In The Supreme Court of Nigeria

On Friday, the 5th day of May 2006

 

S.C. 240/2001

Before Their Lordships

 

 Idris Legbo Kutigi ...... Justice, Supreme Court

Aloysius Iyorgyer Katsina-Alu ...... Justice, Supreme Court

Ignatius Chukwudi Pats-Acholonu ...... Justice, Supreme Court

Sunday Akinola Akintan ...... Justice, Supreme Court

Aloma Marima Mukhtar ...... Justice, Supreme Court

 

 

Between

 Alhaji Ibrahim Abdulhamid ....... Appellants

And

 

Talal Akar

Major G. Ofochie

....... Respondents

 

Judgement of the Court

Delivered by

Idris Legbo Kutigi, J.S.C.

 

The proceedings, which gave rise to this appeal commenced at the Kano State High Court holden at Kano where the 

Applicant instituted an action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 against the 

Respondents after obtaining leave of Court to do so. The reliefs sought by the Applicant against the Respondents 

read -

“Reliefs sought by Applicant:

(a) To restrain the Respondents, their agents and servants from harassing, intimidating and 

subjecting the applicant and members of the applicants’ family and employees to degrading 

treatment.

(b) To secure the release of the Applicant’s vehicle with Registration No KN 7292 KQ forcefully 

seized and detained by the Respondents.

(c) To perpetually restrain the Respondents and their agents from seizing and detaining any of the 

Applicant’s property movable or immovable.

(d.) To claim the sum of N1, 000.000.00 (One Million Naira) from the Respondents jointly and 

severally as a compensation for several harassments, intimidation and degrading treatment of 

the Applicant and employees and members of the Applicant’s family by soldiers and 

airforcemen who are agents of the Respondents in consequence of which the Applicant lost and 

still losing his personal and business reputation and also suffering loss of business goodwill 

and prosperity.”

The grounds upon which the reliefs were sought are stated to be –“Grounds upon which reliefs are sought:

(a) The applicant received threats and intimidating letters on 14/12/89 and 18/12/89 from one 

Major G. Ofoche of third field ambulance Bukavu Barracks of the Nigeria Army Kano at the 

instigation of the first Respondent in an attempt to intimidate the Applicant to settle a debt 

owed to the first Respondent by the Applicant.

(b) On 1/3/90, one John Tella Hussain, an Airforce Officer and former Kano State Chairman of 

Task Force on Tax Recovery went to the Applicant's house at about 7.00 a.m, drove members 

of the Applicant’s family from their main house and locked them up in a room in the Boys’

Quarters together with the Applicant's employees. Same John Tella Hussain also took away 

the Applicant's Peugeot 404 Pick Up van with Registration No KN 2848 KQ fully loaded with 

animal skins for sale and gave some to the first Respondent. Furthermore, the said John Tella 

Hussain later confirmed to the Applicant that the first Respondent requested him to take the 

action and deal with the Applicant because of the debt the Applicant owed the first 

Respondent.

(c) Sometime in May 1990, the same John Tella Hussain led about eight Airforcemen to the 

Applicant’s house forcefully ceased the Applicant's Peugeot 505 car with Registration No KN 

9272 KQ and forcefully took same to the first Respondent in order that the first Respondent 

could value the car and offset the Applicant debt to the Respondent with the value of the car. 

The said car was detained and impounded for one week after certain vital documents missed 

inside the car.

(d) On 12/6/90 at about 7.00 a.m one Yahaya, an Airforce officer and Secretary to the Task Force 

on Tax Recovery led seven Airforcemen to The Applicant’s house and forced the Applicant to 

drive his 505 car registration no. KN 7292 KQ to the airforce Base, Kano where the Applicant’

s freedom of movement was restricted only to an office in the Airforce base, between 7.00 a.m 

and 12.00 noon the Applicant was led to the second Respondent who detains the Applicant’s 

505 car in and insisted that unless the Applicant pays up the debt he (the Applicant) owes to the 

first Respondent, the Applicant’s car would not be released.

(e) The Applicant’s 505 car presently detained by the Respondents is the only car with which the 

Applicant moves about in the conduct and pursuit of his business and as a result of constant 

harassment and intimidation of the Applicant by soldiers and Airforcemen who are Agents of 

the Respondents the Applicant is now seen by his personal and business Associates as a person 

of questionable integrity and the Applicant's hitherto flourishing business is being seriously 

affected as a result of loss of personal and business reputation.”

The application was supported by affidavit, further or reply affidavits. The Respondents filed Counter-affidavits. At 

the hearing of the application the Applicant testified for himself and called five other witnesses. The Respondents 

testified for themselves and called no other witness. Upon the conclusion of evidence by the witnesses, Counsel on 

both sides then addressed the Court and judgment was reserved.

The learned trial judge in a considered judgment spanning 58 pages of closely typed foolscap-size sheets, found in 

favour of the Applicant when he concluded his judgment on pages 211 - 212 of the record thus -

“Finally as I have earlier held in this judgment, the Applicant is entitled to all the reliefs sought by him in the 

application to enforce his fundamental rights. Consequently, I hereby make the following orders -

1. The 1st, 2nd and 4th Respondents and their agents are restrained from harassing, intimidating 

and subjecting the Applicant and members of this family to any further degrading treatment.

2. The Applicant’s vehicle, Peugeot 505 with registration number KN 7292 KQ seized and 

detained by the Respondents until it was temporarily released to the Applicant pursuant to an Order of this Court granted by Hon. Justice Tijani Abubakar, Judge as he then was, is now 

unconditionally and permanently released to the Applicant.

3. The 1st, 2nd and 4th Respondents and their agents are hereby perpetually restrained from 

illegally seizing and detaining any of the Applicant's properties, movable or immovable.

4. I hereby award damages of (N250, 000.00) two hundred and fifty thousand Naira) being (i.e. 

general and aggravated) compensatory and exemplary damages against the 1st, 2nd and 4th 

Respondents jointly for several harassments, intimidation and degrading treatments of the 

Applicant personally and members of his family by soldiers and Airforcemen who are agents 

of the Respondents and by the Respondents themselves which actions culminated in the 

infringement of the Applicant’s fundamental rights under Sections 31(l)(a), 32(1), 34 and 40(1) 

of the Constitution of the Federal Republic of Nigeria 1979 as amended and the same actions 

amounted to different types of torts such as assault and battery, trespass to land, trespass to 

chattel or goods detinue and even false imprisonment as disclosed by the evidence adduced at 

the trail.”

(Emphasis is mine)

Dissatisfied with the judgment of the trial Court, the Respondents appealed to the Court of Appeal holden at 

Kaduna. The Applicant also cross-appealed. Both sides filed and exchanged briefs of argument in that Court. The 

principal and one of the four (4) issues submitted by the Applicant for resolution in the Court of Appeal was -

“Whether the case against the Appellant (Plaintiff) on the evidence before the trial Court was a case for 

Enforcement of Fundamental Rights, and if so, whether the necessary procedure and process were complied 

with and taken out by the trial Court, and if not, whether failure to do so occasioned a miscarriage of justice.”

The Court of Appeal in a unanimous judgment allowed the Respondents’ Appeal and dismissed Applicant’s cross-

appeal. Part of the judgment on pages 330 - 332 of the record read thus -

“It is observed from the record that the action was commenced in the trial Court under the Fundamental 

Right (Enforcement Procedure) Rules Cap. 62 of the Laws of the Federation of Nigeria, 1990. There were 

four reliefs sought and none of them touches upon violation of fundamental rights, second and third reliefs 

(b) and (c) touch upon detinue .............. It is settled by a long line of decisions of both this Court and the 

Supreme Court that remedy other than those touching upon fundamental rights cannot be sought under the 

Fundamental Rights (Enforcement Procedure) Rules (supra) ...................... The first relief in respect of 

which damages for N1, 000,000.00 was sought and granted under relief (d) equally does not fall within the 

contemplation of fundamental rights .............. There was therefore no claim before the learned trial judge 

seeking for a declaration of violation of the Respondents’ fundamental rights. In the result bringing the action 

under Fundamental Rights (Enforcement Procedure) Rules (supra), is incompetent. The whole proceedings is 

therefore null and void ab initio and it is set aside. The appeal succeeds and it is allowed. The decision of the 

trial Court is set aside and the Respondent’s claim struck-out.”

Aggrieved by the decision of the Court of Appeal, the Applicant has now appealed to this Court. The parties filed 

and exchanged briefs of arguments in accordance with the Rules of Court. The Applicant in his brief has submitted 

two (2) issues for determination as follows -

The Respondents adopted these issues.

The two issues are in my view clearly inter-related. They will therefore considered and answered together. The 

submissions of learned Counsel for the Applicant on the issues can be summarised as follows -

(i) That the Court of Appeal was wrong in its conclusion that the reliefs sought by the Applicant cannot 

be sought or entertained or adjudicated upon in an action under the Fundamental Rights (Enforcement 

Procedure) Rules 1979, because the Rules do not stipulate or prescribe the form or nature a relief should take or have. He referred to Section 42 of the 1979 Constitution and to Order 1 Rule 2 and 

Order 6 Rule 1 of the Rules.

(ii) That the reliefs sought by the Applicant were simply to enforce his fundamental rights under Sections 

31(l)(a.) 32(1) & 40(1) of the 1979 Constitution. He said relief (a) sought to enforce his rights under 

Sections 31(l)(a) and 32(1) of the 1979 Constitution. Reliefs (b) & (c) sought to enforce his rights 

under Section 40 of the Constitution while Relief (d.) seeks for monetary compensation for the 

violation of his fundamental rights as complained of and as established at the trial. He cited the cases 

of Att. Gen. of Bendel State v. Aideyan (1989) 4 N.W.L.R (Pt. 118) 646 at 674. He also referred to 

Section 42(2) of the 1979 Constitution and to Order 6 Rule 1(1) of the Rules.

(iii) That the Court of Appeal failed to properly interprete the relevant provisions of the Constitution as 

well as the Rules by not giving them their ordinary meaning and came to the wrong conclusion that 

the Applicant's action was not competent. A number of cases were cited in support which include - 

Uwaifo v. Bendel State (1983) 4 N.C.L.R.L; Nafiu v. The State (1980) 11-12 S.C. 130; Aqua Limited v. 

Ondo State Sports Council (1988) 4 N.W.L.R. (Pt. 91) He said the Court below was under a duty to 

have adopted a liberal approach in its construction or interpretation of the relevant provisions of 

Constitution herein which it failed to do.

(iv) That there is nothing to suggest that under the provisions of the Constitution an action commenced or 

filed under the Rules in pursuance of the Fundamental Rights provided under the Constitution cannot 

be employed to seek relevant common law reliefs or remedies in appropriate cases. In other words 

even if the Applicant’s reliefs are premised on detinue, injunction and damages etc which are 

actionable under the common law, such reliefs can equally be sought under the Rules especially when 

the embodiment of the Applicant's case is premised solely on allegations of infringement of his 

fundamental rights. That there is nothing in the Rules preventing the Courts from entertaining Reliefs 

bordering on Common law remedies. He cited Section 42(1) & (3) of the Constitution and Order 6 

Rule 1(1) of the Rules and the cases of Federal Minister of Internal Affairs v. Abdur-rahman Shugaba 

Darman (1982) 3 N.C.L.R. 915, (1982) 1 F.N.R. 200; Abioye v. Yakubu (1991) 5 N.W.L.R. (Pt. 190) 

130; Lawal v. G. B. Olivant (1972) 3 S.C. 124, Aya v. Henshaw (1972) 5 S.C. 87). Where therefore an 

Applicant for enforcement of fundamental rights prays for a relief or reliefs that have common law 

features, the Court would be entitled to look into such reliefs and in appropriate cases grant same in 

the spirit of Order 6 Rule 1(1) of the Rules.

(v) That the question of whether or not the Applicant’s action was competent under the Rules was raised 

suo motu and decided by the Court without inviting the parties to address on it In addition the Court of 

Appeal concerned itself with the nature of the reliefs sought and not with the substance of Applicant's 

case. Consequently the Applicant as a result was not given a fair hearing when his case was dismissed. 

This has occasioned a miscarriage of justice. That the Court below ought to have looked beyond the 

reliefs claimed as the totality of processes filed by the Applicant sufficiently showed that complaints 

against the Respondents were premised clearly on violations of fundamental rights of the Applicant by 

the Respondents. That the law is well settled that in dispensing justice the Court should rely or look 

into the substance of a case rather than its form. The following cases were cited in support - Bolaji v. 

Bamgbose (1986) 4 N.W.L.R. (Pt. 37) 632 Bello & Ors. v. Att. Gen. Of Oyo State (1986) 5 N.W.L.R. 

(Pt. 45) 828.

We were urged to allow the appeal, set aside the judgment of the Court of Appeal and restore that of the trial High 

Court.

I say straight away that the issue was not raised suo motu by the Court. The briefs of the parties in that Court prove 

the point. The main issue has also been reproduced by me earlier in this judgment.

The Respondents in their joint brief of argument replied as follows -

(i) That the Court of Appeal was right in its decision that the reliefs sought by the Applicant before the 

High Court were not maintainable under the Fundamental Rights (Enforcement Procedure) Rules, because the fundamental rights covered by the 1979 Constitution include - right to life, right to dignity 

of human person, right to personal liberty, right to fair hearing, right to acquire and own property and 

right to compensation for property compulsorily acquired. But that the reliefs before the High Court 

and as found by trial judge himself were for assault and battery, trespass to land, trespass to chattel or 

goods, detinue and false imprisonment which are torts covered by different procedure under the Rules 

of the High Court.

(ii) That issue (i) now before this Court was one of the four issues raised by the Respondents in the Court 

of Appeal as shown on pages 263 and 266 of the record.

(iii) That it is trite law that the competency of suits and indeed the jurisdiction of Courts, are determined 

by the claims and or reliefs of the Plaintiff or Applicant and nothing else. And that the Court of 

Appeal was right in determining the competency of the Applicant’s action by reference to the nature 

of the reliefs sought.

(iv) That the Applicant has not shown any error of law or a miscarriage of justice to warrant interference 

or the setting aside of the judgment.

The Court was urged to dismiss the appeal and affirm the judgment of the Court of Appeal.

I am in agreement with the Respondent’s submissions above.

It is most convenient for me however to answer the Applicant’s issue (2) first as that will lead me directly into the 

heart of issue (1).

Issue (2) relates to the competency of the Applicant’s action and whether or not its competence could have been 

determined by reference solely to the nature of the reliefs or claims sought as was done by the Court of Appeal. The

answer to me is simply ‘yes’, in the affirmative. The Court of Appeal was right to have considered the reliefs or 

claims only, and without reference to anything. It is settled and a fundamental principle that jurisdiction is 

determined by the Plaintiffs claim or relief. In other words it is the claim before the Court that has to be looked at or 

examined to ascertain whether or not it comes within the jurisdiction conferred on the Court (see for example 

Western steel works v. Iron & Steel Workers (1987) 1 N.W.L.R. (pt. 49) 284; Tukur v. Government of Gongola State 

(1989) 4 N.W.L.R. (pt. 117) 517, Adeyemi v. Opeyori (1976) 9-10 S.C. 311. Issue (2) therefore fails.

I now go back to issue (1) which is whether or not the Court of Appeal was right in its conclusion that the reliefs or 

claims sought by the Applicant were not maintainable under the Fundamental Rights (Enforcement Procedure) 

Rules. Having come to the conclusion in issue (2) above that the Court of Appeal applied the correct or proper 

principle by solely examining the reliefs or claims of the Applicant, the task before me now is to see whether the

examination of the reliefs was thoroughly and properly conducted or carried out in coming to its conclusion.

The starting point in resolving this issue is the judgment of the trial High Court itself, The learned trial judge in his 

judgment on pages 207 - 208 of the record had this to say on the claims or reliefs of the Applicant. He said -

“The actions of the Respondents in this case are not only infringement of the Applicant’s fundamental rights 

but are also tortious in nature. For instance, the forceful entry of the Applicant’s house by the 3rd Respondent 

leading other armed military men is an act of trespass while the arrest of the Applicant by military men led by 

A. D. Yahaya involved the tort of assault and battery because the Applicant said in his evidence that he was 

forced to enter his car to follow the military men to the Air Force Base Kano. At the Airforce Base Kano, the 

restriction of the Applicant’s movement by detaining him in a room close to the 2nd Respondent’s office also 

amount to a tort of false imprisonment or wrongful confinement. The Respondent’s tampering with the 

Applicant’s vehicles is also a tort of trespass to goods or chattel as well as detinue. From the totality of the 

evidence adduced by the Applicant, which I believe the Respondents, are also liable in tort in addition to their 

liability for the infringement of the Applicant’s fundamental rights. This will be duly considered in the 

determination of the actual amount payable to the Applicant in form of compensatory, general, aggravated 

and exemplary damages.” 

(emphasis is mine)

Also the last of the four (4) orders which the learned trial Judge made at the end of his judgment on page 212 of the 

record concluded thus -

“4. ........... and the same actions amount to different types of torts such as assault and battery, trespass to 

land, trespass to chattel or goods, detinue and even false imprisonment as disclosed by the evidence 

adduced at the trial.”

(emphasis mine)

Thus, there is no doubt that the learned trial Judge himself realised that the reliefs sought by the Applicant are 

tortious in nature. In other words these are common law reliefs. These could only have been claimed strictly by

following the common law procedure by issuing a writ of summons and filing pleadings thereof.

Now, the Court of Appeal in its judgment as earlier stated, concluded that none of the reliefs sought by the 

Applicant touched upon the violation of fundamental rights and consequently the action under the Fundamental 

Rights (Enforcement Procedure) Rules is wrong and incompetent. The claims were then struck-out. So both the 

High Court and the Court of Appeal in effect found the reliefs to be tortious in nature. Needless to say that in the 

instant case the tortious claims are the principal claims even if there existed some fundamental rights infringement 

as found by the trial judge. And that being the case the Court of Appeal would have been entitled to hold that a 

wrong procedure has been adopted under the Fundamental Rights (Enforcement Procedure) Rules, instead of by the 

issuance of a Writ of Summons (see for example, Federal Minister of Internal Affairs & Ors. v. Darman (1982) 3 

N.C.L.R. 15, B.R.T.C. v. Egbuonu (1991) 2 N.W.L.R. (Pt. 171) 81. Tukur v. Government of Gongola State (1989) 4 

N.W.L.R. (Pt. 117) 517, Anigboro v. Sea Trucks Nigeria Ltd. (1998) 1 HRLRA 291, Kokoro-Owo & Ors v. Lagos 

State Government & Ors. (1988) 1 HRLRA, 322).

I have no doubt at all that a claim under the common law can properly be joined in an application under Section 42 

of the 1979 Constitution, where such a claim is secondary, ancillary or incidental to the complaint of a breach of 

fundamental right. In the instant case, the claims as found by both the High Court and the Court of Appeal were 

common law claims or reliefs which were wrongly brought under the Fundamental Rights (Enforcement Procedure) 

Rules instead of by Writ of Summons. This is a fundamental breach and not a mere technicality, which can be 

waived or ignored. One of the indicia of jurisdiction as laid down in Madukolu v. Nkemdilim (1962) All N.L.R. (part 

2) 581 at 589, is that the action is initiated by due process of law, which in this case is by writ of summons. That is 

lacking here (see Tukur v. Gongola State (supra); Federal Minister of Internal Affairs v. Shugaba Darman (supra).

The trial High Court clearly has the jurisdiction to determine all the issues in this case but a proper procedure must

be followed. The Court of Appeal was therefore properly guided and came to the correct conclusion. Issue (1) also 

fails.

All the two issues having been resolved against the Applicant, the appeal fails. It is dismissed with N10, 000.00 

costs against the Applicant/Appellant and in favour of the Respondents/Respondents.

 

 Judgement delivered by

Aloysius Iyorgyer Katsina

I have had the advantage of reading in draft the judgment delivered by my learned brother Kutigi. J.S.C. in this 

appeal. I agree with it and, for the reasons given therein, I also would dismiss the appeal with N10, 000.00 costs in 

favour of the Respondent.

Judgment delivered by

Ignatius Chukwudi Pats Acholonu, J.S.C.

I have read the judgment of my learned and noble Lord Kutigi J.S.C. in draft and I agree with him. I must state that 

it is becoming fashionable nowadays for litigants to institute an action by way of asking for relief for infraction of 

their Constitutional rights in a matter where the facts reveal that an action should conceivably lie in tort or contract. 

It is difficult to say whether recourse to this inelegant procedure is borne out of the ignorance of Counsel or a 

mistake. Whichever is the case, it is important to state and emphasize that in a case of the nature before us, Counsel 

should have studied the facts of the case very well. Facts are the springboard of law. It is the facts of the case that 

determine the appropriate remedy. This case is lost because of the unpardonable procedure resorted to by the 

Appellant’s Counsel. An action by way fundamental rights may sound romantic and prosily prosaic, but it could lead 

to a loss of a case because of a parade of abysmal ignorance as to what to do.

I abide by the consequential order.

Judgement delivered by

Sunday Akinola Akintan. J.S.C.

I had the privilege of reading the draft of the leading judgment just delivered by my learned brother, Kutigi, J.S.C. 

The facts of the case and all the issues raised in the appeal are fully set out in the judgment. I therefore need not 

repeat them.

The main issue to be resolved in the appeal is whether the Appellant was right in commencing the action under the 

Fundamental Rights (Enforcement Procedure) Rules 1979. In resolving that issue, the claim of the Appellant has to 

be examined. The Appellant’s cause of action, as set in the supporting affidavit at the trial High Court, arose from 

the steps taken by the 1st Respondent to recover a debt due from the Appellant. The Appellant believed that the steps 

the man took were directed at intimidating him.

The facts disclosed in the supporting affidavit show that the Appellant and the 1st Respondent were both dealers in 

hides and skin in Kano. The Appellant admitted that he received some undisclosed sum of money from the 1st

Respondent for which he was to supply hides and skin. He failed to make the supplies. The Appellant deposed as 

follows in paragraphs 9,10,11,12 and 13 of his supporting affidavit:

“9. That despite my promise and sincerity to liquidate the debt the first Respondent have threatened and vowed 

to use his influence and connections with Military Officers to intimidate and terrorise me to pay the debt without

taking the matter to the court as the law requires.

10. That in carrying out this threat I have received several threats, intimidation and harassment (in person and 

through members of my family) from Military Officers who have confirmed one way or the other that their action 

(i.e. harassment, intimidation and degrading treatment) were at the instance of the first Respondent in respect of the 

debt 1 owe him.

11. That in 14/12/89 and 18/12/69, I received threatening letters from one Major G. Ofoche of the Nigeria 

Army Bukavu Barracks Kano at the instigation of the first Respondent and that the same Major also 

harassed and intimidated members of my family when he came without meeting me. 

12.

(a) That in 1990 one John Telia Hussain (an Airforce Officer and former Kano State Chairman of 

Task Force on 'fax Recovery) visited my house with 14 Airforcemen, drove members of 

my family from our main house to a room in the Boy's Quarters and locked them up to the 

evening of that day.

(b) That the same John Telia Hussain took away my pick up Van with Registration No KN 2848 

KQ fully loaded with skins and upon my enquiry for his reason, he confirmed to me that his 

action was to hurry me to pay up the debt I owe the first Respondent.

13. That sometime in May, 1990 the same John Tella Hussain led about eight Airforcemen in my house, 

seized my Peugeot 505 car with Registration No KN 7292 KQ and forcefully took the car to the first 

Respondent in order that the first Respondent should value the car and offset my debt to the first 

Respondent with the value of the car which was the thing and impounded by the first Respondents for 

one week”.

It is quite clear from the above averments that the allegations of harassment and intimidations were not authorized 

by any of the military authorities or the Kano State Tax Authority. It was founded on a dispute between two 

individuals, that is, the Appellant and the 1st Respondent. The question therefore is whether the Appellant’s redress 

could properly be initiated by way of an application for the enforcement of the Appellant’s fundamental rights 

guaranteed in Chapter IV of the 1979 Constitution.

The position of the law is that where fundamental rights are invaded not by government agencies but by ordinary 

individuals, as in the instant case, such victims have rights against the individual perpetrators of the acts as they 

would have done against state actions. It follows therefore that in the absence of clear positive prohibition which 

precludes an individual to assert a violation or invasion of his fundamental right against another individual, a victim 

of such invasion can also maintain a similar action in a court of law against another individual for his act that had 

occasioned wrong or damage to him or his property in the same way as an action he could maintain against the State 

for a similar infraction: See Onwo v. Oko & Ors (1996) 6 NWLR (Pt. 456) 584, at 603; and Ogugu v. The State 

(1994) 9 NWLR (Pt. 366) 1. The position of the law therefore is that the provision of section 44(1) of the 1979 

Constitution (which is also re-enacted in the 1990 Constitution) for the enforcement of the fundamental rights 

enshrined in Chapter IV of the Constitution is permissible and docs not constitute a monopoly for the enforcement 

of those rights. The aim of the section, according to Bello, CJN, in Ogugu v. The State, supra, is to provide a simple 

and effective judicial process for the enforcement of fundamental rights in order to avoid the cumbersome procedure 

and technicalities for their enforcement under the rules of the common law or other statutory provisions.

I believe therefore that a victim of any of the infractions of the fundamental rights preserved in Chapter IV of the 

Constitution has a discretion either to pursue his remedies under the Fundamental Rights (Enforcement Procedure) 

Rules 1979 or commence his action as provided under the various rules of court or in accordance with any of the 

common law or Statute or rules of Courts: See Ogugu v. The State, supra; and Onwo v. Oko, supra.

The next question to be resolved is whether the Appellant’s claim conies within the type that is enforceable as an 

infraction of fundamental right. The position of the law is that for a claim to qualify as falling under fundamental 

rights, it must be clear that the principal relief sought is for the enforcement or for securing the enforcement of a 

fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief 

which itself 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 Federal Republic 

of Nigeria & Anor v. Ifegwu (2003) 15 NWI.R (Pt. 842) 113, at 180; Tukor v. Government of Taraba State (1997) 6 

NWLR (Pt. 510) 549; and Sea Trucks (Nig) Ltd v. Anigboro (2001) 2 NWLR) Pt. 696) 159.

Out of the four reliefs sought by the Appellant, two are for an order restraining the Respondents from harassing and 

intimidating the Appellant and his family as well as seizing any of his properties (reliefs (a) & (c) while the others 

are for compensation for acts of harassment and intimidation committed against the Appellant and release of the 

seized vehicles. The jurisdiction conferred in section 44(1) of the 1979 Constitution is in respect of any person who 

alleges that any of the provisions of Chapters IV of the Constitution “has been, is being or likely to be contravened”.

The dispute between the Appellant and the 1st Respondent arose over the money, which the Appellant owed the 

Respondent. It was the steps the 1st Respondent took at recovering the money owed by the Appellant that the 

Appellant did not like. The man did not deny owing the 1st Respondent. The Appellant’s claim relating to seizure of 

his vehicles is therefore one of detinue and not per se or ipso facto that of infringement of fundamental rights. It was 

therefore improper for the Appellant to treat the matter as one amounting to that of infringement of his fundamental right and thereby qualify him to commence the action under the Fundamental Rights (Enforcement Procedure) 

Rules.

For the reasons given above and the fuller reasons given in the leading judgment which I also adopt, I agree that 

there is no merit in the appeal and I accordingly dismiss the appeal and affirm the decision of the Court of the 

Appeal striking out the Appellant’s claim. I also adopt the orders made in the leading judgment, including that on 

costs.

 

 

Judgment delivered by

Aloma Mariam Mukhtar, J.S.C.

After leave was obtained, the Appellant applied for the enforcement of his fundamental human rights under Sections 

31(1) (a), 32 (1) and 40 (1) of the Constitution of the Federal Republic of Nigeria 1979, against the Respondents. 

The reliefs sought are: -

“(a) To restrain the Respondents, their agents and servants from harassing, intimidating and subjecting the 

applicant and members of the applicant's family and employees to degrading treatment.

(b) To secure the release of the applicant's vehicle with Registration No. KN 7292 KQ forcefully seized 

and detained by the Respondents.

(c) To perpetually restrain the Respondents and their agents from seizing and detaining any of the 

Appellant’s property movable or immovable.

(d) To claim the sum of N1, 000, 000.00 (One million naira) from the Respondents jointly and severally 

as a compensation for several harassment, intimidation and degrading treatment of the applicant and 

employees and members of the applicant’s family by soldiers and airforcemen who are agents of the

Respondents in consequence of which the applicant lost and is still loosing his personal and business 

reputation and also suffering loss of business goodwill and prosperity.

The grounds upon which the reliefs were sought were set out, and an affidavit in support was sworn to by one Alhaji 

Ibrahim Abdulhamid. Leave was given to the applicant to enforce his fundamental rights, and witnesses gave 

evidence. The learned trial judge after evaluating the evidence and considering the addresses of learned counsel 

found in favour of the applicant thus: -

“Finally, as I have earlier held in this judgment, the applicant is entitled to all the reliefs sought by him in this 

application to enforce his fundamental rights. Consequently, I hereby make the following orders: -

1. The 1st, 2nd and 4n

 Respondents and their agents are restrained from harassing, intimidating and 

subjecting the applicant and members of this family to any further degrading treatment.

2. ..........................................

3. ...........................................

4. ...........................................”

The Respondents were not happy with the judgment, so they appealed to the Court below, and the applicant cross-

appealed. The court allowed the appeal and dismissed the cross-appeal, after a careful treatment of the issues raised 

in the appeals. The Court of Appeal arrived at the following conclusion: -

“A close examination of the provisions of chapter IV of the Constitution of the Federal Republic of Nigeria 

1979 does not consider any of the averments in the relief set out above to be a fundamental right not to talk of its protecting them. There was therefore, no claim before the learned trial Judge asking for a declaration of 

violation of the Respondent’s fundamental right. In the end result bringing the action under Fundamental 

Rights (Enforcement Procedure Rules (supra) is incompetent. The whole proceedings are therefore null and 

void ab initio and is set aside.”

The applicant also became dissatisfied with the judgment of the lower court, and has appealed to this court on four 

grounds of appeal.

In order to appreciate the above finding of the Court of Appeal, it will be imperative to peruse the relevant sections 

of Chapter IV of the Constitution the learned justice referred. I will reproduce them below: -

“32(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty 

save in the following cases........................

40(1) No movable property or any interest in an immovable property shall be taken possession of 

compulsorily and no right over or interest in any such property shall be acquired compulsorily in any 

part of Nigeria except in the manner and for purposes prescribed by a law that, among other things.”

Looking at the facts of the case as disclosed by the witnesses any reasonable person will perceive and be satisfied 

that none of the acts complained of fall within the acts in the supra provisions of the Constitution. In this regard, I 

am in complete agreement with the learned justices of the court below when the court found thus: -

“It is settled by a long line of decisions of both this court and the Supreme Court, that remedy other than those 

touching upon fundamental rights cannot be sought under the fundamental rights (Enforcement Procedure Rules 

(supra).”

I have had a preview of the lead judgment delivered by my learned brother Kutigi, J.S.C., and I am in complete 

agreement that the appeal lacks merit and deserves to be dismissed. I hereby dismiss it. I abide by the consequential 

orders made in the lead judgment.

 

Counsel

Mr. Abdulwahab Bamidele ...... For the Appellants

Miss Vivian Boseh ...... For the Respondents