone through trial and detention in prison custody, for about 9 years before his eventual discharge.

As earlier stated in this judgment, and as per the decision in the case of Jaiyesimi v. Darlington (supra), the same facts and complaints of the appellant’s tortious claim could also be sustained under fundamental rights when proved, and so the claim was, in the main, fundamental rights action, which can also be originated by way of malicious prosecution.” Per MBABA, J.C.A.

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