CONSTITUTIONAL LAW ā Fundamental Rights ā Enforcement Procedure Rules Not Applicable Where Principal Claim Is Tortious
Principle Statement
A claim under common law can be joined in an application under Section 42 of the 1979 Constitution where such claim is secondary, ancillary, or incidental to a fundamental rights breach. Where the claims are common law claims or reliefs, they are wrongly brought under the Fundamental Rights (Enforcement Procedure) Rules instead of by writ of summons.
Ratio Decidendi (Source)
Per Kutigi, JSC, in Abdulhamid v. Akar (2006) NLC-123-240-2001(SC) at pp. 11ā12; Paras EāA.
"I have no doubt at all that a claim under the common law can properly be joined in an application under Section 42 of the 1979 Constitution, where such a claim is secondary, ancillary or incidental to the complaint of a breach of fundamental right. In the instant case, the claims as found by both the High Court and the Court of Appeal were common law claims or reliefs which were wrongly brought under the Fundamental Rights (Enforcement Procedure) Rules instead of by Writ of Summons."
Explanation / Scope
Common law claims may join fundamental rights claims only if ancillary. Principal common law claims cannot be brought under fundamental rights procedure. The principle applies to constitutional law.
