Legalpedia Citation: (2023-07) Legalpedia 70458 (CA)

In the Court of Appeal

Holden At Kaduna

Mon Jul 31, 2023

Suit Number: CA/K/267/2018

CORAM

Muslim Sule Hassan JCA

Mohammed Baba Idris JCA

Chidi Nwaoma Uwa JCA

PARTIES

1. YUNUSA PETER
2. SALOMI YUNUSA PETER

APPELLANTS

1. MARIA ILIYA
2. BISHIR UMARU
3. ALHAJI BELLO ABDULKADIR (DISTRICT HEAD OF DANEIJI)
4. ALHAJI KABIR GARBA (VILLAGE HEAD OF DANTUTURE)
5. COMMISSIONER OF POLICE KATSINA STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, HUMAN RIGHTS, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellants who were Applicants at the lower Court, by a Motion on Notice dated the 9th day of May, 2017 and then, an Amended Motion on Notice filed on the 19th day of July, 2017, applied for the enforcement of their fundamental rights pursuant to the provision of Section 37 and 38 of the Constitution of Federal Republic of Nigeria 1999 (as amended), Order II Rules (1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules 2009 and under the inherent jurisdiction of the Court.

They claimed that the consent of the 1st Applicant was never obtained before the Marriage of the victim to the 2nd Respondent by the 3rd and 4th Respondents as required under Sharia law, they having claimed to have married her out in line with Sharia Law. They further claimed that the 1st and 2nd Respondents who took the Victim to the 3rd Respondent actually abducted and/or kidnapped her days before they married her out.

The learned trial Judge ruled against the Appellant stating that the suit is inconsistent with the requirements of fundamental Human rights procedure. Dissatisfied with the said judgment of the lower Court, the Appellants filed the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether the trial Court was right in dismissing the Appellants’ application for the enforcement of fundamental rights as provided under Sections 37 and 38 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) for being incompetent?

RATIONES DECIDENDI

FUNDAMENTAL RIGHT – MEANING OF FUNDAMENTAL RIGHTS AND THE PROCEDURE FOR THE ENFORCEMENT OF THESE RIGHTS

A fundamental right is a right guaranteed in the Nigerian Constitution. It is a right which every citizen is entitled to by reason of being a human being unless if a person suffers any of the disabilities set out in the Constitution. See the case of FAJEMIROKUN VS. COMM. BANK (NIG) LTD (2009) 21 WRN 1. There are therefore constitutional provisions and rules of procedures contrived for the enforcement of those rights specifically entrenched in the Constitution. These rights are so jealously guarded that it is only when a party’s right that has been so breached are such that are clearly protected by the Constitution that the constitutional provision can be exploited to remedy whatever wrong the party would have suffered. See the case of TUKUR VS. GONGOLA STATE GOVERNMENT (1989) 4 NWLR (PT. 117) 517. – Per M. B. Idris, JCA

FUNDAMENTAL RIGHTS – CONDITIONS PRECEDENT IN AN APPLICATION FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS

In an application for the enforcement of fundamental rights, it is a condition precedent that the enforcement of the fundamental right should be the main claim and not the accessory claim.

Where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly invoked, and the suit would be incompetent. See the case of EMEKA VS. OKOROAFOR (2017) 11 NWLR (PT. 1577) SC 410.

In the case of IHENACHO VS. N. P. F. (2017) 12 NWLR (PT. 1580) CA, the Court held that for a claim to qualify as falling under the Fundamental Rights Enforcement Procedure Rules, it must be clear that the principal relief sought by the Applicant is for the enforcement of a fundamental right and not to redress a grievance ancillary to the principal relief which is not itself ipso facto a claim of fundamental right. – Per M. B. Idris, JCA

RELIEF – RIGHTS OF COURTS TO GRANT RELIEFS

…it is not within the province of the Court to grant a relief not sought for by the parties and especially when there is no evidence before the Court to grant the relief sought for. – Per M. B. Idris, JCA

FUNDAMENTAL RIGHTS – APPLICANTS IN AN ACTION FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS

In an action for the enforcement of fundamental rights, the Applicant may include the following:

(i) Anyone acting in his own interest;

(ii) Anyone acting on behalf of another person;

(iii) Anyone acting as a member of, or in the interest of a group or class of persons;

(iv) Anyone acting in the public interest; and

(v) Association acting in the interest of his members or other individuals or groups. (Emphasis provided) See also the case of UDO VS. ROBSON & ORS (2018) LPELR – 45183 (CA). – Per M. B. Idris, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Fundamental Rights (Enforcement Procedure) Rules 2009

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