Drafting reliefs to seek enforcement of fundamental rights doesn’t bring it under chapter IV of the constitution

ASSET MANAGEMENT CORPORATION OF NIGERIA v. ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA (TARABA STATE CHAPTER) CITATION: (2019) LPELR-48782 (CA) In the Court of Appeal (Yola Judicial Division)

ON WEDNESDAY, 6TH NOVEMBER, 2019 Suit No: CA/YL/80/2019 Before Their Lordships

CHIDI NWAOMA UWA, JCA

JAMES SHEHU ABIRIYI, JCA ABDULLAHI MAHMUD BAYERO, JCA Between

ASSET MANAGEMENT CORPORATION OF NIGERIA Appellant(s) And

ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA (TARABA STATE CHAPTER) - Respondent(s) LEAD JUDGMENT DELIVERED BY JAMES SHEHU ABIRIYI, J.C.A.

FACTS OF THE CASE

THIS is an appeal against the ruling of the Federal High Court, Taraba Judicial Division sitting at Jalingo in a Fundamental Rights matter where the Respondent was the Applicant and the Appellant the Respondent.

The facts of the case are that the Appellant wrote a letter dated April 28, 2016 to the Respondent demanding payment of a debt. The letter in part reads: “We hereby demand for the immediate payment of the above sum of N235, 021, 647.59 (principal plus interest) as at April 27, 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 percent 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 the Appellant did not contest it. The Appellant was not in Court on December 15, 2016 and was not represented by counsel when the motion on notice was moved and the application granted. Aggrieved by this, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on the following issues: 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.

APPELLANT’S COUNSEL SUBMISSION

On issue one counsel for the Appellant submitted that only actions founded on a breach of any of the fundamental rights guaranteed in the Constitution can be enforced under the Fundamental Rights (Enforcement Procedure) Rules and that such action should be the main claim. That in ascertaining the competence of a suit, the determining factor is the Plaintiff’s claim and the manner in which the Plaintiff’s claim is couched or the categorization given is immaterial.

It was submitted that the best approach in examining a claim for the enforcement of fundamental rights is to examine the reliefs sought and the grounds for such reliefs and the facts relied upon. He referred to the following Supreme Court cases: WAEC vs. Akinkunmi (2008) LPELR-3468 (SC) and Sea Truck Nig. Ltd vs. Panya Anigboro (2001) LPELR3025(SC) and stated that the trial Court never examined the claim of the Respondent to ascertain the nature of the claim to see if it fell under the Fundamental Rights (Enforcement Procedure) Rules.

On issue two, learned counsel for the Appellant submitted that there was improper service especially nonservice of hearing notice on the Appellant and that the judgment of the Court below was based purely on the ground that the Appellant did not contest the motion. He submitted that no material was placed before the Court below suggesting breach of fundamental right of the Respondent. That the purpose of address by learned Counsel is to assist the Court as cases are not decided on address of counsel but on credible evidence and no amount of brilliant address can make up for lack of evidence to resolve any issue before the Court. He referred to Oforishe vs. Nigeria Gas Company Ltd (2017) LPELR-42766 (SC) page 17 – 18.

RESPONDENT’S COUNSEL SUBMISSION

The Respondent submitted, that from the facts, reliefs sought and the grounds of the application, the case was based on the rights of the Respondent as enshrined under Sections 34, 35, 36, 40 and 43 of the Constitution and Articles 5, 6, 7, 10 and 14 of the African Charter. That paragraphs 12 – 32 of the affidavit in support of the originating summons clearly disclose the likelihood of the breach of the rights of the Respondent if the Appellant was allowed to proceed and carry out her threat. It was submitted, that from the facts and circumstances of the entire suit, the entire claim is based on the enforcement of the rights of the Respondent and ought to have been heard under the Fundamental Rights (Enforcement Procedure) Rules 2009.

Furthermore, that there is nothing in the Fundamental Rights Enforcement Rules that says a party should be served with a separate hearing notice. It was submitted, that a party who is aware of the hearing date cannot be heard to demand for a hearing notice. The Appellant, it was submitted, entered no defence so the burden of proof on the Respondent was minimal proof, that is to say as little as possible.

RESOLUTION OF ISSUES

In resolving the issues, the Court held that the fact that learned Counsel drafted his relief as seeking the enforcement of fundamental right does not bring his complaints under Chapter IV of the Constitution; that a trial Court should therefore be able to remove the grains from the chaff. According to the Court, in the instant matter, the Respondent’s application was granted merely because it was not “contested” in spite of the enormous affidavit evidence before it. That the trial Court was expected to examine whether or not the unchallenged evidence was sufficient to establish the claim made by the Respondent relying on Martchem Industries Nig. Ltd vs. M. F. Kent West Africa Ltd (2005) LPELR-1842 (SC) page 12.

That if the Court had taken a glimpse or momentary view of the affidavit evidence before it to arrive at its decision to grant the application of the Respondent to enforce its fundamental right, it would have had no difficulty in arriving at the conclusion that the application had nothing to do with any fundamental rights of the Respondent.

On whether the Appellant was served for the purpose of the hearing of the application. The Court stated that the trial Court did not verify the affidavit of service before it allowed the Respondent to move his motion. That although the Court below stated that from the records service had been effected on the Appellant, the ruling did not state what the Court saw in the record to show that service had been effected, the mode of service, the date service was effected and on whom it was effected. Thus, the failure of the trial Court to sort out the issue of service before allowing the Respondent to argue his application in the absence of the Appellant, was a fundamental error, which went to the jurisdiction of the Court to entertain the application and the defect was not cured after the application had been heard when the Court in a final ruling said records showed that the Appellant had been served without the details highlighted above.

The Court resolved both issues in the Appellants favor.

HELD

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

Appearances:

A. Jalo with him, A. A. Ilu -For Appellant(s)

Cp.ezeokoye

-For Respondent(s)