SOLOMON ADEKUNLE v. ATTORNEY-GENERAL OF OGUN STATE
(2014)LCN/6939(CA)
RATIO
CONSTITUTION: ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS UPON A SENTENCE SANCTIONED BY THE CONSTITUTION
See Section 46(2) of the 1999 Constitution (supra) and the cases of Nwangun v. Duru (2002) 2 NWLR (pt. 751) p. 265. Thus, for an applicant to succeed, he must show that the main or principal claim and the consequent relief therein is for the enforcement of his fundamental right. In other words the violation of his fundamental right should not be incidental, ancillary or peripheral to the principal claim or relief sought.
See Tukur v. Government of Taraba State (1997) 6 NWLR (pt. 510) p. 549; Dongtoe v. C.S.C. Plateau State (2001) 19 WRN p. 125 at 127; Basil Egbuonu v. Borno Radio Television Corp. (1993) 4 NWLR (pt.283) p.13; and Chukwuogor v. Chukwuogor (2006) 49 WRN p.183. It is settled law that it is the relief or reliefs claimed that determine the jurisdiction of the Plaintiff or Applicant. See Mogaji & Ors. v. Board of Customs & Excise (1982) NCLR p.269; Chief Oladele Fajemirokun v. Commercial Bank (Credit Lyonnais) Nig. Ltd. (2009) 21 WRN p.1; Achebe v. Nwosu (2002) 19 WRN p.42 and Inah v. Okoi (2002) 23 WRN P.78.
Now, the Supreme Court has held in the case of Kalu v. State (1998) 13 NWLR (pt.583) p.531 that, if after the death sentence has been passed and the convict is in prison custody, if anything arises outside the normal custody that amounts to “torture or inhuman or degrading treatment”, that will be cause of action under the fundamental rights, but not militating against the death sentence. That in such a case, the death sentence stands but a new cause of action has arisen which can be separately enforced and remedied. In other words, that the “inhuman and degrading treatment” outside the inevitable confinement in death row will not make illegal the death row sentence, rather it only gives ground for enforceable right under the constitution. In the instant case, the Appellant has complained of inhuman and degrading treatment while in custody awaiting the execution of the death sentence. I have held that the learned trial judge was right when he held that the Appellant failed to prove or lead evidence on material facts establishing his claims before it. I need not say more on that. What remains solid is that the complaints of the Appellant do not derogate from the death sentence passed on him as to make illegal such sentence which was affirmed by the Supreme Court. Per HARUNA SIMON TSAMMANI, J.C.A
