Court Of Appeal – July, 2016
APPEAL NO. CA/L/1208/2010
APPEAL, COURT, FUNDAMENTAL HUMAN RIGHT, JUDGEMENT AND ORDER, PRACTICE AND PROCEDURE
The 1st Respondent by way of originating motion instituted an action for the enforcement of his Fundamental Human Right under the Fundamental Rights Enforcement Procedure Rules at the Lagos State High Court. Upon service of processes, the Appellant in opposing the application filed a Conditional Memorandum of Appearance as well as a Notice of Preliminary Objection accompanied by an affidavit and a written address. The 2nd Respondent on his part filed his written address. After the argument of the parties on the application, the trial court delivered its ruling and the Appellant who was dissatisfied with part of the ruling, appealed to the Court of Appeal.
FAILURE TO FILE A RESPONDENT’S BRIEF – EFFECT OF FAILURE TO FILE A RESPONDENT’S BRIEF – WHETHER IT ENTITLES THE APPELLANT JUDGEMENT IN HIS FAVOUR
“Where a Respondent fails to file a Respondent’s brief, he will be deemed to be uninterested in the Appeal, and he will further be deemed that he has conceded to be bound by whatever the outcome of the appeal is. Order Rule 18 Rule 10 of the Court of Appeal Rules reads thus:
“Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument. Where an Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.”
This however does not imply that the Appellant is entitled automatically to judgment in his favour, the matter still has to be heard based on the Appellant’s brief and the success or otherwise of the appeal would be solely based on the strength or otherwise of the Appellant’s argument and the position of the law but not on the failure of the Respondent to file his brief. See the case of Unity Bank Plc. v Bouari (2008) NSCQR VOL. 33 AT 1296; Cameroon Airlines v Mr. Mike E. Otutuizu  LPELR – 827 (SC)”. PER A. O. OBASEKI-ADEJUMO, J.C.A
ENFORCEMENT OF FUNDAMENTAL RIGHTS – APPROPRIATE COURT VESTED WITH JURISDICTION TO ENTERTAIN AN ACTION ON ENFORCEMENT OF FUNDAMENTAL RIGHT- PURPOSE OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009
“The enforcement of fundamental rights under which the 1st Respondent brought his action at the lower court is provided for in Chapter 4 of the 1999 constitution of the Federal Republic of Nigeria. Section 46 of the Constitution provides:
1. “Any person who alleges 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.
2. Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.
3. The Chief Justice may make rules with respect to the practice and procedure of a High Court for the purposes of this section….”
See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009.
By the above provisions, any person whose fundamental right is breached, being breached or is likely to be breached, may apply to a High Court of in that state for enforcement of his rights. Meanwhile, pursuant to Section 46 (3) of the Constitution, the Chief Justice of the Federation made the Fundamental Rights (Enforcement Procedure) Rules, 2009 inter alia for the purpose of advancing and realizing but not for the restriction of the rights contained in Chapter 4 of the Constitution and the provisions of the African Charter of Human and Peoples Rights”. PER A. O. OBASEKI-ADEJUMO, J.C.A
ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT –CONDITION PRECEDENT TO THE EXERCISE OF THE COURT’S JURISDICTION IN AN ACTION FOR ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT
“It is a condition precedent to the exercise of the court’s jurisdiction that the enforcement of fundamental right or securing the enforcement thereof should be the main or principal claim and not accessory claim. Therefore, before a Claimant/Applicant can successfully bring an action for the enforcement of his/her fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, the main or principal claim being sought by him/her must be restricted to the enforcement of the rights guaranteed under Chapter 4 of the 1999 Constitution and/or at best the provisions of the African Charter for Human and Peoples Rights and nothing more. In Abdulhamid V Akar  13 NWLR (Pt 996) 127; (2006) 5 SC (Pt 1) 44; (2006) LPELR 24 (SC) 24 Paras C – G; the Apex Court, Per AKINTAN, JSC held:
“The position of the law is that for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief sought is for the enforcement or for securing the enforcement of a fundamental right and not from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim for the enforcement of fundamental right. Thus, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it will be incompetent to constitute the claim as one for the enforcement of a fundamental right”
The above position was re-echoed by ONU, JSC in University Of Ilorin V Oluwadare  14 NWLR (PT 1000) 751; (2006) 6-7 SC 154; (2006) LPELR 3417 (SC) 11 paras G – F, where the Learned Justice of the Supreme Court stated:
“In the case of Tukur v Government of Gongola State  6 NWLR (Pt 510) 549 at 574 – 579, this Honourable Court held as follows:-
“When application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights or the security of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental rights as presented and not accessory claim. See The Federal Minister of Internal Affairs &Ors. v Shugaba Abdulraman Darman (1982) 2 NCLR 915 in the principal claim was a declaration that the order … was ultra vires and that the same constituted a violation of his fundamental rights to personal liberty, privacy and freedom to move freely throughout Nigeria …
However, where the main or principal claim is not the enforcement or securing the enforcement of and fundamental, the jurisdiction of the court cannot as has been pointed out above, be properly exercised as it will be incompetent by reason of the foregoing feature of the case.”
See also WAEC V Akinkunmi  9 NWLR (Pt 1091) 151 SC; Egbuono V Borno Radio Television Corporation  12 NWLR (Pt 531) 29”.
PER A. O. OBASEKI-ADEJUMO, J.C.A
FUNDAMENTAL RIGHT ENFORCEMENT PROCEDURE RULES – EFFECT OF NON-COMPLIANCE WITH THE FUNDAMENTAL RIGHT ENFORCEMENT PROCEDURE RULES
“Order IX of the Fundamental Right Enforcement Procedure Rules, 2009 makes provision with respect to the effect of non-compliance with the Rules. It reads:
1. Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to (i) Mode of commencement of the application;
(ii) The subject matter is not within chapter IV of the Constitution or the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.”
– PER A. O. OBASEKI-ADEJUMO, J.C.A
DECISION OF COURT – BASIS OF THE DECISION OF COURT
“In our system of adjudication in this country, it is fundamental that any decision reached by every court must be based on the evidence before the court. Whereas a court cannot act on conjectures and speculations, any decision reached contrary to the evidence before the court will be held to be perverse. In Sagay V Sajere  6 NWLR (Pt 661) 360; (2000) LPELR – 2976 (SC) 13 to 14, paras G – D, the Apex Court, per AYOOLA, JSC, held:
“The decision of a court must be based on the evidence and on reason. It should not be based on the intuition of the Judge or conjecture, or what the judge, untrammelled by the evidence, conceives to be a fair conclusion… The requirement that a judgment must clearly demonstrate that the conclusions arrived at in the case were not based on intuition and whim of the Judge but on evidence properly evaluated, and the law is not an insistence on mere form, but derives from the need to ensure and demonstrate that substantial justice has been done in the case.”
See also Anyankpele V Nigerian Army  13 NWLR (Pt 684) 209; Oladele V Nigerian Army  6 NWLR 868) 166”. PER A. O. OBASEKI-ADEJUMO, J.C.A
BASIS OF THE JUDGEMENT OF A COURT – DUTY OF AN APPELLATE COURT WHERE IT DISCOVERS THAT A TRIAL COURT FAILS TO BASE ITS JUDGEMENT ON THE EVIDENCE ADDUCED IN COURT
“Thus, where as in the instant appeal, an Appellate court is satisfied that the trial court failed to base its judgment on the evidence adduced in court and its finding thereon, such decision of the trial court shall be set aside. PER A. O. OBASEKI-ADEJUMO, J.C.A
SUBSTANTIAL RELIEF – WHETHER CONSEQUENTIAL RELIEFS CAN BE GRANTED WHERE THE SUBSTANTIVE RELIEF IS NOT MADE OUT
“I wish to add that having held that the respondents’ fundamental human rights envisaged by Chapter IV of the 1999 Constitution were not infringed, the court below erred in granting the order for perpetual injunction with respect to the same issue it held was not made out in the substantive relief – see Uzoukwu v. Ezeonu II (1991) 6 NWLR (pt.200) 708, where it was held that where injunctions are sought as consequential reliefs to declaratory reliefs, the injunctions will be refused once the declarations are refused. PER J. S. IKYEGH. J.C.A
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