MRS. OLAYIWOLA RACHAEL AGBENIGA v. CHIEF ABRAHAM ADEJIMIROYE & ANOR
(2016)LCN/8088(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of January, 2016
CA/AK/67/2013
RATIO
CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT; CERTAIN RIGHTS THAT CAN ONLY BE ENFORCEABLE AGAINST THE STATE OR ANY OF ITS AGENCIES
Besides, I do agree with the Learned Counsel for the Respondents relying on the decision of the Court of Appeal in Kelvin Peterside Vs. International Bank (Nig.) Ltd (1993) 2 NWLR (Pt.278) 712 at 728 that certain provisions of the chapter IV of the Constitution can only be enforced against government depending on the wording of such rights and that the provision of Section 33 of the Constitution cannot be enforced against individuals because there is a sanction prescribed in the Criminal Code for whosoever threatened the life of another, the right to life is only enforceable against the State or any of its agencies.
The above position of the law is shared by academic writers. Dr. J. M. Elegido had this to say:
“—— There is an absolute legal right where the Constitution of a country protects the right in such a way that no circumstance or emergency justifies the government in lawfully infringing the interest protected by the right. Some such rights are contained in the Constitutions of many African Countries. Under the 1989 Nigerian Constitution the following rights are absolute and subject to no qualification whatsoever.
a. Right to freedom from torture or inhuman or degrading treatment.
b. Right to freedom from slavery.
c. Right to a fair trial by a Court or other independent and impartial Tribunal established by law in respect of criminal offences.
d. Right to life save in execution of the sentence of a Court as a result of the lawful use of force in specified circumstances.”
See, Elegido, J. M. JURISPRUDENCE” (1996) Spectrum Page 178. per. MOJEED ADEKUNLE OWOADE, J.C.A.
PRACTICE AND PROCEDURE: APPLICATION BROUGHT UNDER THE FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES; WHAT THE COURT IS TO EXAMINE UNDER SUCH APPLICATION
I have no doubt from the decided authorities that the proper approach when confronted with an application brought under the Fundamental Right (Enforcement Procedure) Rules is to examine the relief sought by the Applicant, the grounds for such reliefs and the facts relied upon to see if, the breach of fundamental right is the main plank and not just incidental or ancillary to the main complaint.
See. Tukur Vs Governor of Taraba State (1997) 6 NWLR (Pt.510) 549; Egbuonu Vs Borno Radio Television Corporation (1997) 12 NWLR (Pt.531) 29; Truck (Nig.) Ltd Vs. Anigboro (2001) LPELR, SC.120/1995. per. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
MRS. OLAYIWOLA RACHAEL AGBENIGA – Appellant(s)
AND
CHIEF ABRAHAM ADEJIMIROYE
CHIEF (MRS.) MORENIKE ADEJIMIROYE – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of A. O. Adebusoye J. of the High Court of Ondo State sitting at Akure, delivered on 24/1/2013.
The Appellant as Applicant filed an application under the Fundamental Rights Enforcement Procedure Rules 2009 on 30/7/2015 praying for the following reliefs:
1. An order restraining the Respondents, their Agents and Privies Whosoever/Howsoever, from engaging in any further acts of harassment, intimidation, disturbance, inhuman treatment and threat to the life of the Applicant and her household and from engaging in any manner of violation of the fundamental rights of the Applicant to life, dignity of her person and private and family life forth with.
2. N10 Million as exemplary damages against the Respondents for the harassment, intimidation, disturbance, inhuman treatment and threat to the life of Applicant by beating her to comma coupled with further threat to teach her and her husband the lessons of their life.
3. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
The grounds on which the application was based were as follows:
1. Applicant did not commit any offence to warrant the punishment meted to her by the Respondents.
2. Undue harassment, intimidation, disturbance, inhuman treatment, treat to life, private and family life and dignity of human person amount to violation of the Applicant’s fundamental rights.
3. The Applicant is entitled to fundamental rights to dignity of her person, life and property and family life.
The Appellant’s application was accompanied by statement and supporting affidavit, Exhibits and a written address. The Respondents also filed counter-affidavit with Exhibits and a written address.
The case of the Appellant as Applicant is that the Respondents on Sunday, 3rd July, 2011, based on a disagreement over a wooden plank constructed by the Appellant’s husband to divert erosion, assaulted the appellant, while claiming that 2 feet of the land of the Appellant belongs to them. That the Appellant was beaten and molested with cutlass and horsewhip. That she sustained serious/grievous injuries and went into comma for two days before she was resuscitated by medical doctor. That she was admitted in the hospital for about six days thereafter. And, that in spite of this violation, the Respondents were still threatening the life of the Appellant and her family. Consequent on these facts, the Appellant complained about infringement of her fundamental rights to life, dignity of her person and her right to private and family life which was violated by the Respondents.
The case of the Respondents in their counter-affidavit is that the Appellant is their neighbor. That the 1st Respondent built his house in 1982, fenced it and because of the topography of that area, he left about three feet of his land unfenced to allow for flow of erosion between his own house and that of the appellant. That it was the blockade of this space by the Appellant’s husband by the construction of a shop that led to the dispute. The Respondents referred to an incident that happened on 22/06/2009 when the Appellant alleged that the 2nd Respondent procured abortion for the Appellant’s daughter leading to the arrest and detention of the 2nd Respondent. That since then, the Appellant and her husband have been after them (Respondents). The Respondents reiterated the incident of 03/07/2011, when he attempted to remove the blockade put on the drainage by the Appellant’s husband, which was resisted by the Appellant, her husband and children. That the 2nd Respondent came out to assist the 1st Respondent, resulting in her being attacked by the Appellant and her children. That both the Appellant and the 2nd Respondent received treatment at the General Hospital, Igbara-Oke.
That the Respondents are facing an assault charge over the matter at the Chief Magistrate Court, Igbara-Oke based on the complaint of the Appellant. At the end of the case, the Learned Trial Judge found that the Appellant did not prove her case against the Respondents. Also, that the reliefs sought by the Appellant have nothing to do with an alleged breach of her fundamental right, which she sought to enforce.
The Learned Trial Judge observed and held sundarily, first at page 62 of the record that:
I have no doubt in my mind, from the circumstances of this case that it was the intervention of the Applicant in the destruction of the wooden plank by the 1st Respondent, which intervention would have been more than by mere words of mouth, that led to the breakdown of law and order at Ajegunle Street, Ipogun, Ondo State on 03/07/2011.
From Exhibit A attached to the affidavit in support, as well as Exhibits A1 – A4 attached to the counter-affidavit one can infer that both the Applicant and the 2d Respondent were involved in a street fight and it will be difficult to see anything akin to a breach of fundamental right when it is obvious that both the Applicant and the 2nd Respondent took leave of their senses and proceeded on a show of shame in the full glare of members of the public.
If I may say this, the Applicant carried her fundamental right on her head and knocked them down at the site of the wooden plank at Ajegunle Street, Ipogun on 03/07/2011, from where she is yet to pick the pieces.
The Applicant has nevertheless, shamelessly approached this Court seeking the enforcement of her fundamental right and I ask her, what has fundamental right got to do with two people or more fighting over the destruction of a wooden plank constructed on a disputed small piece of land
Again, the Learned Trial Judge continued from page 62 to 63 of the record that:
Both parties are in tandem that the 1st Respondent was in the act of destroying the wooden plank when the Applicant’s husband approached him and attempted to query the destruction, but had to rush to the police station to lodge a complaint. This no doubt was the wisest thing to do and very commendable on the part of the husband of the Applicant. This shows the husband of the Applicant as a rational and sensible man, virtues that can be said to be in short supply in the Applicant, his wife.
The same cannot be said about the Applicant, who saw her husband rushed to the police station to complain about the act of 1st Respondent nevertheless took it upon herself to attempt to prevent the 1st Respondent from completing the destruction. When the Applicant left the comfort of her house and proceeded to where the 1st Respondent was carrying out his act of destruction and prevented him from so doing, she had thrown caution to the wind and with it went her fundamental rights.
I believe that on 03/07/2011, when the Applicant went to the 1st Respondent to prevent him from continuing his act of destruction, she engaged the ft Respondent in a physical attack, which led to a free for all fight. I also believe the case of the Respondent that the 2nd Respondent joined in the fight, resulting in the Applicant and the 2nd Respondent taking themselves on. It was indeed a show of shame!
I fail to see how the Applicant can be said to have succeeded to have proved her application as to warrant this Court finding in her favour, as she has not discharged the burden of proof placed on her shoulders. This I so hold.
This is not the only reason why this Court is reluctant to grant this application. A look at the reliefs being claimed by the Applicant, which are two in number, shows she is seeking a restraining order and monetary damages.
And finally at pages 63 – 64 of the record as follows:
The two reliefs sought by the Applicant have nothing to do with an alleged breach of her fundamental right, which she is seeking to enforce. It is therefore apparent that the reliefs do not fall under fundamental rights as envisaged under Section 46(1) of the 1999 Constitution (as amended) or under Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009.
Consequent on the above, the Court holds that the Applicant has failed woefully to prove her application as required by law and even if proved, the reliefs as claimed are not such as can be granted by this Court. Accordingly, this application is hereby dismissed.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing twelve (12) grounds of appeal in this Court on 13/08/2013.
Appellant filed her brief of argument on 24/7/2013. The Respondents filed a joint brief of argument on 20/6/2014. Appellant filed a Reply brief on 27/6/2014.
Learned Counsel for the Appellant distilled four (4) issues from the grounds of appeal. They are:-
1. Whether the Appellant proved by her affidavit evidence the violation of her rights by the Respondents upon which the Respondents should be called upon to justify or defend themselves.
2. Whether there is an admissible evidence on record to support the decision of the learned Trial Judge that the Appellant attacked the Respondents and thereby throw away her fundamental rights.
3. Whether the right of the Appellant to enforce her fundamental rights is foreclosed to such violation by the Respondents.
4. Whether considering the reliefs sought’ the grounds of the Application and affidavit in support, the claim of the Appellant is enforceable via Section 46 of the 1999 Construction of Nigeria and Fundamental Rights (Enforcement Procedure) Rules 2009.
Learned Counsel for the Respondents formulated one issue determination. It is:
“Whether in consideration of facts in this case, the Appellant is entitled to succeed in her claim before the trial Court”.
I have carefully gone through the records in the instant appeal and have come to the conclusion that a sole issue in the following term would meet the justice of the case, that is:
Whether the Learned Trial Judge was wrong to have dismissed the Appellant’s case.
Learned Counsel for the Appellant submitted that issues are joined by the pleadings of the parties, in the instant case by affidavit and counter affidavit of the parties. That the Appellant by Paragraphs 5 to 12 of her affidavit in support of the application and paragraph 8 of the further and better affidavit gave a sequential view of how the incident leading to the violation of her rights occurred. That the Respondents by their paragraphs 20 to 24 Responded to how the incident occurred. And, that, there is nothing in the relevant paragraphs of the Respondents counter affidavit denying the story as told by the Appellant on the issue before the trial Court.
Appellant’s Counsel submitted that the only seeming addition is Paragraph 20 of the Counter Affidavit where the 1st Respondent alleged that the Appellant, her husband and children beat him and the 2nd Respondent up. But, that, marrying Paragraphs 20 and 24 of the Counter Affidavit and juxtaposing same with paragraphs 5 to 9 of the Appellant affidavit in support would reveal the incoherent and falsity of the Respondent’s claim.
Counsel submitted that the Respondents did not allege anything by their counter-affidavit as insinuated by the Learned Trial Judge. The only Paragraph 20 of the Counter Affidavit which would have assisted the insinuation was not believed either by the trial Judge, the trial Judge haven held, that the Appellant’s husband, in fact went to call the police.
In any event, said Counsel, what would the Appellant have done to justify beaten her to comma by the Respondents That the Learned Trial Judge attempted to provide answer to this when the Court held that:
“If the deposition in her paragraph 7 is anything to go by, one can infer there from that the applicant must have taken steps to prevent the 1st Respondent from destroying the wooden plank before the return of her husband from the police station on the day in question. What she did however, must have led to what she
experienced on that day”
(page 60 of the record).
Appellant’s Counsel submitted that the only inference discernible from the above dictum of the Learned Trial Judge is the confirmation that the Respondents in fact violated the rights of the Appellant. That the trial Judge further confirmed the said violation when he held further on the same page 60 of the record that:
“From the above it can be seen that it is only Exhibit A, which is the medical report that can stand in favour of the Applicant to buttress her case that she was beaten “blue black” by the Respondents on 03/07/2011—-“.
He submitted that it is the law that when an Applicant alleges and proves violation of his rights against the Respondent, the Respondent must justify such violation by cogent and admissible evidence, otherwise, he would be liable in damages. On this, he referred to the case of Onagoruwa Vs. I.G.P (1991) 5 NWLR (Pt.195) 593.
Appellant’s Counsel submitted further that there is no admissible evidence on record to support the decision of the learned trial Judge that the Appellant attacked the Respondents. That in evaluating the relevant paragraphs of the affidavit of the parties, the Learned Trial Judge held that the Appellant engaged the 1st Respondent in a physical attack and as such lost her fundamental rights. He submitted the decision is perverse as there is nowhere in the counter affidavit of the Respondents where they alleged that the Appellant attacked them and that Paragraph 20 of the Counter Affidavit cannot help the Respondents.
Appellant’s Counsel submitted that the Learned Trial Judge assisted the Respondent to supply facts not deposed to by the Respondents in their counter affidavit. The fact that the Appellant attacked the Respondents, which was relied on by the Learned Trial Judge is not apparent on and cannot reasonably be inferred from the counter affidavit of the Respondents.
He argued that the decision is perverse as it is not on consonance with the depositions by the parties. He relied on the case of Nikagbatse Vs. Opuye (2010) 14 NWLR (Pt.1213) P.50.
Appellant’s Counsel submitted further that by Sections 33, 34 and 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Appellant’s right to life, dignity of human person and private and family life are guaranteed. And, that by Section 46 of the same Constitution, the Appellant is enjoined to enforce the breach of her rights.
He submitted that the Respondent deposition in Paragraph 19 and 20 of the Counter Affidavit is neither a defence nor justification for the violation of Appellant’s right.
The trial Judge, said Counsel, dismissed the application on the ground that the parties were involved in street fight and that as a result the Appellant lost her fundamental rights.
Counsel submitted that assuming but not conceding that the Appellant and the Respondents were involved in street fight, that does not in any way allow the Respondents to beat the Appellant to comma or justifies the Respondents or fore closes the Appellant to enforce her rights.
He added that the Learned Trial Judge placed undue weight on Exhibits A1 – A4 to hold that the parties were involved in street fight.
He referred to the case of Sea Truck (Nig.) Ltd vs. Anigboro (2001) LPELR SC.120/1995 and submitted that the determining factor for competence of application of this nature is the combined substance of the reliefs sought, the grounds of the application and affidavit evidence in support.
Appellant’s Counsel emphasized the provision of Section 46 of the Constitution of the Federal Republic of Nigeria 1999 as one which enables a Court to make such orders in violation of the appellant’s rights as protected by Sections 33, 34 and 37 of the same Constitution.
Learned Counsel referred to the cases of Igwe Vs. Ezeanochie (2010) 7 NWLR (Pt.1192) 61 at 92; Minister of Internal Affairs Vs. Shugaba (1982) 3 NCLR 915 at 994; Engineering Enterprises of Niger Contractor Co. of Nigeria Vs. A-G Kaduna State (1987) 2 NWLR (Pt.57) 381 at 400 and submitted that the provision of Chapter IV of the 1999 Constitution is a restatement of the inherent nature of the rights contained.
In other words, that the rights therein contained are acquired naturally by Nigerians. The enjoyment of the rights are not only made subject to Court pronouncement, they are inalienable rights of man that the Court will only restate for the purpose of enforcement. Also, that the order the Court can make to secure such enforcement is unlimited, even if it will require the Court to pronounce on a new head situation as dictated by the particular facts and circumstances. Appellant’s Counsel furthered that it is on record that the basis for which the Learned Trial Judge further dismissed the application is that the Appellant only claimed restraining order and damages, and that the two reliefs sought have nothing to do with an alleged breach of her fundamental rights.
On this, Counsel submitted that it is not the name the relief is called that matters, but what the relief seek to do as the Court is empowered to make any order for the purpose of securing the enforcement of the Appellant’s rights.
He referred to the case of Federal Republic of Nigeria & Anor Vs. Lord Chief Udensi Ifegwu (2003) LPELR – SC 115/2002 or (2003) 15 NWLR (Pt.842) 113.
He submitted that the case of Abdulhamid Vs Akar (Supra) relied upon by the Learned Trial Judge is distinguishable from the instant case. That the major consideration in that case was the distinction between the principal and ancillary reliefs, and the relevance of the principal/ancillary relief to the issue/grievance before the Court. The principal relief in that case was directed to a grievance that in itself does not fall under Chapter IV but borders primarily on detinue, trespass to chattel, tort, battery and false imprisonment.
On the other hand, said Counsel, the issue and grievance involved in the instant case as can be gleaned from the grounds and affidavit before the Court is nothing but violation of the provisions of Sections 33, 34 and 37 in relation to the Appellant. Furthermore, according to Counsel, both the principal and ancillary reliefs are aimed at enforcement of the rights of the Appellant to life, dignity of her person and private and family life.
Appellant’s Counsel further referred to the cases of Truck (Nig.) Ltd Vs. Anigboro (Supra); Tukor Vs. Governor of Taraba State (1997) 6 NWLR (Pt.510) 549 and Egbuonu Vs. Borno Radio Television Corporation (1997) 12 NWLR (Pt.531) 29.
He submitted that by Section 33 of the Constitution, Appellant is entitled to right to life, but was beaten to comma by the Respondents such that she was only resuscitated two days after and admitted for further six days. That, by Section 34, the Appellant is entitled to dignity of human person, but was dehumanized by the Respondents by beating her with cutlass and horsewhip such that she collapsed and lost consciousness. By Section 37, the Appellant is entitled to right to private and family life but was threatened alongside her household by the Respondents to withdraw the criminal charge instigated against the Respondents.
Finally, Appellant’s Counsel submitted that the Appellant’s application is competent and urge that the appeal be allowed.
Learned Counsel for the Respondents submitted that the Appellant did not prove how her fundamental rights to life, dignity of human person and private and family life was infringed upon. He referred to the case of A.G Anambra State Vs. A.G Federation (2005) 9 NWLR (Pt. 931) 572 and submitted further that the fundamental rights enforcement cannot be used as an instrument of victimization and avenue for personal enrichment.
He argued that in the circumstance the Appellant could not be heard to complain of any breach of her fundamental right. Also, that in the case of Kelvin Peterside Vs. International Merchant Bank (Nig.) Ltd (1993) 2 NWLR (Pt.278) 712 at 728, the Court of Appeal held that certain provisions of Chapter IV of the Constitution can only be enforced against government depending on the wording of such rights. He submitted that the provision of Section 33 of the Constitution cannot be enforced against an individual like the Respondents herein. The reason being that there is a sanction prescribed in the criminal code for whosoever threatened the life of another, the right to life is only enforceable against the state or any of its agencies.
Learned Counsel for the Respondents submitted further that even in her reliefs before the trial Court, the Appellant did not pray for a declaration that her fundamental rights was breached but only sought for restraining order without any evidence before the trial Court that the Respondents violated the fundamental rights of the Appellant.
He referred to the cases of Military Gov. Lagos State vs. Ojukwu (2001) FWLR (Pt.50) 1779; Orji vs. Zaria Ind. Ltd (1992) 1 NWLR (Pt.216) 124 and Oduwole Vs. Famakinwa (1990) 4 NWLR (Pt.143) 239.
Counsel for the Respondents opined that the trial Court dismissed the Appellant’s application based on two grounds:
1. The Appellant failed to prove her application as to warrant the Court finding in her favour, as she has not discharged the burden of proof placed on her shoulders (page 63 of the record).
2. The two reliefs sought by the Appellant have nothing to do with an alleged breach of her fundamental right.
He argued that the trial Court was right to have dismissed the Appellant’s application as there was no evidence to support the Appellant’s claims.
RESOLUTION OF THE SOLE ISSUE
In resolving the sole issue in this appeal, it is important to restate that the Learned Trial Judge dismissed the Appellant’s application for two related reasons:
1. That the Appellant failed to prove her case for breach of fundamental rights as there was evidence of fighting (street fighting) between parties which prevented the Appellant for a claim of fundamental right.
2. That the reliefs sought by the Appellant have nothing to do with alleged breach of her fundamental right.
In this appeal, Learned Counsel for the Appellant made heavy weather of what he termed or believed to be improper evaluation of affidavit evidence by the trial Court. I would say that whichever way one looks at it, none of the parties by their depositions would deny that there was fighting between them or perhaps street fighting as described by the Learned Trial Judge.
Paragraphs 5 to 10 of the Appellant’s affidavit in support are as germane as Paragraphs 19 to 25 of the Counter Affidavit of the Respondents Paragraphs 5 to 10 of the Appellant’s supporting affidavit read thus:
5. That sometimes on Sunday, 3rd July, 2011 at about 6 am, the 1st Respondent suddenly brought out a cutlass and was destroying the wooden-plank which my husband constructed to divert erosion. My husband attempt to query the destruction of the wooden-plank met a serious attack by the 1st Respondent who threatened to cut my husband into pieces if he comes near him while claiming 2-feet (parcel of land) (sic) into our compound behind his fence wall.
6. That my husband immediately ran to police station, Igbara Oke Division to lodge complaint of likely breach of the peace.
7. That when I discovered that the 1st Respondent will destroy the property before the arrival of my husband, I queried the destruction. The 1st Respondent immediately bounced on me with cutlass in his hand, crapped my legs and I fell immediately. The 2nd Respondent brought out horsewhip and I was beaten blue black.
8. That whenever I made effort to stand up and run, the 1st Respondent will stop me and attempt to hit me with the cutlass while the 2nd Respondent flogged me all over my body with horsewhip.
9. That I was mercilessly beaten by the Respondents such that I sustained serious bodily injuries, the 2nd Respondent bite me by my left arm wherein I sustained deep cut and my body swollen all over before I was rescued by neighbours.
10. That as a result of the beaten, intimidation, harassment and threat to my life, I lost strength and went into comma only to be resuscitated two days after by the medical officers at the General Hospital, Igbara-Oke.
Paragraphs 19 to 25 of the 43 paragraph counter-affidavit read as follows:
19. That on Saturday 2nd July, 2011 there was again a heavy downpour and the husband of the Applicant went back and blocked the right of way of the erosion with planks and sand which again led to the flooding of my residence which inflicted serious damage to my properties.
20. That on 3rd July, 2011, I had to bring out spades to remove the sand and other planks that the Applicant and her husband used to block the drainage when the husband of the Applicant came out and started fighting with me and he was later joined by his children and the Applicant herself.
21. That the 2nd Respondent had to come to assistance but was also maltreated when the Applicant and her children descended on her, stripped her naked in the presence of the persons like Messers Oyinlola Joseph, Olorunsola Joseph, Abullahi Ajayi e.t.c. who are willing to testify on our behalf.
22. That the Applicant, her husband and children also vowed to kill the 2nd Respondent as she allege that the 2nd Respondent had caused the abortion for her daughter.
23. That it was the said Oyinlola Joseph that separated the Application and the 2d Respondent and later locked our gate when the Applicant and her children were thrown stones at us. 24. That when the police came to the scene of the incident they recovered the stones, the 2nd Respondent’s clothes and damaged shoes at the scene where she was thoroughly molested by the Applicant and her children.
25. That at the Divisional Police Headquarters, Igbara-Oke both the Applicant and the 2nd Respondent were sent to the General Hospital lgbara-Oke for treatment. Attached hereto are the medical card, prescriptions and receipt of the 2nd Respondent marked as Exhibits A1, A2, A3 and A4 respectively.
When the above stated facts are juxtaposed by the Learned Trial Judge who had the duty to evaluate them, he could not be said to be wrong when he held at page 63 of the record that:
“I believe that on 03/07/2011, when the Applicant went to the 1st Respondent to prevent him from continuing his act of destruction, she engaged the 1st Respondent in a physical attack, which led to a free for all fight. I also believe the case of the Respondents that the 2nd Respondent joined in the fight, resulting in the Applicant and the 2nd Respondent taking themselves on. It was indeed a show of shame!
I failed to see how the Applicant can be said to have succeeded to have proved her application as to warrant this Court finding in her favour, as she has not discharged the burden of proof placed on her shoulders. This I so hold.”
Before the above and still at page 63 of the record, the Learned Trial judge pertinently observed:
“The same cannot be said about the Applicant, who saw her husband rushed to the police station to complain about the act of 1st Respondent, nevertheless took it upon herself to attempt to prevent the 1st Respondent from completing the destruction. When the Applicant left the comfort of her house and proceeded to where the 1st Respondent was carrying out his act of destruction and prevented him from so doing, she had thrown caution to the wind and with it went her fundamental rights.”
The conclusions of the Learned Trial Judge could in fact be further explained in philosophical terms. They are in consonance with Hohfield’s Philosophy of rights as correlatives of duties. That is the existence of a duty in A implies the presence of a claim-right in B.
The relationship works both ways as indicated in the lines below.
Claim Right
Duty.
Therefore one can say the existence of a claim-right in A (e.g not to be assaulted) implies the presence of a duty in B (the duty not to assault A).
Besides, I do agree with the Learned Counsel for the Respondents relying on the decision of the Court of Appeal in Kelvin Peterside Vs. International Bank (Nig.) Ltd (1993) 2 NWLR (Pt.278) 712 at 728 that certain provisions of the chapter IV of the Constitution can only be enforced against government depending on the wording of such rights and that the provision of Section 33 of the Constitution cannot be enforced against individuals because there is a sanction prescribed in the Criminal Code for whosoever threatened the life of another, the right to life is only enforceable against the State or any of its agencies.
The above position of the law is shared by academic writers. Dr. J. M. Elegido had this to say:
“—— There is an absolute legal right where the Constitution of a country protects the right in such a way that no circumstance or emergency justifies the government in lawfully infringing the interest protected by the right. Some such rights are contained in the Constitutions of many African Countries. Under the 1989 Nigerian Constitution the following rights are absolute and subject to no qualification whatsoever.
a. Right to freedom from torture or inhuman or degrading treatment.
b. Right to freedom from slavery.
c. Right to a fair trial by a Court or other independent and impartial Tribunal established by law in respect of criminal offences.
d. Right to life save in execution of the sentence of a Court as a result of the lawful use of force in specified circumstances.”
See, Elegido, J. M. JURISPRUDENCE” (1996) Spectrum Page 178.
In the instant case, the Learned Trial Judge was equally right when he held relying on the decision of the Supreme Court in Abdulhamid Vs. Akar (2006) All FWLR (Pt.996) 127 at 150 (per Akintan JSC) that the two reliefs sought by the Appellant are restraining order and damages. And, that 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.
In my opinion, the Learned Counsel for the Appellant tried unsuccessfully to distinguish the case of Abdulhamid Vs. Akar (supra) from the instant case when he referred to the case of Federal Republic of Nigeria & Anor Vs. Lord Chief Udensi Ifegwu (supra) and submitted that it is not the name the relief is called that matters, but what the relief seeks to do.
Even by Counsel’s words, the Appellant’s principal relief in this case dictates a restraining order. Indeed, I would have thought that this case is on all fours with the case of Abdulhamid Vs. Akar (supra) relied on by the Learned Trial Judge. In the Abdulhamid case, the Supreme Court also said at page 150 of the already cited All FWLR:
— Out of the four reliefs sought by the Appellant, two are for an order restraining the Respondents from harassing and intimidating the Appellant and his family as well as seizing any of his properties (reliefs [a] & [c] while the others are for compensation for acts of harassment and intimidation committed against the Appellant and release of the seized vehicles. The jurisdiction conferred in Section 44 (1) of the 1979 Constitution is in respect of any person who alleges that any of the provisions of Chapter IV of the Constitution “has been, is been or likely to be contravened.”
I have no doubt from the decided authorities that the proper approach when confronted with an application brought under the Fundamental Right (Enforcement Procedure) Rules is to examine the relief sought by the Applicant, the grounds for such reliefs and the facts relied upon to see if, the breach of fundamental right is the main plank and not just incidental or ancillary to the main complaint.
See. Tukur Vs Governor of Taraba State (1997) 6 NWLR (Pt.510) 549; Egbuonu Vs Borno Radio Television Corporation (1997) 12 NWLR (Pt.531) 29; Truck (Nig.) Ltd Vs. Anigboro (2001) LPELR, SC.120/1995.
In the instant case, a careful perusal of the Appellant’s reliefs grounds and facts relied on for the application shows that the primary grievance of the Appellant borders on assault, battery e.t.c. and clearly not for the enforcement of a fundamental right to life and/or the dignity of her person.
The Learned Trial Judge was thus right to have also held at page 63 of the record that “This is not the only reason why this Court is reluctant to grant this application. A look at the reliefs being claimed by the applicant, which are two in number shows she is seeking a restraining order and monetary damages.”
The only issue in this appeal is resolved against the Appellant. The appeal lacks merit and it is hereby dismissed.
I make no order as to cost.
MOHAMMED AMBI- USI DANJUMA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
Appearances
A. Omoware For Appellant
AND
O. S. Adedeko For Respondent
