Central Bank of Nigeria V. Chief Daniel Obameneke Okemuo & Anor (2016)

LawGlobal-Hub Lead Judgment Report

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

 This is an appeal against the ruling of the Ikeja Judicial Division of the Lagos State High Court, per O.A TAIWO J, on the 19th day of May, 2010.

A brief fact of the dispute leading to this appeal will suffice. The 1st Respondent instituted an action via an Originating Motion dated 18th November, 2009 before the Lagos State High Court for the enforcement of his Fundamental Human Right under the Fundamental Rights Enforcement Procedure Rules. After the service of the originating processes upon them, the Appellant herein filed a Conditional Memorandum of Appearance in opposition of the originating application, as well as a Notice of Preliminary Objection accompanied by an affidavit and a written address. The 2nd Respondent herein also filed a written address and a counter affidavit opposing the 1st Respondents application at the lower Court.

After the various applications filed above were argued, the lower Court delivered its ruling. Dissatisfied with part of the ruling of the lower Court, the Appellant appealed vide a notice of Appeal dated 1st April, 2011 and filed

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on 5th April, 2011.

Appellants’ Brief of Argument dated 9th September, 2011 and filed 12th September, 2011 but deemed properly filed on 10th February, 2016 and is settled by Oladele Bello Esq. of Olasupo Ashaolu & co. The Respondent however did not file any brief of argument. A sole issue was formulated for determination in the Appellants’ Brief thus:
Whether considering the special nature of the proceedings under the Fundamental Rights Enforcement Procedure Rules vis-a-vis the finding of fact of the trial Court, the Honourable trial Court had and/or properly exercised its jurisdiction by the grants of reliefs 4 and 5 in the application before it.

As earlier stated, the Respondents did not file any brief. It is pertinent to state, before going into the substance of this appeal, that where a Respondent fails to file a Respondents brief, he will be deemed to be uninterested in the Appeal, and he will further be deemed that he has conceded to be bound by whatever the outcome of the appeal is. Order 18 Rule 10 of the Court of Appeal Rules reads thus:
Where an Appellant fails to file his brief within the

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time provided for in Rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument. Where an Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.
This however does not imply that the Appellant is entitled automatically to judgment in his favour, the matter still has to be heard based on the Appellant’s brief and the success or otherwise of the appeal would be solely based on the strength of the Appellant’s argument and the position of the law but not on the failure of the Respondent to file his brief. See the case of UNITY BANK PLC. V. BOUARI (2008) NSCQR VOL. 33 AT 1296; CAMEROON AIRLINES v. MR. MIKE E. OTUTUIZU (2011) LPELR – 827 (SC).

Thus, we shall now consider the Appeal filed by the Appellant on the sole issue formulated in its brief.

Appellant’s counsel in his brief submitted that only actions based on a breach of the

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constitutional provisions on Fundamental Rights can be brought under the Fundamental Rights (Enforcement Procedure) Rules. He cited the case of WAEC v. AKINKUNMI [2008] 9 NWLR (pt. 1091) 151 AT 172; A.T.A POLY v. MAINA [2005] 10 NWLR (pt. 934) 487 AT 502. He further stated that the 1st Respondents sought for 3 declaratory reliefs, an order of perpetual injunction and an order preventing his arrest. He referred to paragraphs 1-8 of the application at pages 29-33 of the records. Although the said Nation Newspaper attached to the affidavit did not show any alleged threat to his fundamental rights.