Whether a Class Action in Alleged Breach Of Fundamental Rights is Feasible: An Analysis of Abuja Electricity Distribution Company Plc & Ors v. Akaliro & Ors

By Ikeazor ‘Kizor’ Akaraiwe, SAN

“No amount of availability of the decisions of other divisions will make any difference to a justice who does not like reading. This oxymoronic expression about Justices who do not like reading seems like an aberration which indeed it is but for the current realities of Nigeria. But this is a call to the appointing authorities to remove such aberration, otherwise, no amount of technological provisions of decisions made available within 24 hours will make any difference.” – Akaraiwe, SAN

1.1 FACTS OF THE CASE UNDER ANALYSIS

The Appellants as Applicants at the High Court of Nasarawa State instituted an action against the Respondents for the enforcement of their Fundamental Human Rights allegedly breached by the Respondents. The Appellants claimed that the Nigerian Army formation at 177 Guards Battalion incurred outstanding electricity bills to the sum of N604,701,853.60 (Six hundred and four million, seven hundred and one thousand, eight hundred and fifty-three naira, sixty kobo). They contended that despite several demand letters, the Respondents refused/neglected to pay their outstanding electricity bills. The Appellants finally issued a disconnection notice to the Respondents and eventually disconnected the Nigerian Army formation at 177 Guards battalion, Keffi, Nasarawa State from electricity supply when they still refused/neglected to pay the outstanding electricity bills.

Subsequently, military personnel from 177 Guards Brigade Battalion invaded and raided the 1st Appellant’s office, infringed on the fundamental rights of the Appellants, and thereafter forced the Appellants to reconnect electricity supply to the Barracks. The Respondents filed counter-affidavits denying the allegations of the Appellants and also challenged the jurisdiction of the trial court to entertain the Appellants’ suit. The trial court heard the objections together with the substantive application, over-ruled the objections of the Respondents, and dismissed the Appellants’ application for enforcement of their fundamental rights.

Dissatisfied with the judgment, the Appellants appealed. On appeal, the Court of Appeal raised a preliminary issue on jurisdiction based on the competence of the joint application filed by the Appellants at the trial court.

1.2 PRELIMINARY ISSUE FOR DETERMINATION RAISED BY THE COURT:

Whether a joint application can be filed by more than one person (in the same application) to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules?

1.3 DECISION:

On the preliminary issue, the court held that the joint application filed by the Appellants was incompetent and liable to be struck out. The appeal was therefore dismissed and the suit struck out for gross incompetence.

The substantive appeal was held to lack merit and accordingly dismissed by the Court of Appeal, Makurdi Division, the ruling of the trial court being thereby affirmed.

In arriving at that decision, the Court of Appeal per Igwe Ignatius Agube JCA and Nimpar JCA respectively reasoned as follows:

Per Agube JCA,

 “…I am however not unmindful of the preamble to the extant Rules which encourages and welcome public interest litigations in the human rights field which in effect provides that no human rights case may be dismissed or struck out for want of locus standi. The contention here is not on the rights of the applicants to institute the action but rather on the propriety of bringing joint action.”

Per Nimpar JCA,

“… Section 46 of the 1999 Constitution, specifically states that any person who alleges that his fundamental right has been or is likely to be breached can approach a High Court in that State for redress. The right can be enforced on individual basis and not by collective action. It is faulty for the appellants to file a single affidavit, the alleged breach was not equally or evenly violated…”

2.1 Basis for disagreeing with the decision:

Firstly, in establishing the basis for the author’s respectful disagreement with this decision the following questions are hereby set out;

One. What is the philosophical premise for fundamental rights enforcement? Is it not that the rights of citizens should not be derogated from?

Two. How then can the court refuse to enforce citizens’ rights based on the definition of the phrase “any person” as used in S. 46 (1) of the 1999 Constitution of the Federal Republic of Nigeria, because more than one citizen brought a joint application?

Three. Could the honourable court not have, in the interest of substantial justice, ordered the applications separated (if at all necessary) and then proceed to deliver substantial justice on the merits?

Four. Should Substantial Justice be sacrificed on the altar of Technicality, especially in matters to do with Enforcement of the Basic Rights of Citizens as covered by Chapter 4 of the Constitution?

Five. Should a court of law and justice decline from enforcing citizens’ Fundamental Rights for the principal reason that the application pursuant thereto was joint and not several applications by individual applicants, pursuant to the phrase “any person” as used in Section 46(1) of the 1999 Constitution of the Federal Republic of Nigeria, which the court held as implying singularity and not plurality?

2.2 “Any Person”-A decision from the Court of Appeal, Kaduna   Division

In disagreeing with the decision under analysis, I adopt as mine in entirety, the reasoning of the Court of Appeal Kaduna Division per Affen JCA[2] which held a diametrically opposing view with respect to the phrase “ANY PERSON” as used in Section 46(1) of the 1999 Constitution on the subject. And for clarity, I have used numbered paragraphs to reproduce the court’s reasoning:

A. “Bearing in mind that the word ‘any’ in its ordinary sense does not always import the singular, I reckon that the phrase “any person” (as employed in s. 46(1) CFRN and the Order 2 Rule 1 of the FREP Rules) is not antithetical to the filing of a joint action for enforcement of fundamental rights.

B. “The Constitution provides in s. 318(4) that the “Interpretation Act shall apply for the purpose of interpreting the provisions of this Constitution”; and s. 14(b) of the Interpretation Act, Cap. I23 Laws of the Federation 2004 makes it clear beyond peradventure that “words in the singular include the plural and words in the plural include the singular”.

C. “Thus, s. 46(1) CFRN can conveniently be interpreted as — ‘Any persons who allege that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to them may apply to a High Court in that State for redress’ — without doing violence to the intendment of the Constitution.

LEGAL POLICY SEEKS TO DISCOURAGE MULTIPLICITY OF ACTIONS, AND A FUNDAMENTAL RIGHT ENFORCEMENT ACTION OUGHT NOT TO BE DEFEATED SOLELY ON THE BASIS THAT TWO OR MORE APPLICANTS JOINED FORCES TO INITIATE THE ACTION JOINTLY. Notably, Order XV Rule 4 of the FREP Rules provide that

“[w]here in the course of any Human Rights proceedings, any situation arises for which there is or appears to be no adequate provision in these Rules, the Civil Procedure Rules of the Court for the time being in force shall apply”.

D. “Thus, what should engage the court’s attention are the normal considerations that render it expedient to file a joint action, such as

(i) whether the right to relief is in respect of or arises out of the same transaction or series of transactions; and

(ii) a common question of law or fact would arise if separate actions were brought by such persons.” (Caps added for emphasis).

2.3 A decision from the Court of Appeal Enugu Division

Interestingly, the Court of Appeal, Enugu Division per Ita Mbaba JCA reasoned along the same lines as the Kaduna Division thus:

GOVT. OF ENUGU STATE OF NIG. & ORS v. ONYIA & ORS[3]

On whether a joint application can be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules

“…I also think Appellants were in error, to say that the 34 Applicants were wrong to bring this suit, together, alleging misjoinder of parties. Parties are rather always encouraged to come together, either as individuals or as a group and/or in representative capacity, when they have a common interest or grievance, seeking redress in Court. It would even amount to multiplicity of actions and abuse of the Court process, in my view, if the parties (like the 34 Applicants) who have identified their common interest and grievance in the suit, were to have filed separate actions – 34 Applications, in the same Court, seeking the same reliefs, thereby overwhelming and overburdening the Court, and increasing the cost of litigation and the judicial cost/time!…” Per Ita George Mbaba, JCA[4]

E. A decision from the Court of Appeal, Lagos Division

Also, the Lagos Division of the Court of Appeal per Anthony Ugochukwu Ogakwu JCA specifically compares and contrasts the judgments of Makurdi division (under analysis) and Enugu division just cited above, and comes to the following unimpeachable conclusion in INCORPORATED TRUSTEES OF DIGITAL RIGHTS LAWYERS INITIATIVE & ORS v. NIMC[5]:

“… There has been a good number of conflicting decisions of this Court on the point, the most recent decisions which I was able to find being GOVERNMENT OF ENUGU STATE v. ONYA [6] delivered by the Enugu Division on 28th January 2021, which held that joint applicants can bring an application to enforce fundamental rights. Au contraire, in AEDC (ABUJA ELECTRICITY DISTRIBUTION COMPANY) v. AKALIRO [7] which was delivered by the Makurdi Division on 31st March 2021, it was held that an application by joint applicants was incompetent. The right to seek redress for evisceration of fundamental rights is by Section 46 (1) of the 1999 Constitution vested in any person. The said stipulation reads: “Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” See also Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which is similarly worded for any person to seek redress.

The critical question is whether the phrase any person as used in the provision can be construed to include more than one person or whether it is limited to only one person. Where it is wide enough to include more than one person, then it necessarily follows that joint applicants can bring an application but where it cannot be so construed then an application by the joint applicants will be incompetent. Let me hasten to state that even if the phrase any person denotes singular, by Section 14 of the Interpretation Act, in construing enactments, words in the singular include the plural, and words in the plural include the singular. See COKER v. ADETAYO[8], UDEH v. THE STATE[9] and APGA v. OHAZULUIKE.[10] Per Ugochukwu Anthony Ogakwu, JCA[11]

FURTHER SUBMISSIONS

On the preponderance of authorities cited above, in particular the reasoning of Affen, Mbaba, and Ogakwu, JJCA, it is crystal clear that the decision in ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC & ORS v. AKALIRO & ORS[12] in particular, the construing of the phrase “Any Person” as occurring in s.46 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as being capable only of singular and NOT plural application was, with the greatest respect, delivered per incuriam, in the light, especially of the constitutional provision in s. 318 (4)[13] that the “Interpretation Act shall apply for the purpose of interpreting the provisions of this Constitution”; and s. 14(b) of the Interpretation Act[14] which makes it clear beyond peradventure that

“words in the singular include the plural and words in the plural include the singular.”

Besides, as noted by the Court of Appeal, Kaduna division per Affen JCA[15],

 “Thus, what should engage the court’s attention are the normal considerations that render it expedient to file a joint action, such as;

(i)whether the right to relief is in respect of or arises out of the same transaction or series of transactions; and

(ii) a common question of law or fact would arise if separate actions were brought by such persons.”

CONCLUSION

4.1 The Larger Question – Conflicting Decisions of the Court of Appeal

As already noted by the Court of Appeal, Lagos division per Ogakwu JCA

“There has been a good number of conflicting decisions of this Court on the point,…”

Not just on this point, my lord.

Conflicting decisions tend to demystify the honourable court. By the way, those who are clamoring for the constitution of the Supreme Court of Nigeria to be increased from the present 20 to 40 Justices should take note of this point. But the solution to the problem of conflicting decisions is not rocket science.

4.3 The solution is a functional website with immediate uploading of all decisions of each of the 20 divisions of the Court of Appeal within 24 hours of delivery, so that justices, legal practitioners, and indeed, the general public will have immediate access to what the divisions have said on this or that subject. You can actually read online on their websites, the decisions of equivalent courts in the United Kingdom within 24 hours of delivery.

4.4 But while holding unto technology with one hand, a second and equally important solution is the appointment of qualified personnel to man the courts, starting with the learned justices. No amount of availability of the decisions of other divisions will make any difference to a justice who does not like reading. This oxymoronic expression about Justices who do not like reading seems like an aberration which indeed it is but for the current realities of Nigeria. But this is a call to the appointing authorities to remove such aberration, otherwise, no amount of technological provisions of decisions made available within 24 hours will make any difference.

4.5 Perhaps, this is a good place to also remind the Court of Appeal in Nigeria of express guidelines for disagreeing with judgments of its concurrent divisions.

The rule in USMAN v UMARU [16] (also known as The Rule in Young v. Bristol Aeroplane Co. Ltd [17] is this:

“It is now well settled that under the doctrine of stare decisis, the court below as an intermediate Court of Appeal between it and the Supreme Court is bound by its own decisions except in circumstances specified in Young v. Bristol Aeroplane Co. Ltd[18], that is:

(a) the Court of Appeal is entitled to decide which of two conflicting decisions of its own it will follow;

(b) it will refuse to follow its own decision which, though not expressly overruled, cannot stand with a decision of this Court, and

(c) it is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.

See OSUMANU V AMADU[19]; DAVIS V. JOHNSON[20].

4.6 And as stated by Prof. RACE Achara[21] in an academic discussion online:

“My worry with well-intentioned disregard of established precedent is its unintended capacity to cause chaos in the long run. If a judge wishes to change existing case law or principle, can that court not clearly follow the law to do so? The law since I think Young v. Bristol Aeroplane is that the CA is bound by her previous judgment and is not permitted to depart from it without expressly considering that past decision and holding it to be per incuriam, contrary to a (House of Lords) Supreme Court decision, etc.”

4.7 It is unfortunate that the law has become so uncertain on account of the conflicting decisions of the main appellate courts in Nigeria, and this brings us to the question asked by the Roman poet, Decimus Junius Juvenalis who in one of his poems of satires asked, “Quis custodiet ipsos custodies?”[22]

Ikeazor Akaraiwe, is a Senior Advocate of Nigeria, and in law practice in Nigeria since 1985. He is also inter alia an author and editor of several law books and law reports. He once served as 1stVice-President of the Nigerian Bar Association and Chairman of its Human Rights Institute (2008-2010).

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[1] (2021) LPELR-54212(CA)

[2] CA/K/601/2018

[3] (2021) LPELR-52688 (CA)

[4] (Pp 33 – 38 Paras E – D)

[5] 2021) LPELR-55623(CA)

[6] 2021) LPELR – 52688 (CA)

[7] (2021) LPELR – 54212 (CA)

[8] (1996) 6 NWLR (PT 454) 258 at 266

[9] 1999) LPELR (3292) 1 at 16-17

[10] (2011) LPELR (9175) 1 at 24-25

[11] (Pp 67 – 70 Paras E – D)

[12] (2021) LPELR-54212 (CA)

[13] Constitution of the Federal Republic of Nigeria, (1999)(as amended)

[14]Cap. I23 Laws of the Federation 2004

[15] CA/K/601/2018

[16] [1992] NWLR (PT 254) 377, (1992) 2 LPELR-3432 (SC) 1 at 21

[17] (1944) 2 ALL E.R. 293 @ 300

[18] Supra

[19] (1949) 12 WACA 437

[20] (1978) 1 All E.R. 1132

[21] Online academic discussions

[22] who will guard the guards themselves?