⦿ CASE SUMMARY OF:
General Sani Abacha & Ors v. Chief Gani Fawehinmi (2000) – SC
- Jurisdiction oust by military decree;
- Fundamental rights;
- General Sani Abacha
- Attorney-General of The Federation
- State Security Service
- Inspector-General of Police
- Chief Gani Fawehinmi
(2000) 6 NWLR (Pt.660) 228;
(2000) 4 S.C (Pt II);
(2000) A.N.L.R 351;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
- FOR THE APPELLANT
- Mr. Chiesonu Okpoko.
- FOR THE RESPONDENT
- Mr. Ebun-Olu Adegboruwa.
The facts of this case are simple enough.
The respondent, a legal practitioner, was arrested without warrant at his residence on Tuesday January 30, 1996 at about 6 a.m., by six men who identified themselves as operatives of the State Security Service (hereinafter is referred to as SSS) and policemen, and taken away to the office of the SSS at Shangisha Lagos where he was detained.
At the time of his arrest the respondent was not informed of, nor charged with, any offence. He was later detained at the Bauchi prisons.
In consequence, he applied ex-parte through his Counsel, to the Federal High Court, Lagos, pursuant to the Fundamental Rights (Enforcement Procedure) Rules 1979 for the reliefs relating to his detention and claiming breach of his fundamental rights guaranteed under Sections 31, 32 and 38 of the 1979 Constitution and Articles 4, 5, 6 and 12 of the African Charter on Human & Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of Federation of Nigeria 1990 and is therefore illegal and unconstitutional.
On being served with the motion papers learned Counsel for the appellants filed a preliminary objection to the effect that the respondent could not maintain the action against the appellants on the ground that the Court lacked competence to entertain it.
The Federal High Court judge ruled that it lacked jurisdiction to hear the suit.
The respondent appealed to the Court of Appeal.
Both parties are aggrieved by the decision of the Court of Appeal and have appealed to this Court.
In the main appeal, the appellants complained against those parts of the judgment of the Court below that relate to findings on the status of the African Charter on Human and Peoples’ Rights and the Order remitting the case to the trial Court for the action before the latter Court to be resolved on the period of four days not covered by the Detention Order.
The respondent cross-appealed against those parts of the decision of the Court below relating to –
(i) Power of Inspector-General to sign and issue a detention Order;
(ii) Mode of enforcement of fundamental rights guaranteed under the African Chater on Human and Peoples’ Rights (hereinafter is referred to simply as the African Charter;
(iii) Procedure for tendering detention Order; and
(iv) Immunity of the Head of State.
i. Status of the African Charter vis-a-vis the country’s municipal laws including the Constitution;
ii. The period of four days not covered by the Detention Order;
iii. Inspector-General of Police to issue the detention Order in this case?
⦿ HOLDING & RATIO DECIDENDI
- Issue 1 was resolved in favour of the respondents, hence, the Supreme Court stated that the Federal High Court has jurisdiction.
i. No doubt African Charter on Human and People’s rights Cap. 10 is a statute with international flavour. Being so, therefore, I would think that if there is a conflict between it and another statute, its provisions will prevail over those of that other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation.
ii. It is thus enacted that all authorities and persons exercising legislative, executive or judicial powers in Nigeria are enjoined to give full recognition and effect to the African Charter. That is the plenitude of the Government of Nigeria cannot do anything inconsistent with the Charter. Section 1 was never suspended or repealed by any of the Constitution (Suspension and Modification) Decrees enacted between 1983 and 1999; it remained in force throughout this period.
- On issue 2, the respondent can claim for the days not covered by the detention order.
- Issue 3 was judged in favour of the Appellant.
i. As a result of the muddle made in Decree No. 11 of 1994 only the Inspector-General of Police was left to issue a detention Order. And since he was the one who signed the Order detaining the respondent, the Order could not be faulted on this ground. Had the order been signed by the Chief of General Staff, I would not have hesitated in declaring it void as his power to issue such an Order had been taken away by Decree No. 24 of 1990.
**ALFA BELGORE, JSC
i. Thus the coup d’ etat of 1983 December and the Constitution (Suspension and Modification) Decree of 1984 put into abeyance the Fundamental Rights in the Constitution, which as I have said earlier is a forerunner of the adoption of the Charter and of course the Charter itself by implication. Coup d’ etat is a treasonable offence but that is only when it fails. The Charter, just as the Fundamental Rights in the 1979 Constitution was by implication suspended.
**UTHMAN MOHAMMED, JSC
Turning to the cross-appeal it is my respectful view that the Military Administration by enacting Decree No.2 of 1984 and suspending Chapter IV of the Constitution which dealt with Fundamental Human Rights had intended to curtail any right of access to Courts against any breach of the Fundamental Human rights of Nigerians by Military Government. It is therefore wrong to say that a citizen could still challenge the action of the Military Government by resorting to African Charter on Human and Peoples’ Rights which is now part of municipal laws. In any event the Federal Military Government (Supremacy and 51 Enforcement of Powers) Decree No. 12 of 1994 has clearly ousted the jurisdiction of Courts to determine any claim by any individual against the Military Government’s action.
**OKAY ACHIKE, JSC
Therefore, the appellant’s contention that the African Charter is inferior to the Constitution and the Decrees is supportable. To hold otherwise is to erect an indefensible barrier into an enactment by introducing words that are not there, more so when no ambiguity has been shown to exist which may warrant introducing such extraneous construction in aid of clarifying any ambiguity. I shall therefore decline to read either in the African Charter or Cap. 10 LFN 1990 that incorporated the African Charter into our law words that are not there ascribing any superiority to the African Charter vis-a-vis other municipal legislations.
More importantly, the African Charter having been incorporated into the body of the Nigerian municipal laws cannot be preferentially treated but should rank at par with other municipal legislations and be subordinated to the Constitution.
⦿ SOME PROVISIONS
State Security (Detention of Persons) Act Cap. 414. provides:
4.(1) No suit or other legal proceedings shall lie against any person for anything done or intended to be done in pursuance of this Act.
(2) Chapter IV of the Constitution of the Federal Republic of Nigeria is hereby suspended for the purposes of this Act and any question whether any provision thereof has been or is being or would be contravened by anything done or proposed to be done in pursuance of this Act shall not be inquired into in any Court of law, and accordingly Sections 219 and 259 of that Constitution shall not apply in relation to any such question.
Section 1 of Africa Charter on Human and People’s rights Cap. 10 LFN 1990 provides:
- As from the commencement of this Act, the provisions of the African Charter on Human and Peoples’ Rights which are set out in the Schedule to this Act shall, subject as there under provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.
Sections 16(1) & (2) and 17 of the Constitution (Suspension and Modification) Decree. No. 107 of 1993:
16(1) Subject to this Decree or any other Decree made during the period 31st December, 1983 to 26th August 1993 or made after the commencement of this Decree, all existing law, that is to say, all laws (other than the Constitution of the Federal Republic of Nigeria 1979) which whether being a Rule of law or a provision of an Act of the National Assembly or of a Law made by a State House of Assembly or any other enactment or instrument whatsoever, shall, until that law is altered by an authority having power to do so, continue to have effect with such modifications (whether by way of addition. alteration or omission) as may be necessary to bring that into conformity with the Constitution of the Federal Republic of Nigeria 1979, as amended, suspended, modified or otherwise affected by this Decree or any other Decree made during the period 31st December 1983 to 26th August 1993 or made after the commencement of this Decree, and with the provisions of any Decree made after the commencement of this Decree or Edict relating to the performance of any functions which are conferred by law on any person or authority.
(2) It is hereby declared that the continued suspension by this Decree or any other Decree made after the commencement of this Decree by any Decree or any provision of the Constitution or the Federal Republic of Nigeria 1979 shall be without prejudice to the continued operation in accordance with Subsection (1) of this Section of any law which immediately before the commencement of this Decree was in force by virtue of that provision.
- All laws (other than any law to which Section 16 of this Decree applies) which whether being a Rule of law or a provision of an Act, a Decree, an Edict or a Bylaw or of any other enactment or instrument whatsoever, was in force immediately before the commencement of the Decree or made before that date but comes into force on or after by an authority having power to do so, continue to have effect as if made in exercise of the powers conferred by or derived under this Decree.
The State Security (Detention of Persons) Decree No. 11 1994, provided as follows:
- The State Security (Detention of Persons) Decree 1984 as amended by State Security (Detention of Persons) (Amendment) Decree 1984, 1986, 1988 and 1990 is further amended:
(a) By inserting immediately after the words ‘Chief of General Staff’ the words ‘or the Inspector-General of Police’ wherever they occur in the Decree.
Section 1(2)(b)(i) of Decree No. 12 of 1994 provides:
No civil proceedings shall lie or be instituted in any Court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict and if such proceedings are instituted before or after the commencement of this Decree the proceedings shall abate, be discharged and made void.
⦿ NOTABLE DICTA
A party to any civil proceedings who knowing of an irregularity allows the irregular procedure to be adopted and indeed used document irregularly produced in the proceedings cannot complain on appeal on the procedure adopted; – Ogundare, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
In this connection, I ought to observe that while it is a principal Rule of pleading that a party must plead material facts only and not law, yet every party is permitted by his pleading to raise a point of law. – Iguh, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
If a party’s case depends on a statute, all he needs do is fully to plead material facts necessary to bring his case within that statute. – Iguh, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
Nigeria adopted the treaty (African Charter on Human and People’s rights) in 1983 when the National Assembly enacted the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983 (now Cap. 10 Laws of the Federation of Nigeria. 1990). – Ogundare, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
Where, however, the treaty is enacted into law by the National Assembly as was the case with the African Charter which is incorporated into our municipal (i.e. domestic) law by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria 1990 (hereinafter is referred to simply as Cap. 10) it becomes binding and our Courts must give effect to it like all other laws falling within the judicial powers of the Courts. – Ogundare, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
Be it noted that while Chapter IV of the Constitution was suspended for the purposes of the Act, no mention was made of Cap. 10 which was then merely in existence. I would think that Cap. 10 remained unaffected by the provisions of Section 4(1). A treaty is not deemed abrogated or modified by later statute unless such purpose has been clearly expressed in the later statute. – Ogundare, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
A party to any civil proceedings who knowing of an irregularity allows the irregular procedure to be adopted and indeed used document irregularly produced in the proceedings cannot complain on appeal on the procedure adopted. – Ogundare, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
It is plain that while the said Section 4 of the State Security (Detention of Persons) Act expressly suspended Chapter IV of the Constitution of Nigeria, 1979, it in no way repealed, abrogated or suspended the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983, Cap. 10, Laws of the Federation of Nigeria 1990, In my view, the law makers, if they had intended to suspend or repeal the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983 along with Chapter IV of the Constitution of the Federation Republic of Nigeria, 1979 would have specifically so stated by clear words. – Iguh, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
And if, as with all modern statutes, the later Act contains a list of earlier enactments which it expressly repeals or suspends, the omission of a particular statute from such list will be highly indicative of a strong presumption of intention on the part of the law makers not to repeal or suspend the statute thus omitted. – Iguh, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
I agree with learned cross-appellant’s view that where a Statute tends to encroach, curtail or abridge the freedom or liberty of an individual, that statute is generally construed very strictly and narrowly against anyone claiming benefit therefrom. It is also a well-known rule of construction that where a statute in its ordinary meaning and grammatical construction come clear absurdity would result, some effort would be made by the Court to avoid the absurdity by modifying the Structure of the sentence or the meaning of the words. – Achike, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
Act of State doctrine is a doctrine denying to municipal Courts (1) the jurisdiction to pass judgment upon the validity or legality of the acts of a foreign state and (2) the right to challenge executive statements of their own government on the conduct of foreign affairs. – Uwaifo, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
It is therefore manifest that no matter how beneficial to the country or the citizenry, an international treaty to which Nigeria has become a signatory may be, it remains unenforceable, if it is not enacted into the law of the country by the National Assembly. – Ejiwunmi, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)
If such a treaty is not incorporated into the municipal law, our domestic Courts would have no jurisdiction to construe or apply it. Its provisions cannot therefore have any effect upon citizens’ right and duties. However, it is also pertinent to observe that the provisions of an incorporated treaty might have indirect effect upon the construction of statutes or might give rise to a legitimate expectation by citizens that the government, in its acts affecting them, would observe the terms of the treaty. – Ejiwunmi, J.S.C. Abacha & Ors v. Chief Gani Fawehinmi (2000)