LEGAL PRINCIPLE: CIVIL PROCEDURE — Fundamental Rights Enforcement — Ancillary Relief — Reinstatement Not Available Where Principal Claim Is Wrongful Dismissal
PRINCIPLE STATEMENT
Where the principal claim is wrongful termination of appointment, all claims—principal and subsidiary—flowing directly from it are incompetent under the Fundamental Rights Rules and ought to be struck out.
RATIO DECIDENDI (SOURCE)
"In this appeal the claims are partly for wrongful dismissal or termination of appointment and partly for breach of fundamental right. But here as in Tukur, the principal claim being wrongful termination of appointment which ought to have been commenced by a writ of summons which was not, then all the claims principal and subsidiary which flow directly from it, are incompetent and ought to be struck out."
EXPLANATION / SCOPE
If the principal claim is wrongful dismissal (which must be commenced by writ of summons), any ancillary claims, including fundamental rights allegations, are also incompetent under the Fundamental Rights Rules. The court cannot sever the fundamental rights aspect from the wrongful dismissal claim. The entire application must be struck out. The principle prevents litigants from fragmenting a single dispute to invoke fundamental rights procedure. The proper course is to commence the action by writ of summons. The fundamental rights allegations, if genuine, can be included in the writ action. The rule ensures that the correct procedure is followed for employment disputes. Reinstatement is not available as an ancillary relief under fundamental rights procedure.
