CORAM

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J. S. ABIRIYI, JUSTICE COURT OF APPEAL

M. L. SHUAIBU, JUSTICE COURT OF APPEAL

S. A. BOLA, JUSTICE COURT OF APPEAL

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PARTIES

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SENATOR ANIETIE OKON

APPELLANTS 

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MR. NDIFREKE ASUQUO ETIM

RESPONDENTS 

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AREA(S) OF LAW

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ACTION, APPEAL, COURT, FUNDAMENTAL RIGHTS, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This is an appeal against the judgment of the High Court of Akwa Ibom State, sitting at Uyo wherein the Respondent as Applicant at the Court below, applied for the enforcement of his fundamental rights allegedly violated by the Appellant. The complaint of the Respondent was that the Appellant at Government House Uyo, Akwa Ibom State “rained heavy punches” on him, beat him “black and blue” and threatened to “kill him” for not heeding to the Appellant’s warning that he should stop selling ‘‘opposition newspapers” in the Government House, Uyo, Akwa Ibom state. The Appellant on his part denied the allegations and according to him, the Respondent was among newspaper vendors who surrounded him, requesting him to buy their papers, and when he did not buy, other vendors left but the Respondent was still following him. As he was about entering the vehicle, he noticed that a N100,000.00 that was in his pocket was missing. He called the Respondent who was then walking away and asked him about the money, but the Respondent denied removing any money from the Appellant’s pocket. To this end, the Respondent sought two declaratory reliefs; an order declaring that the torture, inhuman or degrading treatment meted out on him by the Appellant violated his right under Section 34(1)(a) of the Constitution; an order of perpetual injunction restraining the Appellant from further threatening, bullying, maltreating, beating him up, punching or harassing him; and for and an order for the payment of N450,000.00 compensation to him by the Appellant. After considering the affidavit evidence of the parties and addresses of the learned counsel for the parties, the Court below entered judgment in favour of the Respondent.

The Appellant has approached this court on appeal to challenge the decision of the Court below.

 

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HELD

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Appeal allowed

 

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ISSUES

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1.Whether the Respondent had proved his case on the preponderance of evidence at the trial court to have merited the judgment of the court?

2.Whether the learned trial judge was right in awarding the sum of N100,000 against the Appellant as damages in favour of the Applicant and a further sum of N50,000 as the cost of the suit?

 

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RATIONES DECIDENDI

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BREACH OF FUNDAMENTAL RIGHTS – ON THE ESSENCE OF FUNDAMENTAL RIGHTS ENFORCEMENT PROCEEDINGS

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“The intendment of the is to provide for an urgent remedy for human rights abuses or imminent abuses of human rights as the case may be.  Thus, any person who alleges that any of the fundamental rights provided for in the Constitution and to which he is entitled has been, is being, or is likely to be infringed may apply to the High Court for redress. See DR. OLORUNTOBA OJU v. A.G FEDERATION & ORS. (2016) LPELR – 41250 CA.” – Per ABIRIYI, JCA

 

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PROOF OF BREACH OF FUNDAMENTAL RIGHTS – ON THE EFFECT OF FAILURE TO PROVE BREACH BY APPLICANT

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“In this case, the court below rightly found that the Respondent had not proved the violation of his right but proceeded to find evidence of the violation in the counter affidavit of the Appellant. …

I agree entirely with learned counsel for the Appellant that the gentle holding of the Respondent’s hand and asking him if he removed money from the Respondent’s pocket cannot amount to the violation of his fundamental right. … Issue 1 is therefore resolved in favour of the Appellant and against the Respondent. As the Respondent did not establish his allegation that the Appellant violated his fundamental rights, there was no basis for the award of N100,000 compensation and costs of N50,000 to him.” – Per ABIRIYI, JCA

“For an application alleging infringement of the Applicant’s fundamental rights to succeed, he must place before the Court all vital evidence regarding the infringement or breach of such rights. It is only thereafter that the burden shifts to the Respondent. Where that has not been done or scanty evidence was put in by the Applicant, the trial can strike out such application for being devoid of merits. See FAJEMIROKUN V. C.B. (C.L.) (NIG) LTD (2002) 10 NWLR (Pt. 724) 95. In the instant case, the trial court was grossly in error to have shifted the burden of proving the alleged violation of the fundamental rights of the Applicant upon the Respondent.” Per SHUAIBU, JCA

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Not Available

 

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