Month: October 2024

Good morning, readers. Today, we are exploring a key issue in the enforcement of fundamental human rights, which, until the recent Supreme Court decision in Total Exploration and Production (Nig) LTD v Okwu & Ors (2024) LPELR-62623(SC), had seen divergent interpretations from the Court of Appeal.

This case stems from an appeal against the decision of the Court of Appeal, Port Harcourt Division, delivered on October 22, 2014. The respondents, six in number, initiated an action at the High Court of Rivers State under the Fundamental Rights (Enforcement Procedure) Rules 2009. They sought declarations that their rights to personal liberty and freedom from inhumane or degrading treatment had been violated. Additionally, they requested the release of the second respondent and the vehicle of the first respondent, both of which they claimed were unlawfully detained by the appellant, along with compensation of N250 million.

The case arose from an incident on January 21, 2012, involving soldiers led by the ninth respondent. Employees of Pontecelli Nigeria Ltd overtook a military convoy, sparking a confrontation. The first respondent, acting in his role as General Time Keeper of Pontecelli Nigeria Ltd and Task Force Chairman for Saipem, Pontecelli, and Decidom, attempted to intervene, leading to a heated exchange with the seventh respondent. A few days later, on January 29, 2012, the first respondent and others were assaulted and detained by soldiers near the premises of the eighth respondent. The respondents alleged that they were violently treated, with some sustaining gunshot injuries.

The appellant, the fourth respondent in the original suit, denied any wrongdoing. They argued that they were not responsible for the vehicle’s detention and contended that the respondents had no valid cause of action. However, the High Court ruled in favor of the respondents, awarding them N230 million in damages.

Moving to the key issues, the enforcement of fundamental rights in Nigeria is governed by the Fundamental Rights (Enforcement Procedure) Rules, 2009. (FREP Rules), which offer a framework for individuals to seek redress for rights violations. Specifically, Order II Rule 1 of the FREP Rules provides that “any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress.”

One of the main issues for determination in this case was whether multiple persons could jointly file for the enforcement of their fundamental rights or whether each individual must file separately. The interpretation of the phrase “any person” in the FREP Rules was central to this dispute.

Prior to this case, there were conflicting Court of Appeal decisions on whether multiple applicants could jointly file. Some cases supported individual filings only, while others permitted joint applications. The appellant argued that the FREP Rules referred to “any person” in the singular, meaning that each respondent should have filed separately. Additionally, they contended that the primary relief sought was tortious in nature and should not have been pursued under the FREP Rules.

This argument was supported by previous judicial authorities such as Udo vs Robson (2018) LPELR 45183(CA), Kporharor vs Yedi (2017) LPELR 42418(CA), Finamedia Global Services Ltd vs Onwero Nigeria Limited (2020) LPELR 51149(CA), Chief of Naval Staff & Ors vs Archibong & Ors (2020) LPELR 51845(CA), and Abuja Electricity Distribution Company Plc & Ors vs Akaliro & Ors (2021) LPELR 54212(CA), all of which rejected joint applications for enforcement of rights.

However, dissenting judgments in cases like Nasiru & Anor v. EFCC & Ors (2022) LPELR 56976 (CA) hinted at a shift in interpretation. Notably, in that Nasiru’s case, Justice Abiru JCA dissented, and in Okwu’s case, now Justice Abiru JSC (he was promoted), delivered the lead judgment at the Supreme Court.

The Supreme Court dismissed the appellant’s argument and held that where applicants share a common cause of action and mutual interest, they can file a single application. The decision hinged on key principles of statutory interpretation, particularly that the singular includes the plural unless explicitly stated otherwise, as captured in Section 14(b) of the Interpretation Act, 1964. The Court also referenced Public Citizen, Inc. v Mineta 340 F.3d 39 (2d Cir. 2003), where a US statute referring to “a tire” was interpreted to include multiple tires.

The Court further relied on the interpretation of the word “any” in Texaco Panama Incorporation (Owners of the Vessel M.V. Star Tulsa) v Shell Petroleum Development Corporation of Nigeria (2002) 5 NWLR (Pt 759) 209, noting that “any” could mean “one,” “some,” or “all.” Thus, the Court held that “any person” in Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order II Rule 1 of the FREP Rules could be interpreted to allow multiple applicants.

Furthermore, Hon. Justice Mohammed Idris emphasized that the overriding objective of the FREP Rules is to advance and protect rights, not restrict them. The only limitation would be where different causes of action are involved.

On the appellant’s contention regarding whether claims based on tort can be enforced under the Fundamental Rights Enforcement Procedure Rules, the court held that the respondents’ complaints, which included allegations of assault, battery, and detinue, could indeed be addressed under these rules. The court stated that while the complaints constituted tortious acts, they did not preclude the respondents from seeking redress under the Fundamental Rights Enforcement Procedure Rules, as long as the claims involved breaches of fundamental rights guaranteed by the 1999 Constitution. In Hon. Justice Abiru’s words, he opined that: “…the complaint of the Respondent in his application before the lower Court was that he was accosted by an officer of the Appellant in public for no apparent reason, in the full glare of people, including his colleagues and people who looked up to him, and who gave him a slap and beat him with a belt until the belt got damaged and that he sustained several injuries as a result of the assault and was in pains. It is apparent that the complaint of the Respondent comes within the meaning of the provision of Section 34 (1)(a) of the 1999 Constitution. The assertion of the Appellant that the claims as formulated by the Respondent did not touch on the violation of any of the fundamental rights guaranteed under Chapter IV of the 1999 Constitution is thus lame and misconceived….”

In conclusion, the settled principle of law is that where applicants share a common cause of action and mutual interest, they can jointly file a single application for redress under the FREP Rules. I feel this decision is a step in the right direction as it finally settles the uncertainty in this area and provides clarity on the joint filing of fundamental rights enforcement applications.

Thank you for reading 🙏. See you next week❤️

Hello, LSP Readers!

Today, we will be discussing the implications of failing to endorse a process served on another party in a different state, using the case of Mohammed v. N.D.I.C. (2024) 14 NWLR (Pt. 1957) 67 as our focal point.

The facts of this case reveal that the appellant’s husband, Alhaji Muktar Ahmed Muhammed, served as the Chairman of the Board of Directors of Commercial Trust Bank Ltd. He also chaired the Board of Directors of Credit and Finance Limited, which held an account with Commercial Trust Bank. Credit and Finance Limited sought a loan of N2.5 million from the bank, granted on the direct intervention of the appellant as Chairman of the bank. Additionally, a further loan of N200,000 was requested and approved. However, the company defaulted on the repayment of the total loan amount of N2.7 million after the bank was closed and taken over as a failed bank by the respondent.

The respondent took over the failed Commercial Trust Bank as a liquidator. In law, a liquidator is a person or entity appointed to wind up the affairs of a company that is unable to pay its debts. The liquidator’s primary responsibility is to collect the company’s assets, pay off creditors, and distribute any remaining assets to shareholders.

As the statutory liquidator of the bank, the respondent(NDIC)  discovered the company’s outstanding debt as of January 31, 1990, and demanded payment from the appellant’s husband, which went unheeded. In 1999, the respondent initiated legal action against both the company and the appellant’s husband at the Federal High Court, Lagos. This suit was later transferred to the Federal High Court in Kaduna. The respondent claimed a total of N14,795,399.71, including the outstanding overdraft, interest, and other bank charges. The appellant’s husband denied liability but acknowledged the company’s account and loan agreement with the bank.

During the trial, the respondent presented a Credit Approval Form, which indicated that the appellant’s husband personally guaranteed the loan. Notably, the appellant’s husband did not testify, and the company did not participate in the proceedings. The trial court ultimately found both the company and the appellant’s husband jointly and severally liable for the debt, leading to a judgment against them.

The appellant contested the trial court’s judgment, specifically regarding the failure to endorse the writ of summons that had been issued in Lagos State and served on the Chairman of the failed bank in Kaduna State. The appellant argued that this omission divested the Federal High Court, Lagos Judicial Division, of jurisdiction to hear the case.

As a result of this, the Court examined whether Section 97 of the Sheriffs and Civil Process Act applies to originating processes issued by the Federal High Court and served outside the state where they were issued. Section 97 requires a specific endorsement indicating that the writ is served outside the jurisdiction of its issuance. Historically, cases such as MV Arabella v. N.A.I.C. (2008) 5 NWLR (Pt. 1079) 1 affirmed that this endorsement was necessary, even with the Federal High Court’s nationwide jurisdiction. However, recent decisions, including P.D.P. v. Engr. John Ibrahim Uche & 2 Ors. (2023) LPELR-60038(CA), have shifted this interpretation, establishing that Section 97 does not apply to the Federal High Court. The rationale for this change is that the Federal High Court, like the Court of Appeal, is considered a single court throughout Nigeria, albeit with various divisions for administrative convenience. Thus, the issuance of an originating process from one judicial division of the Federal High Court for service in another division does not require the mandatory endorsement prescribed by Section 97. As such, it was held that the originating summons issued by the Federal High Court in Lagos and served in Kaduna, despite lacking the endorsement required by Section 97, was valid.

Justice A.D.A.H. noted that “Section 97 of the Sheriffs and Civil Process Act is an adjunct to the word, federalism. The law is to give regard to the federal system of government where the federating units are meant to be semi-autonomous territorially and in governance. A process of court from one state needs to be endorsed for service to be effected outside its State of origin. The Federal High Court is not a state court. It is a court that is meant for the federation, and its territorial jurisdiction covers the entire country. Its writ and processes under the law and the new dispensation of the decisions of this court are exempted from the operation of Sections 97 and 98 of the Sheriffs and Civil Process Act.”

This viewpoint underscores that the Federal High Court operates on a nationwide jurisdictional basis, unlike state courts. This interpretation emphasizes that while endorsements may be crucial in some contexts, the overarching jurisdiction of the Federal High Court can sometimes negate such requirements.

Consequently, the question of whether the appellant’s husband waived the requirement of Section 97 became moot, leading to a resolution in favor of the respondent against the appellant. Justice A.D.A.H. concluded, “Having taken this position, the question of whether the participation of the appellant’s husband at trial amounts to a waiver of Section 97 of the Act becomes academic. Consequently, this issue is resolved against the appellant.”

This case underscores the importance of understanding procedural requirements and jurisdictional nuances in legal proceedings, particularly when different states are involved. It illustrates the necessity for parties to be aware of how federalism impacts judicial processes in Nigeria, particularly regarding endorsements.

In conclusion, the principle of law is that due to the nationwide jurisdiction of the Federal High Court, the provision of Section 97 of the Sheriffs and Civil Process Act  does not apply to the endorsement of a writ of summons for service to another state.

Thank you for reading ❤️. See you next week🙏