CORAM

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JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

JUSTIN THOMPSON AKPABIO    JUSTICE, COURT OF APPEAL.

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PARTIES

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NIGERIAN AGIP OIL COMPANY LTD

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondents (as Applicants) before the High Court of Bayelsa State, pursuant to the provisions of Sections 33-35 and 43 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Article 4-6 and 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983 and Order II of the Fundamental Rights (Enforcement Procedure) Rules, 2009, filed a Motion on Notice against the Appellant (as Respondent) wherein they sought for a declaration that the arbitrary killing of members of the Applicants’ family/community on the 13th day of November, 1999 to wit: (i) Late Miss Martins Eriye, (ii) Late Mr. Titus Daulphinah, (iii) Late Mr. Rasvee Abokito, (iv) Late Mr. Omoni Mathias, (v) Late Mr. Major Alakere, (vi) Late Mr. Orua Orua, (vii) Late Mr. Pepple Ayabowei, (viii) Late Miss Temple Tarikerekere and (ix) Late Miss Bakar Baraniye, as a result of the attacks instigated and supported by the Respondent is wrongful, illegal, unlawful, unconstitutional, null and void as it is a gross violation of fundamental right to life of the deceased as enshrined under Section 33 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) and Article 4 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983. They also sought an order compelling the Respondents jointly and severally to pay the sum of Two Billion Naira (N2,000,000,000.00) to the Applicants respectively being exemplary for the unlawful and wrongful invasion and destruction of Applicants’ homes, post judgment interest among other reliefs. The Appellant filed a Preliminary Objection on the grounds that the action was statute barred and also incompetent on the representation capacities which was dismissed. Aggrieved by this decision, the Appellant has challenged same by filing a Notice of Appeal the Appellant has challenged same by filing a Notice of Appeal contending that the action commenced over 16 years from the date the cause of action accrued hence the action is statute barred. The Respondents in their brief raised Preliminary Objection to the competence of Grounds 1, 7 and 8 of the Notice and Grounds of Appeal and issues 2 and 3 of the Brief of Argument.

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HELD

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Appeal Dismissed

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ISSUES

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Whether Respondents’ Application seeking to enforce the Fundamental Rights guaranteed by the Constitution of the Federal Republic of Nigeria vide the FREP Rules, 2009 can be limited by Section 16 of the Limitation Law of Bayelsa State, 2006 and/or by the Fundamental Right Enforcement Procedure Rules, 1979? Whether the Respondents acting as next of kin and/or on behalf of the 9 persons unlawfully killed and/or those whose properties were unlawfully destroyed by the Appellant’s agents, can institute this action in a representative capacity? Whether the trial Court rightly evaluated the evidence and held the Appellant liable and awarded appropriate damages for the unprovoked attacks of 13th November, 1999 and 26th July, 2000 which resulted in the unlawful and unconstitutional killings of 9 persons and destruction of several properties belonging to the Respondents?

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RATIONES DECIDENDI

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GROUNDS OF APPEAL – TEST OF COMPETENCE OF A GROUNDS OF APPEAL

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“What is the test of competence of a Grounds of Appeal?
In Aderounmu & Anor vs. Olowu (2000) 4 NWLR (pt. 652) p. 253, Ayoola, J.S.C answered thus:
“What is important in a Ground of Appeal and the test the Court should apply is whether or not the impugned ground shows clearly what is complained of as of misdirection or as the case may be, error of fact …….” It must be realised and emphasized that ultimately an unobjectionable ground of incompetence of a ground of appeal in the context of the question raised in this appeal is to be sought in its lack of preciseness or specificity in or the ambiguity of what it complains about.“
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GROUNDS OF APPEAL – STATUS OF A COMPETENT GROUND OF APPEAL

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“I have critically examined Ground 1 of the Amended Notice of Appeal. I am unable to fault it in view the decision of the Apex Court in a plethora of authorities – See Atuyeye & Ors vs. Ashamu (1987) INSCC (Vol. 18) 117. It is not imprecise. It is not misleading. This objection is therefore dismissed as it lacks merit.
Similarly, I am of the firm view that Grounds 7 and 8 of the Amended Notice of Appeal pass the test of competence as laid down in Order 7 Sub-rules 2 and 3 and Order 7(3) of the Court of Appeal Rules, 2016. They are not vague and without argument or narrative. I therefore, hold that they are competent and dismiss the objection. –

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FUNDAMENTAL RIGHTS APPLICATIONS – OVERRIDING EFFECT OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE RULES) 2009 ON THE PROVISIONS OF ANY OTHER ENACTMENT

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“In truth the incidents complained of took place in 1999 and 2000 before the commencement of the Fundamental Rights (Enforcement Procedure Rules. However, in view of the provision of Order 3 Rule 1, any such complaint cannot be statute barred. Even if an action had earlier been instituted under the Old Fundamental Rights Rules by virtue of Order 15, such pending actions cannot be defeated for not being in compliance with the 2009, Rules.
Order 15 Rule 3 of the 2009 Rules states thus:
“Such pending Human Rights application may continue to be heard and determined as though they have been brought under these Rules.”
Section 16 of the Limitation Law of Bayelsa State frontally conflicts with the provision of Order 3 Rule 1 of the 2009, Rules and cannot therefore stand.
According to Katsina-Alu, J.C.A. (as he then was) in Abi State University vs. Anyaibe (1996) 3 NWLR (pt. 439) 646 at 660-661:
”… the Rules have the same force of law as the Constitution itself. What this means is that the Rules overrides any other enactment envisaged by Order 1 Rule 3(1) of the Rules … Since the Rules have the force of law as the Constitution itself, it overrides the provisions of any other enactment.”
See also EL-Rufai vs. Senate Of The National Assembly & Ors (2017) 1 NWLR (pt. 1494) P. 504.-

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FUNDAMENTAL RIGHTS APPLICATIONS – WHETHER FUNDAMENTAL RIGHTS APPLICATION CAN BE COMMENCED IN A REPRESENTATIVE CAPACITY

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Order 13 Rule 1 states as follows:
“Any person of body who deserves to be heard in respect of any Human Rights’ Application and who appears to the Court to be a proper party to be heard, may be heard whether or not the party has any interest in the matter.”
Order 13 Rule 1 allows any person who has a desire to be heard in respect of any Human Rights application even if he does not have an interest in the matter. To my mind, this provision is wide enough to embrace an action in a representative capacity such as the one now being challenged in this appeal. Paragraph 2 of Order 1 of the Rules defines the word “Applicant” to mean a party who files an application or on whose behalf an application is filed under the Rules.
It goes on to define “application” to mean an application brought pursuant to the Rules by or on behalf of any person to enforce or secure the enforcement of fundamental rights. This clearly in my respectful view includes actions such as the one in this appeal. See AHMED vs. S.S.H.S (2002) 15 NWLR (pt. 79) 539 at 563. –

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EVALUATION OF EVIDENCE – MEANING OF EVALUATION OF EVIDENCE

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“What is evaluation of evidence?
Okoro, J.S.C. in Akinbade & Anor vs. Babatunde & Ors (2018) 7 NWLR (pt. 1618) p. 366 answered thus:
“Evaluation involves reviewing and criticizing as well as estimating the evidence and it is by this process of assessment of evidence and ascription of value to same, that the Court can arrive at the proper decision of who to believe and who to disbelief. The belief must be a reasoned preference of one piece or version of evidence to the other. See Alhaji Jimoh Ajagbe vs. Layiwola Idowu (2011) 17 NWLR (pt. 1276) 422.”
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RULE OF INTERPRETATION OF STATUTES – RULE OF INTERPRETATION OF THE PROVISIONS OF THE FUNDAMENTAL HUMAN RIGHTS’ ENFORCEMENT RULES, 2009

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“I have determined this appeal strictly based on the express provisions of the Fundamental Human Rights’ Enforcement Rules, 2009. The provisions of the Rules are very clear and there is no need looking elsewhere in interpreting its ambit and extent of its application. The natural and ordinary meaning of the Rules must be given to it. See Basinco Motors Ltd Vs. Woermann-Line & Anor (2009) 13 NWLR (pt. 157) p. 149”. –

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CAUSE OF ACTION – WHETHER THE FUNDAMENTAL HUMAN RIGHTS ENFORCEMENT RULES WILL BE APPLICABLE IN A CAUSE OF ACTION WHICH OCCURRED BEFORE THE COMMENCEMENT OF THE RULES

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“If an action under the 2009 Rules is not statute-barred even though the cause of action occurred before the commencement of the Rules then by the virtue of the unique provisions of the Rules, see ORDER 3 RULE 1 of the said RULES and ORDER 15 of the Fundamental Human Rights Enforcement Rules of 2009, the date the cause of action occurred is immaterial provided it is after the commencement of the 1999 Constitution as amended. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983|Bayelsa State High Court Civil Procedure Rules, 2010|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016|Evidence Act, 2011|Fundamental Rights (Enforcement Procedure) Rules 1979|Fundamental Rights (Enforcement Procedure) Rules, 2009|Interpretation Act, Cap 123, Laws of the Federation of Nigeria, 2004|Limitation Law of Bayelsa State, Cap L8 of 2006|

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