Presiding Judge: Justice Okon Abang
This is the moment of truth.
The Law is clear and requires no restatement that in a Fundamental Right’s application that is in an application to enforce the alleged breach of a fundamental right, it is the alleged victim of the breach of the fundamental right that must file an application and depose to the affidavit in support of the application. Under Order 2 rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 the affidavit must be deposed to by the Applicant himself. Where two or more persons have alleged that their fundamental rights have been violated, each person must file a separate application with a separate affidavit attached.
In this case, the three Applicants that is, the three distinguished Senators in one suit came to Court to complain that the Police’s invitation to them to come and answer questions as regard issues arising from the demonstration carried out by members of PDP on 5th October, 2018 is a breach of their fundamental rights to personal liberty. That it is meant to harass and intimidate them. The Applicants are: –
- Senator Dr. Abubakar Bukola Saraki, Senate Federal Republic of Nigeria.
- Distinguished Senator Dino Melaye.
- Distinguished Senator Ben Muray Bruce.
It is my view that they did not file separate applications and none of them personally deposed to the affidavit in support of the application. The suit filed by them is in contravention of the mandatory provisions of Order 2 rules 1 & 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which provides: – Order 2 rule 1 provides:
“Any person who alleges that any of the fundamental rights provided for in the constitution or African Charter on Human and Peoples Right (Ratification and Enforcement) Act and to which he is entitled has been, is being or likely to be infringed may apply to the Court in the state where the infringement occur or is likely to occur for redress”:
Order 2 rule 4 provides —
“The affidavit shall be made by the Applicant but where the Applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant stating that the Applicant is unable to depose personally to the affidavit’:
The provisions of Order 2 rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 are clear and unambiguous. For the Applicants to have a competent application they must file separate applications with separate affidavits in support. The provisions of Order 2 rules 1 and 4 supra made reference to “Applicant” “that is one person” not Applicants that would have related to “group of persons”.
It is my view infact I agree entirely with the Respondents that the Applicants’ suit is in contravention of the provisions of Order 2 rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. This suit is incompetent because the 1st, 2nd & 3rdApplicants, that is Dr. Abubakar Bukola Saraki, the Senate President and distinguished senators Dino Melaye and Ben Muray Bruce filed one suit instead of three separate suits with separate affidavits in support.
This is so notwithstanding that the Applicants claimed that they have a common course of action or that the statement of facts and affidavit in support and the ground are predicated upon or relate to the same subject matter. That is the likelihood of the breach of the Applicants’ fundamental rights pursuant to the lawful and peaceful procession of the PDP on 5th of October, 2018 upon which the Applicants as members of PDP participated. It does not matter in my view that the alleged infraction of the Applicants’ rights by the Respondents are the same in content and degree from the complaints of the Applicants in their various affidavits in support of the motion.
The three distinguished senators cannot come to Court in one suit to complain that the Respondents’ invitation extended to them for questioning arising from the alleged peaceful demonstration carried out by PDP on 5th October, 2018 is a breach of their fundamental :rights. They ought to have filed separate suits. This suit is in contravention of the provisions of Order 2 rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, and liable to be struck out on the authority of the case of R.T.F.C.I.N. V. IKVVECHEIGH (2000) 13 NWLR PT. 683 P.1 where it was held: –
‘That if an individual feels that his human right has been violated, he should take out action personally for the alleged infraction as right of one divers in content and degree from the complaint or others It is wrong for joinder of action and incompetent for two or more to file the same action’.Senator-Saraki-2-or-vs-inspector-General-of-police-1or-18-Apr-2019-6-05-PM_watermark-1