Whether Multiple People Can File a Joint Application to Enforce a Fundamental Right Under the Enforcement Procedure Rules

CASE TITLE:  NUWAWAN & ORS v. IGP ABUJA & ORS (2023) LPELR-61580(CA)

JUDGMENT DATE: 7TH DECEMBER, 2023

PRACTICE AREA: CONSTITUTIONAL LAW

LEAD JUDGMENT: AMINA AUDI WAMBAI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on the Enforcement of Fundamental Right.

FACTS:

This appeal is against the decision of the Federal High Court, Warri Judicial Division.

At the Federal High Court, Warri Judicial Division, the Appellants as Applicants, by an originating motion, commenced an action on 7/2/2018 for the enforcement of their fundamental rights pursuant to Sections 34, 35, 41, 46(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Order II Rules 1, 2, 3, 4, and 5 and IV Rule 4(a), (b), (c)(i) of the Fundamental Rights (Enforcement Procedure) Rules 2009. They sought the following reliefs:

1. A DECLARATION that the arrest and detention of the 1st applicant on 15/1/2018 to 19/1/2018 by the 6th–8th Respondents agents of the 1st 2nd respondents at the instigation of the 9th–11th respondents without the 1st Applicant committing any offence known to law and without proper trial is unconstitutional, illegal, oppressive, and amounts to a gross infringement of the 1st Applicant’s Fundamental Rights to a hearing, Personal Liberty, Dignity of His Person, and Freedom of Movement, as enshrined in Sections 34, 35 & 41 of the 1999 Constitution (as amended in 2011).

​2. A DECLARATION that the harassment, molestation, brutal torture, and assault of the 1st applicant by the 6th -8th Respondents for no offense known to Law and without having the requisite authority to do so is a blatant violation of the 1st Applicant’s Fundamental Rights as guaranteed under Section 34 of the 1999 Constitutions (as amended).

3. A DECLARATION that the threats by the Respondents to further arrest and detain the 1st applicant and the threat to harass, intimidate, humiliate, arrest, and detain 2nd–16th Applicants without the 2nd–16th Applicants committing an offence known to law and without having the requisite authority to do so is a violation of the 2nd–16th applicants’ Fundamental Rights as enshrined in the 1999 Constitution of Nigeria (as amended 2011).

4. A DECLARATION that the 1st Applicant is entitled to an award of N50,000,000.00 (fifty million Naira) only as compensatory damages against the Respondents jointly and severally for the unlawful arrest, torture, detention, molestation, and harassment of the 1st Applicant.

5. A DECLARATION that the 2nd–15th Applicants are entitled to an award of N500,000,000 (Five Hundred Million Naira) as damages against the Respondent jointly and severally for the inconveniences and discomfort arising from the threat to arrest, detain arrest, and intimidate the 2nd–16th Applicant.

6. AN ORDER restraining the Respondents whether by themselves or by their officers, agents, servants, subordinates, privies, or otherwise howsoever described, from further arresting and detaining the 1st Applicant and/or from arresting and detaining the 2nd to 16th Applicants, and/or in any manner violating the Fundamental Rights of the Applicants.

7. AN ORDER of this Honorable Court directing that Respondents tender an unreserved apology to be published in two (2) National Newspapers for the gross violation of the Applicants’ Fundamental Rights.

8. Such further order or orders as this Honorable Court may deem fit to make in the circumstances of this case.”.

In opposition to the application, the 1st to 8th Respondents filed a 48-paragraph counter affidavit, while the 9th to 11th Respondents responded by filing a 24-paragraph counter affidavit and a Notice of Preliminary Objection. The Appellants filed a further affidavit to the 9th to 11th Respondents’ counter affidavit and the preliminary objection. The trial Court heard the application together with the preliminary objection but considered the preliminary objection first. In its judgment, the Court upheld the objection and struck out the motion for being incompetent.

Dissatisfied, the Appellants filed an appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on a sole issue, thus:

“Whether the learned trial Court was right when it held that it lacked the jurisdiction to entertain the Appellants’ joint Application for Enforcement of their Fundamental Rights?”

DECISION/HELD:

In conclusion, the appeal was allowed and suit was remitted to the trial Court for trial on merit before a different Judge.

RATIOS:

• ACTION- CAPACITY TO SUE AND BE SUED: Meaning of a juristic person; Whether a person occupying any office mentioned and statutorily recognized by the Police Act is a juristic person that can sue and be sued
• APPEAL- PROLIFERATION OF ISSUES: Attitude of appellate courts as it relates to the proliferation of issues for determination
• CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether a joint application can be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules
• CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether a joint application can be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules
• PRACTICE AND PROCEDURE- PRELIMINARY OBJECTION: Whether a preliminary objection raised on appeal must be resolved before hearing the substantive appeal
• PRACTICE AND PROCEDURE- ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Whether Section 97 of the Sheriffs and Civil Process Act applies only to writ of summons
• PRACTICE AND PROCEDURE- ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Whether the provision of Section 97 of the Sheriffs and Civil Process Act as regards the endorsement of originating process to be served out of jurisdiction applies to the Federal High Court
• PRACTICE AND PROCEDURE- ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Effect of non-compliance with the provision of Section 97 of the Sheriffs and Civil Process Act as regards the endorsement of originating process
• PRACTICE AND PROCEDURE- FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES: Purpose of the Fundamental Rights (Enforcement Procedure) Rules; role of Court thereto

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