CASE TITLE: OHEN & ANOR v. IBRAHIM & ORS LPELR-83250(CA)
JUDGMENT DATE: 24TH FEBRUARY, 2026
JUSTICES: BIOBELE ABRAHAM GEORGEWILL, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A.
HANNATU AZUMI LAJA-BALOGUN, J.C.A.
PRACTICE AREA: PRACTICE AND PROCEDURE
FACTS:
This appeal borders on instigation of police arrest and detention.
This is an appeal against the judgment of the High Court of Lagos State, Lagos Judicial Division, Coram: I. O. Harrison J, in Suit delivered on 11/12/2020.
On 24/1/2017, the 1st Respondent as Claimant commenced an action by means of Originating Summons before the trial Court against the Appellants, the 2nd and 3rd Respondents.
The 1st Respondent alleged that he was unlawfully arrested and detained by police at the instigation of the Appellants while working as a security guard in Ikoyi, Lagos, and consequently filed a fundamental rights enforcement action for violation of his rights to dignity, liberty, and freedom of movement.
The Appellants contended that the 1st Respondent was arrested after he and others allegedly invaded the 2nd Appellant’s property and caused a disturbance, leading to police intervention and his eventual release on bail.
After considering the parties’ affidavits and a preliminary objection, the trial Court granted some of the 1st Respondent’s claims and dismissed others. Dissatisfied, the Appellants appealed the judgment.
ISSUES FOR DETERMINATION:
The Court determined the appeal on the following issues:
1. Whether the lower Court has the jurisdictional vires to entertain the instant case as presently constituted, contextualized and presented?
2. Whether the Appellants’ complaint to the Police in Exhibit ‘NP1’ amounts to breach of the 1st Respondent’s fundamental human rights for which the Appellants should be punished?
COUNSEL SUBMISSIONS:
The appellant’s counsel submitted that the 1st Respondent’s suit was filed in breach of the Rules governing the commencement of matters under the Fundamental Rights (Enforcement Procedure) Rules 2009 in that he failed to personally sign the Affidavit in Support of the Originating Application as required by the Rules, and contended that the FREP 2009 does not envisage a situation where an Applicant, such as the 1st Respondent, would claim to be unable to depose to the Affidavit in Support by himself merely because he is an illiterate but that in law such inability must be of such nature that incapacitates the Applicant from doing so personally, and urged the Court to hold that the mere fact that the 1st Respondent is an illiterate did not incapacitate him from deposing to the Affidavit in Support by himself, and which failure had rendered the 1st Respondent’s suit to be based on mere hearsay evidence and therefore, incompetent, and to allow the appeal, set aside the null judgment of the lower Court and strike out the 1st Respondent’s suit for being incompetent. Learned counsel referred to Order 2 Rule 4; Order 8 Rule 5(a), Order 9 Rule 1(i) of the FREP Rules 2009; Section 119 of the Evidence Act 2011, and relied on Kakih V. PDP & Ors (2014) LPELR – 23277 (SC); Madukolu V. Nkemdilim (1962) 1 All NLR 578; Commissioner for Education V. Amadi (2013) 2 – 3 MJSC (Pt. 11) 4 -5 @ p. 29; Udene V. Ugwu (1997) 3 NWLR (Pt. 491) 62; Ali V. State (2019) 14 NWLR (Pt. 1692) 314 @ p. 361; Agbi V. Ogbeh (2006) 11 NWLR (Pt. 990) 65; A. G. Ondo State V. A.G. Ekiti State (2001) 17 NWLR (Pt. 743) 706 @ 749.
It was submitted by the 1st respondent’s counsel that by the provisions of the FREP Rules 2009, an Applicant need not depose personally to the Affidavit in Support contrary to the erroneous contention of learned counsel for the Appellants, and contended that the Deponent to the Affidavit in Support gave sufficient reason as to why the 1st Respondent was unable to personally depose to the Affidavit in Support, coupled with his own personal knowledge of the facts deposed to therein, in compliance with the requirements of the FREP 2009, and urged the Court to hold that the 1st Respondent’s suit, which was commenced under the sui generis proceedings of enforcement of fundamental rights, was competent and the lower Court had the jurisdiction to entertain the same and to dismiss the appeal for lacking in merit and to affirm the correct judgment of the lower Court. Learned counsel referred to Order 2 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and relied on Skye Bank V. Njoku & Ors (2016) LPELR – 40447 (CA); Galadima V. Commissioner of Police (2024) 4 NWLR (Pt. 1929) 445; F.U.T. Minna V. Olutayo (2018) 7 NWLR (Pt. 1617) 176; Attorney General of the Federation & Ors V. Adeyemo (2022) LPELR – 58648 (CA).
DECISION/HELD:
The appeal was allowed in part.
RATIO:
CONSTITUTIONAL LAW – ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Circumstance(s) under which an affidavit can be deposed to by a person other than the Applicant in an action for enforcement of fundamental rights
“…there is no requirement that the Affidavit in Support cannot under any circumstances be deposed to by another person on behalf of the Applicant. The correct position of the law is that the Applicant shall depose to the Affidavit in Support; however, the Affidavit in Support can be deposed to by someone who is not the Applicant himself under the following circumstances, namely: a). The person has personal knowledge of the facts; b) The person has been informed of the facts by the Applicant, and c. The Applicant is unable to personally depose to the Affidavit in Support.
Now, the categories of what can render the Applicant unable to personally depose to the Affidavit in Support are never closed, but would include incarceration, Custody, Illness, for any reason, etc. In the instant appeal, there is a clear explanation offered by the deponent, one Olayinka Benjamin Olatunji, the Chief Security Officer of Resort International Limited, of the circumstances leading to his deposing to the Affidavit in Support on behalf on the 1st Respondent, and having calmly considered the reason, coupled with the avowed and unchallenged knowledge of the matters deposed to by the Deponent, I am satisfied that it amounted to a substantial compliance with the provisions of Order 2 Rules 4 of the FREP 2009.
I consider all the surmises, speculations and conjectures gone into by learned counsel for the Appellants to support his propositions that the reason given for the inability of the 1st Respondent to personally depose to the Affidavit in Support was not tenable merely because the 1st Respondent could have taken advantage of illiterate Jurat for his statement to have been interpreted to him to enable him personally depose to the Affidavit in Support as neither here nor there and are hereby discountenanced.
My lords, the FREP 2009 provides clearly that one of the circumstances in which an Applicant may not personally depose to the Affidavit in Support is when he is unable to do so personally. By parity of reason, going by the submissions of learned counsel for the Appellants, the resort to an illiterate jurat is, in my view, simply to enable such an Applicant who ordinarily, by reason of his being an illiterate, is unable to personally depose to the Affidavit in Support. Thus, I cannot see the huge fuss made of the reason of illiteracy given for the inability of the 1st Respondent to depose personally to the Affidavit in Support.
I am therefore, of the view, and I so firmly hold, that the 1st Respondent’s suit supported by an Affidavit deposed to by another person, if for any reason is unable to swear to an affidavit’ was in compliance with the provisions of Order 2 Rule 4 FREP 2009, and the 1st Respondent’s suit was therefore, competent and the lower Court was clothed with the jurisdictional competence to hear and determine the 1st Respondent’s suit. After all, proceedings for the enforcement of fundamental rights are sui generis, and should be devoid of too much emphasis on mere technicality. See Skye Bank V. Njoku & Ors (2016) LPELR – 40447 (CA). See also Galadima V. Commissioner of Police (2024) 4 NWLR (Pt. 1929) 445; F.U.T. Minna V. Olutayo (2018) 7 NWLR (Pt. 1617) 176; Attorney General of the Federation & Ors V. Adeyemo (2022) LPELR – 58648 (CA).
In my view, looking at the totality of the provisions of the FREP Rules in relation to the commencement of Actions for the enforcement of Fundamental Rights by the citizen, there is nothing requiring that in all circumstances the swearing of an Affidavit in Support must be by the Applicant himself and none other. Under the FREP adequate provisions are made for swearing of Affidavit in Support either by the Applicant himself or by other persons other than the Applicant in support of the Application in very clearly defined circumstances, including even the filing of the Application on behalf of the Applicant by Public interest litigators and swearing of the Affidavit in Support by another person for the Applicant once sufficient reason or explanation is given as to why the Applicant was unable to personally swear to the Affidavit in Support.
In this appeal, I have taken a look at the Affidavit in Support of the 1st Respondent’s Application, and it is clear to me that the inability of the 1st Respondent to swear to the Affidavit in Support of his Application was sufficiently explained, and the Affidavit was sworn to by the Deponent on the authority and information of the 1st Respondent, which the Deponent believe to be true. In law, that was all that was required of the 1st Respondent to either personally swear to the Affidavit in Support of his Application or to do so through another person on his authority and information due to his inability to personally do so.” Per GEORGEWILL, J.C.A.
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