Crime/Justice
Ecobank Nigeria Ltd Vs Maduforo & Ors (2021) LCN/14956 (CA)
Continued from March 2, 2022
4. The National Assembly
a) May confer upon a High Court such powers in addition to those conferred by this section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by this section; and
b) Shall make provisions
I. For the rendering of financial assistance to any indigent citizen of Nigeria where his right under this chapter has been infringed or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim, and
II. For ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal and real.
Thus, procedure for institution of action touching and concerning fundamental rights action has been provided for expressly in the Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 2009 made at Abuja on 11th day of November, 2009 by the then Chief Justice of Nigeria — Idiris Legbo Kutigi (Rtd.) of blessed memory.
The Rules contained therein are specially made for the enforcement of the rights guaranteed and enshrined in the 1999 Constitution (as amended) Chapter IV thereof. Therefore, the special status and uniqueness of the Fundamental Rights Enforcement Procedure and the importance attached to it have been eloquently stated in the case of EFCC VS. WOLF GANG REINL (2020) 5 SCM 128 at 143 F-S to 145 A-H per KEKERE-EKUN, JSC, who said: “It is also evident from Section 46(1) of the Constitution that a person seeking to enforce his fundamental rights may seek redress in any High Court. The question that arises is whether the nature of the respondent’s claim before the trial Court has in any way restricted jurisdiction to hear it to Federal High Court? It has been argued by learned counsel for the appellant that what should determine the Court’s jurisdiction is the subject matter of the alleged breach, which in his view, relates to the administration or management and control of the appellant.
With the greatest respect to learned counsel, this is an erroneous conception of the import of Section 46(1) of the Constitution. The provisions are clear and should be given their natural and ordinary meaning. At the risk of repetition, it provides that any persons who alleges that any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened in any state in relation to him, may apply to a High Court for redress.
A careful examination of the respondent’s claim shows clearly that he is not challenging any administration any administrative or executive act or the management and control of the appellant. He is alleging that his fundamental right to personal liberty guaranteed under Section 35(1) and (4) of the Constitution, his right to be notified in writing of any offence allegedly committed by him, guaranteed by Section 35(3) of the Constitution; his right to dignity guaranteed by Section 34(1) of the Constitution; and his right to property guaranteed by Section 43 of the Constitution.
In case of Jack v. University of Agriculture, Makurdi (2004) 1 SC (Pt.1) 100 @ 111-112, Section 46(1) of the 1999 Constitution was interpreted by this Court. Reference was made to the interpretation of Section 42(1) of the 1979 Constitution (which is in pari material with Section 46(1) of the 1999 Constitution, as amended), which was considered in Bronik Motors Ltd. V. Wema Bank Ltd. (1983) 1 SCNLR 296 and Tukur v. Government of Gongola State (1989) 9 SC 1, (1989) 4 NWLR (Pt.117) 517, to the effect that where both the State High Court and the Federal High Court exist in a state, they have concurrent jurisdiction in matters pertaining to fundamental rights. His Lordship Nwafor, JSC, continued at page 111 line 21 to page 112 line 3 as follows:
“Section 42 (1) is a special provision which deals with matter of fundamental rights. It confers jurisdiction on any High Court in State in matter of Fundamental Rights irrespective of who is affected by an action founded on such right. On the other hand, Section 230(1) (s) of the 1979 Constitution (as amended) is a general provision. The law is that where there is a special provision in a statue, a later general provision in the same statute capable of covering of the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. See Federal Mortgage Bank of Nigeria vs. Olloh (2002) 4 LC (Part 11) 117, (2002) 9 NWLR (773) 475 at 489, (2002) 7 LCM 63. In my view, Section 42(1) is intended to give access to an aggrieved party to any High Court in a state where an alleged contravention of his fundamental rights has taken place or is to take place, it is therefore a section which should itself be regarded as special and fundamental. The Court below was in error to hold that when a suit in respect of matters of fundamental rights was brought against the Federal Government or any of its agencies, Section 230(1) (s) of the 1999 Constitution (As Amended) prevails over Section 42(1).”
This authority is a direct answer to the appellant contention that the Federal High Court has exclusive jurisdiction to entertain the suit. The Respondent contention in his supporting affidavit is that he was unlawfully detained without being informed in writing of his alleged offence and without being charged before a competent Court. It therefore cannot be correct to contend, as learned counsel for the appellant has done, that the subject matter of the originating motion was money laundry.
I am of the view and I do hold that the decision of this Court in Jack v. University of Agriculture, Markudi (supra) and authorities of Bronik Motors Limited v. Wema Bank Limited and Tukur v. Government of Gongola State (supra) represent the correct position of the law in this regard.
In a recent decision of this Court in Federal University of Technology, Minna, Niger State & Ors. v. Bukola Oluwaseun Olutayo (2017) LPELR-43827 (SC) @ 27-32- D-A, I expressed the following opinion: “It is quite evident that Section 46 Sub-section 1 of 1999 Constitution (as Amended) above refers to: “A High Court of a State without any restriction. The violation of the citizens fundamental rights is reviewed so seriously that framers of the Constitution sought to ensure that no fetters are placed in the part of the citizen seeking to enforce his right. In other words, the provision ensures that he has access to any High Court as long as it is within the state in which the alleged infraction occurred. Indeed, it would negate the principle behind the guarantee of fundamental rights if a citizen were to have any obstacles placed in the part of enforcing those rights. There is no ambiguity in the provision of the Constitution or of the Fundamental Rights (Enforcement Procedure) Rules… regarding which Court has the jurisdiction to entertain an application for the enforcement of fundamental rights. The decision of this Court in Jack v. University of Agriculture, Makurdi (2004) ALL FWLR (Part 200) 1506 @ 1518 B-D has put the matter to rest… “I adopt the view so expressed in the instant case. So long as the enforcement of the applicant fundamental rights is the main claim in the suit and not an ancillary claim, the Federal High Court and State High Court, including the High Court of the FCT, have concurrent jurisdiction to entertain it. See… Tukur v. Government of Gongola State (supra).” (Underlined mine)
See also:
ORDER II RULES 1, 2 and 3 of the Fundamental Rights Enforcement Procedure Rules 2009:
“1. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and People’s 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 Court in the State where the infringement occurs or is likely to occur for redress:
Provided that where the infringement occurs in a State which has no division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate.
2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provision of the Rules, lie without leave of Court.
3. An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the ground upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made.” (underlined mine)
ORDER IV RULE 1 and 2 of the Fundamental Rights Enforcement Procedure Rules, 2009 also provide:
“1. The application shall be fixed for hearing within 7 days from the day the application was filed.
2. The hearing of the application may from time to time be adjourned where extremely expedient, depending on the circumstances of each case or upon such terms as the Court may deem fit to make, provided the Court shall always be guided by the urgent nature of application under these Rules.”
The Appellant had complained that it ought not to have been served vide substituted means. I am of the solemn view that by and under the Fundamental Rights Enforcement Procedure Rules 2009 Service by substituted means is permitted under Order V Rules 7 which Provides: “Where it appears to the Court, either after or without an attempt at personal service of the Court processes that for any reason personal service cannot be conveniently effected the Court may order that service be effected either-
(a) By delivery of the document to an adult person at the usual or last known place of abode or business of the party to be served; or
(b) By delivery of the document to some person being an agent of the party to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or the person, come to the knowledge of the party to be served; or
(c) By delivery of the document to any senior officer of any government agency that has office both in the state where the breach occurred and head office either in Federal Capital territory or elsewhere; A service on the agency through its office in any state where the breach occurred will be considered as sufficient service; or
(d) By advertisement in the Federal Government Official Gazette, or in some newspapers circulating within the jurisdiction; or
(e) By notice put up at the principal Court House of, or some other place of Public resort in the judicial division where the proceedings in respect of which the service is made is instituted, or as the usual or last known place of abode or business, of the party to be served.”
In any event, the mode of service upon the Appellant is contemplated under Section 78 of Company and Allied Matters Act. Section 78 thereof which provides that:
“A Court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to the registered office or head office of the company.”
The suit herein was competently commenced or initiated, and the Appellant was duly served all processes filed in this suit and service of same was confirmed by its Legal Practitioner at the Court below. The lower Court has the jurisdiction to have entertained the action. The Appellant bank can be served vide substituted means under the Fundamental Rights (Enforcement Procedure) Rules, 2009. Issues 1 and 2 are resolved against the Appellant.” Per IGE, JCA.
By: King Onunwor with reports from James Atsor
Atsor resides in Benue State.
Children are highly desired and parenthood is culturally significant in Africa. In Nigeria, infertility is a socially unacceptable condition, making victims embark on relentless quest for conception. In Vitro Fertilisation (IVF) is the only alternative but same is expensive.
Admittedly, this has contributed to the advent of illegal baby factories in Nigeria and consequently constitutes an emerging trend of human trafficking.
What is baby factory? This implies to a practice in which young pregnant and unmarried girls are given shelter by a proprietor i.e Oga or Madam of the home until they are delivered of their pregnancies and give up the new born for sale.
This illegal centres and homes are most times camouflaged as “maternity homes, orphanages, social welfare homes, and clinics and are operated by well organised groups”.
As an emerging phenomena in developing countries of the world, it is also prevalent in Nigeria particularly in States such as Abia, Imo, Enugu, Edo, Rivers and Lagos.
It is important as well as my concern to note that children have rights and these rights must be protected. This evil scourge of baby factory is an illegal business involving getting pregnant young girls and women without sanity who either are willing or not to give up their babies for financial gain and benefits without having any contacts with the buyer or ever seeing their baby again.
This category of persons are introduced into this business forcefully, by deceit of evaporated love and care or under the guise that the baby factories are clinics or homes where they can pay less or deliver freely with some promise of jobs, safe abortion or money after delivery.
The owners of the factory and their syndicate insist that babies be put up for adoption by childless couples in the most fortunate scenario, else supply the babies to politicians for their rituals, illegal adoption and human trafficking. Pathetic right?
It is my argument that children born into baby factories are denied various civil and fundamental rights alongside their mothers because of their vulnerability. Some of the rights these children are denied include birth registration.
Nigeria is a signatory to many international and regional instruments targeted at eliminating child trafficking, protecting children and also the promotion of their rights which include, the United Nations Convention on the Rights of the Child (1989) and the Optional Protocol to the Convention on the sale of Children.
Section 12 of the Constitution of the Federal Republic of Nigeria (as amended) stipulates the guidelines for applicability of this treaties in Nigeria.
Regrettably, despite the vast number of statutes protecting children and women, there is still an alarming prevalence of heinous crimes against these vulnerable units of our society.
The Children’s Rights Act was enacted as passed in Law in Nigeria in 2003, to serve as a legal document and protection of children’s rights and responsibilities in Nigeria which consolidates all laws relating to children into one single legislation, as well as specifying the duties and obligations of government, parents and organisations.
However, despite its values and importance, most States in Nigeria have not domesticated the Act, which implies that children in some States are not being protected under this law which prompts unequal rights in children.
Section 30(1) of the Children Rights Act provides that No person shall buy, sell, hire, let on hire, dispose off or obtain possession of or otherwise deal in a child. This section clearly prohibits the act of buying and selling of a child or children.
Section 207 empowers the police to create a specialised unit for the combating of the crime.
The sporadic growth of baby factories across the Nigeria State is a front burner issue that needs urgent address, given the rise in in the thriving business due to the ever increasing in height of economic downturn in the country.
The vulnerability of children and the need for their protection has attracted international recognition as well as domestic legislation.
The Constitution also provides protection for the dignity of the human persons and personal liberty as stated in Sections 34 and 35 respectively. Howbeit, it is very safe to say that these laws are ineffective for the purpose they were enacted.
Having considered this topic in relation to baby factories as an avenue for trafficking and the laws enacted to promote and protect women and children, it is my recommendation that:
1. The government institutions established by law for the protection of children performs their duties.
Security agencies should not delay the prosecution of persons who commit this offence.
The government should ensure that upon discovery facilities harbouring women and children for sale be destroyed and periodic checks should be conducted on churches, mosque, hospital etc.
Intense education and sensitisation campaign and programmes for young girls, and boys and women about unwanted pregnancies.
Government should assume their responsibility of the protection of lives and increase the budgetary allocation for children orientation programme in schools, villages, church and mosque.
Esaenwani Baribor Ferguson
Esaenwani is a practising lawyer based in Port Harcourt at Brisk Attorneys and Consultants.
The Nigeria Police Force is the principal law enforcement agency in Nigeria. It has its origin in Lagos following the creation of a 30-man Counsular in the year, 1861.
It further has its Constitutional backing in the Chapter Six (6), Part Three (3), Section 214 of the Constitution of the Federal Republic of Nigeria , 1999 (as amended). Down the line, the Nigeria Police Force begin to have other formations like the Mobile Police Force in the 1980s.
The motive behind the creation of the Nigeria Police Force, is to preserve law and order, the enforcement of law and regulations with which they are directly charged. The performance of such military duties within and outside the country as may be required of them by or under the authority of the Police Act or any other Act.
When the heat or should I say, the need or urge to provide better policing in the country became necessary, more formations like the Special Anti Robbery Squad (SARS) were birthed around 1992 to battle crime especially armed robbery.
This very formation (SARS), before it went under on Sunday November 11, 2020, when the then Inspector General of Police, Mr Mohammed Adamu announced its disbandment was a talk-of the-town.
People were delighted to catch a glimpse of SARS men especially when they are in operation and in their full regalia. They fought crime to almost zero point before the devil took over the outfit and placed it in the history book.
The Slogan ‘ The Police is Your Friend’ is one of the most disgusting or disturbing things about the Nigeria Police Force. Many are not at ease with it. In most cases, they begin to wonder what the Police is even doing to get the least attention.
But until you are closer to some people including the Police, you may not say for sure what they do or their importance to the society. Some Police men are down-to- earth. They execute their jobs in such professional manner that one may be tempted to purchase Police recruitment form of a given year.
I have the privilege to interface with some of them at some Special Areas in Rivers state. Their profiles are not only intimidating, but reveal a serious road map on how best to tackle security challenges in the country.
When they related to me why they cannot execute some actions, I was flabbergasted. The government ought to look for those kind of officers and secretly talk with them.
They complained of being tagged as saboteurs should they approach their Heads with their ideas on some issues.
One of the officers confided in me how he unearthed a high profile kidnapping gang that nailed a certain bigman. I mean a bigman with both wealth and honour. I looked at the fragile frame of mind of the officer and took his claims with a pinch of salt.
When other of his colleagues at different fora commended him on some hard job success, it then dawned on me that I was dealing with a senior intelligence officer. His challenge was not also far from the ones earlier enumerated by his colleagues .
Armed with the little information I have gathered about the Police and its challenges, I delved into personal investigation. I went round almost the big formations in the state. With utmost humility, I discovered that the government was unfair to the Police.
In some of the outfits, over ten (10) officers are squeezed into one office. About three (3) of them or so share one (1) table. One will begin to imagine what the occupants of such place will produce.
Even the big formations with big names are not better. They suffer even the worst. But as the big men they are, they stomached the whole thing and welcome you with a beaming smile.
If you are not of a good temperament, you may take him (the bigman officer), for an evil man who derives joy in suffering. Or was the foremost Afro Beat King , Fela Anikulapo Kuti right when he sang ‘Suffering and Smiling’?
I think it is about time those that head some big Police formations in the country begin to think on how to improve on their jobs. Those at the top are not too mindful of the welfare of others. I blame them not, because such is a typical Nigerian factor.
I can recall vividly well at a particular public function in Port Harcourt when one officer was introduced as the Financial Officer in charge of a certain Police outfit. The master of ceremony (MC), took it up. He (MC), was like “thank God oga will bless us today”, the officer in a quick reaction, gave it back to the MC, thus, please “I am sorry, we are only bearing the name, the real office is in Abuja”.
People took it as a joke including me, but when I dug into the situation, I knew what exactly the officer meant then. The narrative must change, if the police must perform to the taste of the common man.
The Police and its welfarism must not be gambled with. The government and its authorities should consider the need for Police reform and execute it with immediate alacrity.
This will also help the authority to place a plum line on the Police. I think part of the poor check on the side of the government on the Police is deliberate, in that the authority know that they have not performed their own part of the agreement hence, the ‘On Your Own’ kind of approach to issues.
The police, if well equipped, will do more than expected. The manpower to execute some tactical operations are within them, but lack of support for them remains a bane to their positive operations.
Another point to effective Policing in the country is , management of the Internally Generated Funds by the Police. If the Police are allowed to manage the funds they generate internally, it will go a long way in fixing things among them.
The issue of waiting for approval to fix even furniture in the office is a major clog in the system. At times, they are forced to ask for financial support from the suspects to enable them buy as little as writing materials.
Such ought not to be in that the risk of compromising the matter will be high. If the materials are so provided, the officer will have no option than to do the needful.
Another point is that of personal visit and inspection. The authority should make out time to visit the Police formations across the country. They should visit such places like the convenience, bathrooms, canteens, etc. When you pay some unscheduled visits to some of the mentioned places, you will agree with this piece to the extent of making a quick case for an improved welfare package for the police.
As a citizen of Nigeria, make a personal visit Police formation as part of your menu. Let the issue of the police harassment especially on the roads not deter you. By so doing, you will be armed with some information that will convince you that of a truth, the to any Police is really ‘Your Friend’.
The time to address the challenges of the police is now. No need to dwell on the past. Let’s stop the blame game and think of the way forward.
King Onunwor
The Rivers State Police Command says it has begun orderly room trial for the three erring personnel and has issued official query to three officers for allegedly extorting two young men of N4 million in Aba, Abia State.
The officers were identified as Assistant Superintendent of Police (ASP) Doubara Edonyabo; ASP Talent Mungo; and Inspector Odey Michael.
Addressing journalists while parading the three officers, the State Commissioner of Police, CP Olantunji Disu said immediate steps were taken to apprehend the officers and a thorough investigation was conducted to ascertain facts surrounding the incident
The State Commissioner of Police, who was represented by the command’s image maker, SP Grace Iringe-Koko, said $3,000 was extorted from the victims, equivalent to N4.2 million, stressing that the money had been recovered and released to the victims on January 18.
“Following a comprehensive inquiry, it has been established that the actions of the officers in question were in clear violation of the law and the ethical standards expected of members of the Nigeria Police Force. As a result, appropriate disciplinary measures are being taken to address this grave misconduct.
“The Rivers State Police Command is committed to upholding the highest standards of integrity, professionalism, and accountability. The behaviour exhibited by the implicated officers is completely unacceptable and does not represent the values and principles of our organisation. We deeply regret the negative impact that such misconduct may have on the reputation of the Rivers State Command and the Nigeria Police Force in general,” the spokesperson said.
She, however, stressed that the actions of a few individuals should not overshadow the dedication and sacrifice of the vast majority of officers who serve with honour and distinction.
She stressed that the Inspector General of Police has consistently articulated a zero-tolerance stance against corruption and misconduct within the Force, and that this incident does not reflect the aspirations of the Nigeria Police Force.
She assured that Rivers State Police Command would remain resolute in its commitment to serving and protecting the community with utmost professionalism and integrity.
Akujobi Amadi
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