IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

ON THIS THURSDAY THE 13^TH DAY OF MARCH, 2014.

BEFORE HIS LORDSHIP: THE HONOURABLE JUSTICE I.M SANI-JUDGE

BETWEEN                                                                                                        SUIT NO: FHC/AK/CS/03/13

MORAYO PHILIP                                 ……………………                               APPLICANT

        AND

1. ADEKUNLE AJASIN UNIVERSITY, AKUNGBA – AKOKO
2. THE SENATE, ADEKUNLE AJASIN UNIVERSITY AKUNGBA -AKOKO
3. THE GOVERNING COUNCIL, ADEKUNLE AJASIN UNIVERSITY,

         AKUGBA AKOKKO

4. THE VICE CHANCELLOR, ADEKUNLE AJASIN UNIVERSITY,                                                                                     

                AKUGBA AKOKO.                                                                                                  RESPONDENT                                                                                                                                                                                                         

5. THE REGISTRAR AND SECRETARY TO COUNCIL,

        ADEKUNLE AJASIN UNIVERSITY, AKUNGBA -AKOKO

6. INSTITUTE OF PART – TIME PROGRAMS, ADEKUNLE AJASIN

        UNIVERSITY, AKUNGBA – AKOKO

REPRESENTATION

EBUN OLU ADEGBORUWA, SAN – FOR THE APPLICANT.

HUSSEIN AFOLABI ESQ, – FOR THE RESPONDENTS.

ISSUE:

COMMENCEMENT OF AN ACTION: Effect of non-compliance with the statutory provision governing the commencement of an action.

PRINCIPLE:

Where there is non- compliance with the mode of commencement of an application under the rules, then it becomes a matter of substantive law which cannot be waived as it is now a jurisdictional matter  which has to be determined since jurisdiction is a fundamental requisite in the adjudication of any matter, it is the life wire of all suit.

Now I pose to ask this question, what determines the jurisdiction of court over application for enforcement of fundamental rights? It has been held in the case of Unical v Ugochukwu (No 1) (2007)17 NWLR (Part 1063) Page 246 Paragraph B-D. as follows

“The reliefs sought in a fundamental right application are the paradigm for determining whether or not a court is seized of jurisdiction in a particular case. When the claim cannot be vividly presented under section 33-46 of the 1999 constitution, the court would have no jurisdiction to hear or grant any order in the matter”

ISSUE:

ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether the enforcement of fundamental right must be the main claim in an application brought under the Fundamental Rights Enforcement Rules

PRINCIPLE:

It is therefore my considered view that having regard to the main claim of the Applicant, this action is not completely and fully constituted as an action for the enforcement of fundamental rights as encapsulated in Chapter IV of the 1999 Constitution and ought to have been commenced under High Court of Ondo State by taking out a writ of summons and I so hold.  In the case of University of Ilorin Vs  Oluwadare (2006) All FWLR (part 338, Page 747 at 755, Paragraphs E-F the Supreme Court held;

“The right of studentship is not among the right guaranteed by the 1999 Constitution, the only appropriate method by which a party could have challenged his expulsion was for him to have commenced the action by a writ of summons under the applicable rules of court”

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