Barrister John Duru & Anor V. Patrick Nwagwu & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C

The appellants herein had on 14th December, 1995, filed at the Federal High Court, Lagos, a motion ex parte under the Fundamental Human Rights (Enforcement Procedure) Rules, 1979 seeking.

(a) Leave to apply to the court for the enforcement of their Fundamental Rights as guaranteed by the 1979 Constitution on the Federal Republic of Nigeria (as amended)

(b) That the granting of this leave shall operate as a stay of all actions or matters relating to or connected with this complaint until determination of the application.

(c) That the motion paper and all the processes in this suit shall be served on all the respondents within 14 days.

The motion was heard and granted by Bishogun, J., on 18th January, 1996.

Following the leave granted by Bishogun, J., the appellants on 31st January, 1996 filed a motion at the Federal High Court, Lagos praying the court for:

(a) A declaration that the arrest and detention of the applicants at the Barracks Police Station, Surulere, Lagos and the detention of the 1st applicant at Bode Thomas Police Station, Surulere, Lagos and Ikoyi Prisons for period ranging from 2 days to 10 days without justification and the threat of detention or further detention of the applicants is unconstitutional, unlawful, illegal, null and void.

(b) An order restraining the respondents, their agents or privies from arresting, re-arresting or detaining the applicants.

(c) An order directing the respondents jointly and/or severally to pay to the applicants, damages in the sum of N50,000,000 (Fifty Million Naira).

Upon being served with the processes, the 8th and 9th respondents (the applicants herein) filed a Motion on Notice dated 1st day of April, 1996, for an order dismissing or striking out the action as against the 8th and 9th respondents or in the alternative, for an order striking out the names of the 8th and 9th respondents upon the following grounds:

1. The Federal High Court has no jurisdiction to entertain the applicants’ action as constituted against the 8th and 9th respondents/applicants.
2. The 8th and 9th respondents are not proper parties to this suit and the court has no jurisdiction to entertain the action as constituted which joins the 8th and 9th respondents with the 1st to 7th respondents.
3. The claim discloses no cause of action against the 8th and 9th respondents and constitutes an abuse of court process.

On 19th December, 1996, the trial Judge delivered a ruling whereby the dismissed the respondents’ application. He held that:

1. The Federal High Court had jurisdiction to entertain the matter.
2. The 8th and 9th respondents are proper parties in that there is a nexus between the 8th and 9th respondents and the 1st – 7th respondents particularly as the melancholy of the applicants was planked on the petition of the 8th and 9th respondents.
3. The averments in the affidavit in support seem to point to the fact that the appellants have made a case against the 8th and 9th respondents.

The respondents’ appeal to the Court of Appeal was allowed. That court held that Section 32 of the 1979 Constitution upon which the court could grant remedy to the appellants had been suspended by Decree 107 of 1993 and therefore the jurisdiction conferred by Section 42 of the 1979 Constitution and the Fundamental Rights Enforcement Rules could not be invoked. The Court of Appeal further held that the respondents could not be held liable for the arrest and detention of the appellants and consequently struck off the names of the 8th and 9th respondents.

The appellants have appealed to this court upon a number of grounds.