Mrs. Olayiwola Rachael Agbeniga V. Chief Abraham Adejimiroye & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of A. O. Adebusoye J. of the High Court of Ondo State sitting at Akure, delivered on 24/1/2013.

The Appellant as Applicant filed an application under the Fundamental Rights Enforcement Procedure Rules 2009 on 30/7/2015 praying for the following reliefs:

1. An order restraining the Respondents, their Agents and Privies Whosoever/Howsoever, from engaging in any further acts of harassment, intimidation, disturbance, inhuman treatment and threat to the life of the Applicant and her household and from engaging in any manner of violation of the fundamental rights of the Applicant to life, dignity of her person and private and family life forth with.
2. N10 Million as exemplary damages against the Respondents for the harassment, intimidation, disturbance, inhuman treatment and threat to the life of Applicant by beating her to comma coupled with further threat to teach her and her husband the lessons of their life.
3. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

The grounds on which the application was based were as follows:

1. Applicant did not commit any offence to warrant the punishment meted to her by the Respondents.
2. Undue harassment, intimidation, disturbance, inhuman treatment, treat to life, private and family life and dignity of human person amount to violation of the Applicant’s fundamental rights.
3. The Applicant is entitled to fundamental rights to dignity of her person, life and property and family life.

The Appellant’s application was accompanied by statement and supporting affidavit, Exhibits and a written address. The Respondents also filed counter-affidavit with Exhibits and a written address.

The case of the Appellant as Applicant is that the Respondents on Sunday, 3rd July, 2011, based on a disagreement over a wooden plank constructed by the Appellant’s husband to divert erosion, assaulted the appellant, while claiming that 2 feet of the land of the Appellant belongs to them. That the Appellant was beaten and molested with cutlass and horsewhip. That she sustained serious/grievous injuries and went into comma for two days before she was resuscitated by medical doctor. That she was admitted in the hospital for about six days thereafter. And, that in spite of this violation, the Respondents were still threatening the life of the Appellant and her family. Consequent on these facts, the Appellant complained about infringement of her fundamental rights to life, dignity of her person and her right to private and family life which was violated by the Respondents.

The case of the Respondents in their counter-affidavit is that the Appellant is their neighbor. That the 1st Respondent built his house in 1982, fenced it and because of the topography of that area, he left about three feet of his land unfenced to allow for flow of erosion between his own house and that of the appellant. That it was the blockade of this space by the Appellant’s husband by the construction of a shop that led to the dispute. The Respondents referred to an incident that happened on 22/06/2009 when the Appellant alleged that the 2nd Respondent procured abortion for the Appellant’s daughter leading to the arrest and detention of the 2nd Respondent. That since then, the Appellant and her husband have been after them (Respondents). The Respondents reiterated the incident of 03/07/2011, when he attempted to remove the blockade put on the drainage by the Appellant’s husband, which was resisted by the Appellant, her husband and children. That the 2nd Respondent came out to assist the 1st Respondent, resulting in her being attacked by the Appellant and her children. That both the Appellant and the 2nd Respondent received treatment at the General Hospital, Igbara-Oke.

That the Respondents are facing an assault charge over the matter at the Chief Magistrate Court, Igbara-Oke based on the complaint of the Appellant. At the end of the case, the Learned Trial Judge found that the Appellant did not prove her case against the Respondents. Also, that the reliefs sought by the Appellant have nothing to do with an alleged breach of her fundamental right, which she sought to enforce.

The Learned Trial Judge observed and held sundarily, first at page 62 of the record that:

I have no doubt in my mind, from the circumstances of this case that it was the intervention of the Applicant in the destruction of the wooden plank by the 1st Respondent, which intervention would have been more than by mere words of mouth, that led to the breakdown of law and order at Ajegunle Street, Ipogun, Ondo State on 03/07/2011.

From Exhibit A attached to the affidavit in support, as well as Exhibits A1 – A4 attached to the counter-affidavit one can infer that both the Applicant and the 2d Respondent were involved in a street fight and it will be difficult to see anything akin to a breach of fundamental right when it is obvious that both the Applicant and the 2nd Respondent took leave of their senses and proceeded on a show of shame in the full glare of members of the public.

If I may say this, the Applicant carried her fundamental right on her head and knocked them down at the site of the wooden plank at Ajegunle Street, Ipogun on 03/07/2011, from where she is yet to pick the pieces.

The Applicant has nevertheless, shamelessly approached this Court seeking the enforcement of her fundamental right and I ask her, what has fundamental right got to do with two people or more fighting over the destruction of a wooden plank constructed on a disputed small piece of land

Again, the Learned Trial Judge continued from page 62 to 63 of the record that: