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Ihim V. Maduagwu & Anor (2021) LLJR-SC

Ihim V. Maduagwu & Anor (2021)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

This appeal is against the judgment delivered by the Owerri Division of the Court of Appeal in Appeal No. CA/PH/17/2009. The judgment was delivered on the 20th day of January, 2015.

In an ex-parte application filed on 4th October, 2004 pursuant to Fundamental Rights (Enforcement) Rules, 1979 the applicant, Mr. Cyril Maduagwu (now 1st respondent in the appeal) sought the following reliefs:

(a) An order granting leave to the applicant to apply for the enforcement of his fundamental right guaranteed by Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999, viz right to personal liberty and right to freedom of movement.

(b) An order that the leave if so, granted in this application shall operate as a stay of all action or matter related thereto or connected herewith the compliant until the determination of the motion on notice.

(c) And for such further action(s) as the Honourable Court may deem fit to make in the circumstances”.

The claim was made against:

(1) Ifeanyi Ihim (the appellant herein)

(2) Sgt. Aina

​(3) Insp. Usman

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(4) ASP Okoro

(5) Commissioner of Police, Imo State

(6) AIG Zone 9, Umuahia

(7) Inspector General of Police.

On 5th October, 2004 the Court granted the ex-parte application and made the orders sought therein.

Pursuant to the grant of his application, the applicant filed a motion on notice on 11th October, 2004, claiming the following: –

“(a) A declaration that the act of the respondents whereby they arrested and detained the applicant constituted infringement on the applicant’s fundamental right to his liberty and freedom of movement.

(b) An order restraining 2nd to 7th respondents, either by themselves, their agents, servants etc., from further arrest and/or detention of the applicants.

(c) A declaration that the transaction whereby the applicant transferred his interest in respect of Shop No. 145 at Park Line, New Market, Owerri, Imo State to the 1st respondent which led to the 1st respondent’s petition to the 2nd to 7th respondents which subsequently led to the arrest and detention of the applicant is purely a civil matter that has no criminal undertone.

(d) A declaration that the

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arrest and detention of the applicant by the 2nd to 7th respondents on the 22nd day of September, 2004 and also on the 27th September, 2004 is unjustifiable, unlawful, illegal and unconstitutional”.

He filed 22 grounds upon which he sought the reliefs as well as a 33 paragraph verifying affidavits.

Police Sgt. Aina 2nd respondent, filed a 27 paragraphs counter affidavit “in reply to the motion on notice”.

The applicant filed a further verifying affidavit of 20 paragraphs and 1st respondent disposed to a 27-paragraph counter affidavit denying the averments in the applicant’s affidavits.

On 11th July, 2007, the suit came up for judgment but the learned trial Judge raised the issue of jurisdiction suo motu and required learned counsel for the parties to submit written addresses on the issue.

On 1st August, 2008, the learned trial Judge having considered the written addresses on jurisdiction, ruled that the Court has the inherent power under Section 6(6) of the Constitution and the jurisdiction by virtue of Sections 46 and 251 of the Constitution to entertain this suit filed by the applicant on the 15th of

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October, 2004 pursuant to the leave of this Honourable Court granted by His Lordship, Hon. Justice J. E Shakarho on the 5th of October, 2004. His Lordship granted all the reliefs sought by the applicant.

​In the judgment, His Lordship decried the

“use of malicious and frivolous petitions to the police to instigate them into commencing criminal investigations against some law-abiding citizens of this country.”

The Court concluded thus: –

“Return date for report of compliance and making of consequential orders if necessary is the 22nd of September, 2004.”

On 21st August, 2008, the 1st respondent filed a motion on notice seeking for an order to set aside the judgment of 1st August, 2008 in suit No. FHC/OW/CS/91/2004. The Court dismissed the application on 13th October, 2008.

The 1st respondent/appellant appealed the ruling dismissing the application to set aside the judgment to the Court of Appeal, Owerri Division. There are two respondents in the appeal.

The Court of Appeal delivered its judgment on 20th January, 2015. The relevant portion of the judgment of the lower Court is hereunder

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reproduced: –

“This appeal therefore succeeds on the crucial issue of jurisdiction and it is accordingly allowed. The judgment of Hon. Justice C. V Nwokorie of the Federal High Court, Owerri Judicial Division delivered on the 1st day of August, 2008 is hereby set aside. I hereby order that the case be assigned to another Hon. Justice of the Federal High Court for accelerated hearing in view of its age….” The order of the Court of Appeal was based on the fact that the trial Court delivered its judgment in the suit without hearing both parties on a date fixed for a ruling on the issue of jurisdiction.”

Aggrieved by the judgment of the lower Court that the trial Court has jurisdiction to entertain the suit and granting all the reliefs at that stage in the proceedings, the appellant appealed the decision to this Court on 20th April, 2015. The original notice of appeal contained only one ground.

However, an amended notice of appeal filed on 17th November, 2020 had two grounds of appeal. The two grounds are hereunder reproduced, shorn of their particulars:

“Grounds of Appeal

Ground One: –

The learned justices

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of the Court of Appeal erred in law in upholding the decision of the learned trial Judge that he has jurisdiction to hear and determine the matter as was constituted before the trial Court on grounds of a breach of the applicant/1st respondent’s fundamental human rights.

Ground Two: –

The learned justice of the Court of Appeal erred in law in relying on an old decision of the Supreme Court in disregard of its current position on the jurisdiction of the Federal High Court in fundamental rights applications.”

From the two grounds of appeal, learned counsel for the appellant formulated one issue for determination in his amended brief of argument:

“Whether the Court of Appeal was right in upholding the decision of the trial Court to the effect that the Federal High Court has jurisdiction to entertain the 1st respondent’s suit for the enforcement of his fundamental right when the subject matter of the alleged breach of fundamental right is not within the preview of Section 251 of the 1999 Constitution which deals with the jurisdiction of the Federal High Court. (Ground 1 & 2)”

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In his amended brief deemed filed on 10th March, 2019, learned counsel for the 1st respondent adopted in substance, the appellant’s issue. Also, in his brief, learned counsel for the 2nd respondent adopted the said issue without any alteration.

Arguing the lone issue in his brief, learned counsel for the appellant stated that the 1st respondent made a false claim that he has an interest in Shop No 145 Park Line, New Market Owerri, Imo State. He said the 1st respondent claimed the Shop was given to him as collateral for the loan of N300,000 (Three hundred thousand naira) he gave to one Mr. Golden Ibeabuchi, based on which he collected the sum of N50,0000 (Fifty thousand naira) from the appellant as part payment of the agreed sum of N300,000 (Three hundred thousand naira) for the transfer of the said shop to the appellant. He said it was discovered that Mr. Ibeabuchi who gave the shop as security for the loan he got from 1st respondent was not the owner of the shop. Appellant’s attempt to possess the shop was rebuffed by one Mr. Cyprian Anakor who owned and possessed same.

Learned counsel classified the transaction as obtaining money by false pretence and

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reported same to the police who arrested the 1st respondent. Counsel argued that the subject matter of the alleged breach of fundamental right is obtaining money by false pretence and that the claim of the 1st respondent did not come within the items enumerated in Section 251 of the 1999 Constitution of the Federal Republic of Nigeria as altered, and ipso facto the Federal High Court has no jurisdiction to entertain the matter.

He impugned the judgment of the Court below for reliance placed by the Court on the cases of Federal Republic of Nigeria & Anor v. Lord Chief Udensi Ifegwu (2003) 15 NWLR (Pt. 842) 113 and Jack v. Unam (2004) All FWLR (Pt. 200) 1506, (2004) 5 NWLR (Pt. 865) 208. Relying on the said cases, the Court below held, inter alia:

“The judgment of the Federal High Court to entertain the action does not depend on whether it was empowered, at the relevant time to try the offences with which the respondent was charged.” He argued that the said decision of the Court below is not in accord with provisions of the 1999 Constitution (supra).”

See also  Mercantile Bank (Nig.) Plc V. Imesco Enterprises Ltd (2022) LLJR-SC

​He referred to Chapter IV of the Constitution and reproduced its

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Section 46(1) (2) & (3) as well as Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 made pursuant to Section 42(3) of the 1979 Constitution of the Federal Republic of Nigeria which is in the same terms as Section 46(3) of the 1999 Constitution (supra).

Based on the reproduced provisions and on the authority ofJack v. Unam (supra) and Tukur v. Gov. Gongola State (1989) 4 NWLR (Pt. 117) 517 he conceded that the Federal High Court has concurrent jurisdiction with the High Court of a State. However, he argued that the phrase subject to the provisions of this Constitution in Section 46(2) of the Constitution subjects the original judgment of the High Court in enforcement of fundamental rights to other provisions of the Constitution, particularly Section 251 of the said Constitution. He referred to and relied on Ebhota & 3 Ors v. Plateau Investment and Property Development Co. Ltd (2005) 11 MJSC 36 at 59, paras. A – C, (2005) 15 NWLR (Pt. 948) 266 for the import of the phrase: “Subject to”. On the authority of the Supreme Court’s decision in Nigeria Deposit Insurance Corporation v. Okem Enterprises (2004) 7 MJSC

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74 at 122 – 223, (2004) 10 NWLR (Pt. 880) 107, counsel submitted that the Court below erred in holding thus:

“I do not subscribe to the contention of the learned counsel to the appellant that jurisdiction of the Federal High Court in Fundamental Human Rights is limited by Section 251 of the Constitution.”

He contended that the Court below failed to consider the purport of the phrases “subject to” and “notwithstanding” in Sections 46(2) and 251 respectively of the Constitution. He contended that the National Assembly did not confer additional jurisdiction on the Federal High Court with respect to the 1st respondent’s claim, adding that the Fundamental Rights (Enforcement Procedure) Rules are rules of Court and cannot confer jurisdiction on Federal High Court. He relied on Dalhatu v. Turaki (2003) FWLR (Pt. 124) 247 at 242 para. 1, (2003) 15 NWLR (Pt. 243) 310 and Obiuweubi v. C.B.N. (2011) All FWLR (Pt. 525) 208 at page 240, paras. D-F, (2011) 7 NWLR (Pt. 1247) 465. He urged the Court to overrule its decision in Federal Republic of Nigeria & Anor v. Lord Chief Udensi Ifegwu (2003) 15 NWLR (Pt. 842) 113 and

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Jack v. Unam (2004) All FWLR (Pt. 200) 1506, (2004) 5 NWLR (Pt. 865) 208 upon which he said that the Court of Appeal predicted its judgment.

Learned counsel reproduced the 1st respondent’s claim and argued that the principal relief is No. C wherein the 1st respondent claimed:

“a declaration that the transaction whereby the applicant transferred his interest in respect of Shop No. 145 at Park Line, New Market Owerri, Imo State to the respondent which subsequently led to the arrest and detention of the applicant is purely a civil matter that has no criminal undertone.”

He argued that relief Nos. A, B and D were dependent on relief C. He reproduced and relied on Section 4 of the Police Act, Cap P. 19, LFN, 2004 and argued that the Police acted on reasonable ground that the 1st respondent did receive money from the appellant upon false pretence. He contended that the main relief in the 1st respondent’s application is not an enforcement of his fundamental rights. He urged the Court to allow the appeal and set aside the current judgment of the Court below.

​In response, learned counsel for the 1st respondent, in

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his brief deemed filed on 20th March, 2019 urged the Court to affirm the decision of the Court below to the effect that the Federal High Court has jurisdiction to entertain the 1st respondent’s claims. He relied on this Court’s decision in Jack v. University of Agriculture Makurdi (2004) 5 NWLR (Pt. 865) 208 and Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Federal Republic of Nigeria v. Lord Chief Udensi Ifegwu (supra) in his submission that the jurisdiction of the Federal High Court to entertain an action to enforce a fundamental rights does not depend on whether or not the Court was empowered at the relevant time to try the offence with which the respondent was charged.

He referred to cause of action as the fact or facts which give rise to a right of action. He relied on Tukur v. Government of Gongola State (supra) at 581, paragraph H and Oshoboja v. Amuda (1992) 6 NWLR (Pt. 250) 690 at 702 paras C – D. In view of the above, he contended that the 1st respondent’s claims for the enforcement of his rights are within the competence of the Federal High Court. He referred to Fundamental Rights (Enforcement Procedure)

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Rules 1979 and argued that the rules were made by the Chief Justice of Nigeria pursuant to the power conferred on him by Section 42(3) of the 1979 Constitution. He argued that the rules have the same effect as the Constitution pursuant to which they are made. He relied on the case of Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40 at 82 and Abia State University v. Anyaibe (1996) 3 NWLR (Pt. 439) 646 at 660 – 661. He referred to Adetona v. I.G. Ent. Ltd. (2011) 7 NWLR (Pt. 1247) 535 at 564 upon which the appellant urged the Court to over-rule the decision in Federal Republic of Nigeria v. Ifegwu (Supra) and Jack v. Unam (Supra) and submitted that the cause of action in Adetona’s case does not fall within the ambit of the enforcement of fundamental rights. He said that no mention was made of the issue of jurisdiction of the Federal High Court or the High Court of a state in an action to enforce fundamental right in Adetona’s case. He said that learned counsel for the appellant did not rely on the judgment of the Court in Adetona’s case but relied on a concurring judgment which is not the judgment of the Court. He relied on

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Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at 297, paras. E – G, 322 – 323 and 351, paras. C – D, and Idise v. Williams Int. Ltd (1995) 1 NWLR (Pt. 370) 142 at 150, para. F. He argued that the view expressed in the concurring judgments do not constitute the authority upon which the Court can overrule its previous decision in Jack v. Unam (supra) and Federal Republic of Nigeria v. Ifegwu (supra).

Counsel contended that a party asking the Court to depart from a previous decision, must show any or a combination of some of the following circumstances: –

(a) That the decision is shown to be a vehicle of injustice or real likelihood of injustice perpetrated.

(b) That the decision was given per incuriam.

(c) That the decision is erroneous in law.

(d) That the decision is inconsistent with the Constitution.

(e) That there have been developments which rendered the previous decision no longer good law or which would render the decision or pronouncement in the judgment oppressive.

(f) That two decisions are in conflict.

(g) That the decision is capable of fettering the exercise of judicial discretion by the

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Court.

He relied on F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 at 503 – 504, Akintokun v. L.P.D.C. (2014) 13 NWLR (Pt. 1423) 1 at 119 – 120, paras. H – F; Adedayo v. P.D.P. (2013) 17 NWLR (Pt. 1382) 1 at 40, 41, 44, 66, 76 – 77, 89, 91.

He argued that the appellant has not satisfied any of the above conditions.

In view of the above, he argued the Court to dismiss the appeal and affirm the concurrent decisions of the trial Court and the Court of Appeal.

In his own response in his brief, learned counsel for the 2nd respondent contended that contrary to the argument of learned counsel for the appellant, the subject matter of the 1st respondent’s claim is enforcement of his fundamental right to personal liberty and freedom of movement. He argued that even though the 1st respondent sought a declaration of the nature of the transaction that led to the complaint to the 2nd respondent, the declaration sought did not change the subject matter of the claim before the Federal High Court. He relied on Federal Republic of Nigeria v. Lord Chief Udensi Ifegwu (supra). On the issue of jurisdiction of the Federal High Court in

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fundamental right applications, he relied on Jack v. Unam (supra), Tukur v. Government of Gongola State (Supra), Adetona v. I. G. Ent. Ltd. (Supra) and contended that the Federal High Court has jurisdiction to determine the claim brought before it by the 1st respondent. He submitted further that the 2nd respondent is an agent of the Federal Republic and ipso facto, the Federal High Court has jurisdiction to entertain a matter involving the police as represented by the 2nd respondent. He relied on Section 251(1) of the 1999 Constitution and Osakue v. Federal College of Education, (Technical) Asaba (2010) 10 NWLR (Pt.1201) 1.

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He involved the decision of this Court in Maideribe v. Federal Republic of Nigeria to the affect that the 1999 Constitution vests exclusive jurisdiction in the Federal High Court to entertain any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

Relying on a plethora of cases such as Egbe v. Yusuf (Pt. 1) 17 at 34, (1992) 6 NWLR (Pt. 245) 1 he argued that the appellant did not prove

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any condition upon which the Court can overrule its previous decision. He urged that Court to dismiss the appeal for want of merit.

Learned counsel for the appellant filed “The appellant’s reply brief to 1st and 2nd respondents’ briefs of argument.”

At paragraph 1 – 3 of the brief, learned counsel stated:

“1.3 This is the appellant’s reply brief with respect to the argument on the various issues of law raised by the respondents respectively and argued in the said 1st and 2nd respondent’s brief of argument.”

The totality of the reply brief complied strictly with the intention in its paragraph 1 – 3

“a reply on the various issues of law raised by the respondents respectively and argued in the said 1st and 2nd respondent’s (sic) brief of argument.”

The said various issues of law raised and argued by the respondents were offered by the respondents in answer to the various issues of law raised and argued by the appellant in his brief of argument. The purport of the appellant’s reply brief is, as it were, answers to answers advanced by the respondents to the

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appellant’s argument. There is no new issue in the respondents’ brief to warrant the filing of a reply brief by the appellant. In Nyesom v. Peterside & Ors. (2015) 11 – 12 SCM, 139, (2016) 1 NWLR (Pt. 1492) 71 this Court held that

“The purpose of a reply brief is to reply to new points raised in the respondent’s brief of argument and not fill any error in appellant’s brief.”

A reply brief is to answer new and substantial points arising from the respondent’s brief. It is not meant to improve on appellant’s brief. See Chief Raymond D. Ogolo & Ors v. Chief Paul D. Fubara & Ors. (2003) 5 SC 141 at 156, (2003) 11 NWLR (Pt. 831) 231; Okonkwo Okonji & Ors. v. George Njokanma & Ors. (1999) 12 SC (Pt. II) 150, (1999) 14 NWLR (Pt. 638) 250.

I will discountenance the argument in the reply brief in resolving the lone issue in this appeal. See F.R.N. v. Iweka (2013) 3 NWLR (Pt. 1341) 285 SC.

Resolution of the Issue:

There is need to sanitize the single issue in this appeal, which issue was adopted/modified by the respondents in their respective briefs. I will once more

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reproduce the issue for ease of reference:

“Whether the Court of Appeal was right in upholding the decision of the trial Court to the effect that the Federal High Court has jurisdiction to entertain the 1st respondent’s suit for the enforcement of his fundamental right when the subject matter of the alleged breach of fundamental right is not within the purview of the Section 251 of the 1999 Constitution which deals with jurisdiction of the Federal High Court.”

The issue as formulated is wordy and inapt. It is argumentative and assumes fact which were not established before the trial Court or the Court of Appeal. In the circumstance, I can reformulate the issue for resolution of the appeal. See Mahuta v. Nasir (1990) 4 NWLR (Pt. 146) 581; C.B.N. & Ors v. Okojie (2015) 8 8cm 21,(2015) 14 NWLR (Pt. 1479) 213. The issue to resolve the appeal is

“Whether or not the Court of Appeal was right on the facts of the case, to affirm the decision of the trial Court that the Federal High Court has jurisdiction to entertain the 1st respondent’s application to enforce his fundamental rights.”

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I will now resolve the issue as formulated above. Upon the grant of his ex parte application to enforce his fundamental rights, the 1st respondent filed a motion on notice claiming as follows: –

“Reliefs sought:

(a) A declaration that the act of the respondent whereby they arrested and detained the applicant constitutes an infringement on the applicant’s fundamental right to liberty and freedom of movement.

(b) An order restraining 2nd – 7th respondents, either by themselves, their agents, servants etc. from further arrest and/or detention of the applicant.

(c) A declaration that the transaction whereby the applicant transferred his interest in respect of Shop No. 145 at Park Line New Market, Owerri, Imo State to the 1st respondent which led to the 1st respondent’s petition is the 2nd – 7th respondents which subsequently led to the arrest and detention of the applicant is purely a civil matter that has no criminal undertone.

(d) A declaration that the arrest and detention of the applicant by the 2nd – 7th respondents on the 22nd day of September, 2004 and also on the 27th September, 2004 is unjustifiable, unlawful, illegal and

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unconstitutional.”

Appellant’s main contention is that the whole case of the 1st respondent depends on relief No. C reproduced above. This is predicated on the fact that the arrest and detention of the 1st respondents was as a result of the complaint of obtaining money by false pretences made against him by the appellant.

The declaration sought in relief No. C cannot constitute the main issue in his enforcement of his fundamental rights to liberty and freedom of movement. The 1st respondent’s arrest and his detention is a direct consequence of the complaint made against him to the 2nd – 7th respondents. His claim is that his rights to liberty and freedom of movement were breached and, in my view, the fate of the said claim does not rest on relief No. C and the issue of whether or not the Federal High Court has jurisdiction to try cases of obtaining money by false pretence does not arise in this appeal. Appellant in his argument tends to justify the arrest and detention of the 1st respondent on the allegation that he committed an offence.

​In any case, the appellant did not appeal to the Court of Appeal the decision of the

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trial Court that

“In any case, the transaction that gave rise to the petition upon which the applicant was arrested and detained”

was a purely civil transaction without criminal content or undertone whatsoever. By not appealing the finding, the appellant is deemed to have agreed with the said decision.

Consequently, the arresting authority failed to discharge the burden cast on it proving the legality or constitutionality of the arrest and/or detention of the 1st respondent. See C.O.P. Ondo State v. Obolo (1989) 5 NWLR (Pt. 120) 130 at 138; Iyere v. Duru (1986) 5 NWLR (Pt. 44) 665 SC: Joe Sandy v. Tohanne Hotegua & Anor 14 WACA 18.

In Singh v. Delhi 16 Supreme Court Tournai, the Supreme Court of India warned:

“This Court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they consider to be their duty must strictly observe the norms and rules of the law.”

The fact that a person has been accused of a crime, however serious, will not deny that person access to Court to enforce his fundamental right if these rights have

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been violated. See Duruaku v. Nwoke (2015) 15 NWLR (Pt. 1483) 417. After all, he is presumed innocent unless proven guilty.

Learned counsel for the appellant argued that Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, Cap. 62 Volume VI, Laws of the Federation 1979 is part of the Rules of Court and not an Act of the National Assembly and same cannot confer jurisdiction on the Federal High Court. He relied on Dalhatu v. Turaki (2003) FWLR (Pt. 174) 247 at 264, (2003) 15 NWLR (Pt. 843) 310.

This argument was prompted by a portion of the judgment of the Court below wherein the Court said

“… I am therefore of the consideration view (sic) that irrespective of the complaint of receiving money under false pretence which formed the basis of the arrest and detention of the applicant/1st respondent, he would seek for the enforcement of the breach of his Fundamental Human Rights as his claims were cognisable under Section 46(2) of the Constitution and Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules ….” Section 42(3) of the 1979 Constitution provides thus: –

“The Chief Justice of

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Nigeria may make rules with respect to the practice and procedure of a High Court for the purpose of this Section.” As the title implies the Fundamental Rights (Enforcement Procedure) Rules and Practices Directions and have the force of law. See Dr. Arthur Agwuncha Nwankwo & 2 Ors v. Alhaji Usman Yar’adua & 40 Ors (2010) 3-5 SC (Pt. 111) 1, (2010) 12 NWLR (Pt. 1209) 518.

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In any case, the argument of learned counsel for the appellant on the rules is misconceived. The Rules do not purport to confer jurisdiction in the Federal High Court or any other Court. The intendment of the rules is to direct an applicant on the procedure to enforce his fundamental rights.

Appellant’s argument invokes the relationship between substantive law and procedural or adjectival law. Substantive law creates, defines and limits obligation.

Whereas, adjectival law prescribes the rules for the administration of substantive law. See Chigbu v. Tonimas (Nig.) Ltd. (2006) 9 NWLR (Pt. 984) 189 SC.

​The Fundamental Rights (Enforcement Procedure) Rules form part of the procedural and adjectival law. The rules are not intended and do not purport

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to confer jurisdiction on any Court.

The jurisdiction of a High Court in fundamental rights proceedings is donated by Section 46 of the 1999 Constitution (similar provisions were made in the 1979 Constitution pursuant to which the 1st respondent filed his application): –

“Section 46(1) any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in the State for redress.

46(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such orders, issue such writ and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter….”

Fundamental Rights of the citizens or anyone within the borders of Nigeria are entrenched in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 as amended. (The 1979

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Constitution had similar chapter). Anyone whose “Chapter IV Rights” have been, are being or likely to be contravened has unfettered access to a High Court for redress “High Court” is defined in Section 46(3) of the 1999 Constitution (the 1979) Constitution had the same Provisions) to mean “the Federal High Court” or “the High Court of a State”.

“It would negate the principle behind the guarantee of fundamental rights of a citizen if there is to be any obstacles placed in the path of enforcing these rights”.

See F.U.T. Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176, SC per Kekere-Ekun, J.S.C. I will add that no statute of the Constitution should be construed in such a manner as to place fetters in the way of pursuit of “Chapter IV Rights”.

​The learned counsel for the appellant made lusty submissions on the phrases “Subject to the provisions of this Constitution” in Section 46(2) of the 1999 Constitution and “Notwithstanding anything to the contrary contained in this Constitution” in Section 251 thereof in his attempt to show that the Federal High Court

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had no jurisdiction to hear the 1st respondent’s application. If the phrases relied on by the appellant have a restricting effect on a High Court, that restriction is in favour of the 1st respondent.

Section 251 of the 1999 Constitution cited in the appellant’s brief and upon which counsel relied in his argument that the Federal High Court is without jurisdiction to hear the 1st respondent’s application, provides: –

“Section 251: Notwithstanding, anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court should have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters: (d)— (r), any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies …”

As aptly argued by learned counsel for the 2nd respondent, learned counsel for the appellant conveniently did not deem it fit to consider the effect of Section 251 in respect of the

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exclusive jurisdiction of the Federal High Court. The Nigerian Police Force is an arm or agency of the Federal Government.

The arrest and detention of the 1st respondent which the 1st respondent claimed to be in contravention of his fundamental rights were effected by the police, in its official capacity as an agent of the Federal Government. By Section 251(r) of the Constitution, the Federal High Court has exclusive jurisdiction in the application filed by the 1st respondent. See Osakue v. Federal College of Education, Asaba (2010) 10 NWLR (Pt. 1201) 1 SC relied on by the 2nd respondent’s counsel.

Learned counsel for the appellant has, in the words of learned counsel for the 1st respondent, “forcefully and vigorously” urged the Court to over-rule its previous decisions inFederal Republic of Nigeria v. Ifegwu (supra) and Jack v. Unam (supra) and to rely on Adetona v. IG Ent. Ltd. (supra) for the extant jurisdiction of the Federal High Court in fundamental right matters. I agree with Learned counsel for the 1st respondent that Adetona’s case was an action initiated by a writ of summons. It had no issue of any “Chapter IV

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Right”.

More importantly, I accept the argument of learned counsel for the 2nd respondent that the criteria for this Court to over-rule, or depart, from its previous decision, were not met or even mentioned by the appellant. See Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17 at 34; Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1 at 15; Akintokun v. L.P.D.C. (2014) 13 NWLR (Pt. 1423) 1 at 503-504; Adedayo v. P.D.P. (2013) 17 NWLR (Pt. 1382) 1 at 40 – 41, 44, 66, 76 – 77, 89 – 91. These cases are part of the plethora of cases upon which learned counsel for the respondents relied on in their submission that the appellant did not provide, or satisfy, any condition or the criterion for the Supreme Court to over-rule its previous decision. Order 8 Rule 16 of the Supreme Court Rules, 2014 made pursuant to Section 236 of the 1999 Constitution as amended provides:

“Order 8 Rule 16. The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be

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varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted.” (Italic mine from emphasis).”

The Supreme Court has inherent power to set aside its own judgment given in absence of jurisdiction or given in a procedure as to deprive the decision of the character of a legitimate adjudication. SeeAlao v. A.C.B. Ltd. Klr Vol. 6 part 105, 1803 at 1805, (2000) 9 NWLR (Pt. 672) 264. The appellant did not in any way or manner establish that the judgments which he wants the Court to overrule or any of them was obtained by fraud practiced on the Court by both or either party. See S. O. Naku v. Adekunle (1959) NLR 76; Flower v. Lloyd (1877) 6 CHD 297. Thus, the principle that the Court will not as a matter of grace or just for the asking by a party review or set aside its previous decision is cast in stone, as it were.

Finally, the appellant did not show there was no sufficient evidence to support the concurring findings of the two lower Courts. See Njoku & Ors. v. Eme & Ors. (1973) 5 SC 293 at 326, Kale v. Coker (1982) 12 SC 252 at 271. The

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appellant did not demonstrate any perversity or substantial error either in substantive or procedural law which needs to be corrected to avoid a miscarriage of justice.

See Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101; Lokoyi & anor v. Olojo (1985) 8 SC 61 at 68. (1983) 2 SCNLR 127; Gbemisola v. Bolarinwa (2014) 57 NSCQR 510, (2014) 9 NWLR (Pt. 1411) 1.

I resolve the lone issue in the appeal against the appellant. Consequently, the appeal is devoid of any merit and it is ordered that the same be, and is, hereby dismissed. The judgment of the Court below which affirmed the judgment of the trial Federal High Court on the issue of jurisdiction is hereby affirmed.

Appellant to pay costs assessed and fixed at N250,000 to the 1st respondent, 2nd respondent to bear its own costs.

Appeal dismissed.


SC.305/2015

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