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.