IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ASABA
SUIT NO:FHC/ASB/CS/138/09
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO PERSONAL LIBERTY, FAIR HEARING, PRIVACY AND PRIVATE PROPERTY
BETWEEN:
His Royal Majesty Godwin K. Bebenemibo, Ogeh, )
Gbaran III, Aketekpe, Pere of Gbaramatu Kingdom )….. APPLICANT
AND
1. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA
2. MAJOR-GENERAL SARKIN YARKIN BELLO )
(For himself and on behalf of the Joint )
Task Force Operating in the Niger Delta) )
3. THE CHIEF OF DEFENCE STAFF ) ….RESPONDENTS
4. THE CHIEF OF ARMY STAFF )
5. THE CHIEF OF NAVAL STAFF )
6. THE CHIEF OF AIRFORCE )
7. ATTORNEY-GENERAL OF THE FEDERATION )
MOTION EX PARTE
Brought Pursuant to:
1. Order 1 Rule 2 of the Fundamental Enforcement Procedure Rules 1979 as preserved by
Section 315 of the 1999 Constitution
2. Inherent Jurisdiction of the Honourable Court
TAKE NOTICE this Honourable Court will be moved on……… the……….. day of……….. 2009 at the hour of 9 O’clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Applicant for:
1) AN ORDER granting leave to the Applicant to secure the enforcement of his fundamental right to personal liberty, fair hearing, privacy and private property by seeking the reliefs set out in the Statement attached hereto.
2) AN ORDER permitting the granting of leave by this Honorable Court to operate as a stay of action in respect of the Applicant’s complaint by restraining the Respondents from arresting and/or detaining the Applicant pending the determination of the substantive application.
3) AN ORDER permitting the service of the processes on the 1st Respondent through the 2nd Respondent.
AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
Dated this……..…day of …………….…2009
……………………………….
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
APPLICANT’S COUNSEL
25, ADEKUNLE FAJUYI WAY,
G.R.A. IKEJA, LAGOS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ASABA
SUIT NO:FHC/ASB/CS/138/09
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO PERSONAL LIBERTY, FAIR HEARING, PRIVACY AND PRIVATE PROPERTY
BETWEEN:
His Royal Majesty Godwin K. Bebenemibo, Ogeh, )
Gbaran III, Aketekpe, Pere of Gbaramatu Kingdom )….. APPLICANT
AND
1. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA
2. MAJOR-GENERAL SARKIN YARKIN BELLO )
(For himself and on behalf of the Joint )
Task Force Operating in the Niger Delta) )
3. THE CHIEF OF DEFENCE STAFF ) ….RESPONDENTS
4. THE CHIEF OF ARMY STAFF )
5. THE CHIEF OF NAVAL STAFF )
6. THE CHIEF OF AIRFORCE )
7. ATTORNEY-GENERAL OF THE FEDERATION )
STATEMENT
1. NAME AND DESCRIPTION OF THE APPLICANT
The Applicant is the paramount ruler of the Gbaramatu Kingdom in Delta State.
2. RELIEFS SOUGHT BY THE APPLICANT
A. A DECLARATION that the military invasion of the Palace of the Applicant by the Respondents on May 15, 2009 at Oporoza in the Gbaramatu Kingdom of Delta State is illegal and unconstitutional as it violate the Applicant’s fundamental right to the privacy of his home guaranteed by Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of the Nigeria, 1990.
B. A DECLARATION that the forceful seizure and the continued military occupation of the Palace of the Applicant by the armed agents of the Respondent is illegal and unconstitutional as it violates the Applicant’s right to private property guaranteed by Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria and Article 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of the Nigeria, 1990.
C. A DECLARATION that the purported order of the 1st Respondent directing the Applicant to report himself at the military barracks in Effurun Delta State is illegal and unconstitutional as it violates the Applicant’s fundamental right to personal liberty guaranteed by Section 35 of the 1999 Constitution and Article 6 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 1990.
D. AN ORDER of PERPETUAL INJUNCTION restraining the Respondents, their agents, privies and servants from arresting, detaining, harassing or intimidating the Applicant in any manner whatsoever and howsoever.
E. AN ORDER directing the Respondents, whether by themselves, agents, privies and servants to vacate the Applicant’s Palace forthwith.
F. AN ORDER directing the Respondents to pay N1 billion damages to the Applicant for the violations of his fundamental rights to personal liberty, dignity of his person, right to family life and privacy of his home and right to private property.
3. GROUNDS FOR SEEKING THE RELIEFS
i. The Applicant is entitled to his personal liberty, fair hearing, privacy and private property guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 and the African Charter on Human and Peoples’ Rights.
ii. The decision of the Respondent to punish the Applicant for the criminal offences allegedly committed by militants is illegal and unconstitutional.
iii. The Applicant is not a member of the Armed Forces and as such he is not subject to service law to wit: the Armed Forces Act, Cap A20 Laws of the Federation, 2004.
iv. The Applicant’s fundamental rights to family life, privacy of his home and private property have been violated by the Respondents.
v. The Applicant’s fundamental right to dignity of his person have been violated while his fundamental right to personal liberty has been threatened by the 1st Respondent.
vi. The Applicant is entitled to exemplary and general damages for the aforesaid violations of his fundamental rights.
4. FACTS IN SUPPORT
1. The Applicant is the owner/custodian of the multimillion naira Palace at Oporoza in the Gbaramatu Kingdom in Warri South West Local Government Area of Delta State.
2. The Applicant’s Palace was commissioned on the 14th July 2008.
3. The presentation of the staff of office to the Applicant was carried out at the Palace on the 9th April 2009 by the Governor of Delta State, Dr. Emmanuel Ewetan Uduaghan.
4. Without any justification whatsoever the Oporoza Community, the traditional headquarters of Gbaramatu Kingdom was violently attacked by the armed agents of the Respondents on May 15, 2009.
5. Even though there was no resistance from anybody whatsoever the Respondents’ agents attacked the Community with bombs, bazooka, grenades and in the process killed many citizens including women and children.
6. In particular the Applicant’s Palace was totally destroyed while he and members of his family managed to escape the wrath of the soldiers.
7. The Applicant is not a member of the armed forces and as such he is not subject to service law.
8. As a result of the unprovoked attack of the Palace by the Respondents the Applicant and members of his family have been turned into refugees in their fatherland.
9. The Respondent did not find any militant or any incriminating evidence in the Palace of the Applicant.
10. The Respondents looted the Palace and carted away the property of the Applicant including his staff of office.
11. After the willful destruction of the Applicant’s Palace at Oporoza in Delta State the Respondents declared the Applicant wanted and ordered him to report himself at the Military Barracks, Effurun in Delta State.
12. In justifying the military invasion of Oporoza Community and other communities in Gbaramatu Kingdom the Respondents’ agents have claimed that they are looking for Mr. Government Tompolo and other militants.
13. The distance between the Applicant’s Palace and “Camp 5” the alleged target of the military attack is not less than 10 kilometres.
14. The Applicant has not committed any offence known to law to warrant the harassment and intimidation to which he has been subjected by the Respondents.
15. The Respondents intend to detain the Applicant at the military barracks and subject him to extra judicial killing without any trial whatsoever.
16. The Respondents have not reported the Applicant to the Police for committing any offence known to law.
17. By declaring the Applicant wanted the Respondents have portrayed him as a hardened criminal and thereby violated his right to dignity.
18. It is impossible to serve the processes of this court on the 1st to 6th Respondents personally, hence the need to serve them through the 7th Respondent.
19. The forceful seizure and military occupation of the Applicant’s Palace has deprived him of his fundamental right to family life and privacy of his home.
Dated this …………day of June, 2009
…………………………..
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
25, ADEKUNLE FAJUYI WAY,
G.R.A IKEJA,
LAGOS.
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ASABA
SUIT NO:FHC/ASB/CS/138/09
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO PERSONAL LIBERTY, FAIR HEARING, PRIVACY AND PRIVATE PROPERTY
BETWEEN:
His Royal Majesty Godwin K. Bebenemibo, Ogeh, )
Gbaran III, Aketekpe, Pere of Gbaramatu Kingdom )….. APPLICANT
AND
1. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA
2. MAJOR-GENERAL SARKIN YARKIN BELLO )
(For himself and on behalf of the Joint )
Task Force Operating in the Niger Delta) )
3. THE CHIEF OF DEFENCE STAFF ) ….RESPONDENTS
4. THE CHIEF OF ARMY STAFF )
5. THE CHIEF OF NAVAL STAFF )
6. THE CHIEF OF AIRFORCE )
7. ATTORNEY-GENERAL OF THE FEDERATION )
AFFIDAVIT OF URGENCY
I, CHIEF JONATHAN GERE BAKA ARI, Male, Nigerian Citizen and the Puwei of Gbaramatu Kingdom of No 1, Palace Road, Pere Palace, Oporoza Town, Warri Southwest LGA, Delta State do hereby make oath and state as follows:
1. That I am the Puwei (i.e the Chief Scribe) of Gbaramatu Kingdom.
2. That by virtue of my position I am conversant with the facts of this case.
3. That I have the authority and consent of the Applicant to depose to this affidavit.
4. The Motion ex parte for leave was filed today at the Registry of this Honourable Court.
5. This case concerns the enforcement of the fundamental rights of the Applicant to Fair Hearing, Privacy, Personal Property and Liberty.
6. By virtue of the case it ought to be heard expeditiously.
7. It is in the interest of justice to hear this matter urgently.
8. That I make this declaration in good faith and in accordance with the Oaths Act, 2004.
…………………
DEPONENT
SWORN TO at the Federal
High Court Registry, Asaba
This………..day of June, 2009
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ASABA
SUIT NO:FHC/ASB/CS/138/09
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO PERSONAL LIBERTY, FAIR HEARING, PRIVACY AND PRIVATE PROPERTY
BETWEEN:
His Royal Majesty Godwin K. Bebenemibo, Ogeh, )
Gbaran III, Aketekpe, Pere of Gbaramatu Kingdom )….. APPLICANT
AND
1. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA
2. MAJOR-GENERAL SARKIN YARKIN BELLO )
(For himself and on behalf of the Joint )
Task Force Operating in the Niger Delta) )
3. THE CHIEF OF DEFENCE STAFF ) ….RESPONDENTS
4. THE CHIEF OF ARMY STAFF )
5. THE CHIEF OF NAVAL STAFF )
6. THE CHIEF OF AIRFORCE )
7. ATTORNEY-GENERAL OF THE FEDERATION )
VERIFYING AFFIDAVIT
I, CHIEF JONATHAN GERE BAKA ARI, Male, Nigerian Citizen and The Puwei of Gbaramatu Kingdom of No 1, Palace Road, Pere Palace, Oporoza Town, Warri Southwest LGA, Delta State do hereby make oath and state as follows:
1. That I am the Puwei (i.e the Chief Scribe) of Gbaramatu Kingdom.
2. That by virtue of my position I am conversant with the facts of this case.
3. That I have the authority and consent of the Applicant to depose to this affidavit.
4. The Applicant informed me and I verily believe that he has verified the facts in support of this application.
5. That I make this declaration in good faith and in accordance with the Oaths Act, 2004.
…………………
DEPONENT
SWORN TO at the Federal
High Court Registry, Asaba
This………..day of June, 2009
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ASABA
SUIT NO:FHC/ASB/CS/138/09
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO PERSONAL LIBERTY, FAIR HEARING, PRIVACY AND PRIVATE PROPERTY
BETWEEN:
His Royal Majesty Godwin K. Bebenemibo, Ogeh, )
Gbaran III, Aketekpe, Pere of Gbaramatu Kingdom )….. APPLICANT
AND
1. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA
2. MAJOR-GENERAL SARKIN YARKIN BELLO )
(For himself and on behalf of the Joint )
Task Force Operating in the Niger Delta) )
3. THE CHIEF OF DEFENCE STAFF ) ….RESPONDENTS
4. THE CHIEF OF ARMY STAFF )
5. THE CHIEF OF NAVAL STAFF )
6. THE CHIEF OF AIRFORCE )
7. ATTORNEY-GENERAL OF THE FEDERATION )
WRITTEN ADDRESS IN SUPPORT OF APPLICATION FOR LEAVE
INTRODUCTION
The Applicant is the paramount ruler of Oporoza in the Gbaramatu Kingdom of Delta State. Following the forceful attack on his Palace on 15th May, 2009 and the continued military occupation of the Palace the Applicant has been displaced with members of his family.
Without committing any offence whatsoever the Applicant has been declared wanted and ordered by the Respondents to report himself at the Military Barracks, Effurun, Delta State. In the circumstances this application seeks to secure the enforcement of the fundamental rights of the Applicant to dignity of his person, family life and privacy of his home, private property and threat to his personal liberty. In the Statement in support of the application the name and description of the Applicant, the Grounds in support of the application, the Reliefs Sought and the Facts in support of the application are set out. The said facts have been verified by the Applicant. Because of the urgency of the matter the deponent has also deposed to an affidavit of urgency.
ISSUE FOR DETERMINATION
We respectfully submit that the sole issue for determination is as follows:
WHETHER the Applicant is entitled to leave submitted that to enforce his fundamental rights to the dignity of his person, right to family life, privacy of his home, private property and personal liberty.
ARGUMENTS
This is an application brought pursuant to Order 1 Rule 2(1) and (6) of the Fundamental Rights Enforcement Procedure Rules 1979 for leave to enforce the Applicant’s fundamental rights and for leave to operate as a stay of action in respect of the Applicant’s complaints pending the determination of the substantive application.
In this application the Applicant has set out the various violations of his fundamental rights and the threat to his personal liberty by the Respondents. It is submitted that the fundamental rights to personal liberty, dignity of his person, family life, privacy and private property are guaranteed by the Constitution and the African Charter on Human and Peoples Right. Being a citizen of Nigeria, the Applicant is entitled to the enjoyment of the aforesaid rights.
By virtue of Section 46 of the Constitution the Applicant is entitled to approach the Federal High Court in Delta State for the protection of the aforesaid rights. See Ogugu v. State (1996) 9 NWLR (PT 336) 1 and Abacha v. Fawehinmi (2001) 51 WRN 29.
Before enforcing any fundamental right guaranteed by the Constitution an Applicant is required to seek the leave of this Honourable Court. See the cases of University of Calabar v. Esiaga (1997) 4 NWLR (PT 502) 719; Madiebo v. Nwankwo (2001) 29 WRN 137. In seeking the leave of this Honourable Court to enforce his fundamental rights the Applicant has supported his application with facts which allege serious allegations of the infringement of his fundamental rights. We therefore submit that the Applicant has made a prima facie case to entitle him to the leave of this Honourable Court.
We further submit that by virtue of Order 1 Rule 2(6) and Order 6 Rule 1 of the Fundamental Rights Enforcement Procedure Rules 1979 this Honourable Court is empowered to allow the granting of stay to operate as a stay of further action in respect of the Applicant’s complaints. In this case the Respondents have declared the Applicant wanted and directed him to report himself at a Military Barracks. Since he is not a member of the armed forces he is not subject to service law and can therefore not be arrested by the Respondents.
Since the Respondents have not reported the Applicant to the Police for committing any offence known to law he is entitled to the protection of this Honourable Court. We therefore urge this Honourable Court to restrain the Respondents from arresting, detaining, harassing or intimidating the Applicant pending the determination of the substantive application.
In Dr. Olu Onagoruwa v. Honourable Justice Nwokedi (1983) 2 NCLR 547 the Lagos State High Court granted leave to the Applicant to enforce his fundamental right to personal liberty and ordered that the warrant issued by the Respondent for the arrest of the Applicant be not executed pending the final determination of the application to enforce his fundamental rights. See also the cases of Ondo State Broadcasting Corporation v. Ondo State House of Assembly (1986) NCLR 333, Nonyelu v. Inspector-General of Police (1985) FHCLR 65 and Major –General Zamani Lekwot vs. Judicial Tribunal on Communal Disturbances (1993) 2 NWLR (PT 276) 410 at 452.
CONCLUSION
In view of the serious averments in the supporting facts which have been verified by the Applicant and having regard to the authorities cited above we urge this Honourable Court to grant the reliefs sought by the Applicant in the interest of justice and fair play.
Dated this …………day of June, 2009
…………………………………………
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
25, ADEKUNLE FAJUYI WAY,
G.R.A IKEJA,
LAGOS.
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