Legalpedia Citation: (2014) Legalpedia (CA) 17151
In the Court of Appeal
Thu Feb 27, 2014
Suit Number: CA/I/297/2008
CORAM
PARTIES
SOLOMON ADEKUNLE
APPELLANTS
ATTORNEY-GENERAL OF OGUN STATE
RESPONDENTS
AREA(S) OF LAW
APPEAL, JUDGMENT AND ORDERS, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant was charged with the offence of murder, tried, convicted and consequently sentenced to death at the Ogun State High Court. His appeal to the Court of Appeal was dismissed and the subsequent appeal to the Supreme Court was dismissed. Upon the conviction and sentence, being passed on the Appellant being affirmed by the Supreme Court and while waiting for the execution of the Judgment, the Appellant applied to the High Court of Ogun State for the enforcement of his fundamental Rights to Freedom from Torture, inhuman and degrading treatment as guaranteed by Section 34 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 3,4,5,6, and 8 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap.10 Laws of the Federation of Nigeria, 1990.
By the said application, the Appellant sought the following reliefs among other reliefs:
1. A DECLARATION that a citizen of the Federal Republic of Nigeria, the Applicant is entitled to protection against any form of infringement of his fundamental rights guaranteed under Section 34 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999.
2. A DECLARATION that the punishment for murder is death and does not include prolonged period in detention before the execution of the death sentence.
In support of the application were two Affidavits and a Statement stating the grounds of the application. The Respondent filed a Counter Affidavit to oppose the application and the Applicant filed a further and Better Affidavit in response. Learned counsel to both parties thereafter addressed the trial court. In its reserved judgment delivered on 15/06/2007, the trial court granted the declaration sought that, as a citizen of the Federal Republic of Nigeria, the Applicant is entitled to protection against any form of infringement of his fundamental rights guaranteed under Section 34 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999. The other declarations failed on ground of want of evidence and some were adjudged without foundation and accordingly dismissed.
Dissatisfied with the judgment of the trial Court, the Applicant appealed to the Court of Appeal which dismissed the appeal after resolving all the issues presented for determination against the Applicant. The judgment of the trial court was accordingly affirmed.
Further dissatisfied with the decision of the Court of Appeal, the Appellant has lodged the instant appeal. The Respondent raised a Preliminary Objection challenging the competence of the Appellant’s appeal.
HELD
Appeal struck out.
ISSUES
1. Whether the lower court was right in upholding the High Court’s finding that the High court had no jurisdiction to interfere with the death sentence affirmed by this Honourable court notwithstanding the fact that the extant proceedings was for the enforcement of the applicant’s constitutionally guaranteed fundamental right.?
2. Whether the period of incarceration of the appellant on the “death Row” for six (6) years awaiting his execution, indeed constituted a violation of the appellant’s fundamental right prescribed under section 34 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria as well as under Article 5 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation, 1990 justifying an interference with the appellant’s death sentence.?
RATIONES DECIDENDI
PRELIMINARY OBJECTION- WHETHER A RESPONDENT IS EMPOWERED TO RELY ON A PRELIMINARY OBJECTION TO THE HEARING OF APPEAL
“Generally, pursuant to Order 2 rule 9 of the Rules of this court, a respondent is empowered to rely on a preliminary objection to the hearing of the appeal, the purpose being to bring the hearing of the appeal to an end for being incompetent or fundamentally defective. Consequently, once a preliminary objection raised to an appeal succeeds, it terminates the appeal and the court can no longer do anything with the appeal. It has come to an end. See; General Electric Co. Vs Harry Ayoade Akande (2010) 18NWLR (Pt.1229) 596 (2010) SCM (2010) LPELR 9356; Habib Vs. Principal Immigration Officer (1958) 3 FSC 75, or (1958) SCNLR 219. In other words, it is trite that where a preliminary objection to the hearing of an appeal succeeds, the court is not expected, as there would be no need to go further to consider the arguments in support of the issues raised for determination. See; Ralph Uwazurike & Ors Vs. Attorney General of the Federation (2007) 8 NWELR (Pt.1035) 1; (2007) SC 169; (2007) SCM; Attorney General of the Federation Vs. ANPP & 2 Ors (2003) 12 SCNJ 67 at 81; (2003) SCM (2003) 18 NWLR (Pt.851) 182.” – Per ARIWOOLA, J.S.C.
CASES CITED
NONE
STATUTES REFERRED TO
1. 1999 Constitution of the Federal Republic of Nigeria (as amended)
2. African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap.10 Laws of the Federation of Nigeria, 1990
3. Fundamental Rights Enforcement Procedure Rules 1979
4. Supreme Court Rules.