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MRS UCHECHI NWACHUKWU v. HENRY NWACHUKWU & ANOR


In The Supreme Court of Nigeria

On Friday, the 8th day of June, 2018

SC. 601/2013


Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


Between

MRS UCHECHI NWACHUKWU - Appellant(s)

AND

1. HENRY NWACHUKWU
2. MRS FIDELIA NWACHUKWU - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This appeal is against the judgment of the Court of Appeal, holden at Owerri, in appeal No. CA/OW/123/2009 delivered on the 10th day of January, 2013.

???The 1st Respondent is the husband of the Appellant. He resides in Lagos. The Appellant, a petty trader, was living in the Respondents' family house in their hometown in Imo State. The Appellant and the 1st Respondent had misunderstanding which occasioned the intervention of the Social Welfare Officer for the settlement of the domestic issues. In the course of resolving the domestic dispute, the social welfare officer ordered the Appellant and 1st Respondent, respectively wife and husband, to undergo HIV tests. They did. The Appellant tested Positive. The 1st Respondent tested negative. On these facts the social welfare Officer advised the 1st Respondent to keep off the Appellant, sexually. 
The dispute between the Appellant and the 1st Respondent persisted. The latter, in his bid to cause separation allegedly disclosed the Appellant's HIV status. 

The appellant, who was the applicant at the trial Court, claimed the following reliefs:-

(a) A Declaration that the physical torture of the applicant, harassment, embarrassment, inhuman and degrading treatment meted out to the applicant by the respondents and their hired thugs are a violation of the applicant's fundamental right to the dignity of the human person as guaranteed under Section 34(a) of the 1999 Constitution of the Federal Republic of Nigeria.
(b) A Declaration that the removal of the private properties belonging to the applicant out of her matrimonial home by the respondents acting in concert or connivance of their hired thugs on the grounds that the appellant was HIV positive is a clear violation or infraction of the applicant's fundamental right to her privacy and family life and to freedom from discrimination as guaranteed by Section 37 and 42 of the 1999 Constitution of the Federal Republic of Nigeria. 
(c) Five Million Naira damages only as compensation for their inexcusable and/or unjustified violation of the applicant's right duly guaranteed by the 1999 Constitution.
(d) An order of injunction restraining the respondents by themselves, their servants, agents, privies, hired workmen popularly known as and called Akpu Obi from harassing, embarrassing, disturbing the private life of the applicant on the same grounds or related grounds that led to the breaches complained of.
(e) Mandatory order of Court compelling the respondents to restore the applicant's properties carted away from her home back to her home.

There was a preliminary objection against the suit as commenced under the Fundamental Rights (Enforcement Procedure) Rules, 1979 on the ground that:


"The suit is incompetent and lacking in merit on the ground that matrimonial matters as in the present instance are not enforced through fundamental rights process."


The ruling on the objection was incorporated in the judgment on the merit of the application which granted all the reliefs claimed resulting in an appeal to the Appeal Court.

 The Court of Appeal allowed the appeal and set aside the judgment of the trial Court. Aggrieved by the decision of the Appeal Court, the appellant appealed to the Supreme Court.


ISSUES:
The apex Court determined the appeal on the following issue:-

"Whether the claims of the appellant is suited for ventilation under the Fundamental Rights (Enforcement Procedure) Rules 1979."



DECISION/HELD:
On the whole, the Supreme Court found no merit in the appeal and same was dismissed. The judgment of the Court of Appeal in appeal No. CA/OW/123/2009 delivered on the 10th day of January, 2013 was thereby affirmed.


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