DOES A RELIEF SEEKING THE ENFORCEMENT OF A RIGHT AUTOMATICALLY BRING A COMPLAINT UNDER CHAPTER IV OF THE CONSTITUTION?

CASE TITLE: AMCON v. ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA (TARABA STATE CHAPTER) (2019) LPELR-48782(CA)

JUDGMENT DATE: 6TH NOVEMBER, 2019

PRACTICE AREA: ENFORCEMENT OF FUNDAMENTAL RIGHTS

LEAD JUDGE: JAMES SHEHU ABIRIYI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on the Enforcement of Fundamental Rights.

FACTS

This appeal is against the ruling delivered on 15th December, 2016, in the Federal High Court, Taraba Judicial Division sitting at Jalingo in a Fundamental Rights matter wherein the Respondent was the Applicant and the Appellant the Respondent.

The facts of the case are that the appellant wrote a letter dated 28th April 2016 to the Respondent demanding payment of a debt. The letter in part read:
“We hereby demand for the immediate payment of the above sum of N235, 021, 647.59 (Principal plus Interest) as at April 27th 2016, within 14 days of receipt of this letter, failing which we shall take appropriate legal recovery measures including but not limited to publication of Key Officials’ Names in National Dailies.
Please note that the loan continues to attract interest at 15% per annum until fully liquidated.

Kindly confirm receipt of this letter by contacting Ameerah Tukur on 08171371351 or Murtala Barde 08037008348.”

It was this demand by the Appellant for the settlement of an alleged debt that prompted the Respondent to file the application before the Federal High Court alleging that its rights under Sections 34, 35, 36, 40 and 43 of the Constitution and Articles 5, 7, 10 and 14 of the African Charter on Human and Peoples Rights had been violated.

The Court granted the application of the Respondent because it was not contested by the Appellant. The Appellant was not in Court on 15th December 2016 and was not represented by counsel when the motion on notice was moved and the application granted.

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on these issues couched as follows:

1. WHETHER the learned trial Judge was right to have allowed this matter to be heard under the fundamental Human Right (Enforcement Procedure) Rules 2009, regard being had to the Affidavit Evidence and Exhibits attached thereto.
2. WHETHER an Application under the Fundamental Human Rights Procedure is granted as a matter of routine.

DECISION/HELD

On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the Federal High Court was therefore set aside.

RATIOS:

• CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether the fact that the relief of an applicant is drafted as seeking the enforcement of his right brings his complaint under chapter iv of the constitution; whether court must examine unchallenged evidence
• CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Effect of failure of the court to verify the issue of service in an action for enforcement of fundamental rights and duty of the court to examine unchallenged evidence in proof of breach of fundamental rights
• EVIDENCE- ADDRESS OF COUNSEL: Whether address/argument of counsel can take the place of evidence