Thursday, 9 April 2020

Akon Ikpeme: Court Dismisses fundamental rights enforcement suit on discrimination of fmr CJ

Our Correspondent|9 April 2020 

A Federal High Court sitting in Calabar and presided over by Justice Simon Amobeda has dismissed a fundamental rights suit seeking the declaration of the refusal of the Cross River House of Assembly to confirm the state's former acting Chief Judge on the basis of her origin on the grounds that the evidence presented was not "satisfactory."

The court also dismissed the preliminary objections filed by the three respondents challenging the jurisdiction of the court to entertain the matter as well as the locus standi of the applicants.

Five legal practitioners, Olukunle Edun, Ike Augustine, Adams Ochuagu, Emmanuel Ewere and Adedapo Adejumo had in a fundamental human rights suit filed before the Court sought the enforcement of the right of freedom from discrimination of Justice Akon Ikpeme following the actions of the Cross River House of Assembly on March 2, 2020.

The assembly had reportedly voted against the confirmation of Justice Ikpeme on grounds that she hailed from Akwa Ibom state despite being married to a Cross Riverian and serving the state in different capacities, and therefore, constituted a security risk. This led to Governor Ben Ayade swearing in Justice Maurice Eneji whose late wife served as the Special Adviser to the Mr. Ayade's wife.

The Speaker of the Cross River state House of Assembly, the ninth assembly of the state and the Government of Cross River state were listed as first, second and third respondents.

And, the applicants had in their suit dated March 12, 2020 and filed on March 13, 2020 sought five reliefs which included the three declarations that protected her right, an order to set aside the March 2, 2020 resolution of the assembly on Justice Ikpeme as well as "exemplary and aggravated damages in the sum of NGN100,000 million."

But, the respondents in a notice of preliminary objection dated and filed on March 30, 2020, claimed that the court lacked jurisdiction to entertain the subject matter as the application does not fall within the provisions of Section 251 of the 1999 constitution as amended and that the applicants lacked the locus standi to bring the application against the respondents having regards to section 46 subsection 1 of the constitution.

And, in his judgment on Wednesday, Justice Amobeda while ruling on the preliminary objections, held that "so long as the enforcement of human right is the principal claim then the High Court of a state or the FCT and the Federal High Court have concurrent jurisdictions."

According to him, the five claims sought were in line with Chapter 4 and section 42 of the 1999 constitution as amended. He therefore held that the first ground of the preliminary objection was "misconceived" and dismissed.

On the second objection based on locus standi, Justice Amobeda who relied on paragraph 3E of the preamble of the Fundamental Human Rights Enforcement Procedure rules of the court said the want of locus standi cannot be an impediment on a matter which the principal claim was on fundamental human rights.

Amobeda who held that "this application is not and cannot be affected by locus standi," subsequently dismissed the second objection for lacking in merit.

On the substantive suit, Justice Amobeda said after a careful examination of the exhibits presented by the applicants, there was no where it was explicitly stated without ambiguity that the assembly did not confirm Justice Ikpeme due to her state of origin.

He held that the exhibits were "mere reports" of committees of the assembly which can only become resolutions when passed on the floor of the assembly. 

On whether the Court can set aside the resolutions of the assembly, Justice Amobeda held that state assemblies "are masters of their proceedings and thus cannot be compelled by this court."

Relying on section 271 of the 1999 constitution as amended, Justice Amobeda further held that "it is clear that the constitution of the House of Assembly of a state the power to confirm or not to confirm" and since "the applicants have not satisfactorily justified their claim," he said that the reliefs sought were "summarily refused and cannot be granted."

When approached, the counsel to the respondents and Attorney General of Cross River state, Tanko Ashang declined comments citing social distancing as the reason in light of the COVID-19 pandemic as a reason.

And, the counsel to the applicants, Daniel Kip told newsmen that despite the fact the judgment on the substantive suit was not in their favor, he was happy that a precedent had been set on who can file fundamental human rights enforcement suits.

"I wish we secured judgment in our favour, but I am assuaged by the fact that the preliminary objection that sought to strangulate the rights of the Applicants to approach the court and seek the enforcement of the fundamental right of Justice Akon Ikpeme did not succeed. That aspect of the judgment will serve as judicial precedent for subsequent similar cases. I am also assuaged by the fact that the Court did a thorough job in appraising, dissecting and scrutinizing the affidavit evidence and exhibits in resolving the issues before it. 

"Even the respondents agree that had they captured in the letter communicating the resolution of House to the Governor, the main basis for the non-confirmation of Justice Ikpeme as per proceedings of the day in question; being her Akwa Ibom descent, and not cover it up, the suit of the applicants would have succeeded. It was good activism and we don't regret it," Kip said.

On whether the applicants will appeal, Kip averred that: "We have applied for a certified true copy of the Judgment. I personally feel the judgment cannot be faulted. However, by the time the legal team does a further clinical perusal of the judgment, we will take a decision as to whether we are going upstairs."

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