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Can an action for enforcement of fundamental rights be time-barred, or caught by statute of limitations?
A review of the decision in DENCA SERVICES LTD v. LEO OLEKA & SONS LTD & ORS (2015) LPELR-24444(CA)
Facts of the case
The 1st respondent is in the transport business of haulage of goods. The 2nd respondent is its Managing Director. The appellant hired the services of the 1st respondent through the 2nd respondent for the haulage of a 20ft container from SCOA Kirikiri terminal to No. 53 Kosoko Street, Lagos. The appellant had through a way bill misrepresented to the 1st and 2nd respondents that the contents of their 20ft container were padlocks. It turned out that the contents were contraband goods - lace materials. The truck was arrested in transit by the 3rd respondent claiming that it had a tip off that the truck was carrying contraband goods. The 1st and 2nd respondents claim that it was all a conspiracy as the 20ft container had been in the possession of the 3rd respondent long before then and they decided to release it to the appellant only to turn round and arrest their truck. Even after the arrest, the prohibited lace materials were released to the appellant but the 3rd respondent refused to release the truck. Thus, the 1st and 2nd respondents, as applicants at the Federal High Court, instituted an action under the Fundamental Rights (Enforcement Procedure) Rules 1979. The crux of the applicants’ case at the Federal High Court was the seizure of their business truck upon suspicion that the truck was being used to convey contraband products. The 1st and 2nd respondents further claimed that the 3rd Respondent deliberately neglected to carry out any form of investigation in respect of the unlawful arrest and detention of the 1st and 2nd Respondents truck. The 3rd Respondent detained the truck for two years and refused to release the truck despite series of appeals from the 1st and 2nd respondents. The truck was finally released upon the institution of the suit and the service of the processes on the 3rd respondent.
By way of response to the action, the appellant raised a preliminary objection that the suit was not validly instituted under the Fundamental Rights (Enforcement Procedure) Rules. The appellant further contended inter alia that the claims were in respect of the arrest and detention of the applicants’ truck; that the action could only be procedurally commenced by a writ of summons, and that in any event, the action was statute barred having being instituted outside the twelve (12) months statutory window.
The trial court consolidated the hearing of the objection with the hearing of the substantive application. Arguments were taken, and in a reserved ruling, the court dismissed the preliminary objection and granted the reliefs contained in the applicants’ motion on notice and N2million as compensation in favour of the applicants’ against the respondents for the violation of the applicants' right to property guaranteed under Section 44(1) of the Constitution of the Federal Republic of Nigeria 1999
Dissatisfied with the ruling, the appellant filed a notice of appeal against the ruling of the Federal High Court.
Salient issues for determination
The appeal was determined on 3 main issues, formulated thus:
1. In view of S. 44(1) & (2)(k) of the Nigerian Constitution, was the Applicants/Respondents' action for arrest and detention of truck number AW 213 EKY competently commenced by way of Fundamental Rights Enforcement Procedure and if so was the action not time barred thus impairing the jurisdiction of the trial court over the action?
Was the trial court's decision in this suit not perverse, when after exonerating the Appellant from arrest and detention of truck number AW 213 EKY turned around and awarded N2million conjunctively to the liability of the Appellant?
Whether leave granted ex parte to enforce Applicants/Respondents fundamental rights, ipso facto extinguished Appellant's constitutional right to raise preliminary objection to the initiating procedure to this suit and/or discharged the trial court from its judicial duty to resolve judicially the issues of time-bar and purport of S 44(2) (k) of the Nigerian Constitution properly raised before it in this action?
Decision of the Court of Appeal
In setting aside the ruling of the Federal High Court, the Court of Appeal emphatically upheld the appeal on the strength of the objection that the suit was statute barred having being commenced outside the 12 months statutory period.
By way of prefatory remarks, it is important to state that this matter was decided on the Fundamental Rights (Enforcement Procedure) Rules 1979. Having said that, the decision though legally correct with regard to the applicable law being interpreted, it is unlikely that the decision- if considered in the light of the extant law in fundamental rights actions- would be the same. The reason is not far-fetched, and herein explained.
On Statute of Limitation in Fundamental Rights Enforcement matters
The Fundamental Rights (Enforcement Procedure) Rules 2009 have expressly inapplicable the time-provisions of Statutes of Limitation in matters relating to the enforcement of fundamental rights. Under Order 1 Rule 3 of the 1979 Rules, an application for the enforcement of fundamental rights must be made "within twelve months from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court or Judge to whom the application...is made." It is however gratifying to note that that under the Fundamental Rights (Enforcement Procedure) Rules 2009 the issue of limitation of time within which to institute action has now been abolished. Under the new law fundamental rights cases can now be heard on their merits devoid of all these vexatious technicalities. Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 is apposite in this regard as it expressly provides that an application for the enforcement of fundamental rights "shall not be affected by any limitation statute whatsoever”.
Being the sole reason for setting aside the ruling of the Federal High Court, it is clearly beyond any doubt that by the provisions of the 2009 Rules, limitation laws no longer affect actions seeking to enforce breach of fundamental rights. This further confirms the position that the judgment of the Court of Appeal if decided on the 2009 Rules would have been wrong.
On commencement of action under Fundamental Rights (Enforcement Procedure) Rules 2009
Equally worthy of mention is the fact that the Fundamental Rights (Enforcement Procedure) Rules 2009 has now simplified the mode of commencement of fundamental rights enforcement proceedings. Under the 1979 Rules, an application for the enforcement of fundamental rights could only be effected through motion or summons. However, Order 2 Rule 2 of the 2009 Rules provides that an application for the enforcement of fundamental rights “may be made by any
originating process accepted by the Court...” It is noteworthy to mention here that this provision is consistent with the decision of the Supreme Court in Abacha v Fawehinmi (2000) 6 NWLR (pt 660) 228 to the effect that enforcement of rights action can be commenced by way of an action by writ of summons or by any other permissible procedure.
There is no gainsaying the fact that this new provision reposes considerable discretion on Judges which they must, in turn, exercise in a manner consistent with the overarching thrust of the new Rules. Thus, the arguments canvassed by the appellants as to whether the action should be commenced by writ of summons or other means will no longer be valid under the 2009 Rules, so far it can be established that the applicant has sued for the protection of his/her rights under Section 44 of the 1999 Constitution.
Requirement of Leave in Fundamental Rights Proceedings
In the decision under review, the issue of a notice of preliminary objection not being validly raised after leave to institute action has been granted also came up for consideration. It is, however, important to state here that the Fundamental Rights (Enforcement Procedure) Rules 2009 have since dispensed with the requirement of leave in the commencement of proceedings.
Under Order 1 Rule 2(2) and Order 2 Rule 1(1) of the 1979 Rules, an application for the enforcement of fundamental rights must be commenced with leave of court, on the basis of an ex parte application. Where such leave is granted, the applicant must apply for the order being sought by notice of motion or by originating summons. However, Order 2 Rule 2 of the 2009 Rules dispenses with the prior requirement that an application for the enforcement of fundamental rights must commence with leave of court. Under the new Rules, such applications shall “lie without leave of Court.”
By this provision as contained in the 2009 Rules, it suffices that the argument of the appellant on the mode of commencement of this action will hold no water.
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Denca Services Ltd. v Oleka