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Uchechi Nwachukwu v Henry Nwachukwu & Anor. (2018) – SC

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➥ CASE SUMMARY OF:
Mrs. Uchechi Nwachukwu v Henry Nwachukwu & Anor. (2018) – SC

by “PipAr” B.C. Chima

➥ COURT:
Supreme Court – SC.601/2013

➥ JUDGEMENT DELIVERED ON:
Friday, 8th June, 2018

➥ AREA(S) OF LAW
Matrimonial causes via fundamental rights rules.

➥ NOTABLE DICTA
⦿ WHEN CAN IT BE SAID THAT A COURT HAS JURISDICTION TO HEAR A CASE
It is now settled law that jurisdiction is the life blood of adjudication in that any decision by a Court that lacks jurisdiction to hear and determine a matter is a nullity no matter how well conducted see Madukolu vs Nkemdilim 1962 NSCC 374 at 379-380. When can it be said that a Court has jurisdiction to hear and determine a case? As stated earlier, the Supreme Court in the above cited case decided that for a Court to have the requisite jurisdiction to hear a matter: (a) the Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; (b) the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and (c) the case comes before the Court initiated by due process of the law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. — Onnoghen, CJN.

⦿ TO USE THE FUNDAMENTAL RIGHTS RULES, THE MAIN CLAIM MUST BE ENFORCEMENT OF HUMAN RIGHTS
It is also settled law that for a matter to be instituted under the Fundamental Rights (Enforcement Procedure) Rules, 1979 to enforce the constitutionally guaranteed rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the enforcement of such right(s) must be the main/substantive claim before the Court – not ancillary. — Onnoghen, CJN.

⦿ MATRIMONIAL ISSUES CANNOT BE BROUGHT VIA THE FUNDAMENTAL RIGHTS RULES
The application for the enforcement of the Appellant’s fundamental rights to personal property, family and private life, dignity of her person and against discrimination was brought at the trial Court in subtle way to settle the Appellant’s matrimonial dispute with her estranged husband and brother-in-law, respectively the 1st and 2nd Respondents herein. The Appellant had ingenuously crafted an otherwise matrimonial causes matter to fit into the special procedure offered by the Fundamental Rights (Enforcement Procedure) Rules (FREPR). That special procedure, on the peculiar facts of this case, does not avail her to ventilate her matrimonial dispute. — Ejembi Eko, JSC.

Available:  Ferodo Limited & Anor. v. Ibeto Industries Limited (2004)

⦿ MATRIMONIAL RIGHTS ARE NOT FUNDAMENTAL RIGHTS UNDER CHAPTER IV CFRN
I hold the firm view the rights to conjugal rights, to continue to be married to an unwilling spouse, and not to separate and call quits to a marriage are not fundamental rights guaranteed under Chapter IV of the Constitution, 1999. The matrimonial causes so called under Section 114 of Matrimonial Causes Act which include dissolution and nullification of marriage, separation and restitution of conjugal rights, though apparently statutory, do not constitute fundamental rights under Chapter IV of the Constitution and for the purpose of FREPR. — Ejembi Eko, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Walter Samuel Nkanu Onnoghen, C.J.N.

➥ APPEARANCES
⦿ FOR THE APPELLANT
C. Ike Inegbu. Esq.

⦿ FOR THE RESPONDENT
Ngozi Olehi Esq.

➥ CASE HISTORY
The 1st Respondent is the husband of the Appellant. He resides in Lagos. The Appellant, a petty trader, was living in the Respondents’ family house in their hometown in Imo State. The Appellant and the 1st Respondent had misunderstanding which occasioned the intervention of the Social Welfare Officer for the settlement of the domestic issues. In the course of resolving the domestic dispute, the social welfare officer ordered the Appellant and 1st Respondent, respectively wife and husband, to undergo HIV tests. They did. The Appellant tested Positive. The 1st Respondent tested negative. On these facts the social welfare Officer advised the 1st Respondent to keep off the Appellant, sexually. The dispute between the Appellant and the 1st Respondent persisted. The latter, in his bid to cause separation allegedly disclosed the Appellant’s HIV status. In the application, the Appellant alleged that the Respondents in her absence stigmatized her publicly with placard and that also, in her absence, the Respondents allegedly employed thugs to throw out her personal belongings from her matrimonial home.

Available:  Chief Adedapo Adekeye & Ors. v. Chief O. B. Akin-Olugbade (1987)

This appeal is against the judgment of the Court of Appeal, Holden at Owerri, in appeal No. CA/OW/123/2009 delivered on the 10th day of January, 2013 in which the Court set aside the Ruling of the High Court of Imo State in suit No. HAM/65M/2008 delivered on the 23rd day of March, 2009 in which the Court granted the reliefs claimed by the applicant under the Fundamental Rights (Enforcement Procedure) Rules, 1979.

The appellant, who was the applicant at the trial Court, claimed the following reliefs, inter alia, “A Declaration that the physical torture of the applicant, harassment, embarassment, inhuman and degrading treatment meted out to the applicant by the respondents and their hired thugs are a violation of the applicant’s fundamental right to the dignity of the human person as guaranteed under Section 34(a) of the 1999 Constitution of the Federal Republic of Nigeria. A Declaration that the removal of the private properties belonging to the applicant out of her matrimonial home by the respondents acting in concert or connivance of their hired thugs on the grounds that the appellant was HIV positive is a clear violation or infraction of the Applicant is fundamental right to her privacy and family life and to freedom from discrimination as guaranteed by Section 37 and 42 of the 1999 Constitution of the Federal Republic of Nigeria.”

➥ ISSUE(S) & RESOLUTION

I. Whether the claims of the appellant is suited for ventilation under the Fundamental Rights (Enforcement Procedure) Rules 1979?

RULING: IN RESPONDENT’S FAVOUR.
A. “I have carefully gone through the processes filed in the matter before the trial Court and the proceedings leading to the judgment presently on appeal and I am of the firm view that the lower Court is right in its conclusion that the main plank of the claim of appellant does not lie in enforcement of fundamental rights. The verifying affidavit earlier reproduced in this judgment exhibited Exhibits “A”, “B”, “C” and “D” all bordering on matrimonial issues. Whereas Exhibit “A” is the marriage certificate evidencing the marriage between appellant and 1st respondent, the matrimonial misunderstanding between the parties to the said marriage gave rise to the complaint that resulted in the issuance of Exhibits “B”, “C” and “D”. All these exhibits deal with matrimonial’ issues.”

Available:  Enawakponmwhem Aighobahi & Ors. v Chief Edokpayi Aifuwa & Ors. (2006) - SC

B. “From the totality of the facts disclosed on record, particularly the case presented by appellant, it is clear that the desire of appellant is to be restored to her matrimonial home.”

C. “For a Court to be competent to assume jurisdiction to entertain an application for the enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, it is settled law that the enforcement of the fundamental right should be the main claim and not an accessory claim. See: Tukur Vs Govt. of Taraba State (1997) 6 NWLR (Pt. 510) 549 @ 576 577 H F; Jack Vs University of Agriculture (2004) 1 SC (Reprint) (Pt. ii) 100 @ 112 Lines 5 23; Tukur Vs Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 @ 548; Emeka Vs Okoroafor & Ors. (2017) 11 NWLR (Pt. 1577) 411.”

D. “The cause of action placed the Appellant’s suit within matrimonial causes in respect of which the FREPR is inapplicable. The orders made by trial Court, directing inter alia that the Appellant and her property be restored to her matrimonial home and restraining the Respondents from violating her private and family life are not orders the trial Court could make under FREPR.”
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✓ DECISION:
“In conclusion, I find no merit in the issue as raised and consequently resolve same against appellant and dismiss the appeal. The judgment of the lower Court in appeal NO. CA/OW/123/2009 delivered on the 10th day of January, 2013 is hereby affirmed. Parties to bear their respective costs.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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