Whether a joint application can be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules

FINAMEDIA GLOBAL SERVICES LTD v. ONWERO (NIG) LTD & ORS
(2020) LPELR-51149(CA)

"On the propriety of two or more persons filing a joint application for the enforcement of their fundamental rights, it is important to understand that, as rightly pointed out, an action for the enforcement of fundamental rights is quite unlike an action in a civil suit, where parties may, expectedly, be joined in an action as plaintiffis quite unlike an action in a civil suit, where parties may, expectedly, be joined in an action as plaintiff. This cannot happen in an action under the fundamental rights enforcement procedure rules 2009, because of the sui generis nature of fundamental rights. The contention that the respondents' grievances is the determining factor is hollow, to say the least, because Fundamental Rights are so basic and inalienable to every person, individually. That explains the use of the word "any person" in Section 46 (1) of the Constitution; See RAYMOND S. DONGTOE V. CIVIL SERVICE COMMISSION, PLATEAU STATE & ORS (2001) 4 SCNJ Page 131. The right to approach a Court to enforce a Fundamental Right is conferred by Section 46 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), sub Section (1) provides: "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 for redress." In this appeal under consideration, the application was brought by two applicants (1) Onwero Nigeria Ltd and (2) Mr. Uchenna John Paul Chidokwe. The words used in Section 46(1) of the Constitution are very clear, and it is not by accident that the constitution and the rules use the same adjective in qualifying who can apply to a Court to enforce a Right as, "any", which denotes singular, and does not admit pluralities in any form. Individual rights and not collective rights take prominence in fundamental rights applications; see R.T.F.T.C.I.N. V. IKWECHEIGH (2000) 13 NWLR Part 683 at Page 1 and OKECHUKWU V. ETUKOKWU (1998) 8 NWLR Part 562 Page 511. It is significant that the respondents' brief concedes and argued that the genesis of the claim under the Fundamental Right (Enforcement Procedure) Rule, arose from the act of eviction or locking up of the shops by the appellant or its agents. That being so; as was held by the Supreme Court in EGBUONU V. BORNU RADIO TELEVISION CORPORATION (1997) 12 NWLR (Pt. 531) 29 at 40, 42, 43, 44 - 45; the learned trial judge, with respect, was in error to have assumed jurisdiction to entertain, hear and determine the application, because stricto sensu, this has nothing to do with fundamental rights as enshrined in Chapter 4 of the Constitution. The vain effort on the part of the respondents, at justifying it by relying on Section 44 of the Constitution fell flat on its face because, any grievance founded on trespass, however stretched, cannot come within the ambit of the fundamental rights enforcement procedure rules. The position of this Court, and indeed the Supreme Court in recent times is that Chapter IV of the 1999 Constitution, as amended protects individuals and not groups as the expression "every individual", "every person" and "every citizen" clearly suggest. See R.T.F.C.I.N. v. IKWECHEGH? (2000) 2 NWLR part 683 page 1 and UDO V ROBSON & ORS (2018) LPELR-45183. Learned counsel to the appellant relied on UMARU KWAGE & 7 ORS V. UPPER SHARIA COURT GWANDU & ORS (supra) to drive home the point that joint application of fundamental rights application is allowed. This contention however, failed to take into consideration, the fact that the issue of joint application was neither raised nor addressed by this Court, for reasons of which it cannot be an authority on the issue, same as the issue of joint application was neither raised nor addressed by the Supreme Court in DIAMOND BANK PLC V H.R.H.EZE DR PETER OPARA & ORS (2018) LPELR-SC. On whether there is a need to call in aid Section 14 of the Interpretation Act, for the purpose of interpreting the word 'any person" in Section 46 (1) of the Constitution, I would hasten to add that the necessity for that has not arisen, because the word is clear and unambiguous, and therefore not likely to lend itself to any other interpretation. See SARAKI V. FRN (2016) 3 NWLR part 1500 page 531 and BRONIK MOTORS LTD V. WEMA BANK LTD (1983) 1 SCNLR 296. The 2009 Rules was promulgated to enhance the enforcement of fundamental rights; Order IX Rule 1 is particularly revolutionary in this regard, because it sought to cure defects and technicalities. Be that as it may, no exception was made for multiple applications. If indeed there was any intention or desire to allow for multiple applications, it would have been provided for in Order IX Rule 1. Alas, no such exception was made. Reliance on the said rule is of little or no help to the respondents in this case; for the avoidance of doubt, it reads: 1. Where any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner of form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to- i) Mode of commencement of the application; ii) The subject matter is not within Chapter IV of the Constitution or the African charter on Human and People's Rights (Ratification and Enforcement) Act. The respondents' case before the trial Court was incompetent for all these reasons, thus the judgment emanating from the incompetent action cannot stand." Per MOHAMMED MUSTAPHA, JCA (Pp 12 - 17 Paras E - B)

JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT - Whether a party can apply for stay of execution of a judgment in the absence of a pending competent appeal

 

 

IN RE: THE SHERIFF, HIGH COURT OF JUSTICE RIVERS STATE, PORT HARCOURT & ANOR (2017) LPELR-42509(CA)

 "The second limb of the objection is that as at the time of filing the Motion for stay of execution by the Applicant on the 5th March, 2014, there was no pending appeal which absolutely rendered their said Motion filed pending appeal incompetent. To resolve this, it may be necessary hereat to beam on the decision in Intercontractors vs. UAC (1988) NWLR Part 76 page 303, per Karibi-Whyte, J.S.C; where it was stated that every judgment takes effect on pronouncement. A Judgment Debtor seeking to stay the execution must show that he is challenging the judgment, or is asking for time to comply with the terms of the judgment. If it is a challenge of the judgment, a Notice of Appeal ought to have been filed, or will, on undertaking, be filed. See Oladapo V. ACB (1951) 13 WACA 110. See also the decision of this Court in Shinning Star Nigeria Ltd & anor vs. A. K. S. Steel Nigeria Ltd & ors (2010) LPELR CA/L/558M/2009, per Saulawa, J.C.A; where the Supreme Court case of Oladapo vs. ACB (supra) was referred to. It was recognised that although the general principle is that for an application for stay of execution or proceedings to be worthy of being granted, it must be predicated upon certain grounds which include that there must have been filed a valid and pending appeal, however, an application for stay could be granted in exceptional circumstances without any pending appeal.
Further, in the case of Nigerian Agricultural Co-operative Bank Ltd. vs. Ozoemelam (2016) LPELR-26051 (SC), the Supreme Court, per Ngwuta, J.S.C; reiterated the principle that an application for stay of execution pending the determination of appeal presupposes that an appeal had been filed before or simultaneously with the application. After all, a major consideration in the application is whether or not there are arguable grounds of appeal. Be that as it may; in exceptional or appropriate circumstances, the order for stay may be granted when the appeal had not been lodged upon an undertaking to file the Notice of Appeal without delay. See NDLEA vs. Okorodudu (1997) 3 NWLR Part 492 page 221; Fatoyinbo vs. Osadeyi (2002) 5 SC Part 11 page 1.
All these established that even with or without a pending Notice of Appeal, an application for stay of execution can be considered by the Court where there is an undertaking by the Applicant to file the Notice or there is already pending, an application for leave to appeal or for extension of time to appeal which is a clear manifestation of the Applicant's eagerness or intention or a seeming undertaking to file the Notice of Appeal the moment the order of the Court granting leave or extension of time to appeal is made therein.
In the instant application, the Applicant in paragraph 10 of its 3rd Further Affidavit in support of this Motion filed on 14/11/2016 averred that on the 31st October, 2016, and consequent upon the extension of time to appeal against the judgment of the lower Court granted by this Court, the Applicant filed a Notice of Appeal on the 1st November, 2016 attached as Exhibit "N" thereto.
What matters is the state of events at the time of considering the application or granting the order for stay of execution. At the time of consideration of this application, there was already filed, a Notice of Appeal by the Applicant pending before his Court.
In Nwabueze vs. Nwosu (1988) NWLR Part 88 page 257, the Supreme Court held the Court has discretion to grant stay of execution on being satisfied that there are exceptional circumstances which warrant the exercise of the Court's discretion in the application's favour. This is so whether there is an appeal pending or not.
All these evidently emasculated the contentions of the 1st Respondent under the second limb of its objection, and, as such, this Court is presented with no further option than to overrule the preliminary objection raised by it. Accordingly, the preliminary objection raised by the 1st Respondent is hereby disallowed."   Per ORJI-ABADUA ,J.C.A (Pp. 21-25 paras. F)