ITEH vs. ECONOMIC AND
FINANCIAL CRIMES COMMISION(2022)LCN/16917
(CA)
PRINCIPLE:
“I understand the thrust of this appeal as being the refusal of the lower Court entertaining the appellant’s application brought pursuant to Order 2 Rules 1, 2 and 3 of the Fundamental Rights Enforcement Rules, 2009 on the simple reasoning that a criminal case had already been instituted against the appellant.
The provision of Order 2 Rule 1 of the Fundamental Rights Enforcement Procedure Rules, 2009 under which appellant brought his application provided that:
“any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being or is likely to be infringed, may apply to the High Court in the state where the infringement occurs or likely to occur for redress.”
The fulcrum of the appellant’s complaint before the lower Court is hinged on his contention that his fundamental right enshrined in the Constitution had been breached and thereby infringed upon, leading to the filing of the application before the lower Court praying for the reliefs earlier captured in the judgment. Appellant as applicant filed the necessary affidavit in support as well as all other sundry processes upon which to convince the Court that his Fundamental Right had indeed been infringed upon. it is also on record that the respondents stoutly in wishing to defend the allegation of infringement of the applicant’s Fundamental Rights had filed a counter-affidavit denying all the material assertions therein.
Ogakwu, JCA, in the case of AG of the Federation vs. Kashamu (No. 1) (2020) 3 NWLR (Pt. 1711) 209 AT 279 did state and rightly too, that: “The question of infringement of fundamental rights is largely a question of fact and does not so much depend on the dexterous submissions from the forensic arsenal of learned counsel on the law. It is the facts as disclosed by the affidavit evidence that is usually examined, analyzed and evaluated to see if the fundamental rights have been eviscerated or are likely to be eviscerated as alleged or otherwise dealt with in a manner that is contrary to the constitutional and other provisions on the fundamental rights of an individual. The onus remains on the applicant to prove by credible affidavit evidence that there has been a breach or that there is a likelihood of a breach of his fundamental rights. See Onah vs. Okenwa (2010) 7 NWLR (Pt. 1194) 512 AT 535 and Okafor vs. Lagos State Government (2016) LPELR-41066.”
I have therefore carefully examined the affidavits filed by the parties, and it seems to me that the germane facts generating the instant appeal are not altogether in dispute, excepting that whereas the appellant did depose that he was locked up in a squalid cell and tortured by the respondents for upward of nine days before he was admitted to bail, aside the respondents writing a damaging and devastating letter to his employers which led to his indefinite suspension without pay, the respondent denied the averment in their counter-affidavit, rather contending that appellant was released on bail immediately and on the same date, but could not be released having failed to fulfill the conditions for bail until after nine days. There is the other assertion by way of affidavit evidence that appellant was dehumanized having been asked to report to the respondent’s office daily, which he was compelled to do for fear of being re-arrested. This the respondents also denied in the counter-affidavit. These contentious areas appear to be the area joined upon by the parties. The question arising is where do the combatants go to, for the resolution of the dispute. The case of Adumu vs. The Comptroller of Prisons, Federal Prisons, Aba & Ors. (2013) LPELR-22069 (CA) in interpreting Order 1 Rule 2 of the Fundamental Rights (Enforcement Rules) 2009, per Augie, JCA, as he then was, held that: “The provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules defined Court to mean the Federal High Court or the High Court of a State. What this means is that both the Federal High Court and the High Court of a State have concurrent jurisdiction in matter of the Enforcement of Fundamental right.”
This being so, the learned counsel for the appellant would be correct, in his submission that no law supports the decision of the lower Court directing that appellant go to the Federal High Court wherein he was being charged with a criminal allegation to ventilate his application founded on the infringement of his fundamental rights. This Court in the case of Adekunle vs. AG Ogun State (2014) LPELR-22569 (CA) per Tsammani, JCA, elaborated on the position thus: “This matter was initiated under the Fundamental Rights (Enforcement Procedure) RuIes 1979. It is not in doubt that the Fundamental Rights (Enforcement Procedure) Rules have been made as a special procedure for a speedy enforcement of the fundamental rights of the citizens. In other words, an action under the Fundamental Rights (Enforcement Procedure) Rules is a peculiar action. It is a kind of action which may be considered as sui generis i.e. it is a case in a class of its own though with a closer affinity to a civil action than a criminal action the remedy available by this procedure is to enforce the constitutional rights available to citizens which has been contravened by another or others.
Indeed, in most cases, the acts or facts giving rise to the contravention of such fundamental rights may have some criminal connotation, but will not raise the allegations of breach of fundamental rights to the level or pedestal of a criminal allegation. I am therefore of the view that to raise the standard of proof in an action for the enforcement of fundamental rights to that required in criminal allegation merely because the facts giving rise to the breach or contravention have semblance of criminal acts, will defeat the purpose of Section 46(1) of the 1999 Constitution of the Federal Republic of Nigeria, which seeks a simple easy to attain and thus effective judicial process for the enforcement of fundamental rights available to citizens under Chapter 4 of the 1999 Constitution of the Federal republic of Nigeria…”
I am therefore swayed by the submission of the learned counsel for the appellant, that the law does not preclude nor forbid the hearing of a criminal case filed against an individual during the pendency of any action brought by the said accused person challenging the breach of his fundamental rights, as both can be heard at the same time either before the same High Court or a different High Court at the same time. See Adekunle vs. AG Ogun State (supra). I therefore agree with the learned counsel for the appellant that the lower Court was indeed wrong to have declined the hearing of the appellant’s application. This issue is resolved in favor of the appellant.” Per BARKA, JCA.