In The Supreme Court of Nigeria
On Friday, the 5th day of May 2006
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
Alhaji Ibrahim Abdulhamid ....... Appellants
Major G. Ofochie
Judgement of the Court
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
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
(b) To secure the release of the Applicants 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
Applicants 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 Applicants 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
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 Applicants 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
(c) Sometime in May 1990, the same John Tella Hussain led about eight Airforcemen to the
Applicants 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 Applicants 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 Applicants
505 car in and insisted that unless the Applicant pays up the debt he (the Applicant) owes to the
first Respondent, the Applicants car would not be released.
(e) The Applicants 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 Applicants 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 Applicants 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
(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 Applicants 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 Respondents 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 Applicants 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 Applicants 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
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 Applicants 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 Respondents submissions above.
It is most convenient for me however to answer the Applicants issue (2) first as that will lead me directly into the
heart of issue (1).
Issue (2) relates to the competency of the Applicants 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 Applicants fundamental rights
but are also tortious in nature. For instance, the forceful entry of the Applicants 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 Applicants movement by detaining him in a room close to the 2nd Respondents office also
amount to a tort of false imprisonment or wrongful confinement. The Respondents tampering with the
Applicants 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 Applicants 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.
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
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
Appellants 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
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 Appellants 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.
(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
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 Appellants redress
could properly be initiated by way of an application for the enforcement of the Appellants 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 Appellants 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 Appellants 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)
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 Appellants claim. I also adopt the orders made in the leading judgment, including that on
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
Appellants 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 applicants 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.
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 Respondents 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
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.
Mr. Abdulwahab Bamidele ...... For the Appellants
Miss Vivian Boseh ...... For the Respondents