CORAM

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Onyekachi Aja Otisi -Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo-Justice of the Court of Appeal

Muslim Sule Hassan-Justice of the Court of Appeal

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PARTIES

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MRS. VICTORIA DABO JOHNSON APPELLANTS

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1. THE GOVERNMENT OF KADUNA STATE

2. THE GOVERNOR OF KADUNA STATE

3. THE ATTORNEY GENERAL & COMMISSIONER OF JUSTICE KADUNA STATE

4. AISHA DIKKO ESQ.

5. CHRIS UMAR ESQ.

(The Solicitor General of Kaduna State)

6. SAMUEL JACOB MADAKI ESQ.

7. THE NIGERIA POLICE FORCE

8. THE INSPECTOR GENERAL OF POLICE

9. THE POLICE SERVICE COMMISSION

10. THE COMMISSION OF POLICE, KADUNA STATE

11. DSP. AHMED D

RESPONDENTS 

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AREA(S) OF LAW

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AREAS OF LAW: CONSTITUTIONAL LAW, FUNDAMENTAL RIGHTS, HUMAN RIGHTS, CIVIL PROCEDURE, EVIDENCE LAW, PROPERTY LAW, TENANCY LAW, JURISDICTION, PRELIMINARY OBJECTIONS, PRACTICE AND PROCEDURE, DIGNITY OF HUMAN PERSON, RIGHT TO PRIVACY, RIGHT TO FAMILY LIFE

 

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SUMMARY OF FACTS

The Appellant, Mrs. Victoria Dabo Johnson, bid for a property known as Block N2, Kapwa Quarters, Kabala Costain, Kaduna, which was auctioned by the Kaduna State Government. Her husband became the highest bidder and paid 10% of the property price (N247,664.30) and completed all payments. However, the Government recovered the property with brute force without due process. The Appellant and other affected tenants filed Suit No. KDH/KAD/869/2017 against the Government, and an interlocutory injunction was granted directing all parties to maintain status quo.

Despite the court order, on 17th August, 2020, agents of the Respondents invaded the Appellant’s house, forcefully removed the roof, doors, and windows, and evicted her. In the process, they allegedly kicked, slapped, and beat the Appellant. The Appellant then commenced a fundamental rights enforcement action seeking declarations that her rights to dignity of human person and privacy/family life were violated, and claiming N50 million each in exemplary and general damages.

The Respondents filed a preliminary objection that the reliefs sought were not purely fundamental rights claims but ordinary tort claims. The Federal High Court, Kaduna, dismissed the Appellant’s application on 8th December, 2021, holding that it lacked jurisdiction as the reliefs sought were not purely breach of fundamental rights claims. Dissatisfied, the Appellant appealed.

 

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HELD

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1. The appeal was allowed.

2. The decision of the Federal High Court delivered on 8th December, 2021, was set aside.

3. The Court held that the Appellant’s claims were properly founded under fundamental rights enforcement procedure.

4. The Court found that the reliefs claimed by the Appellant were clearly fundamental rights reliefs as the facts disclosed grounds of violation of rights to dignity of human person and privacy/family life.

5. The matter was remitted back to the Federal High Court, Kaduna Division for re-assignment to another Judge to be heard on the merit with an order of accelerated hearing.

6. The Court distinguished between principal claims for fundamental rights enforcement and ancillary reliefs.

 

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ISSUES

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1. Whether or not illegal or forceful eviction is a breach of fundamental human right and the Appellant’s main or principal claim before the lower Court borders on breach of fundamental Human Rights (culled from grounds one and two of the Appellant’s Notice of Appeal)?

 

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RATIONES DECIDENDI

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FUNDAMENTAL RIGHTS ENFORCEMENT – REQUIREMENT FOR PRINCIPAL CLAIM:

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“It is trite law that for a case of the enforcement of the fundamental right of the Appellant to be made under the Fundamental Rights Enforcement Procedure Rules, the main claim of the Appellant must be for the enforcement of the allegedly breached fundamental rights by the Respondents.” – Per MUSLIM SULE HASSAN, J.C.A.

 

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FUNDAMENTAL RIGHTS – TEST FOR DETERMINING PRINCIPAL COMPLAINT:

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“The point must be stressed that at the point of determining whether a suit discloses a cause of action under the fundamental rights procedure, the principal complaint must relate to infringement of any of the fundamental rights provided in Chapter IV of the CFRN, 1999.” – Per A.B. MOHAMMED, JCA in Incorporated Trustees of Digital Rights Lawyers Initiative & Ors v. NIMC

 

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FUNDAMENTAL RIGHTS – QUALIFICATION CRITERIA FOR CLAIMS:

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“For a claim to qualify as falling under fundamental rights, it must be clear that the principal relief is for enforcement or for securing enforcement of a fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim for fundamental right.” – Per F.R.N v IFEGWU

 

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RIGHT TO DIGNITY OF HUMAN PERSON – SCOPE AND APPLICATION:

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“The right to dignity of human person and the right to family life or privacy as the case maybe is wide and the applicability of what actions or inactions may be inhumane and a violation of privacy or family life can emanate from a varied of circumstances.” – Per MUSLIM SULE HASSAN, J.C.A.

 

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RIGHT TO PRIVACY AND FAMILY LIFE – VIOLATION THROUGH HOME INVASION:

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“The house/home of the Appellant invaded is contended in Suit No KDH/KAD/869/2017, therefore, to come and remove the roof, windows and doors as alleged if so established is curiously a serious violation of the right to having a home and private life. This is equally inhumane to say the least if so established.” – Per MUSLIM SULE HASSAN, J.C.A.

 

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FUNDAMENTAL RIGHTS – DETERMINATION OF PRINCIPAL RELIEF:

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“To determine whether a claim is principally fundamental in nature, the Court should examine the reliefs sought, the grounds for such relief and the facts relied upon and if the facts disclose that a breach of fundamental right is the main plank, then redress may be sought through the rules.” – Per Abubakar Tatari Ali Polytechnic v. Charles Maina

 

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FUNDAMENTAL RIGHTS – JOINDER OF COMMON LAW CLAIMS:

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“Common law claims can be joint in fundamental right claim.” – Per Bolaji v. Bamgbose and Uzoukwu v. Ezeonu

 

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FUNDAMENTAL RIGHTS – LIMITATION OF PROCEDURE:

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“In fundamental right suit, the primary relief sought by the Applicant must be strictly limited to the rights guaranteed under Chapter IV of the Constitution as well as the Africa Charter.” – Per Federal Minister of Internal Affairs v. Shugaba Darman

 

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JURISDICTION – STRIKING OUT VERSUS DISMISSAL:

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“The trial Court having found that the Court had no jurisdiction to entertain the claims of the Appellant for claim of fundamental right being ancillary relief sought, the Court ought to strike out the case of the Appellant and not dismiss same.” – Per MUSLIM SULE HASSAN, J.C.A.

 

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FUNDAMENTAL RIGHTS – EVICTION AS BREACH OF FUNDAMENTAL RIGHTS:

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“Courts had held in several authorities that illegal eviction is a breach of fundamental right as rightly held in the case of Bello & Ors v. Doris, Nigerian Navy & Ors v. Garrick and Mr Chukwuma Nwosu v. Mr. Chubuike Ezeokoli & Ors.” – Per MUSLIM SULE HASSAN, J.C.A.

 

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FUNDAMENTAL RIGHTS – CONSEQUENTIAL RELIEFS:

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“Other reliefs are consequential reliefs by way of orders of restrain and restoration and damages as may be reasonable granted by Courts where a case of breach of fundamental right is established.” – Per MUSLIM SULE HASSAN, J.C.A.

 

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FUNDAMENTAL RIGHTS – PHYSICAL ASSAULT AS VIOLATION:

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“The slapping, pushing and dragging of the Appellant is equally a fundamental right issue which damages could appropriately apply where so established.” – Per MUSLIM SULE HASSAN, J.C.A.

 

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FUNDAMENTAL RIGHTS – PRINCIPAL CLAIM VERSUS ANCILLARY CIRCUMSTANCES:

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“The principal claim of the Appellant is for enforcement of a fundamental right and not for tenancy or land law. Though the circumstances in this matter have incidents relating to title to land but what the Appellant principally claims in this case is the aspect of enforcement of human right when the Respondents slapped, beat to a pulp, barged into the house and in the process removed roofing sheets, also went as far as locking the Appellant up at the police station.” – Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Fundamental Rights (Enforcement Procedure) Rules 2009

• Kaduna State Landlord and Tenant Law (Gazette No. 18 vol 54, 14th June, 2018)

• African Charter on Human and Peoples Rights (Ratification and Enforcement) Act

 

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