CASE TITLE: UWUESE V. AZUANA & ANOR (2025) LPELR-81268(CA)
JUDGMENT DATE: 28TH MAY, 2025
JUSTICES: BIOBELE ABRAHAM GEORGEWILL, J.C.A
BATURE ISAH GAFA, J.C.A
NEHIZENA IDEMUDIA AFOLABI, J.C.A
DIVISION: MAKURDI
PRACTICE AREA: CONSTITUTIONAL LAW
FACTS:
This appeal borders on Constitutional law.
This is an appeal against the Judgment of the High Court of Benue State, Katsina-Ala Division, delivered by T. T. Asua, J., on 8/3/2016.
The Appellant as Claimant before the lower Court had commenced an action by way of an Originating Summons against the Respondents as Defendants seeking the enforcement of the Appellant’s fundamental rights, and submitting the following questions for determination, namely:
1. Whether the suspension of pastoral activities placed on the applicant by the respondents does not infringe or violate the applicant’s constitutional right to freedom of worship, and association.
2. Whether the action of the respondents suspending the applicant from pastoral activities because’ the applicant issued a writ of summons against the Respondents amounts to an infraction of the applicant’s constitutional right to access his grievance against any person, body of persons, corporations and government as well as governmental agencies as guaranteed in the 1999 Constitution of the Federal Republic of Nigeria as amended
3. Whether the provision in the constitution of the respondents curtailing the right of a Pastor, or a member of the church from suing or going to court against the church and its leadership to seek redress is inconsistent with the Constitution of the Federal Republic of Nigeria 1999 as amended and therefore liable to be set aside.
On the one hand, according to the Appellant he was at all material times to the commencement of the Suit against the Respondent, a Pastor of the 2nd Respondent, against which the Appellant had earlier commenced an action by means of Writ of Summons in Suit No. KHC/9/2015 over some grievance he had with the 2nd Respondent. However, the Respondents who were not happy as a result of the Suit commenced against them by the Appellant proceeded to suspend the Appellant from all pastoral duties and activities in the 2nd Respondent vide Exhibit JE1, and whose suspension was immediately implemented by the 2nd Respondent’s Local Church vide Exhibit JE2, hence the Appellant sued the Respondents to enforce his fundamental rights against the Respondents.
On the other hand, according to the Respondents, the Respondents did not at any time suspend the Appellant from worshiping in the 2nd Respondent as a member of the Church as he was only suspended as a disciplinary measure from his duties as a Pastor in the 2nd Respondent, and he was therefore, not in any way restricted from worshiping his God in the 2nd Respondent as a member. His fundamental right to freedom of worship, association and or access to Court were not in any way infringed upon or restricted by the Respondents as falsely alleged by him.
ISSUES FOR DETERMINATION:
The Court determined the appeal on these issues, thus:
1. Whether having regard to the pleadings and evidence adduced before the lower court, the lower Court was right in law in refusing to grant the reliefs claimed by the Appellant?
2. Was the lower Court right in law in jettisoning the Appellant’s questions for resolution in the Originating Summons and opting for issues for resolution submitted by the Respondents in determining the Appellant’s Suit at the trial?
3. Was the lower Court right in law in refusing to award the damages claimed by the Appellant?
COUNSEL SUBMISSIONS:
On issue one, learned counsel for the Appellant had submitted inter alia that the Affidavit evidence of the Appellant was not discredited in any material respect to have warranted the lower Court to dismiss the Appellant’s Suit for the enforcement of fundamental rights against the Respondents, and contended that the lower Court was wrong when it held that the Appellant failed to place the Constitution of the 2nd Respondent in evidence which amounted to lack of proof of the alleged inconsistency of the Respondent’s Constitution with that of the Constitution of Nigeria 1999 (as amended), which decision was a clear misconception as to the correct position of law with respect to burden of proof in civil cases in which the burden to produce the Constitution of the 2nd Respondent was on the Respondents but which burden they failed to discharge, and urged the Court to hold that under the Constitution of Nigeria 1999 (as amended), every Citizen of has the unfettered right to access the Court over his grievance and to allow the Appeal, set aside the perverse decision of the lower Court, and grant the claims of the Appellants against the Respondents.
Learned counsel referred to Section 6 of the Constitution Nigeria 1999 (as amended), and relied on Chief Mene Kenon V. Chief Albert Tekam (2001)7 QRR 279 @ p. 282.
It was also submitted that the suspension of the Appellant from his Pastoral activities because he sued the Respondents as revealed in Exhibits JE1 and JE2 amounted clearly to an infraction of the Appellant’s constitutional right to access the Court, and contended that the lower Court was therefore, wrong when it held that it was the duty of the Appellant to produce the Constitution of the 2nd Respondent to prove its inconsistency with the Constitution of Nigeria 1999 (as amended), which clearly amounted to a misapprehension of the burden of proof by the lower Court, and urged the Court to hold that the burden to produce the Constitution of 2nd Respondent was rather clearly on the Respondents since in law the burden of proving a particular fact in civil cases is fixed by the pleadings and is therefore, not static but shifts from side to side, and to allow the Appeal, set aside the perverse Judgment of the lower Court and grant the claims of the Appellant against the Respondents. Learned counsel relied on Omorhirhi V. Enatevwere (1988) SCNJ (Pt. 11) 168; High Grade Maritime Services Ltd. V. First Bank Nig. Ltd (1991)1 NWLR (Pt. 167)290; Bijou Nig. Ltd. V. Osidarohwo (1992) 6 NWLR (Pt. 249) 643; Nigeria Maritime Services Ltd. V. Afolabi (1978) 2 SC 79; Osawuru V. Ezeiruka (1978) 6 SC 135 @ p. 145.
It was further submitted that by Exhibits JE1 and JE2, the Appellant discharged the burden of proof that his suspension by the Respondents was an infraction of his fundamental right to access the Court with his grievance against the Respondents, and contended that in law Exhibits JE1 and JE2, being documents, speak for themselves, and urged the Court to hold that the Appellant having by Exhibits JE1 and JE2 discharged the initial evidence burden that his suspension was merely because he sued the 2nd Respondent, which was regarded by the Respondents as a contravention of the Constitution of the 2nd Respondent, the burden shifted unto the Respondents to prove by placing before the lower Court the said Constitution of the 2nd Respondent to show that the Appellant was merely disciplined by way of suspension as provided in the 2nd Respondent’s Constitution, failing which the claims of the Appellant against the Respondents ought to have been granted by the lower Court, and to allow the Appeal and set aside the perverse Judgment of the lower Court to the contrary and grant the Appellant’s claims against the Respondents.
Learned counsel for the Respondents had submitted inter alia that the lower Court was right in law in refusing to grant the Reliefs claimed by the Appellant as the suspension of Appellant as Pastor of the 2nd Respondent and not as a worshipper or Christian of the 2nd Respondent Church, and contended the Constitutional right of the Appellant was untouched and therefore, cannot amount to any infringement on his fundamental rights to freedom of worship and association and urged the Court to hold that the lower Court was right when it held that on the evidence adduced the Appellant failed to prove the infringement of his fundamental rights to freedom of worship and association as alleged by him against the Respondents, and to dismiss the Appeal for lacking in merit and affirm the correct Judgment of the lower Court. was not infringed upon by the Respondents. Learned counsel referred to Section 38 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended).
It was also submitted that on the evidence as led by the parties in their Affidavit and Counter – Affidavit, the Appellant failed woefully to establish any act of grievance, infringement or violation on his fundamental rights to freedom of worship and association against the Respondents before the lower Court in that on the proved evidence the Appellant was not suspended from worshipping or associating with members of the 2nd Respondent but was suspended only from acting as a Pastor of the 2nd Respondent, and contended that in law the Appellant having not discharged the evidential burden proving his claims against the Respondents, the burden of proof did not shift unto the Respondents as was erroneously submitted for the Appellant, and urged to hold that the lower Court was right in law to have come to a conclusion that the 2nd Respondent’s Constitution is not inconsistent with the Constitution of Nigeria 1999 (as amended) having regards to the totality of evidence before it since the Appellant who had asserted such inconsistency failed to prove same by his failure to place the said Constitution of the 2nd Respondent before the lower Court as required of him and to dismiss the Appeal, and affirm the correct Judgment of the lower Court dismissing the claims of the Appellant for lacking in merit. Learned counsel referred to Section 133 and 136 of the Evidence Act 2011 (as amended), and relied on Union Bank Nig. Ltd V. Ajagu (1990) 1 NWLR (Pt. 126) 328 @ p. 341; Phillips V. Eba Odan Comm. Ind. Co. Ltd (2012) ALL FWLR (Pt. 650) 1254; Irekpita V. Fed. Mori. Fin. Ltd (2012) All FWLR (Pt. 647) 784.
DECISION/HELD:
The appeal was dismissed. The judgment of the High Court of Benue State in which the Claims of the Appellant as Applicant against the Respondents were dismissed for lacking in merit was affirmed.
RATIO:
CONSTITUTIONAL LAW- RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION: What the right to freedom of thought, conscience and religion implies/entails and its limits
“My lords, as rightly pointed out by the lower Court, the right to freedom of thought, conscience and religion guaranteed in Section 38 (1) above is not tied to worship in a particular Church but implies a right not to be prevented without lawful justification from choosing the course of one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary to one’s religious belief.” Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
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