ADETONA V EFCC

ADETONA V EFCC


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
ON FRIDAY, 24TH FEBRUARY, 2017


APPEAL NO: CA/I/10/2011

CITATION: SC (2017) 2 LLER 2

Before Their Lordships

CHINWE EUGENIA IYIZOBA, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A.

NONYEREM OKORONKWO, J.C.A.


BETWEEN

1. OMO OBA ADEDIRE ADETONA
2. MRS. TOYIN ADETONA
3. KPRINTS NIGERIA LIMITED
4. ROYAL HALL JUNIOR SCHOOL

(APPELLANTS)

AND

1. ECONOMIC AND FINANCIAL CRIMES COMMISSION
2. WEMA BANK PLC
3. REMI OJO

RESPONDENTS


LEAD JUDGEMENT DELIVERED BY OKORONKWO, J.C.A.


 

  1. The appellants, consequent upon leave at the High Court of Ogun State granted them on 5/9/2009 commenced proceedings vide application for the enforcement of their fundamental rights to dignity of human person, fair hearing, private and family life, to acquire and own property, freedom of movements and to seek the following reliefs set out in their originating motion of 28/9/2009:(a) “A declaration that the 1st Respondent is not a debt recovery agent and cannot whether by threat, coercion, blackmail or howsoever enforce payment of the credit facility granted to the 3rd Applicant by the 2nd Respondent, which said credit facility is the subject of a private ongoing and subsisting contract entered into between the 3rd Applicant and the 2nd Respondent.(b) A declaration that the 2nd Respondent cannot by way of arrest, harassment, intimidation or detention seek to enforce the repayment of the credit facility granted by the 2nd Respondent to the applicants in any manner contrary to Constitution of the Federal Republic of Nigeria or any other law.(c) A declaration that it is unlawful and unconstitutional for the Respondents either by themselves, their servants, allies or cronies to harass, intimidate, threat to arrest, detain or confiscate the properties of the 1st and 3rd Applicants without any judgment. Warrant, Writ of Execution or with regards to the existing, subsisting and ongoing contract for the provision of loan facilities by the 2nd Respondent to the 3rd Applicant.

    (d) A declaration that the engagement of the 1st Respondent by the 2nd Respondent to arrest, detain or confiscate the properties of the 1st and 3rd Applicants except such arrest or detention is made in compliance with the 1999 Constitution of the Federal Republic of Nigeria or any other law is unlawful, arbitral and or illegal.

    (e) The sum of N1,000,000,000.00 (One Billion Naira) being general damages from the respondents jointly and severally for the illegal invasion of the 1st, 2nd and 3rd Applicants’ premises at Ogbagba Court, Igbeba Road, Ijebu-Ode, Ogun State and the threat, harassment and intimidation of the person of the 1st and 2nd Applicants on the 18th day of September, 2009.”

  2. The grounds upon which the reliefs were sought are as follows:i. By virtue of Sections 34, 35, 36, 37, 41 and 43 of the 1999 Constitution of the Federal Republic of Nigeria and Article 6 of the African Charter, every person is entitled to his personal liberty and no person shall be deprived of such liberty save in accordance with the procedure permitted by law.ii. The 3rd Applicant company was granted credit facilities by the 2nd Respondent by virtue of a letter dated July, 23, 2007 which terms the 2nd Respondent is without recourse to the Constitution or any other law of the Federal Republic of Nigeria demanding to be repaid within 48 hours failure of which arrests of the persons of the 1st and 3rd Applicants would be made, his personal properties whether pledged as security or not would be confiscated in realization of 3rd Applicant’s debt.iii. The 1st Respondent Commission is neither a debt recovery agent nor a receiver appointed to recover or realize any debt whatsoever and therefore has no power to enforce contractual agreement between consenting parties in particular where there are no allegation of fraud or crime as in this case.

    iv. The 1st Respondent Commission cannot without any cognizable allegation of fraud or crime arrest, detain or confiscate the properties of the 1st or 3rd Applicant without recourse to law in lieu of the repayment of the debt owed the 2nd Respondent.

    v. The 1st Respondent’s threats as published in various Newspapers evinced that the rights of the Applicants of the Applicants to fair hearing in the determination of their civil rights and obligations under the offer for loan agreement with the 2nd Respondent is likely to be infringed in contravention Sections 34, 35, 36, 37, 41 and 43 of the 1999 Constitution of the Federal Republic of Nigeria.

  3. The back ground facts of the case are as given by the trial judge which I seek indulgence to reproduce:The facts of this case as stated in the applicants’ Statement and verified by an affidavit sworn to by the 1st applicant on 23rd of September, 2009 are that consequent to the 2nd respondent’s offer dated 23rd of July, 2007, the 2nd respondent and the 3rd applicant entered into a credit loan agreement. The said loan was said to be duly secured, inter alia, by landed properties. It was stated that as a result of disappointment from the clients of the 3rd applicant and various political upheaval, the 3rd applicant was unable to meet its obligation to the 2nd respondent and reasons for this set back were communicated to the 2nd respondent. It was stated further that by a Notice published in most national newspapers, the 1st respondent directed that all bank debtors must within 7 days with effect from 19th of August, 2009 make necessary payments failing which it would have no choice but to exercise its power under Section 6(d) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 to recover such indebtedness. The applicants stated that they have not committed any crime by entering into a credit loan agreement with the 2nd respondent, which bank secured the credit facility with the aforesaid collaterals and that the action of the 1st respondent is a flagrant and unilateral interference with a legitimate contract between the 3rd applicant and the 2nd respondent. They stated that in a manner similar to terrorist activities, the respondents swooped on the applicants and their business interest at Ogbagba Court, Ijebu-Ode on 18th of September, 2009 and cripple all activities therein thereby causing the 1st and 2nd applicants embarrassment and possible loss of business patronage. They claimed that the 1st respondent is likely to arrest and detain the 1st and 2nd applicants who are the Managing Director and Executive Director respectively of the 3rd applicant in lieu of the full re-payment of the outstanding indebtedness of the 3rd applicant having regard to the threats made by the officials of the respondents. The applicants alleged a breach of their fundamental rights as a result of the said illegal invasion of their premises by the respondents on 18th of September, 2009 and consequent of which they suffered humiliation and apprehension for their lives.
  4. It is pertinent to state that 6 affidavit were filed in support of the application. The facts contained therein are mostly in respect of the events of 18th of September, 2009 mentioned in the statement accompanying the application.
  5. The 1st affidavit was sworn to by Abu Mohammed. He described himself as the gateman of Ogbagba Court, Ijebu-Ode, which consists of Royal Hall Junior School, residence, mosque and Kprints offices. He deposed that at about 9.00 a.m. on Friday 18th of September, 2009, three officials of Wema Bank Plc. Met him at the gate and told him that they wanted to make enquiries about Royal Hall Junior School with a view to enroll their children and that to his surprise when he opened the gate for them, several cars drove to the entrance of the premises at a very high speed, made U-turn and then blocked the main gate so that no vehicle could either come in or go out. He stated that when he sought explanation for this strange conduct from the officials who had spoken with him, they started to beat him and they forced their way into the compound. He stated that one of the officials disconnected the premises from power supply by switching off the main light from the junction box. He stated that at this point other officials of Wema Bank had joined them and they started to yell at everybody including the children, teachers and the 2nd applicant.
  6. Abu Mohammed deposed further that one of them who appeared as the leader of the team threatened to eject everybody from the compound. According to him, the 2nd applicant at this point started to beg them to leave the children out of the whole affair and that they were scaring them with their guns. He stated that their leader threatened to damage all the cars in the compound if the 2nd applicant did not co-operate with them by paying their money and that when the 2nd applicant initially refused to sign any cheque for them she was pushed by one of these men. In order to placate these people and because of the children, he stated that the 2nd applicant brought out a cheque which she signed for them after which all the officials left but that their leader threatened to come back and deal with the 1st and 3rd applicants.
  7. The 2nd affidavit was sworn to by Temitope Awobodu. She is a cook at the Royal Hall Junior School. She stated that she witnessed the events of 18th of September, 2009 and saw officials of Wema Bank and Economic and Financial Crimes Commission (E.F.C.C.) some of whom were carrying guns beat up Abu Mohammed and that these men yelled that everybody should come out of their classes as they were going to close down the school. She stated that when neither the teachers nor their pupils came out these men banged at the metal gates and doors while the 2nd applicant kept imploring them to leave her school and stop yelling and scaring the young children because the school was not the debtor to the bank. She also stated that one of the officials who were carrying gun pushed the 2nd applicant and that these men only left after the 2nd applicant signed some cheques for them but that their leader promised that they were going to return for war and close down the school. She stated that lunch could not be served on that day because everybody was rattled by the said event which lasted for about 3 hours. She also stated that some of the children have not returned to school after the event.
  8. Fatimo Asekunlowo deposed to the 3rd affidavit. She is a teacher in one of the kindergarten classes in Royal Hall Junior School. She deposed that she was teaching when officials of Wema Bank and E.F.C.C. entered the school and ordered everybody to come out and that the men pushed some of them. She stated that some of her colleagues were so scared that they did not come out of their classroom and that the men were ordered to break the doors open if necessary. She deposed further that the toddlers’ class was broken into and the children were very frightened. She also stated that none of the children had lunch on that day and that about 6 out of a total of 45 children in the nursery section have not returned to school since the incident.
  9. The 4th affidavit was sworn to by the 2nd applicant, the proprietress of the Royal Hall Junior School. Her deposition on how the men of E.F.C.C. and officials of Wema Bank entered Ogbagba Court on the day in question is similar to the account given by others. She stated that she was at her post when she heard strange but frightening noise of these men in their otherwise quiet and serene premises. She stated that it was the 3rd respondent who barked out at every one in the premises to come out. She deposed further that because of the safety of the little children, she instructed them to stay in their classrooms and lock their doors and windows. She stated that when she enquired from the 3rd respondent why they invaded their premises she was told that her husband was indebted to his bank to the tune of several millions of Naira and that if the loan was not redeemed forthwith, they would cause further havoc. She stated also that when she complained about their conduct and ordered the men out of the premises because the school had nothing to do with the loan, one of the men pushed her. She stated further that she was forced to issue 3 post dated cheques to them in connection with the indebtedness and that she was warned before they left to prepare for a total showdown should they have cause to return. She also deposed that the children were frightened about the whole episode while she was destabilized and embarrassed and that some parents and the Parents Teachers Association (P.T.A.) of the school have started to ask questions about the incident. She also stated that the credibility of the school as a safe environment for the bringing up of young children has been put in issue.
  10. The 5th and 6th affidavits were sworn to by Temitayo Alo and Folashade Kawonishe, respectively. They are Class Teacher at the Royal Hall Junior School. The contents of their affidavits are similar to the depositions contained in the 2nd and 3rd affidavits filed in support of the application.
  11. It is pertinent to note that although the 1st respondent was duly served with this application and all other processes filed in connection with this matter, it did not respond to the application or appear in Court at the hearing.
  12. At the hearing of the application proper, it was argued for the applicants now appellants that the conduct of the respondents in the premises of the appellant was in breach of the fundamental rights of the applicants/appellants particularly as the 1st respondent, a statutory body was employed in the act of violating the fundamental rights of the applicants when it was not the statutory right of 1st respondent (E.F.C.C.) to enforce contractual rights between two parties.
  13. On the contrary, it was argued for the 2nd and 3rd respondents that the application is founded in contract and ought not have been brought pursuant to the Fundamental Rights (Enforcement rocedure) Rules because the action is founded on a credit facility granted the 3rd applicant by the 2nd respondent and that “the Enforcement of the Fundamental Right is merely incidental to the main claim of the applicant and that in the circumstance, the applicants ought to have come to Court by filing a Writ of Summons instead citing Sea Truck Nig. Ltd. Vs. Anigboro (2001) 2 NWLR (pt. 696) 159. Nigeria Social Insurance Trust Fund Management Board vs. Adebiyi (1999) 13 NWLR (pt. 633) 16 and Jack vs. University of Agriculture, Makurdi (2004) 5 NWLR (pt. 865) 208.
  14. It was further argued for the 2nd and 3rd respondents at the Court below that Section 6 and 7 of the Economic and Financial Crimes Commission (Establishment) Act justifies the presence of the E.F.C.C. operatives assuming without conceding that they were present Sokoto Local Government vs. Amale (2001) 8 NWLR (pt. 714) 224 at 239.
  15. It is to be noted that the 1st respondent (E.F.C.C.) filed no counter affidavit in the proceedings.
  16. In dealing with the application of the appellants and the objections raised thereto the learned trial judge, in my respectful view, admirably made the foregoing arguments thus:Dealing with the scope of the jurisdiction of the High Court in cases brought pursuant to the provisions of the Fundamental Rights (Enforcement Procedure) Rules, Owoade, J.C.A. held in Unical vs. Ugochukwu (No. 1) (2007) NWLR (pt. 1063) 225 at 246 as follows:-“The reliefs sought in a fundamental right application are the paradigm for determining whether or not a Court is seized of jurisdiction in a particular case. When the claim cannot be validity presented under Section 46 of the 1999 Constitution, the Court would have no jurisdiction to hear or grant any order in the matter.”
  17. See also Tukur vs. Government of Gongola State (1989) 4 NWLR (Part 117) 517; Dangote vs. C.S.C. Plateau State (2001) 19 WRN 125 and Sea Trucks Nig. Ltd. Vs. Anigboro (supra) or (2001) 10 WRN 78.
  18. It is therefore clear from the above quoted provisions of the 1999 Constitution that the reliefs which may be claimed under the Fundamental Rights (Enforcement Procedure) Rules are limited and confined to the enforcement of any of the provisions of Chapter IV of the 1999 Constitution. In essence, an application brought under the Fundamental Rights (Enforcement Procedure) Rules can only contain claims for the enforcement of the fundamental rights provided under Chapter IV of the 1999 Constitution in view of the clear provision of Section 46 of the said Constitution. Any claim outside the said Chapter IV of the Constitution will therefore be outside the jurisdiction of the Court. In other words, an application brought pursuant to the Fundamental Rights (Enforcement Procedure) Rules is not for the enforcement of rights outside Chapter IV of the 1999 Constitution. Furthermore, the breach of the fundamental right alleged by an applicant must be the main plank in the application for enforcement. Where the violation of fundamental right is merely incidental or ancillary to the principal claim or relief it has been held that it is improper to constitute the action as one for the enforcement of a fundamental right. See Tukur vs. Gongola State (Supra) and Dongote vs. C.S.C. Plateau State (Supra).
  19. It is a fundamental principle of law that it is the claim of the plaintiff or claimant that determines the jurisdiction of the Court which entertains the claim. See Adeyemi & Ors vs. Opeyori (1976) 1 FNLR 1 9. In the instant case, I have earlier in this ruling set out verbatim the reliefs sought by the applicants in this action as stated in the Statement filed pursuant to the Rules. I will therefore turn to the said reliefs claimed by the applicants to determine whether they are such that can be proceeded upon under the Fundamental Rights (Enforcement Procedure) Rules.
  20. The declaration sought in the 1st leg of the claim is that the 1st respondent is not a debt recovery agent and cannot by threat, coercion or blackmail enforce payment of credit facility granted to the 3rd applicant, a subject of a private contract. The relief sought in the 2nd leg of the claim is similar to the 1st relief. The declaration sought is that the 2nd respondent cannot by way of arrest, harassment, intimidation or detention seek to enforce repayment of the said credit facility granted to the 3rd applicant. In my considered opinion, the right being sought to be enforced by these claims is one under the private contract between the 3rd applicant and the 2nd respondent and not one of the rights guaranteed under Chapter IV of the 1999 Constitution. It should be noted that there is no right guaranteed under Chapter IV as to the particular mode of enforcing repayment of debt. These claim, therefore, are not cognizable under the Fundamental Rights (Enforcement Procedure) Rules.
  21. The 3rd leg of the claim is a declaration that it is unlawful and unconstitutional for the respondents to harass, intimidate, threaten to arrest, detain or confiscate properties of the 1st and 3rd applicants without any judgment, writ of execution or any written contract.
  22. The subject matter of this claim is related to the first two claims. The claim is so intimately bound up with the earlier two reliefs such that it cannot be determined without the determination of the powers of the respondents in relation to debt recovery which is not a matter cognizable under the Fundamental Rights (Enforcement Procedure) Rules.
  23. The relief sought in the 4th leg of the claim is a declaration that the engagement of the 1st respondent by the 2nd respondent to arrest, detain or confiscate the properties of the 1st and 3rd applicants is unlawful except such arrest or detention is made pursuant to the Constitution. The subject matter of this claim relates to the legality of the alleged engagement of the 1st respondent by the 2nd respondent to recover debt. Definitely, this is not a fundamental right issue. The applicants are not seeking to enforce any of the fundamental rights enshrined in Chapter IV of the Constitution by challenging the powers of the 1st respondent. The special jurisdiction conferred by Section 46 (2) of the Constitution is not open to every infraction of the citizen’s rights but only the fundamental rights contained in Chapter IV. This claim is therefore not maintainable under the procedure by which this application has been brought.
  24. Significantly, the learned trial judge severed only part of the claim i.e. the 5th leg of the claim and held that it was a fundamental right issue which could stand on its own and “is not dependent on or ancillary to the other claims”. However, the trial judge went ahead to negative his own findings by holding thus concerning this independent claim of fundamental human right thus:The second part of the claim affects only the 1st and 2nd applicants. In my view, it is a fundamental right enforcement issue. However since the damages sought in respect of the complaints made in this 5th leg of the claim are lumped together this Court, is not in a position to determine the actual sum being claimed as damages for the infraction alleged in each part of the claim. In other words, the second part of the claim is not severable from the first part of the claim for the purpose of adjudication. In the circumstance, this second part of the claim cannot also be entertained since it is intertwined with the first part of the claim which cannot be entertained by the procedure used to initiate this action. A procedure that will enable the Court to accommodate all the claims therefore ought to have been used to initiate this action. See Lasisi A. Odunsi vs. Ojora (1961) All NLR 283 and Tukur vs. Government of Gongola State (supra) at 231.
  25. The main issue raised for determination in this action, no doubt, is not a fundamental right question and this is glaring from grounds (ii), (iii), (iv) and (v) relied upon for seeking the reliefs in this action. The applicants’ action is therefore such that ought to have been brought by a Writ of Summons. It should be noted that nearly all the alleged breaches of fundamental rights complained of by the applicants in the instant case flow from the main complaint of the applicants which is the alleged mode employed by the respondents to recover the outstanding loan in this case from the 3rd applicant, the legality of which the applicants are challenging. The only part of the claim which is a fundamental right issue cannot also be severed from the first part of the 5th leg of the claim for the reason earlier stated. The objection raised as to the mode of commencement of this action is not an issue of technicality as submitted by the applicants’ counsel but a fundamental issue which affects the jurisdiction of this Court to entertain this matter.”
  26. His lordship of trial then proceeded to strike out the suit holding that the Court has no jurisdiction to entertain the action under the Fundamental Rights (Enforcement Procedure) Rules. This appeal is against that order.
  27. The appellants in their brief of argument raised one issue viz:Whether it was proper for the lower Court to strike out the suit in view of the Statement in Support, Verifying Affidavit and Affidavits in Support of Originating Notice of Motion disclosing a breach of the Appellants’ fundamental rights thereby entitling them to judgment.
  28. In arguing the issue, appellants at Paragraphs 4.2, 4.3 and 4.4 of the appellants’ brief argued thus:The lower Court in its Judgment/Ruling delivered on the 10th of June, 2010 held that: “the main issue raised for determination in this action, no doubt, is not a fundamental right question and this is glaring from grounds (ii), (iii), (iv) and (v) relied upon for seeking the reliefs in this action…” See page 180 of the Records of Appeal.It is respectfully submitted that the lower Court erred in law in its Judgment/Ruling as aforesaid.
  29. The authorities are quite settled that the breach of a fundamental right alleged by an applicant must be the main plank in the application for enforcement. Where the violation of a fundamental right is merely incidental or ancillary to the principal relief it is improper to constitute the action as one of a fundamental right. See for instance, SEA TRUCKS NIGERIA LTD. VS. ANIGBORO (2001) 10 WRN 78. However, the main claims of reliefs in the appellant’s Statement in Support Verifying Affidavit and Affidavits in Support of Originating Notice of Motion discloses that their rights in relation to private and family life, right to acquire and own property and the right to the human person were infringed upon when the respondents on the 18th of September, 2009 visited the 4th appellant’s premises which also serves as the 1st and 2nd appellant’s residential home.
  30. It has been held that the fundamental rights entrenched in the Constitution are very important, so much so that an individual whose rights have been infringed or contravened has the right to seek redress in a competent Court of law. See F.R.N. vs. Ifegwu (2003) 15 NWLR (pt. 842) 113 @ 216-217.
  31. For the respondents, 1st respondent who did not challenge the case at the lower Court filed a brief and raised the following issues:“Whether the learned trial judge was correct in holding that the appellants’ suit could not appropriately be commenced under the Fundamental rights (Enforcement Procedure) Rules. This issue covers Grounds 1 and 2 of the Grounds of Appeal of the Appellants.”
  32. And argued pursuant to the learned trial judge’s findings as follows:-“With respect, it is appropriate to begin this argument from where the learned trial judge started his consideration of issues placed before him. In beginning, the learned trial judge relied on the case of Unical v. Ugochukwu (No.1) (2007) 17 NWLR (Pt. 1063) 225 at 246 B-C of the report. His Lordship Ngwuta, J. C. A. held therein as follows:“The reliefs sought in a fundamental right application are the paradigm for determining whether or not a Court is seised of jurisdiction of a particular case. When the claims cannot be validly presented under S. 46 of the Constitution, the Court would have no jurisdiction to hear or grant any order in the matter.”
  33. In the determination of the case in Unical v. Ugochukwu (supra), His Lordship at page 245, D of the report, quoted with approval Omokri, J.C.A. who in Effiong & Ors v. Inih A. Ebong (2006) 18 NWLR (Pt. 1010) 109 at 127
    Paras. C-D said:

    “Where the alleged breach of right is ancillary or incidental to the principal claim, grievance or complaint, it is incompetent to proceed under the rules. This is because the right violated is not synonymous with the substantive claim which is the subject, matter of the action.”

  34. The learned trial Judge in coming to his conclusion painstakingly went through the reliefs of the applicant to determine whether any of them fell under the Fundamental Rights provisions enshrined in the 1999 Constitution. I respectfully refer my Lords to page 178 last paragraphs thereof to page 180 of the Record. In respect of the first and second legs of the reliefs claimed by the appellants, the learned trial Judge at page 179 of the record found as follows:-“In my considered opinion, the right being sought to be enforced by this claim is one under the private contract between the 3rd applicant and the 2nd respondent and not one of the rights guaranteed under Chapter IV of the 1999 Constitution. It should be noted that there is not right guaranteed under Chapter IV as to the particular mode of enforcing payment of debt. These claims therefore are not cognizable under the Fundamental Rights (Enforcement Procedure) Rules.”
  35. My Lords, this finding of the learned trial Judge against which there is no ground of appeal, I respectfully submit, is unassailable. I respectfully submit that a finding against which there is no appeal stands admitted and undisputed. I respectfully urge my Lords to so hold. IIonah vs. Idakwo (2003) 11 NWLR (Pt. 830) 53 at 83E.”
  36. For the nd and 3rd respondents, learned counsel for these respondents not only reproduced the issues raised by the 1st respondent, the entire brief of the 1st respondent was reproduced verbatim as if their respective cases are the same. I need not reproduce all that again.
  37. The foregoing accounts represent the respective case of the parties and their arguments at the Court below and later before this Court. The main reasoning of the lower Court has also been given.
  38. Against the above back-ground, it is now fit to consider the sole issue raised by the appellant and acceded by the respondents which is:Whether it was proper for the lower Court to strike out the suit in view of the statement in support, Verifying Affidavit and Affidavits in Support of Originating Notice of Motion disclosing a breach of the Appellants’ fundamental rights thereby entitling them to Judgment.
  39. Upon a cursory reading of the trial judge’s refusal to entertain the application, it would be discerned that the main reason as stated by the trial Court is that reliefs which may be claimed under the Fundamental Rights (Enforcement Procedure) Rules “are limited and confined to the enforcement of any of the provisions of Chapter IV of the 1999 Constitution. Any application or action brought for enforcement of Fundamental Rights must relate to those rights and not merely ancillary or incidental to those rights. The cases of Tukur vs. Government of Gongola State (1989) 4 NWLR (pt. 117) 517, Dangote vs. CSC Plateau State (2001) 19 WRN 125 and Sea Truck Nig. Ltd vs. Anigboro (2001) 2 NWLR (pt. 696) 159 were relied on.
  40. Upon the above premises, the trial Judge held that the reliefs claimed in reliefs 1, 2, 3, and 4 were not fundamental right enforcement claims as they relate mainly to debt recovery and contract and the propriety or otherwise of employing the assistance or services of the 1st respondent Economic and Financial Crimes commissions in recovery of debt. The inconvenience suffered were thought to be ancillary or collateral and not the main subject of a Fundamental right action under the Fundamental Rights Enforcement Procedure Rules.
  41. Concerning the 3rd and 4th reliefs, here is what the learned trial judge said, even at the expense of repetition. The 3rd leg of the claim is a declaration that it is unlawful and unconstitutional for the respondents to harass, intimidate, threaten to arrest, detain or confiscate properties of the 1st and 3rd applicants without any judgment, writ of execution or any written contract. The subject matter of this claim is related to the first two claims. The claim is so intimately bound up with the earlier two reliefs such that it cannot be determined without the determination of the powers of the respondents in relation to debt recovery which is not a matter cognizable under the Fundamental Rights (Enforcement Procedure) Rules.
  42. The relief sought in the 4th leg of the claim is a declaration that the engagement of the 1st respondent by the 2nd respondent to arrest, detain or confiscate the properties of the 1st and 3rd applicants is unlawful except such arrest or detention is made pursuant to the Constitution. The subject matter of this claim relates to the legality of the alleged engagement of the 1st respondent by the 2nd respondent to recover debt. Definitely, this is not a fundamental right issue. The applicants are not seeking to enforce any of the fundamental rights enshrined in Chapter IV of the Constitution by challenging the powers of the 1st respondent. The special jurisdiction conferred by Section 46 (2) of the Constitution is not open to every infraction of the citizen’s rights but only the fundamental rights contained in Chapter IV.
  43. This claim is therefore not maintainable under the procedure by which this application has been brought.
  44. But in respect of the second part of the 5th claim the trial judge at page 180 of the record said:The second part of the claim affects only the 1st and 2nd applicants. In my view, it is a fundamental right enforcement issue. However since the damages sought in respect of the complaints made in this 5th leg of the claim are lumped together this Court is not in a position to determine the actual sum being claimed as damages for the infraction alleged in each part of the claim. In other words, the second part of the claim is not severable from the first part of the claim for the purpose of adjudication. In the circumstance, this second part of the claim cannot also be entertained since it is intertwined with the first part of the claim which cannot be entertained by the procedure used to initiate this action. A procedure that will enable the Court to accommodate all the claims therefore ought to have been used to initiate this action. See Lasisi A. Odunsi vs. Ojora (1961) All NLR 283 and Tukur vs. Government of Gongola State (supra) at 231.
  45. The issue raised for determination in this action, no doubt, is not a fundamental right question and this is glaring from grounds (ii), (iii), (iv) and (v) relied upon for seeking the reliefs in this action. The applicants’ action is therefore such that ought to have been brought by a Writ of Summons. It should be noted that nearly all the alleged breaches of fundamental rights complained of by the applicants in the instant case flow from the main complaint of the applicants which is the alleged mode employed by the respondents to recover the outstanding loan in this case from the 3rd applicant, the legality of which the applicants are challenging. The only part of the claim which is a fundamental right issue cannot also be severed from the first part of the 5th leg of the claim for the reason earlier stated. The objection raised as to the mode of commencement of this action is not an issue of technicality as submitted by the applicants’ counsel but a fundamental issue which affects the jurisdiction of this Court to entertain this matter.
  46. This is where the crux of the matter is. Assuming the trial Judge is right in respect of reliefs 1, 2, 3 and 4 which in my view is highly debatable, what of relief No. 5 which he declared in his own words thus……” In my view, it is a Fundamental right enforcement issue.” Was the Judge right to hold that because the damages sought were “lumped together” the Court ought not determine the actual sum claimed. Did the trial Judge consider the full amplitude of Section 46 (2) in reaching or failing to reach a proper decision in the circumstance?
  47. Section 46 (1) and (2) of the Constitution (1999) provides thus:-(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.
  48. Under Sub-section (2) of Section 46, the High Court is empowered to make such orders, issue such writs and give such directions as it may consider appropriate for the enforcement of the fundamental rights.
    In Minister of Internal Affairs vs. Shugaba Darman (1982) 3 NCLR 915, It was held among others that a Court can award damages for infringement of a citizen’s fundamental right even where it is not expressly provided or claimed. The Court can give any relief whether claimed or not which it thinks can best secure the fundamental right in question.
  49. In matters in torts, where there are multiple claimants, as in Amachere vs. Newington, apportionment of damages may be impossible but it is not so in Fundamental right breaches where the trial Judge under Section 46 (2) may award such damages as he sees fit to ensure enforcement of such fundamental rights. It is in this regard that I consider the trial Judge as misconceived. Having held that relief 5 is a fundamental right claim, it was wrong to abdicate responsibility merely because “the claims are lumped together.” Without commenting on the propriety of the 1st respondent EFCC joining a commercial bank to forcibly break into the residence of a private individual for the purpose of recovering a Private debt and not contesting or denying such conduct having not filed any counter affidavit it is enough for this purpose that relief No. 5 can save this Fundamental right action and so with due respect to the meticulous care of the trial Judge, the trial Judge nonetheless was misconceived on that point. Relief No. 5 was enough to sustain the Fundamental Right action. The appeal must be allowed on this ground alone.
  50. Accordingly the appeal is allowed; the Judgment of the Ogun State High Court delivered in Suit No. M/52/09 is hereby set aside. A new trial is hereby ordered before another Judge of that Court as may be assigned by the Chief Judge of Ogun State.
  51. There shall be cost of N100, 000.00 against the respondents.
  52.  


  53. IYIZOBA, J.C.A.:> I read before now judgment just delivered by my learned brother, NONYEREM OKORONKWO JCA. I agree with his reasoning and conclusions. I abide by the consequential orders of my learned in the Judgment.
  54.  


  55. TSAMMANI, J.C.A.: I agree with the judgment just delivered by learned brother, Nonyerem Okoronkwo, J.C.A.
  56. The law is that for an action to be competently brought under the Fundamental Rights Enforcement Rules (FREP, Rules) the breach of the fundamental right alleged must be the main and not a mere adjunct to the application. In other words, the violation of a fundamental right guaranteed under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) must be the principal claim or relief and not merely an incidental or ancillary claim or relief. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) P. 517, Chukwuogor v.
    Chukwuogor (2006) 49 W.R.N. p. 183 and Garba v. University of Maiduguri (1986) 2 NWLR (Pt. 18) p. 559.
  57. In order to discover the nature of the relief(s) or claim(s) sought by Applicant, the Court will look at the grounds for seeking the reliefs and the Affidavit in Support. If upon consideration, the enforcement of a fundamental right is found to be the main or principal relief, then the application will be sustained. If they disclose otherwise, the application will be struck out. In the case of Basil Egbuonu v. Borno Radio Television Corporation (1993) 4 NWLR (Pt. 285) P. 13, Kutigi, JSC (as he then was) held that:“But here…, the principal claim being wrongful termination of appointment which ought to have been commenced by a writ of Summons, which was not, then all the claims, principal and subsidiary which flow directly from it, are incompetent and ought to be struck out. That was what the Court of Appeal did in this case. I believe it was right.”
  58. In the instant case, it is clear to me that the principal or main relief sought by the Applicants/Appellants are for the enforcement of the Appellants’ fundamental rights. The grounds for seeking the reliefs and the Affidavit evidence filed before the trial Court show beyond any doubt, at least to me, that it is so. The Affidavit evidence disclosed graphically how the respondents in a “Rambo style” invaded the premises of the Respondents under the guise that the Respondents are debtors to the 2nd Respondent. At least, nowhere in the Affidavits of the Appellants was it contended that the 3rd Appellant owes no debt to the 2nd Respondent. In other words, there was no contestation about the debt allegedly owed the 2nd Respondent by the 3rd Appellant in the claims before the trial Court. The learned trial Judge was therefore in error when he struck out the application on the grounds that the “claims are lumped together” and that they are claims which should not be ventilated under the FREP Rules.
  59. It is for the above reasons and the other reasons in the lead judgment that I agreed that the appeal has merit. It is hereby allowed. I abide by the consequential orders made in the lead Judgment.