Can A Joint Application Be Filed By More Than One Person To Enforce A Right Under The Fundamental Rights (Enforcement Procedure) Rules?

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CASE TITLE:
                       
ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC & ORS v. AKALIRO & ORS
(2021) LPELR-54212(CA)

JUDGMENT DATE:
         31ST MARCH,
2021

JUSTICES:
                          
IGNATIUS IGWE AGUBE, JCA

CORDELIA IFEOMA JOMBO-OFO, JCA

YARGATA BYENCHIT NIMPAR, JCA

DIVISION:
                          
MAKURDI

PRACTICE AREA:
             
Constitutional Law – Enforcement of Fundamental Human Rights.

FACTS:

The Appellants as Applicants at the High Court of Nasarawa State
instituted an action against the Respondents for the enforcement of
their fundamental human rights allegedly breached by the
Respondents. The Appellants claimed that the Nigerian Army
formation at 177 Guards Battalion incurred outstanding electricity
bills to the sum of N604,701,853.60 (Six hundred and four million,
seven hundred and one thousand, eight hundred and fifty-three
naira, sixty kobo). They contended that despite several demand
letters, the Respondents refused/neglected to pay their outstanding
electricity bills. The Appellants finally issued a disconnection
notice to the Respondents and eventually disconnected the Nigerian
Army formation at 177 Guards battalion from electricity supply when
they still refused/neglected to pay the outstanding electricity
bills.

Subsequently, military personnel from 177 Guards Brigade
Battalion invaded and raided the 1st Appellant’s office, infringed
on the fundamental rights of the Appellants and thereafter forced
the Appellants to reconnect electricity supply to the Barracks. The
Respondents filed counter affidavits denying the allegations of the
Appellants and also challenged the jurisdiction of the trial Court
to entertain the Appellants’ suit. The trial Court heard the
objections together with the substantive application, over-ruled
the objections of the Respondents and dismissed the Appellants’
application for enforcement of their fundamental rights.

Dissatisfied with the judgment, the Appellants appealed. On
appeal, the Court of Appeal raised a preliminary issue on
jurisdiction based on the competence of the joint application filed
by the Appellants at the trial court.

ISSUES FOR DETERMINATION:

The Preliminary Issue raised by the Court was: Whether a joint
application can be filed by more than one person to enforce a right
under the Fundamental Rights (Enforcement Procedure) Rules?

The preliminary issue being an issue raised by the Court suo
motu on jurisdiction, the parties were not heard on it before
its determination.

The substantive appeal was determined upon the consideration of
the sole issue: whether the trial court properly evaluated the
affidavits evidence of the Appellants before coming to the
conclusion that the Appellants failed to lead credible evidence in
proof of the allegations made against the Respondents?

It was the Appellants’ contention that since the Memorandum of
Appearance and the Application for extension of time was filed only
on the 2nd Respondent’s behalf, it, therefore, meant that the 1st,
3rd and 5th Respondents were not represented in the case and as
such, whatever purported defence put forward for the 1st
Respondent, goes to no issue and therefore all the averments
relating personally to the 1st Respondent, having not been
challenged by the 1st Respondent, are therefore deemed established.
The Appellants’ Counsel also submitted that the three Affidavits
filed in support of their Originating Motion had sufficiently made
out a case for the violation of the Appellants’ fundamental rights
to liberty and dignity.

The Respondents’ Counsel submitted that allegations in pleadings
are not evidence and until a party is able to lead credible
evidence in proof of his case, his case is bound to be dismissed as
the trial Court did and that since most of the allegations of the
Appellants were criminal in nature, the Appellants had the onerous
burden of proving their case beyond all reasonable doubts.

DECISION/HELD:

On the preliminary issue, the Court held that the joint
application filed by the Appellants was incompetent and liable to
be struck out. The appeal was therefore dismissed and the suit
struck out for being grossly incompetent.

The substantive appeal was held to lack merit and accordingly
dismissed. The Ruling of the Trial Court was thereby affirmed.

RATIOS:

1. 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

“In answering this question in the negative, I rely on the very
recent decision of this Court in CHIEF OF NAVAL STAFF ABUJA & ORS
v. ARCHIBONG & ANOR (2020) LPELR-51845 (CA); where it was held and
I quote:

“Before determining whether or not the fundamental rights
(Enforcement procedure) Rule, 2009, contemplates a joint or group
application, let me quickly state that the applicant at the trial
Court are husband and wife and therefore brought a single
application for the enforcement of their fundamental rights.
Section 46(1) of the 1999 Constitution states in clear terms that:
– “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.” Neither the 1999 Constitution nor the Fundamental Rights
(Enforcement Procedure) Rules 2009 defines the word ‘person’ but in
the context of Section 46(1) of the Constitution and Order 1 Rule
2(1) of the extant Fundamental Right (Enforcement Procedure) Rules
it refers to an individual. The adjective used in both provisions
in qualifying who can apply to a court to enforce a right is “any”
which also denotes a singular and does not admit pluralities in any
form. It is thus an individual right as opposed to a collective
right. I am however not unmindful of the preamble to the extant
Rules which encourages and welcome public interest litigations in
the human rights field which in effect provides that no human
rights case may be dismissed or struck out for want of locus
standi. The contention here is not on the rights of the applicants
to institute the action but rather on the propriety of bringing
joint action. In the REGISTERED TRUSTEES F.T.C.C.N v. IKWECHEGH
(2000) 1 NWLR (Pt. 683)1 at 8 also following the decision in C.C.B.
(NIG) PLC V. ROSE (1998) 4 NWLR (Pt 544) 37 and AYINDE V. AKANJI
(1985) 1 NWLR (Pt. 66) 80, it was emphatically held that if an
individual feels his fundamental right has been violated he should
take action personally for the alleged infraction. In effect, it is
a wrong joinder of action and incompetent for different individuals
to join in one action to enforce different causes of action. The
fact, in this case, is similar to that of UDO v. ROBSON & ORS
(supra) wherein this Court per Adah J.C.A. held that it is improper
for two or more persons to apply jointly for the enforcement of
their fundamental rights. Perhaps, it may be necessary to restate
the legal position that preamble does not prevail over the clear
words used in the operative part of an enactment. It does not
control the plain words of the enactment. In OGBONNA V. A.G. IMO
STATE (1992) LPELR – 22871 at 25, Nnaemeka-Agu, J.S.C. said: – “It
is necessary to note that a preamble to an enactment is as it were
its preference or introduction the purpose of which is to portray
the interest of the framers and the mischief they set out to
remedy. It may sometimes serve as a key to open the understanding
of the enactment.” In the light of the foregoing and considering
the fact that there is no ambiguity in the words used both in
Section 46(1) of the 1999 Constitution and Order 1 Rule 2(1) of the
Fundamental Rights (Enforcement Procedure) Rules 2009, the preamble
to the Fundamental Rights (Enforcement Procedure) Rules 2009;
cannot override the plain words used in both the Constitution and
the extant rules. I cannot, therefore, deviate from the previous
decision which prohibits joint and or group application for the
enforcement of fundamental rights”. Per AGUBE, J.C.A.

2. 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

“On whether a class action in alleged breach of fundamental
right is feasible, I agree with the findings of the trial Judge and
the affirmation in the lead judgment that it is not. The
Constitutional provision relevant here, Section 46 of the 1999
Constitution, specifically states that any person who alleges that
his fundamental right has been or is likely to be breached can
approach a High Court in that State for redress. The right can be
enforced on individual basis and not by collective action. It is
faulty for the appellants to file a single affidavit, the alleged
breach was not equally or evenly violated and therefore after a
finding that the breach was established, how would the Court
appropriate the reliefs and compensation for possible enforcement
by each applicant, since the breach is not of the same nature and
degree? Here, the 5th Appellant alleged she was forced to expose
her breast in public, that obviously is an allegation of inhuman
and degrading treatment for a woman and it cannot relate to the
male appellants. Therefore, how would the Court do a surgical
operation or separation while considering the claim? It is not the
duty of the Court to do a surgical operation in order to grant any
of the reliefs to particular applicants. The joint affidavit is
incompetent.” Per NIMPAR, J.C.A.

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Be The First To Know By Lawpavilion

CASE TITLE:
                       
ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC & ORS v. AKALIRO & ORS
(2021) LPELR-54212(CA)

JUDGMENT DATE:
         31ST MARCH,
2021

JUSTICES:
                          
IGNATIUS IGWE AGUBE, JCA

CORDELIA IFEOMA JOMBO-OFO, JCA

YARGATA BYENCHIT NIMPAR, JCA

DIVISION:
                          
MAKURDI

PRACTICE AREA:
             
Constitutional Law – Enforcement of Fundamental Human Rights.

FACTS:

The Appellants as Applicants at the High Court of Nasarawa State
instituted an action against the Respondents for the enforcement of
their fundamental human rights allegedly breached by the
Respondents. The Appellants claimed that the Nigerian Army
formation at 177 Guards Battalion incurred outstanding electricity
bills to the sum of N604,701,853.60 (Six hundred and four million,
seven hundred and one thousand, eight hundred and fifty-three
naira, sixty kobo). They contended that despite several demand
letters, the Respondents refused/neglected to pay their outstanding
electricity bills. The Appellants finally issued a disconnection
notice to the Respondents and eventually disconnected the Nigerian
Army formation at 177 Guards battalion from electricity supply when
they still refused/neglected to pay the outstanding electricity
bills.

Subsequently, military personnel from 177 Guards Brigade
Battalion invaded and raided the 1st Appellant’s office, infringed
on the fundamental rights of the Appellants and thereafter forced
the Appellants to reconnect electricity supply to the Barracks. The
Respondents filed counter affidavits denying the allegations of the
Appellants and also challenged the jurisdiction of the trial Court
to entertain the Appellants’ suit. The trial Court heard the
objections together with the substantive application, over-ruled
the objections of the Respondents and dismissed the Appellants’
application for enforcement of their fundamental rights.

Dissatisfied with the judgment, the Appellants appealed. On
appeal, the Court of Appeal raised a preliminary issue on
jurisdiction based on the competence of the joint application filed
by the Appellants at the trial court.

ISSUES FOR DETERMINATION:

The Preliminary Issue raised by the Court was: Whether a joint
application can be filed by more than one person to enforce a right
under the Fundamental Rights (Enforcement Procedure) Rules?

The preliminary issue being an issue raised by the Court suo
motu on jurisdiction, the parties were not heard on it before
its determination.

The substantive appeal was determined upon the consideration of
the sole issue: whether the trial court properly evaluated the
affidavits evidence of the Appellants before coming to the
conclusion that the Appellants failed to lead credible evidence in
proof of the allegations made against the Respondents?

It was the Appellants’ contention that since the Memorandum of
Appearance and the Application for extension of time was filed only
on the 2nd Respondent’s behalf, it, therefore, meant that the 1st,
3rd and 5th Respondents were not represented in the case and as
such, whatever purported defence put forward for the 1st
Respondent, goes to no issue and therefore all the averments
relating personally to the 1st Respondent, having not been
challenged by the 1st Respondent, are therefore deemed established.
The Appellants’ Counsel also submitted that the three Affidavits
filed in support of their Originating Motion had sufficiently made
out a case for the violation of the Appellants’ fundamental rights
to liberty and dignity.

The Respondents’ Counsel submitted that allegations in pleadings
are not evidence and until a party is able to lead credible
evidence in proof of his case, his case is bound to be dismissed as
the trial Court did and that since most of the allegations of the
Appellants were criminal in nature, the Appellants had the onerous
burden of proving their case beyond all reasonable doubts.

DECISION/HELD:

On the preliminary issue, the Court held that the joint
application filed by the Appellants was incompetent and liable to
be struck out. The appeal was therefore dismissed and the suit
struck out for being grossly incompetent.

The substantive appeal was held to lack merit and accordingly
dismissed. The Ruling of the Trial Court was thereby affirmed.

RATIOS:

1. 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

“In answering this question in the negative, I rely on the very
recent decision of this Court in CHIEF OF NAVAL STAFF ABUJA & ORS
v. ARCHIBONG & ANOR (2020) LPELR-51845 (CA); where it was held and
I quote:

“Before determining whether or not the fundamental rights
(Enforcement procedure) Rule, 2009, contemplates a joint or group
application, let me quickly state that the applicant at the trial
Court are husband and wife and therefore brought a single
application for the enforcement of their fundamental rights.
Section 46(1) of the 1999 Constitution states in clear terms that:
– “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.” Neither the 1999 Constitution nor the Fundamental Rights
(Enforcement Procedure) Rules 2009 defines the word ‘person’ but in
the context of Section 46(1) of the Constitution and Order 1 Rule
2(1) of the extant Fundamental Right (Enforcement Procedure) Rules
it refers to an individual. The adjective used in both provisions
in qualifying who can apply to a court to enforce a right is “any”
which also denotes a singular and does not admit pluralities in any
form. It is thus an individual right as opposed to a collective
right. I am however not unmindful of the preamble to the extant
Rules which encourages and welcome public interest litigations in
the human rights field which in effect provides that no human
rights case may be dismissed or struck out for want of locus
standi. The contention here is not on the rights of the applicants
to institute the action but rather on the propriety of bringing
joint action. In the REGISTERED TRUSTEES F.T.C.C.N v. IKWECHEGH
(2000) 1 NWLR (Pt. 683)1 at 8 also following the decision in C.C.B.
(NIG) PLC V. ROSE (1998) 4 NWLR (Pt 544) 37 and AYINDE V. AKANJI
(1985) 1 NWLR (Pt. 66) 80, it was emphatically held that if an
individual feels his fundamental right has been violated he should
take action personally for the alleged infraction. In effect, it is
a wrong joinder of action and incompetent for different individuals
to join in one action to enforce different causes of action. The
fact, in this case, is similar to that of UDO v. ROBSON & ORS
(supra) wherein this Court per Adah J.C.A. held that it is improper
for two or more persons to apply jointly for the enforcement of
their fundamental rights. Perhaps, it may be necessary to restate
the legal position that preamble does not prevail over the clear
words used in the operative part of an enactment. It does not
control the plain words of the enactment. In OGBONNA V. A.G. IMO
STATE (1992) LPELR – 22871 at 25, Nnaemeka-Agu, J.S.C. said: – “It
is necessary to note that a preamble to an enactment is as it were
its preference or introduction the purpose of which is to portray
the interest of the framers and the mischief they set out to
remedy. It may sometimes serve as a key to open the understanding
of the enactment.” In the light of the foregoing and considering
the fact that there is no ambiguity in the words used both in
Section 46(1) of the 1999 Constitution and Order 1 Rule 2(1) of the
Fundamental Rights (Enforcement Procedure) Rules 2009, the preamble
to the Fundamental Rights (Enforcement Procedure) Rules 2009;
cannot override the plain words used in both the Constitution and
the extant rules. I cannot, therefore, deviate from the previous
decision which prohibits joint and or group application for the
enforcement of fundamental rights”. Per AGUBE, J.C.A.

2. 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

“On whether a class action in alleged breach of fundamental
right is feasible, I agree with the findings of the trial Judge and
the affirmation in the lead judgment that it is not. The
Constitutional provision relevant here, Section 46 of the 1999
Constitution, specifically states that any person who alleges that
his fundamental right has been or is likely to be breached can
approach a High Court in that State for redress. The right can be
enforced on individual basis and not by collective action. It is
faulty for the appellants to file a single affidavit, the alleged
breach was not equally or evenly violated and therefore after a
finding that the breach was established, how would the Court
appropriate the reliefs and compensation for possible enforcement
by each applicant, since the breach is not of the same nature and
degree? Here, the 5th Appellant alleged she was forced to expose
her breast in public, that obviously is an allegation of inhuman
and degrading treatment for a woman and it cannot relate to the
male appellants. Therefore, how would the Court do a surgical
operation or separation while considering the claim? It is not the
duty of the Court to do a surgical operation in order to grant any
of the reliefs to particular applicants. The joint affidavit is
incompetent.” Per NIMPAR, J.C.A.

Read more Latest Judgments on BE THE
FIRST TO KNOW here.^[1]