CAN A JOINT APPLICATION BE FILED BY MORE THAN ONE PERSON TO ENFORCE A RIGHT UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES?

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.

• 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.