Fundamental Rights Take Back Seat In The Face Of Threats To National Security — Court of Appeal Rules

*Strict Proof Is Required To Substantiate Claim Of Damages
*Holds That Subject Matter Of Suit Is Relevant In Determining Jurisdiction Of Court

The Court of Appeal, Ibadan division has held that when there is an investigation regarding National security, the fundamental rights of individuals take second place. The Court also ruled that no Nigerian is permitted by law to lead a secessionist group under the guise of freedom of association.

These position was emphatically held by the court in the case of A.G Federation & Ors. v. Chief Sunday Adeyemo, Appeal No: CA/IB/373/2021, wherein the Respondent had commenced a case against the appellants by originating motion for the enforcement of his fundamental rights. The respondents alleged that on the 1^st of July, 2022, the 2^nd and 3^rd appellants invaded and ransacked his home at Ibadan Express Way, Ibadan, killing two persons who were his guest and destroying his property all in a bid to capture him dead or alive. The respondent as a result of this went into hiding, and sought legal action through his solicitors. The respondent alleged that that the appellants conducted a media trial for him, froze his accounts and seized some of his properties just because he was expressing his right to determine self-determination. According to the appellants, they received reports that the respondent was harboring arms, and had a plan for collapsing the present government.

The respondent in lieu of this, instituted the case at the Oyo State High Court, suit no: M/435/2021 sought orders of court that the actions of the appellants constituted a breach of his fundamental rights, restraining the appellants or their agents from arresting, detaining him, the return of his seized properties and sought damages of 500,000,000,000 (Five Hundred Billion Naira).

After hearing arguments of the both parties, the trial court gave judgement in favor of the respondent and granted damages of 20 billion naira against the appellants.

Dissatisfied, the appellants appealed the judgement of the lower court in the Court of Appeal sitting at Ibadan, asking the court to determine whether the court was right to assume jurisdiction when the matter was one under tort and not under chapter IV of the constitution, whether the court was right to assume jurisdiction when the case was against a federal government agency in view of section 251 of the constitution, whether the respondent`s originating process accompanied with two affidavit was not incompetent in view of order II rule 3 of the FREP, 2009, whether the court was right to have held that the respondent had the constitutional and statutory right to propagate the Yoruba Oduduwa Nation in Nigeria, contrary to section 1 and 2 of the Constitution, whether the court was right to have entered judgement in view of the serious allegations of commission of crime by the respondent and whether the court was right to have entered judgement in light of no evidence supplied by the respondent to support their claims. In contrast, the respondent raised one sole issue for determination, asking the court to determine reliefs sought by the respondent is deeply rooted in Chapter IV of the Constitution, and the African Charter on People & Human Rights Enforcement Act.

Challenging the appeal, the respondent filed a preliminary objection on the grounds, that some of grounds of appeal raised by the appellants were vague, argumentative, general and prolix and that the record of appeal was transmitted outside the time stipulated by par. 13 (2) of the Court of Appeal (fast track) Practice Directions, 2021. Ruling on the objections, the Court held that it was trite law that for one to challenge grounds of appeal successfully, all the grounds of the appeal must be challenged and not some part of it and that the appellants had filed and moved a motion of extension of time for filing which the respondent failed to challenge. Hence, it dismissed the appeal.

Arguing their case, the appellants` counsels led by T.A Gazali SAN on issue one stated that the trial court lacked jurisdiction to entertain the matter because some part of the action has elements of tort, thus cannot come under fundamental rights enforcement as this was trite law. On issue two, the appellants argued that the state high court in view of section 251 lacked jurisdiction to entertain the matter as it was a suit against a federal government agency which fell under the exclusive jurisdiction of the Federal High Court. On issue 3, the appellants contested that the two affidavits filed by the respondent at the lower court meant to accompany the originating motion were contrary with the provision of order II, rule 3 of the FREP 2009, and thus rob the court of its jurisdiction to entertain the matter. On issue 4, the appellants argued that the relief of self-determination sought by respondent was illegal and unconstitutional and the court was in error to have granted it, as the respondent was hiding under the guise of freedom of association when he was actually carrying arms and threatening the unity of the Nation. On issue 5, the appellants contested that there were serious allegations of commission of crime against the respondent that constituted threat to the national security, and the court had been in error to have entered judgement. On issue 6, the appellants contested that the respondents failed to provide evidence to support his claims and in view of lack of sufficient evidence the court had been in error to have entered judgement in his favor. Arguing their case, the respondent`s counsels led by Chief Yomi-Alliyu SAN argued that the respondent had a case before the lower court, and that the court had jurisdiction to entertain the case. According to respondent, the issue of incompetency of originating motion was a fresh issue as it was not raised at the lower court and should be discountenanced as the leave of the court was not sought.

Resolving the issues, the court adopted the 6 issues raised by the appellants. On issue 1, the court held that it was trite law that a matter must belong properly to the enforcement of fundamental rights before it must be brought under the FREP rules and procedure for bringing such case to court as held in the case of Sea Trucks Nig. Ltd v. Anigboro. Hence the court held that the lower court lacked jurisdiction to entertain the case as the instant case did not fall entirely under the provisions of the FREP 2009, and the principle of choice or election mentioned by the trial court was not applicable as in the instant case, calling of witnesses and tendering of evidences to resolve contentious issues was required. Thus, the issue was resolved in the appellants` favor.

Having resolved that the lower court lacked jurisdiction, the judgement of the lower court was overturned, however, the Court of appeal went to rule on the remaining issues to remove the necessity for two appeals. On the second issue, the court held that it was trite law that determining jurisdiction of a court, both the parties and the subject matter must be considered. The court ruled in the instant case, both the state high court and federal high court have concurrent jurisdiction to entertain the matter because the matter contained issues of fundamental rights and despite that the appellants were government agents, both the state and federal high courts had jurisdiction. The issue was resolve against the appellant. On issue 3, the Court held that the purpose of FREP 2009 was to ensure that infringement of fundamental rights was reported and that a breach of fundamental right is so serious that unnecessary technicalities would not be allowed to clog the free flow of the system of justice. According to the court, in the instant case, the appellants stretching the issue of filing affidavit accompanying the originating motion to the question of jurisdiction is overstepping boundaries. “Rules of courts do not bestow jurisdiction on a court, jurisdiction of a court is bestowed by the constitution or statute”, the court held. The issue was thus resolved against the appellant.

On issue 4, the Court held that the lower court as in error for relying on the United Nations Declaration on the Right of Indigenous People which had not been domesticated and thus, lacked the force of law in Nigeria as provided for in section 12 of the Constitution, and applied in the case of Abacha v. Fawehinmi. The court also ruled thus; “the point to be emphasize here is that the respondent is not permitted under the guise of freedom of association to lead a secessionist movement in Nigeria which may lead to the breakup of the country and… the constitution has not recognized any right that permits people to come together and from association for the purpose of breaking up Nigeria or seceding from Nigeria and the establishment of another republic within Nigeria.” Thus, the issue was resolved in favor of the appellants. On issue 5, the court ruled that when the allegations of crime against are weighty that requires investigation, as in the instant case, the 2^nd and 3^rd appellants are vested with statutory powers under section 1 of the National Security Agencies Act to conduct investigation of this nature that constitutes a threat to national security, the fundamental rights of individuals are suspended or take second place. On the final issue, the court rule thus; “The law is trite that an applicant who complains that the decision of a trial court is wrong or perverse for of adequate or proper evaluation of evidence placed before the trail court, must prove or establish that the trail court made improper use of the opportunity seeing the witnesses testified before him.” According to the court, the judgement of the lower court was not supported by evidence adduced by the respondent in support of his claim. It was also the finding of the court that the damages awarded by the court was not supported by any proof by the respondent that made it possible for the damages to be assessed. Thus, it set aside the said damages.

In lieu of all this, and the decision that the lower court lacked jurisdiction to entertain the case under the Fundamental Rights Enforcement Procedures (FREP) Rules 2009, the court allowed the appeal and the judgment of the lower court was set aside for lack of jurisdiction.