He who asserts must prove –Oji

The application is supported by a statement pursuant to Order II Rule (3) Fundamental Rights (Enforcement Procedure) Rules (FREP Rules) 2009 wherein the following reliefs are sought: a) A Declaration that the continued and/or continuing harassment, intimidation, invasion of privacy, threat to life, continued and/or continuing compulsory deprivation of the applicant’s interest in a movable property […]

The application is supported by a statement pursuant to Order II Rule (3) Fundamental Rights (Enforcement Procedure) Rules (FREP Rules) 2009 wherein the following reliefs are sought:
 a) A Declaration that the continued and/or continuing harassment, intimidation, invasion of privacy, threat to life, continued and/or continuing compulsory deprivation of the applicant’s interest in a movable property (Kia Rio Motor vehicle) by the respondent from the 14th of November 2013 till date in the bid to unlawfully recover debt for the 1st respondent is unconstitutional and a gross violation of the applicant’s fundamental rights guaranteed by sections 33, 37 and 44 of the Constitution of the Federal Republic of Nigeria 1999 and Articles 4, 5, 6, 12, 14, 18 and 19 of the African Charter on Human
Right and People Rights (Ratification and Enforcement Acts LFN)
b) An Order Of Perpetual Injunction restraining the Respondent either by herself or through any other, by themselves or through any other person including her servants, agents, privies, whosoever and howsoever from further harassment, disturbance of privacy, compulsory deprivation of interest in a moveable property, unlawful recovery of debt, threat to the life of the Applicant or in any other manner whatsoever and howsoever violating/infringing on the Fundamental Rights guaranteed to the Applicant
under Chapter IV, Sections 33, 37 and 44 of the Constitution of the Federal Republic of Nigeria 1999 as well as Articles 4, 5, 6, 12, 14, 18 and 19 of the African Charter on Human and People Rights  (Ratification and Enforcement) Act Laws of the Federation of Nigeria.
c) An Order of this Honourable Court directing and/or mandating the respondent to unconditionally release to the applicant the Kia Rio vehicle with vehicle registration number GT 695 AAA Lagos compulsorily seized by the respondent in her bid to apply self-help in recovery of debt.
d) Damages of N300,000 for the violation and infringement of the applicant’s fundamental rights.
e) Costs. He submitted that paragraphs 2 (p) and (s) of the counter affidavit are in conflict and urged that the counter affidavit be discountenanced.
For the respondent, it was argued that the application failed to prove the violation of any of her fundamental rights as claimed i.e. S. 33 Right to Life, S. 37 Right to Private and Family Life.
As for S. 44 of the constitution it was submitted that S. 44 (2) (e) permits property to be compulsorily acquired in execution of a judgment or order of court. While categorically arguing that on the day in question the respondent did not restrain the applicant from taking her vehicle, he argued that the applicant, a judgment debtor has approached equity with dirty hands and has failed to prove any injury she suffered. Learned counsel further submitted that the applicant failed to prove her ownership of the said car and if it was true, though not conceded that the respondent had the particulars of the car, the applicant failed to serve the respondent notice to produce same. Citing KOKORO OWO V OGUNBAMBI (1993) 8 NWLR Pt 313, 627, OLUFOSOYE V FAKOREDE (1993) 1 NWLR Pt 272 742, he urged the court not to act on speculation. He further submitted that claim (b) of the applicant is vague and nebulous and cannot be granted by this court.
In response, Mr. Nwofor, the applicant’s learned counsel urged that ONWO v OKO was decided on chapter 4 of the constitution and is relevant whereas CHIME V CHIME cited by Mr. Lawal is not relevant.
Let me begin by addressing the issue raised by the respondent whether the case of the applicant is justiciable under the Fundamental Rights (Enforcement Procedure) Rules 2009. On this point CHIME V CHIME cited by Mr. Lawal is irrelevant. The case he intended to rely on is KOKORO OWO V LAGOS STATE GOVERNMENT (1985) 6 NWLR 761 at 765 Per Ayoola JCA.
The law is trite that for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief sought is for the enforcement or for securing the enforcement of a fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim for the enforcement of fundamental rights.
Therefore, where the alleged breach of fundamental rights is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it will be incompetent to constitute the claim as one for the enforcement of fundamental rights. See the Supreme Court in ABDULHAMID V AKAR (2006) 13 NWLR Part 996, 127 at 150 paragraphs A-C.
I had earlier on in this judgment stated the reliefs sought by the applicant.
I had also earlier set out the salient facts in her affidavit in support of her application. She alleges that the respondent invaded her privacy by forcefully opening the door of the applicant’s car while the applicant was in the said car and prevented her from turning her steering, then the respondent blocked the gate and thus prevented her from leaving with her car and threatened her life on top of all that.
I have also perused her grounds for bringing this application. It is clear from the grounds for bringing the application, the affidavit relied on and the reliefs sought that the main grouse of the application is the alleged seizure of her car by the respondent to recover a debt for a judgment sum obtained by the respondent against the applicant. I am in agreement with the learned respondent’s counsel, Mr. Lawal, that that is a matter which does not come within the ambit of Chapter IV of the Constitution. It is a matter founded in tort on detinue. The allegation of breach of fundamental right is ancillary.
I therefore hold that this application is not proper under the FREP Rules 2009 and ought to be struck out.
However if I am wrong, I now proceed to the main issue in this application.
Whether the applicant has established that her fundamental rights have been, are being, or are likely to be infringed by the respondent.
The applicant contends that her fundamental rights enshrined in sections 33, 37 and 44 of the constitution have been infringed upon by the respondent.
The law is trite that he who asserts must prove. See S. 131 (1) of the Evidence Act 2011.
The burden is therefore on the applicant who asserts that her fundamental rights have been infringed upon to prove same.
S. 33 (1) of the Constitution provides: ‘’Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.’’
S. 37 of the Constitution provides: “The privacy of citizens, their homes, correspondence, right to telephone conversations and telegraphic communications is hereby private and guaranteed and protected.’’
S. 44 (1) of the Constitution provides: ‘’No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things (a) requires the prompt payment of compensation thereof ; and (b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or both having jurisdiction in that part of Nigeria.’’

To be continued