Insp. Gabriel Of The C.o.p Monitoring Unit, Lagos V. Ukpabio & Ors (2022)
LAWGLOBAL HUB Lead Judgment Report
OLUKAYODE ARIWOOLA, J.S.C.
This appeal is against the judgment of the Court of Appeal, Calabar division, Coram: Omage, JCA, Ngwuta, JCA (as he then was) and Owoade, JCA, delivered on Wednesday the 18th day of April, 2007.
The 1st respondent herein had commenced an action in the Federal High Court, Calabar for the enforcement of her fundamental human rights.
In her application exparte for leave, the 1st respondent, herein after referred to as “the applicant” had sought leave of the Court to enforce her fundamental human rights to dignity of human person, personal liberty and right to private and family life. She also sought leave for an order of Court when granted to operate as a stay of all actions or matter relating to or connected with the complaint, until the determination of the Motion on Notice. The trial Court granted the reliefs sought with the return date as 12/02/2003.
The facts relied on by the applicant are as follows – The applicant, Evangelist (Mrs.) Helen Ukpabio sought the order of the trial Court to enforce her fundamental human rights against the Inspector General of Police, Commissioner of Police, Lagos State, Inspector Gabriel, Monitoring Unit, Lagos State and Nigerian Film and Censors Board. The applicant is a preacher and the Executive Producer of Liberty Films, an arm of the Liberty Foundation Gospel Ministries. She claimed to have produced thirteen religious films and is the producer of RAPTURE FILMS – Parts 1 & 2 which is the subject of this action.
Sometime in 2001, the 4th respondent received Rapture Films 1 & 2 from the applicant for censorship as required by law. The 4th respondent directed the applicant to make certain amendments in the said two films. The applicant claimed that she carried out the amendment but the 4th respondent was not satisfied. Through Mrs. Roseline Odey of the 4th respondent, the applicant was ordered not to release the films. The applicant agreed that she went ahead to release and circulated the films within the church. She stated that she subsequently realized that it was not necessary, in the first place, to go to the 4th respondent on the censorship of her films, as the 4th respondent had no authority to censor films for religious evangelization.
The applicant claimed to have heard in the Air that her films had been banned and Mrs. Roseline Odey appeared on the African Independent Television (AIT) to say that the film was illegal. Thereafter, acting for the 4th respondent, Mrs. Odey used the Police to harass and intimidate the applicant.
That, on 20th December, 2002, the police bulldozed into the applicant’s shop at No.10 Nnobi Street, Surulere, Lagos and took away several cartons of her Rapture Films, three thousand copies of empty cartons and arrested the sales girl.
On 7th January, 2003, the Police again went to the applicant’s house to harass and intimidate her. Despite the harassment, the police did not charge the applicant to any Court.
Subsequently, in the substantive Motion on Notice, filed on 10/2/2003, the applicant sought the following reliefs:
- A declaration that the invasion of the applicant’s shops at Lagos and Calabar by the respondents in the packing of her films therefrom, the continued harassment of the applicant by the respondents and or their agents, is unconstitutional and a violation of her fundamental rights to dignity of human person, personal liberty, private and family life guaranteed under Sections 34, 35, and 37 of the Constitution of the Federal Republic of Nigeria, 1999.
- An order of injunction restraining the respondents whether by themselves, their agents, servants, privy or persons however called from interfering in any manner whatsoever with the applicant’s enjoyment of her fundamental rights to dignity of human person, personal liberty, private and family life as guaranteed under Section(s) 34, 35, and 37 of 1999 Constitution.
- An order directing the respondents to jointly and severally pay N5,000,000.00 damages to the applicant for wrongful violation of her fundamental right to dignity of human person, personal liberty, private and family life as guaranteed under the Constitution aforesaid.
- N3,000,000.00 (Three million Naira) special damages jointly and severally from the respondents for four thousand video compact disc plates of rapture film, three thousand empty VHS Video Cassettes and five hundred (500) recorded VHS Video cassettes of rapture Film carried away illegally by the respondents from the applicant’s shop in Lagos.
In response to the applicant’s Motion on Notice, the 4th respondent filed a counter-affidavit to oppose, deposed to by Mrs. M. A. Maiyaki, who was a legal officer in the Legal Unit of the National Film Censors Board. She deposed as follows:-
That the National Film Censors Board was a creation of law and that its functions include, the censor and approval of films and videos reserved in Nigeria. That the films sent for screening by the applicant – Evangelist (Mrs.) Helen Ukpabio to the 4th respondent’s offices at Onitsha and Abuja in the year 2002 were duly censored and the applicant was told to make corrections in the film. The applicant did not carry out the whole corrections she was asked to make but proceeded to show the films. The release of the film to the Church members amounted to releasing the film to the general public. The 4th respondent averred that when a religious film fails to meet the laid down requirements such films stand banned being illegal.
A counter-affidavit was filed to the application by the 3rd respondent – Inspector Gabriel Evhabor – the appellant herein. He denied the averments of the applicant that the police forced themselves into the premises of the applicant in Lagos and Calabar. That upon the complaints made by the 4th respondent, after obtaining a search warrant he visited the shop of the applicant and removed cartons of empty video cassettes. The sales girl was invited to the police station. Since the matter went to Court, there had been no contact with the applicant.
When the motion finally came up for hearing, the 3rd respondent had raised an objection that the trial Federal High Court lacked the required jurisdiction to entertain the action or proceedings relating to enforcement of fundamental rights. The 3rd respondent relied on Section 6(5) of the Constitution which created the High Court. He urged this Court to dismiss the applicant’s claims.
The trial Court overruled and dismissed the objection on 27/5/2005 when the Court so ruled on the objection raised by the 3rd respondent, a return date was fixed for 14/7/2005. On 01/07/2005, the 3rd respondent filed an appeal on the ruling of the trial Court on the objection to the jurisdiction of the Court to entertain the matter.
Upon consideration of the briefs of argument filed by all parties, the Court below opined that the first inclination that came to it was to send the matter to the Federal High Court for hearing and conclusion, because hearing in the suit had not been concluded and the leave of the Court below (that is the trial Court) had not been granted before the appeal was fixed for hearing in the Court of Appeal.
However, the Court below in any case found, inter alia, as follows:
“a consideration of the applicable law under the Fundamental Rights Enforcement Procedure Rules 1979, which by law is infused into an existing constitution, shows in the definition of Court that the “Court” therein defined include the Federal High Court or the High Court of a State. Consequently, whether under the Fundamental Rights Enforcement Rules 1979, or under the 1999 Constitution Section 318(1), the Federal High Court is possessed of jurisdiction to hear and determine the issue of fundamental right.”
The appeal was finally, in a unanimous decision, dismissed by the Court below and the suit was remitted to the Federal High Court, Calabar, Cross River State for hearing.
The 3rd respondent/appellant was dissatisfied with the decision of the Court below and he filed yet an appeal to this Court on 17/5/2007 containing three (3) Grounds of Appeal.
Parties filed and exchanged briefs of argument and the appeal was heard on 08/11/2021 on the following processes.
– Appellant’s brief of argument filed on 21/1/2009.
– 1st respondent’s brief of argument filed on 02/7/2020 but deemed duly filed and served on 08/11/2021.
– Joint brief of argument of the 2nd, 3rd, & 4th respondents filed on 8/3/2013 but deemed duly filed and served on 8/11/2021.
In the appellant’s brief of argument, the appellant formulated the following two issues for determination of the appeal.
- Whether the definition of “Court” in the Fundamental Rights (Enforcement Procedure) Rules 1979 made pursuant to the 1979 Constitution governs the definition of the phrase “High Court” in the 1999 Constitution.
- Whether in the absence of a definition of “High Court” in the 1999 Constitution unlike in the 1979 Constitution, the sense in which that phrase appears in the said 1999 Constitution and the general scheme thereof, the Federal High Court still retains its jurisdiction to entertain fundamental rights action.”
Learned counsel for the appellant in considering issue no.1, thought it apt to echo the privy council in Attorney General for Ontario Vs. Attorney General for Canada (1912) A. C. 511 at 583.
Learned counsel agreed that it is true that in England, there are conflicting dicta as to whether a subsidiary instrument made pursuant to a statute is a legitimate or permissible aid in the interpretation of each statute.
Learned counsel contended that the fundamental Rights (Enforcement Procedure) Rules, 1979 is by virtue of Section 39 of the Interpretation Act, – “a subsidiary instrument”, and that the said Fundamental Rights (Enforcement Procedure) Rules is not a legitimate aid to interpret obscure provisions of the 1999 Constitution, is not in doubt. He contended further that by virtue of Section 318 (4) of the 1999 Constitution, the only statute for which recourse can be heard for purpose of interpreting, the 1999 Constitution is the Interpretation Act.
Learned counsel submitted that there is no provision in the Interpretation Act which permits or admits the converse or reverse, namely that an expression used in an Act has the same meaning as in the subsidiary instrument made pursuant to the said Act. He urged the Court to resolve this issue in favour of the appellant.
On issue no. 2 as formulated by the appellant in his brief of argument, references were made to Section 277 (1) of the 1979 Constitution on the definition of the expression “High Court”.
Learned counsel conceded that Section 46 of the 1999 Constitution which prescribes the Court to entertain fundamental rights actions is in pari materia with its counterpart Section 42 of the 1979 Constitution. He however contended that the interpretation Section of the 1999 Constitution – (Section 318 (1) does not contain the definition of “High Court”.
Learned counsel contended that the failure to define the phrase, “High Court”, under the 1999 Constitution implies that the definition must now be sought either from the Interpretation Act or a reading of the entire 1999 Constitution to ascertain in what sense that expression is used and employ that as a basis to determine or fit the sense in which the phrase now appears in Section 46 of the 1999 Constitution.
Learned counsel referred to Section 46 (1) & (2) of the 1999 Constitution and contended that dealing with the corresponding provisions of the 1979 Constitution- Section 42 in Tukur Vs. Government of Gongola State (1989) 3 NSCC 214 at 243, he referred to the holding of Nnamani, JSC on the two Subsections of Section 46 of the 1999 Constitution. He contended that “a High Court” referred to in Subsection (2) of Section 46 is either the High Court of a State or the High Court of the Federal Capital Territory, Abuja to the exclusion of the Federal High Court. He urged the Court to hold that under the 1999 Constitution (as amended) the Federal High Court is divested of jurisdiction to entertain fundamental rights actions. He finally urged the Court to resolve issue no. 2 in favour of the appellant that the Federal High Court does not have jurisdiction to entertain the matter of the 1st respondent. He urged the Court to allow the appeal.
In her brief of argument, the 1st respondent distilled a sole issue for determination of the appeal as follows:
“Whether in view of the absence of a definition for “a High Court” in Section 318 (1) of the 1999 Constitution, it is only a State High Court and the Federal Capital Territory High Court that has jurisdiction to entertain Fundamental Rights actions against an agency of the Federal Government, especially in view of the use of the phrase “Notwithstanding anything, to the contrary…” in the provisions of Section 251 (1) of the 1999 Constitution.”
In arguing the issue, learned counsel urged the Court to rely on and apply the dictum of Nnaemeka Agu, JSC in Attorney General Bendel State & Ors Vs. Aideyan(1989) 3 NSCC 276 to the effect that resort can, in appropriate instances be had to subsidiary instruments made pursuant to an Act in order to interpret expressions of doubtful signification in the Act and which is/are defined in such subsidiary instruments.
Learned counsel contended that the issue for determination is not novel, as same had earlier been decided and laid to rest by this Court in Adetona & Ors Vs. Igele General Enterprises (2011) 1 SCNJ 66 at 83, per I. T. Muhammed, JSC (as he then was). He also referred to the decisions of this Court on same matter in F.U.T. Minna & Ors Vs. Olutayo (2018) 7 NWLR (Pt.1617) 176 and Federal Ministry of Commerce & Tourism Vs. Eze (2006) All FWLR (Pt.323) 1704.
Learned counsel conceded that Section 46 of the Constitution is a special provision dealing with Fundamental Rights matters. He contended that the said special provision is also part of the 1999 Constitution and so subject to the general and acceptable rule of interpretation that the Constitution must be read as a whole and not of one part by itself. He submitted that Section 46 of the 1999 Constitution cannot be read in isolation but must be read as one with other provisions of the said Constitution, especially Section 251 (1) thereof. He relied on Bronik Motors Ltd Vs. Wema Bank Ltd (1983) 6 SC 158 at 192.
After reviewing some decided cases of this Court, learned counsel submitted that Section 46 of the Constitution vests concurrent jurisdiction on both the State High Court and the Federal High Court to deal with application for Fundamental Rights actions and the potential applicant has the option of approaching either of the two Courts, but with exclusive jurisdiction on the Federal High Court when it involves the Federal Government or any of its agencies.
Learned counsel urged the Court to hold on to the concurrent findings of facts that the Federal High Court has jurisdiction in the case. He finally urged the Court to dismiss the appeal.
The 2nd, 3rd and 4th respondents filed a joint amended brief of argument.
From the three grounds of appeal filed by the appellant, the respondents formulated two issues couched in their own words as follows:
- Whether the learned Justices of the Court below were correct when they held that under the Fundamental Rights (Enforcement Procedure) Rules, the Federal High Court is possessed with jurisdiction to hear and determine an action on breach of Fundamental Rights guaranteed and enshrined in Chapter IV of the 1999 Constitution.
- Whether Section 46 Subsections 1 and 2 of the 1999 Constitution which vests special jurisdiction on the High Court in that State to hear and determine cases of human rights violation also contemplate the Federal High Court to assume jurisdiction concurrently with State High Courts.
In arguing the said two issues formulated by the 2nd, 3rd and 4th respondents from the grounds of appeal filed by the appellant, the respondents argued the two issues in line with the arguments of the learned counsel for the 1st respondent. On issue No. 1, learned counsel for the respondents submitted that the Fundamental Rights (Enforcement Procedure) Rules were made to give efficacy to Section 46 of the Constitution which vests the High Court with special jurisdiction to hear and determine cases involving the abuse of human rights. He submitted further that the Court below was right when it relied on Order 1 of the Fundamental Rights Rules to hold that it conferred concurrent jurisdiction of fundamental rights actions on the High Court of States and the Federal High Court. He contended that the provisions of Order 1 of the Fundamental Rights (Enforcement Procedure) Rules must be read alongside the provisions of Section 46 (1) of the Constitution to infer the intention of the legislature. He urged the Court to resolve Issue 1 against the appellant.
On issue no. 2, learned counsel for the respondents contended that it is clear that the framers of Section 46 Subsection 1 of the 1999 Constitution contemplate that where there is a division of the Federal High Court in a State, that Federal High Court has jurisdiction to entertain and hear actions founded on breach of the Fundamental Rights provisions of the 1999 Constitution despite the fact that Federal High Court is not specifically mentioned in Section 46(1) of the Constitution. He relied on Ojokolobo Vs. Alamu (1987) 2 NSCC 991 at 1011 and Nafiu Rabiu Vs. State (1980) 12 NSCC 291 at 300.
Learned counsel submitted that the Court below was right to have relied on the provisions of the Fundamental Rights (Enforcement Procedure) Rules to hold that the Federal High Court is possessed with jurisdiction to hear matters bordering on breach of fundamental rights without resolving the question that it was invited to resolve by interpreting or construing the relevant constitutional provisions. He relied on Nigerian Navy Vs. Garrick (2006) 4 NWLR (Pt.969) 69 and Section 19 (1) of the Federal High Court Act, 2004 and submitted that the Federal High Court has jurisdiction throughout the Federation of Nigeria. He urged the Court to resolve the 2nd issue against the appellant and dismiss the appeal with costs for lacking in merit.
Ordinarily, the main issue in controversy in this case is whether the Federal High Court has jurisdiction to entertain, hear and determine, as State High Courts, actions on fundamental human rights. Generally, the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) on the issue in question are Section 46 (1), (2) and (3), Section 272 (1) and Section 251 (p), (q) and (r).
For ease of reference, Section 46 of the said Constitution reads thus:
“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 that State for redress.
(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 order, issue such writs 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.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this Section.
Section 272 (1) provides thus:
“Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of any offence committed by any person,
Section 251 (1) provides as follows:
“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 shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and maters (relating to):
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceedings 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.
Generally, fundamental rights are provided for in the Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in Sections 33-46. As earlier reproduced, the Constitution in Section 46(1) requires that any person who alleges that any of the provisions of Chapter IV has been, is being or is likely to be contravened in any State in relation to him, may apply to a High Court for redress. The same Constitution created the High Courts. The Federal High Court is created by Section 249; the High Court of the Federal Capital Territory by Section 255(1) and the High Court of a State by Section 270 (1). As clearly provided, these Courts enjoy unlimited jurisdiction subject only to the provisions of Section 251 of the Constitution and any other provision thereof and in addition to such other jurisdiction as may be conferred upon them by the Act of the National Assembly.
In Bronik Motors Ltd Vs. Wema Bank Ltd (1983) 1 SCNLR 296 and Tukur Vs. Government of Gongola State (1989) 9 SC1; (1989) 4 NWLR (Pt. 117) 517 reference was made to Section 42 (1) of the 1979 Constitution which is in pari materia with Section 46(1) of the 1999 Constitution (as amended) and was considered by this Court, it was opined that where both the State High Court and the Federal High Court exist in a State, they have concurrent jurisdiction in matters pertaining to fundamental rights.
In Economic and Financial Crimes Commission (EFCC) Vs. Wolfgang Reinl (2020) LPELR – 49387 (SC) per Kekere Ekun, JSC, reference was made to another recent decision of this Court in Federal University of Technology Minna, Niger State & Ors Vs. Bukola Oluwaseun Olutayo (2017) LPELR – 43827 (SC) at 27-32 where his Lordship has expressed the following opinion –
“It is quite evident that Section 46(1) of the 1999 Constitution, (as amended) above refers to “a High Court of a State” without any restriction. The violation of a citizen’s fundamental right is viewed so seriously that the framers of the Constitution ought to ensure that no fetters are placed in the path of a citizen seeking to enforce his rights. In other words, the provision ensures that he has access to any High Court as long as it is within the State in which the alleged infraction occurred. Indeed, it would negate the principle behind the guarantee of fundamental rights if a citizen were to have only obstacle placed in the path of enforcing those rights. There is no ambiguity in the provisions of the Constitution or of the fundamental rights (Enforcement procedure) Rules … Regarding which Court has jurisdiction, to entertain any application for the enforcement of fundamental rights.”
There is no doubt that the applicable enforcement procedure rules to the provisions of Section 46 of the 1999 Constitution is the 1979 Rules, which clearly defines “Court to include the Federal High Court, As earlier quoted above, Section 46 (1) of the Constitution refers to the special jurisdiction conferred on ‘”a High Court of a State”. If the framers of the provisions had intended to exclude the Federal High Court in the State from the special jurisdiction conferred in relation to the fundamental Human Rights provision, the Section would have been clearly couched as “the High Court of the State” and not the “High Court in that State”. In other words, the words “High Court in that State” means either the Federal High Court in that State or the High Court of the State. Both Courts have concurrent jurisdiction. An application may therefore be made either to the Judicial Division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur. See Jack Vs. University of Agriculture, Markudi (2004) LPELR – 1587 (SC).
In the instant case, the trial Court was right in dismissing the appellant’s objection to its jurisdiction to entertain the complaint of the 1st respondent. The Court has jurisdiction so to do and the Court below was right in dismissing the appellant’s appeal. Both the Federal High Court in a State and the High Court of the State have concurrent jurisdiction to entertain action on fundamental human rights breach.
In the final analysis, this appeal is adjudged unmeritorious and deserves to be dismissed. Accordingly, the appeal is dismissed.
In the circumstance, the action of the 1st respondent is remitted to the Federal High Court, Calabar Judicial Division, Calabar for adjudication on the complaint of the 1st respondent on the alleged breach of her fundamental human right by the appellant, 2nd, 3rd and 4th respondents.
The decision of the Court below is affirmed.