CONSTITUTIONAL RIGHT TO FREEDOM OF MOVEMENT

CASE TITLE: CHIEF OTU GREGORY APPH & ORS v. MR. MATHIAS OTURIE (2019) LPELR-46301(CA)

JUDGMENT DATE: 11TH JANUARY, 2019

PRACTICE AREA: CONSTITUTIONAL LAW

LEAD JUDGMENT: MUHAMMED LAWAL SHUAIBU, J.C.A.

SUMMARY OF JUDGMENT

INTRODUCTION:

This appeal borders on the enforcement of fundamental human right. 

FACTS:

This appeal is against the judgment of the High Court of Cross – River, sitting at Ogoja delivered on 17th January, 2017 entering judgment in favour of the respondent herein.

By a Fundamental Right application filed on 11th March, 2016 and brought pursuant to Order 11 Rules 1, 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Chapter IV of the 1999 Constitution (as amended); the respondent as applicant before the trial Court prayed for the followings:

1. A Declaration that the purported banishment of the applicant and his family by the respondents from Butatong Eastern Boki, Boki Local Government Area of Cross River State on the 25th of February, 2016 is illegal, unconstitutional, null and void as same contravenes Section 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. A Declaration that the confiscation of the applicant’s properties by the respondents is a gross violation of his constitutional right as enshrined under Section 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
3. The sum of N50,000,000.00 (Fifty Million Naira) as general damages for the unlawful banishment, dehumanizing treatment and psychological trauma which the applicant is being made to go through with his family (a wife and daughter).
4. An Order of perpetual injunction restraining the respondent, their collaborators, servants, agents, or privies from further interfering with the liberty of the applicant and that of his family their freedom of association, dignity of their person or howsoever violating their fundamental rights.
5. And for any other order or, for further order as this Honourable Court may deem fit to make in the circumstance.

The respondents denied the applicant’s claims in a counter affidavit.

After considering the various affidavit evidence presented by the parties as well as the argument of learned counsel on both sides, the learned trial judge in a reserved and considered judgment found the application to be meritorious and consequently granted prayers 1, 2 and 4. The sum of N2,000,000.00 being general damages was also awarded and costs in the sum of N50,000.00 was awarded against the respondents jointly and severally for the action.

Miffed by the above; appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The appeal was determined on a lone issue viz:

“Whether from the facts and surrounding circumstance of this case, the respondent proved the case as required by law as to be entitled to the grant of the prayers and award of N2,000,000.00 damages and cost of N50,000 in his favour.”

DECISION/HELD:

On the whole, the appeal was dismissed for want of merit, and the judgment of the lower Court was affirmed.

RATIOS:

• CONSTITUTIONAL LAW – RIGHT TO FREEDOM OF MOVEMENT: Scope of the right to freedom of movement under the Constitution
• EVIDENCE – HEARSAY EVIDENCE: Rationale for excluding hearsay evidence; Whether hearsay in an affidavit is admissible
• APPEAL – REPLY BRIEF: At what point will a reply brief be deemed unnecessary
• DAMAGES – AWARD OF DAMAGES: Position of the law on the award of damages for breach of fundamental right(s)