MRS UCHECHI NWACHUKWU v. HENRY NWACHUKWU & ANOR(2018)

MRS UCHECHI NWACHUKWU v. HENRY NWACHUKWU & ANOR

(2018) LCN/4709(SC)

In The Supreme Court of Nigeria

On Friday, the 8th day of June, 2018

SC.601/2013

RATIO

IMPORTANCE OF JURISDICTION TO ADJUDICATION; CIRCUMSTANCES UNDER WHICH IT CAN BE SAID THAT A COURT HAS JURISDICTION TO HEAR AND DETERMINE A CASE

It is now settled law that jurisdiction is the life blood of adjudication in that any decision by a Court that lacks jurisdiction to hear and determine a matter is a nullity no matter how well conducted see Madukolu vs Nkemdilim 1962 NSCC 374 at 379 – 380. When can it be said that a Court has jurisdiction to hear and determine a case As stated earlier, the Supreme Court in the above cited case decided that for a Court to have the requisite jurisdiction to hear a matter: (a) the Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; (b) the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and (c) the case comes before the Court initiated by due process of the law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. PER WALTER SAMUEL NKANU ONNOGHEN, C.J.N.

CONDITION FOR INSTITUTING A MATTER UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 1979

It is also settled law that for a matter to be instituted under the Fundamental Rights (Enforcement Procedure) Rules, 1979 to enforce the constitutionally guaranteed rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the enforcement of such right(s) must be the main/substantive claim before the Court – not ancillary. In the case of TUKUR VS GOVERNMENT OF TARABA STATE (1997) NWLR (pt. 510) 549 at 574 – 575, this Court stated the law as follows:- When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979, a condition Precedent to the exercise of the Courts 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 right or securing the enforcement thereof should, from the applicant’s claim as presented, be the principal or fundamental claim as presented, and not accessory claim. See THE FEDERAL MINISTER OF INTERNAL AFFAIRS & ORS VS SHUGABA ABDULRAHMAN DARMAN (1982) 2 NCLR 915 in which the principal or main 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 a fundamental right, 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. ” PER WALTER SAMUEL NKANU ONNOGHEN, C.J.N.

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

MRS UCHECHI NWACHUKWU Appellant(s)

AND

HENRY NWACHUKWU
2. MRS FIDELIA NWACHUKWU Respondent(s)

WALTER SAMUEL NKANU ONNOGHEN, C.J.N. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Holden at Owerri, in appeal No. CA/OW/123/2009 delivered on the 10th day of January, 2013 in which the Court set aside the Ruling of the High Court of Imo State in suit No. HAM/65M/2008 delivered on the 23rd day of March, 2009 in which the Court granted the reliefs claimed by the applicant under the Fundamental Rights (Enforcement Procedure) Rules, 1979.

The appellant, who was the applicant at the trial Court, claimed the following reliefs:-
“(a) A Declaration that the physical torture of the applicant, harassment, embarassment, inhuman and degrading treatment meted out to the applicant by the respondents and their hired thugs are a violation of the applicant’s fundamental right to the dignity of the human person as guaranteed under Section 34(a) of the 1999 Constitution of the Federal Republic of Nigeria.
(b) A Declaration that the removal of the private properties belonging to the applicant out of her matrimonial home by the respondents acting in concert or connivance of their

hired thugs on the grounds that the appellant was HIV positive is a clear violation or infraction of the applicants fundamental right to her privacy and family life and to freedom from discrimination as guaranteed by Section 37 and 42 of the 1999 Constitution of the Federal Republic of Nigeria.
(c) Five Million Naira damages only as compensation for their inexcusable and/or unjustified violation of the applicant’s right duly guaranteed by the 1999 Constitution.
(d) An order of injunction restraining the respondents by themselves, their servants, agents, privies, hired workmen popularly known as and called Akpu Obi from harassing, embarrassing, disturbing the private life of the applicant on the same grounds or related grounds that led to the breaches complained of.
(e) Mandatory order of Court compelling the respondents to restore the applicants properties carted away from her home back to her home.

The above reliefs are grounded on the following:-
“1. That the torture, inhuman or degrading treatment meted to the Applicant by the Respondents and their hired thugs is a gross infraction/breach of the Applicant’s Right to dignity of

human person as guaranteed by Section 34 of the 1999 Constitution of the Federal Republic of Nigeria.
2. That the Respondents acting in connivance with unknown men popularly known and called ‘AKPO-OBI’ besieged the Applicant’s Room/Home and carried away her properties/personal belongings to an unknown place and without the consent, knowledge and authority of the Applicant on the allegation that Applicant was a known infected H.I.V. victim is a gross breach of Applicant’s fundamental Rights to private and family life from discrimination as respectively guaranteed under Section 37 and 42 of the 1999 Constitution of the Federal Republic of Nigeria.
3. That the Respondents and their agents carried placards against the Applicant that Applicant was a known H.I.V. victim and that no one should even mix up or do business with Applicant is a gross violation/infraction of Applicant’s Right to freedom from discrimination as guaranteed by Section 42 of the 1999 Constitution of the Federal Republic of Nigeria.
4. By the self same Section 34 of the Constitution of the Federal Republic of Nigeria, the Applicant is entitled to respect for the dignity of her person.”

There was a preliminary objection against the suit as commenced under the Fundamental Rights (Enforcement Procedure) Rules, 1979 on the ground that:
The suit is incompetent and lacking in merit on the ground that matrimonial matters as in the present instance are not enforced through fundamental rights process.”

The ruling on the objection was incorporated in the judgment on the merit of the application which granted all the reliefs claimed resulting in an appeal to the lower Court.

The following six issues were identified for determination of the appeal:
“1. Whether the suit at the Court below is not incompetent (Ground 1).
2. Whether the Court below was right in holding that the Respondent proved torture, inhuman and degrading treatment against her by the Appellants (Ground 2)
3. Whether the lower Court was right in holding that the Respondent’s right to her privacy was violated by the Appellants. (Ground 3)
4. Whether the learned trial Judge was right to award N1 million exemplary damages to the Respondent in the light of undenied affidavit evidence upon which the suit was contested. (Ground 4).

Whether the lower Court was right to hear the matter in chambers and deliver judgment thereat. (Ground 5)
6. Whether there is evidence on record to sustain the judgment of the lower Court. (Ground 6).”As stated earlier in this judgment, the lower Court allowed the appeal and set aside the judgment of the trial Court upon a consideration of issue 1 earlier reproduced herein to wit: whether the trial Court had jurisdiction to entertain the matter as constituted. The Court, contrary to laid down principles guiding intermediate Courts in the determination of issues in appeals before them to wit that all issues for determination must be resolved, the lower Court dealt only with the issue of jurisdiction and haven come to the conclusion that the lower Court had no jurisdiction to entertain the matter as constituted, struck out the suit without proceeding any further to consider the other five issues identified by appellant.In the present appeal however, only one issue has been identified by learned Counsel for appellant in the appellant’s brief filed on 6/11/2013 by C. IKE INEGBU. ESQ., for determination.

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This is as follows:-
Whether the claims of the appellant is suited for ventilation under the Fundamental Rights (Enforcement Procedure) Rules 1979.”

In arguing the issue, learned Counsel for appellant submitted that the law is now settled to the effect that in determining the competence of an action vis-a-vis the jurisdiction of the Court, it is the claim of the plaintiff or relief sought that has to be thoroughly examined by the Court; that where the action in question is commenced by a writ of summons or motions, the processes to be examined are the summons or motions and the supporting affidavit or statement accompanying the application to determine the facts relied upon by the plaintiff/applicant; that in the circumstance, the Statement of Defence or counter-affidavit of the defendant or respondent are not relevant; relying on Ezekwe vs Nnadozie (1953) 14 WACA 361; Tukur vs Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 etc. etc.

It is also the submission of learned Counsel that the instant matter relates to an application for enforcement of the fundamental rights of the applicant/appellant and that the facts disclosed infringement of the said

rights of appellant to dignity of human person under Section 34 of the 1999 Constitution; right to private and family life under Section 37 of the said 1999 Constitution and right to freedom from discrimination under Section 42 of the 1999 Constitution as contained in reliefs (a) and (b) of the reliefs sought in the application.

Learned Counsel then proceeded to state facts relied upon by the applicant for the reliefs claimed and submitted that they relate to the enforcement of the fundamental rights of appellant and therefore within the jurisdiction of the Court. It is the contention of learned Counsel that the complaints of appellant do not fall within the ambit of matrimonial dispute as held by the lower Court because the main plank of the claim before the Court hinges on the humiliating and degrading treatment meted out to appellant and the deprivation of her private and family life. Learned Counsel then referred to the provisions of Section 114 of the Matrimonial Causes Act for the interpretation of “Matrimonial Cause” and submitted that appellant’s case does not fall within that definition and urged the Court to

resolve the issue in favour of appellant and allow the appeal, set aside the judgment of the lower Court and restore the decision of the trial Court.

On his part, learned Counsel for the respondents, NGOZI OLEHI ESQ., in the respondents’ brief filed on 17th January, 2014 formulated an issue for the determination of the appeal, which is, in substance, the same as the issue formulated by learned Counsel for appellant to wit:-
“Whether the Court below was right to hold that the claims of the appellant at the trial Court was not suited for ventilation under the Fundamental Rights (Enforcement Procedure) Rules, 1979.”

It should be noted at this stage, that though the respondents filed a Respondents Notice, same was withdrawn during the hearing of the appeal on the 12th day of March, 2018 as a result of which it was struck out along with the arguments thereon at pages 12 to 34 of the respondents’ brief.

In respect of the issue under consideration, learned Counsel for the respondents submitted that the lower Court was right in holding that the suit was incompetent as it was constituted under the Fundamental Rights (Enforcement Procedure) Rules 1979 when the

circumstances and fact of the matter arose from and revolve around matrimonial relationship. Referring to the facts supplied by appellant at pages 4 to 8 of the record particularly paragraphs 3, 4 and 12 of the affidavit in support of the application and the provision of Section 37 of the 1999 Constitution, learned Counsel stated that the right to private and family life claimed in relief (b) is a guarantee against violations by Government officials and public agencies as no husband can be said to violate the privacy of the wife; that reliefs (c) dealing with damages; (d) injunction and (e) mandatory order compelling the respondents to restore applicants properties are consequential but relate to matrimonial issues which cannot be enforced under the Fundamental rights procedure; that the marriage between the parties is subsisting and the reliefs claimed in the action can only be founded outside the elements of consortium which can only exist if the relationship of husband and wife is dissolved, which is not the case in the instant matter; that the main plank of the claim of appellant does not relate to breach of fundamental rights but to deprive the husband

the privacy of the wife and ascribe to the wife a dignity which the husband should not violate during the subsistence of the marriage; that the substratum of the misunderstanding between the parties is matrimonial and as such the reliefs based on Sections 34, 37 and 42 of the 1999 Constitution cannot be sustained in a proceeding under the Fundamental Rights (Enforcement Procedure) Rules, 1979; that the purpose for instituting the action as disclosed in the record is to seek restoration to the matrimonial home as the wife of 1st respondent as revealed by the filing of Forms 128 and 129 by appellant following an alleged disobedience of an interim order of stay made by the trial Court upon a grant of leave to present the application for enforcement of fundamental right.

Finally, learned Counsel urged the Court to resolve the issue against appellant and dismiss the appeal.

When can it be said that a Court has jurisdiction to hear and determine a case As stated earlier, the Supreme Court in the above cited case decided that for a Court to have the requisite jurisdiction to hear a matter:
(a) the Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;
(b) the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of the law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

In the case of TUKUR VS GOVERNMENT OF TARABA STATE (1997) NWLR (pt. 510) 549 at 574 – 575, this Court stated the law as follows:-
When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979, a condition Precedent to the exercise of the Courts 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 right or securing the enforcement thereof should, from the applicant’s claim as presented, be the principal or fundamental claim as presented, and not accessory claim.
See THE FEDERAL MINISTER OF INTERNAL AFFAIRS & ORS VS SHUGABA ABDULRAHMAN DARMAN (1982) 2 NCLR 915 in which the principal or main 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 a fundamental right, 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. ”

In the instant case, whereas the present respondents have contested the jurisdiction of the Court to entertain the matter as contested, and the lower Court has agreed with their contention, appellant and the trial Court contented the contrary. The question is therefore which of the views is correct having regard to the facts as disclosed on record

I had earlier in this judgment reproduced the reliefs claimed and the grounds on which they are claimed. What is left is the facts in support of the grounds and reliefs as disclosed in the verifying affidavit. The relevant paragraphs are: 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 where the present appellant as applicant deposed as follows:-
2. The Applicant and the 1st Respondent are wife and husband respectively.
3. The applicant was married to the 1st Respondent on record in accordance to the Native Law and Custom of Umuoya Ofulu, Ahiara Mbaise in Ahiazu Mbaise Local Government, Area of Imo State of Nigeria sometime in 1998.

Thereafter, and in the same year Applicant and 1st Respondent wedded at the St. Joseph Catholic Church, Otutu Ahiara, in the Ahiazu Mbaise Local Government Area of Imo State of Nigeria and the marriage is blessed with 3 children, 2 boys and a girl, Francis Nwachukwu, 10 years, Collins Nwachukwu, 8 years, Juliet Nwachukwu, 6 years old
5. The 2nd Respondent is the mother in-law of the Applicant and the brain behind all the actions of the 1st Respondent against his lawful wife, Applicant.
9. Applicant and 1st Respondent kept this result to themselves and continued to live a happy married life, they were still meeting to consummate the said marriage though careful.
10. The Applicant and the 1st Respondent continued as such until when the Applicant finished their building and requested that her mother in-law of the 2nd Respondent be relocated from her old home to their new building oblivious of the danger she was going to face from that decision.
11. Soon after that decision was taken and 2nd Respondent was relocated to the new building to live with the Applicant and her husband, 1st Respondent, trouble ensued between them, all instigated by the 2nd Respondent.

It was at that stage and lately too 1st Respondent now realized that Applicant was a H.I.V victim. The 1st Respondent now connived and/or conspired with 2nd Respondent to make life very unbearable for the Applicant.
13. Sometime in August, 2008, the Applicant was beaten to stupor by the 1st Respondent who at the same time reported a case of Assault against Applicant at the Police Station.
14. Consequent upon the complaint, Applicant was arrested and detained by the police and later released or bailed after she was extorted money from the police.
15. It was at this stage, that 1st Respondent now stopped maintaining the Applicant or having anything to do with her. Applicant was now regarded as a taboo, an outcast by the Respondents who paraded the Applicant as a H.I.V. patient and a societal miscreant.
16. Thereafter, by a letter dated 5th day of September, 2008, Applicant was summoned by the welfare department of the Ahiazu Mbaise Local Government at the instance of the 1st Respondent.
17. The Applicant honoured the said invitation and upon her arrival and to her greatest surprise and embarrassment, Applicant was subjected and/or compelled by the Welfare Department to go for a H.I.V. Screening/Test.

The Applicant and her husband 1st Respondent were given another date by the said welfare unit for interview
19. The Applicant was informed by the said welfare unit that Applicant was H.I.V. positive even though the result of the said screening was never shown to the Applicant till date just like the first one of 2002.
20. On 22nd day of September, 2008, the date given to the Applicant and 1st Respondent to report back to the social Welfare Department for interview, and to Applicant’s greatest surprise and further embarrassment, Applicant was asked by the welfare officer to “Be separated from the 1st Respondent and her 3 children for a continuous period of six months.”
21. Applicant was mentally tortured as to how she could be sent packing out of her matrimonial home for six months without her children and also her joint business with the 1st Respondent.
22. Applicant was also asked by the said welfare unit to forfeit the house she jointly built with the 1st Respondent because of her H.I.V. status.

Applicant being dissatisfied with the obnoxious verdict of the Welfare Department, wrote through her solicitor, Emeka A. Obichere; Esq., on the 24th day of September, 2008 warning the Department of the dangers and legal implications of their reprehensible conduct to the Applicant.
24. Thereafter, the 1st Respondent consulted the law firm of Ngozi C. Olehi and Company of No. 25 Mbaise Road, Owerri who wrote the Traditional ruler of Otulu Ahiara, Eze Finian O. Chukwu requesting/demanding that Applicant be forcefully vacated out of her matrimonial home within “the next three days..” or that his client 1st Respondent will not be held accountable for whatever happens to Applicant.
25. Thereafter, that is after this letter from the chambers of Ngozi Olehi & Company, there arose sudden spate of harassment, torture, humiliations and all forms of inhuman degrading treatment as if the letter gives blessings to same.
26. After this said letter from the said Solicitor/Advocate, the 1st Respondent acting in connivance with the 2nd Respondent and their hired thugs besieged the Applicant’s Room/Apartment while she was away, broke and entered into Applicant’s apartment and carted away all Applicant’s

personal belongings including the sum of fifty thousand naira only kept by Applicant to an unknown place.
27. As if that was not enough the Respondents went and changed all the keys to the entrance to the Applicant’s apartment and Applicant was made to sleep outside that day and till date with her three children.
28. The Respondents also went to the school where Applicant’s children attended and warned the authorities never to allow Applicant access her children because Applicant was H.I.V. positive.
29. Applicant is now moving about the whole village like a mad woman as she has been deprived of her home and business which she jointly built with 1st Respondent.
30. Applicant has also been deprived of the comfort of her children and is now like a rolling stone and has no place to stay.
31. Because of the way and manner the Respondents have carried about Applicant’s name as H.I.V. positive patient, Applicant is now been took upon (sic) with odium and with high sense of disdain.
32. The Respondents are still hatching plans to further remove the remaining of Applicants properties out of her matrimonial home which Applicant jointly built with 1st Respondent.

Applicant also has no access to their joint stock fish business with the result that she is almost starved to death.”The next question is: what did the trial Court say about the issue as to the competence of the suit as constituted At pages 104 line 25 to 105 line 16 of the record, the learned trial Judge stated thus:
“Counsel for the Respondents strenuously argued that whatever rights applicant has flows from Exhibit ‘A’ – the Certificate of marriage. Yes, there are rights and obligations that flow from it but applicant has other rights outside this S. 34 ( 1 ) supra states ” Every individual……
Every individual includes wives and I dare say wives have dignity to their person to be protected. She does not have to rush to the divorce Court under the Matrimonial Causes Act, to restore dignity to her person. The M.C.A. does not offer any protection of this nature except to make it one of the facts under which applicant can obtain or secure dissolution of her marriage or judicial separation. It is obvious from the processes filed by the applicant that she does not want her marriage dissolved.

In holding the view earlier expressed, I realize that I am navigating a big ocean without the aid of a compass In the form of judicial precedents but I am propelled by my desire to see that substantial justices is done to all manner of people including wives and that the Constitution is properly interpreted.”

What was the lower Court’s reaction to the above
At pages 224 – 226 of the record, H S. TSAMMANI, J.C.A reacted inter alia thus:-
It is obvious from the portion quoted above that the learned trial Judge was driven more by sentiments than the desire to do justice. If the learned trial Judge had searched well, she would have seen that a legion of authorities abound regarding the issue raised by the learned trial Judge. The learned trial Judge should have been guided by the fact that the fundamental Rights (Enforcement Procedure) Rules is a special procedure for the enforcement of fundamental rights and no manner of..crafting or interpretation can give right to party to bring an action under those Rules where his cause of action is not suited for or recognized thereby.

What I have laboured to put across is that, the view expressed

by the learned trial Judge is not in line with the decided authorities on the point. That being so a careful and deep application of a judicial mind would show that the claims of the Respondent are not suited for verification under the fundamental Rights (Enforcement Procedure) Rules 1979.
In the instant case, it is clear that the grievances of the Respondent arose out of the matrimonial relationship between her and the 1st Respondent. It is clear that the crack appeared in that relationship due too the H.I.V. status of the Respondent. The main complaint of the Applicant/Respondent as can be gleaned from the reliefs sought and the verified facts supporting the application show clearly that the man plank or claim of the Respondent is for her to be restored to her matrimonial home (though she did not say so in clear terms.) She also seeks her own rights to certain property and business she alleges is jointly owned by her and the 1st Appellant. This fact is revealed by paragraphs 10 – 33 of the verified facts reproduced above. The importation of the terms inhuman and degrading treatment, harassment and embarrassment imported into the reliefs sought

by the respondent do not in my view derogate from the fact that the facts of the case disclose a matrimonial dispute between the 1st Appellant and the Respondent…..”

I have carefully gone through the processes filed in the matter before the trial Court and the proceedings leading to the judgment presently on appeal and I am of the firm view that the lower Court is right in its conclusion that the main plank of the claim of appellant does not lie in enforcement of fundamental rights. The verifying affidavit earlier reproduced in this judgment exhibited Exhibits “A”, “B”, “C” and “D” all bordering on matrimonial issues. Whereas Exhibit “A” is the marriage certificate evidencing the marriage between appellant and 1st respondent, the matrimonial misunderstanding between the parties to the said marriage gave rise to the complaint that resulted in the issuance of Exhibits “B”, “C” and “D”. All these exhibits deal with matrimonial’ issues. It is also the complaint of appellant that she received an invitation from the Social Welfare-Department of Ahiazu Local Government which ordered her separation from the 1st respondent because

of her H.I.V. status resulting in her mental torture. Exhibit “C” which was written by learned Counsel for appellant is headed: “Re: Threat to forcefully separate our client from her matrimonial home” and demanded a restoration of appellant’s marriage. In short, the case of appellant against her husband and mother-in-law is simply that she was forced out of her matrimonial home and deprived of her matrimonial rights after several assaults on her. The reliefs particularly the prayer after an order “directing that all harassment …… torture of applicant by sending her out of her matrimonial home on an allegation that Applicant is H.I.V. positive by Respondents and members of her family be stayed” is directed at the need for applicant to remain in the family home with 1st respondent as her husband. The restraining order in relief (C) preventing the respondent from interference with appellant or her enjoyment of her stay in the matrimonial home means that 1st respondent must live with appellant despite evidence of the collapse of the marriage – definitely not an enforcement of appellant’s fundamental rights.

From the totality of the facts disclosed on record, particularly the case presented by appellant, it is clear that the desire of appellant is to be restored to her matrimonial home. In granting the leave for appellant to present the application for enforcement of her fundamental rights, the trial Court ordered that the leave so granted shall operate as a stay in the following terms, see page 23 of the record:
Leave so granted shall act as a stay in respect of all actions or matters relating to or connected with the pendency of this application that is to say that all harassments, embarrassments, humiliations, torture of applicant by sending her out of her matrimonial home on allegation that she is H.I.V. positive by respondents and members of her family be stayed.”

Following the above order of stay, appellant at page 53 of the record, filed FORM 128 which is Notice of Consequence of Disobedience to order of Court which was duly served on the respondents. At page 56 of the record is Form 129 which is a follow up of Form 128 and is the ‘Notice to show cause why order of Committal should not be made Against You.”

In conclusion, I find no merit in the issue as raised and consequently resolve same against appellant and dismiss the appeal. The judgment of the lower Court in appeal NO. CA/OW/123/2009 delivered on the 10th day of January, 2013 is hereby affirmed.
Parties to bear their respective costs.
Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother WALTER SAMUEL NKANU ONNOGHEN CJN just delivered do hereby, in agreeing with his reasoning and conclusion therein that the appeal is lacking in merit, dismiss the appeal.

I abide by the detailed facts of the case that brought about the appeal as summarized in the lead judgment in restating the applicable principles, purely for the sake of emphasis, in the resolution of the issue the appeal raises. The lone issue the appellant distilled as arising for the determination of the appeal reads:-
“Whether the claims of the appellant is suited for ventilation under the Fundamental Rights (Enforcement Procedure) Rules 1979.

On the issue, learned counsel submits that the issue is about the competence of the action commenced by the appellant in relation to the jurisdiction of the trial Court.

He relies particularly on Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and further submits that where, as in the instant case, a Court’s jurisdiction is being challenged in respect of a matter commenced by a motion, it is the relief claimed as well as the affidavit in support of the application to examine for answers to the objection. The appellant, it is further submitted, sets out to enforce her rights to the dignity of her person, private and family life and freedom from discrimination as provided for under Sections 34, 37 and 42 of the 1999 Constitution (as amended) respectively. The facts in the affidavit in support of appellant’s application, it is argued, support the reliefs being claimed. The lower Court, it is submitted, is wrong to have held the claim unsuitable and outside the procedure resorted to by appellant.

Learned respondents’ counsel of course supports the decision of the lower Court. Appellant’s claim, from all the facts in the affidavit in support of appellant’s motion, it is submitted does not fall within the purview of the Fundamental Rights (Enforcement Procedure) Rules.

The essence of the claim, it is further submitted, is to have the appellant restored to her matrimonial home. Learned counsel urges that the lone issue be resolved against the respondent and her appeal dismissed.

I agree with both counsel that a Court must have jurisdiction over an action before proceeding to determine the issue the action agitates. In assuming jurisdiction where it has none, the Court will be embarking on a fruitless exercise.
It is settled that no matter how well conducted a Court’s proceedings, once taken in the absence of jurisdiction, they are null and void ab initio. See Onyema & ors V. Oputa & ors (1987) 6 SC 362, Adeyemi V. Opeyori (1976) 9-10 SC 31, CBN & ors V. Okojie (2015) LPELR-24740 (SC).
In Madukolu V. Nkemdilim (1962) 1 ALNLR 587, a Court is said to have jurisdiction over a matter when:
(a) When the subject matter of the case is within the Court’s jurisdiction.
(b) When there is no feature of the case which prevents the Court from exercising its jurisdiction and
(c) When it is properly constituted as regards its members and their qualification.
See also Amobi V. Nzegwu & others (2013) LPELR-21853 (SC).

In the case at hand, it is appellant’s contention that the Fundamental Rights (Enforcement Procedure) Rules 1979 provides her the platform of prosecuting her claim and the lower Court is wrong to have decided otherwise.
I am not impressed.

Examination of the reliefs the appellant canvasses as well as the facts disclosed by the affidavit in support of her claim shows very clearly that her desire is principally for restoration to her matrimonial home. The Fundamental Rights (Enforcement Procedure) Rules 1979 does not provide for such claim. Appellant’s claim not fundamentally aimed at securing the enforcement of her fundamental rights, the lower Court’s decision that it is incompetent cannot be faulted. See: Tukur V. Government of Taraba State (supra) and The Federal Minister of Internal Affairs & Ors V. Shugaba Abdulrahman Darma (1982) 2 NCLR 915.

It is for the foregoing and more so the fuller reasons contained in the lead judgment that I also dismiss the appeal. I abide by the order of costs made in the lead judgment.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the privilege of reading in draft the

reading in draft the judgment of my learned brother, Walter Samuel Onnoghen, CJN, just delivered. I agree entirely with the sound reasoning and conclusion that the appeal lacks merit and should be dismissed.

For a Court to be competent to assume jurisdiction to entertain an application for the enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, it is settled law that the enforcement of the fundamental right should be the main claim and not an accessory claim. See: Tukur Vs Govt. of Taraba State (1997) 6 NWLR (Pt. 510) 549 @ 576 577 H F; Jack Vs University of Agriculture (2004) 1 SC (Reprint) (Pt. ii) 100 @ 112 Lines 5 23; Tukur Vs Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 @ 548; Emeka Vs Okoroafor & Ors. (2017) 11 NWLR (Pt. 1577) 411.
I agree entirely with the Court below that a careful perusal of the reliefs sought and the averments in the verifying affidavit in support of the application, which have been reproduced in detail in the lead judgment, reveals that the main claim is for the respondent to be restored to her matrimonial home and for a restoration of her

rights in the property and business jointly owned with her husband, the 1st respondent.
As rightly held by the lower Court, the appropriate procedure to ventilate her grievances is a petition under the Matrimonial Causes Act or any other appropriate procedure. I agree that the suit as constituted under the Fundamental Rights (Enforcement Procedure) Rules, 1979 was incompetent and the trial Court lacked the jurisdiction to entertain it. It was rightly struck out by the Court below. I find no merit in this appeal. It is hereby dismissed. The judgment of the Court of Appeal, Owerri Division delivered on 10/1/2013 is affirmed. The parties shall bear their respective costs in the appeal.

EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered by my learned brother, W. S. N. ONNOGHEN, CJN. The judgment represents my view in the appeal on the issue canvassed. I hereby adopt it.

The application for the enforcement of the Appellant’s fundamental rights to personal property, family and private life, dignity of her person and against discrimination was brought at the trial Court in subtle way

to settle the Appellant’s matrimonial dispute with her estranged husband and brother-in-law, respectively the 1st and 2nd Respondents herein. The Appellant had ingenuously crafted an otherwise matrimonial causes matter to fit into the special procedure offered by the Fundamental Rights (Enforcement Procedure) Rules (FREPR). That special procedure, on the peculiar facts of this case, does not avail her to ventilate her matrimonial dispute.
A recap of the facts constituting the cause of action on which the Appellant, as the applicant at the trial Court, brought her application for enforcement of her fundamental rights, allegedly violated, will eloquently attest to this posture.
The 1st Respondent is the husband of the Appellant. He resides in Lagos. The Appellant, a petty trader, was living in the Respondents’ family house in their hometown in Imo State. The Appellant and the 1st Respondent had misunderstanding which occasioned the intervention of the Social Welfare Officer for the settlement of the domestic issues. In the course of resolving the domestic dispute, the social welfare officer ordered the Appellant and 1st Respondent, respectively wife and

husband, to undergo HIV tests. They did. The Appellant tested Positive. The 1st Respondent tested negative. On these facts the social welfare Officer advised the 1st Respondent to keep off the Appellant, sexually.
The dispute between the Appellant and the 1st Respondent persisted. The latter, in his bid to cause separation allegedly disclosed the Appellant’s HIV status. In the application, the Appellant alleged that the Respondents in her absence stigmatized her publicly with placard and that also, in her absence, the Respondents allegedly employed thugs to throw out her personal belongings from her matrimonial home.
It is on these facts that the Court of Appeal, reversing the decision of the trial Court, allowed the Respondents’ preliminary objection, which the trial Court dismissed, that the trial Court lacked jurisdiction under FREPR Rules to entertain the action. The cause of action placed the Appellant’s suit within matrimonial causes in respect of which the FREPR is inapplicable. The orders made by trial Court, directing inter alia that the Appellant and her property be restored to her matrimonial home and

restraining the Respondents from violating her private and family life are not orders the trial Court could make under FREPR. I hold the firm view the rights to conjugal rights, to continue to be married to an unwilling spouse, and not to separate and call quits to a marriage are not fundamental rights guaranteed under Chapter IV of the Constitution, 1999. The matrimonial causes so called under Section 114 of Matrimonial Causes Act which include dissolution and nullification of marriage, separation and restitution of conjugal rights, though apparently statutory, do not constitute fundamental rights under Chapter IV of the Constitution and for the purpose of FREPR.
I also find no merit in this appeal. lt is accordingly dismissed.
The parties shall bear their respect costs.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Walter Samuel Nkanu Onnoghen, CJN, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit, and it is accordingly dismissed by me.

Appearances:

IKE INEGBU ESQ. with him, EMMANUEL AKUMA ESQ. For Appellant(s)

NGOZI OLEHI ESQ. with him, MESSRS OBINNA NWACHUKWU and OGBEMDI EZEONYE For Respondent(s)

Appearances

IKE INEGBU ESQ. with him, EMMANUEL AKUMA ESQ. For Appellant

AND

NGOZI OLEHI ESQ. with him, MESSRS OBINNA NWACHUKWU and OGBEMDI EZEONYE For Respondent