LEAD JUDGMENT DELIVERED BY AMIGA ADA-MU AUGIE, J.C.A.
THIS Appeal involves a matter brought pursuan to the Fundamental Rights (Enforcement Procedure) Rules 2009, in respect of two members of staff of Multiple Covenant Investment Ltd., Endurance Omonyahuy [Chief Driver] and Sikiru Amusa [Assistant Driver] who were killed by the 4th Respondent. The 1st and 2nd Appellants, i.e. wife and father of the deceased Chief Driver respectively, the 3rd Appellant, who is the father of the deceased Assistant Driver, and the 4th Appellant filed the Application for Order enforcing fundamental right (Order 2 Rule 1) at the Lagos State High Court wherein they sought for an Order from the Court granting some reliefs.
The 1st to 3rd Applicants are the respective family members cum dependants of late Mr. Endurance Omoyahuy and later Mr. Sikiru Amusa who were brutally, callously and unjustifiably (extra judicial) murdered in the early hours of 15/2/2012 by the 4th to 6th Respondents. The said Endurance Omonyahuy was at all material times under the employ of Multiple Covenant Limited as the Chief Driver while Sikiru Amusa was under same employ as Assistant Driver. Both men reported to the 4th Applicant, who Superintendents over them as Supervisor. On 15/02/2012, at about 6.00am, Endurance and his assistant driver, Sikuru Amusa set out for their place of work on Omonyahuy’s motorcycle bike. In the course of their journey to the office, along LASU/Igando Expressway, some Policemen, including the 4th to 6th Respondents (of the Anti-Robbery Team attached to the Igando Police Station mounted an illegal roadblock/checkpoint. The 4th to 6th Respondents demanded for money from Omonyahuy at the road block but he bluntly refused to part with his money and then continued on his journey. Two of the Policemen who were part of this illegal roadblock took exception to Omonyahuy’s audacious refusal to give them money and consequently went after him on a motorcycle. Omonyahuy had a brief stop at Ologuro bus-stop and unfortunately though, as Omonyahuy zoomed off from this spot (with Amusa seated behind him), the 4th Respondent alighted from the bike (driven by another Policemen), cocked his A-K 47 rifle gun, targeted and shot at them.
Consequently, the Respondents’ next action in pursuit of his devious plan was to intercept 4th Applicant’s private telephone call to Omonyahuy’s telephone line pretending to be (impersonating) Omonyahuy. The Respondents conversed with the 4th Applicant under this pretense till they were able to trace him to automobile mechanic garage where awaited both drivers. They quizzed the 4th Applicant at the mechanic garage about his relationship with Omonyahuy and Amusa. The 4th Applicant did not hesitate to identify himself as the Supervisor to both men.
However, because their preconceived devious machination, the Respondents chose to discard his explanation and went ahead to manhandle the 4th Applicant with rounds of slaps and thorough beating before putting him in handcuffs and whisking him away from the mechanic garage like an armed robber and straight into incarceration at their Police Station.
In line with their plan, the Respondent came up with a lot of stories to cover up their hideous act. Sensing that the game was finally up, having been confronted with hard facts adduced from eye witnesses to the crime including vivid description of the shooter (4th Respondent) and coupled with the Solicitor’s direct telephone call to the then incumbent Commissioner of Police, Lagos State (COP) Mr. Alkali, the 4th Respondent finally confessed to the murder and his weapon (AK 47 Rifle Gun) was promptly retrieved. The 1st and 2nd Appellants, i.e. wife and father of the deceased Chief Driver respectively, the 3rd Appellant, who is the father of the deceased Assistant Driver, and the 4th Appellant filed an Application for Enforcement of Fundamental Right supported by supported by a 54-paragraph Affidavit. The 1st, 2nd, 3rd, 5th and 6th Respondents (hereinafter referred to as the 1st set of Respondents), filed a 32-paragraph Counter-Affidavit wherein they denied the allegations. The Appellants filed a 48-paragraph Further Affidavit accompanied by an “eye withess statement on Oath” that is now an issue in this appeal. The learned trial Judge upon careful consideration of the Application ruled that the Applicant’s action was incompetent as it was wrongly commenced under the Fundamental Rights (Enforcement Procedure) Rules 2009. In the result, the Application was refused, and it was accordingly dismissed. Dissatisfied with the Court’s Ruling the Appellants appealed to the Court of Appeal.
It was the Appellants’contention that the Lower Court’s conclusion is flawed and at variance with the letters, spirit and the intention of Chapter IV of the Constitution dealing with fundamental rights and the said Rules. They submitted that the crux of their Application was to seek civil redress for the extra judicial killings of the deceased men on one hand and redress for breach of the right to privacy, detention, torture and indignity meted on the 4th Appellant on the other hand; by instituting/commencing the matter pursuant to the said Rules, they demonstrated beyond contention their intention to seek only civil redress in damages and public apology for the infractions of their rights and not criminal prosecution or procedure, which admits of no such remedies as compensations or apology but rather punishments whilst vesting exclusive prosecutorial powers in the State, citing Mohammed Abacha V. FRN (2006) 4 NWLR (Pt.970) 292-293.
The 1st set of Respondents cited Odogu V. A.G. Fed. (1996) 6 NWLR (Pt.456) 508; (1996) LPELR-2228(SC) on fundamental rights and Section 33(1) of the Constitution, and submitted that procedure for the enforcement of fundamental rights is a strict and special one, which must be adhered to strictly, citing EFCC V. Ekeocha (2008) 14 NWLR (Pt.1106) 161, Raymond Dongtoe V. Civil Service Commission, Plateau State & Ors (2001) 9 NWLR (Pt.717) 132; (2001) LPELR-959(SC), Ogwuche V. Mba (1994) 4 NWLR (Pt.336) 75; that only actions founded on a breach of any of the fundamental rights guaranteed in Section 33 of the Constitution can be enforced under the said Rules and Article 4 of the African Chapter on Human and People’s Rights; that the principal claim must be a relief for enforcement of the fundamental right or securing the enforcement of the fundamental right of a person, citing Order 11 Rule 1 of the aforesaid Rules; and that the question that needs to be answered here is whether the action commenced by the Appellants and as formulated by them is competent under the Fundamental Rights (Enforcement Procedure) Rules, 2009.
In resolving this Issue, the Court noted that it boils down to a question of whether the constitutional right to life of a dead man can be enforced by his dependents, wherein the Court was faced with an uphill task and will be swimming in uncharted waters, since there are no authorities either from the Supreme Court or the Court of Appeal on the subject, and so, to guide the Court on the journey through virgin territory. The Court started by careful analysing the Fundamental Rights Enforcement Procedure Rules (FREP) Rules and establishing where it was, where it is, and where it needs to go.
The Court after considering all relevant authorities charted a way to the answer to the question – the constitutional right to life of a dead man can be enforced by his dependents. In arriving at this answer the Court in line with modern-day pronouncements, stated that it swayed by the mischief rule of statutory interpretation, which is the oldest of the rules; it was established in Heydon’s Case (1584). Under the mischief rule, the Court’s role is to suppress the mischief the Act is aimed at and advanced the remedy. In this case, the Court noted that the 2009 FREP Rules was enacted to cure shortcomings in the 1979 FREP Rules, and decisions under FREP Rules that were enacted thirty years apart, and it cannot be the same, as the law is not static; it moves and pulsates with every generation as different cultures unfold, and as criminal elements find new ways to terrorise and torment citizens. The Court was strengthened in this view by the Preamble to the 2009 FREP Rules, which sets out the overriding objections of the Rules that are far-reaching, and geared towards moving with modern trends in human rights actions. The Court held that the Lower Court was wrong to have dismissed the Application with a wave of the hand without even considering what the said Rules are about. The Court held further that its decision regarding the 4th Appellant is even more perplexing since he was directly affected by the alleged acts. The Court stated the position of the law that for a claim to qualify as falling under fundamental rights, the principal relief must be for enforcement or for securing enforcement of a fundamental right and not by its nature to redress a grievance ancillary to the principal relief, which is not ipso facto a claim for the enforcement of fundamental right. Thus, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it will be incompetent to constitute the claim as one for the enforcement of a fundamental right – See Abdulhamid v. Akar & Anor (2006) 13 NWLR (Pt.996) 127 SC.
In this case, the Court noted that the Lower Court’s mind was fixated on the misconceived notion that the action before it was “founded under a criminal offence of murder” that it failed to see that the 4th Appellant’s claim is one for the enforcement of his fundamental rights, thereby qualifying him to commence the action under the 2009 FREP Rules. The Court held that the Lower Court did not address the merits of the Application, and there is not much that the Court can do except to send it back to the Lower Court.
In the final analysis, the Court held that the appeal succeeds and is was allowed. The Ruling of the Lower Court delivered on 20/2/2013 was set aside, and the Application was remitted to the Lower Court for hearing before another judge.
Edited by LawPavilion
Citation: (2015) LPELR-25581(CA)