decision in Abacha v Fawehinmi, in which the Nigerian Supreme Court held that the African Charter cannot be superior to the Constitution and upheld. Download Citation on ResearchGate | GANI FAWEHINMI V. GENERAL SANI ABACHA AND OTHERS: JUDICIAL ACTIVISM OR. General Sanni Abacha v. Chief Gani Fawehinmi, Supreme Court, 28 April General Sanni Abacha, Attorney-General of the Federation, State Security .

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I hold therefore that the name of the Head of State should not have been reflected in the suit in the first place. In the result, guided by the foregoing, I am clearly of the view that the trial court was in error to have taken judicial notice of the detention order.

A party to any civil proceedings who knowing of an irregularity. Put tersely but frankly, it is manifest that the power vested in the detaining authority can be wielded arbitrarily and capriciously without any remedy or vawehinmi to seek a review of the decisions of the detaining authority.

In the final analysis and from the foregoing, the main appeal lacks merit and fails; the same fawehhinmi dismissed.

There is therefore no basis whatsoever for the lower court not to have followed the decision in Labiyi case. I therefore I agree with my learned brother Achike JSC that the detention of the respondent, other than for the first four Jays not covered by Detention Order in question could not 9k challenged in any court of law. Whether the court in taking judicial notice of the detention order was proper. He held that the arrest and detention were illegal and unconstitutional.

Citing the House of Lords decision in Sobhuzaii v.

The cross-appellant needed it to establish the illegality of the detention, on the one hand. Fawehinml Friday, the 28 th day of April Nor was there any affidavit evidence to that effect. IO2 at As a result of the foregoing. I think both courts below were clearly in error to have invoked both Decrees in holding that there was no jurisdiction in the trial Federal High Court to entertain the respondent’s claims.

Abacha v. Fawehinmi- Between Monism and | Gbadebo A Olagunju –

In conclusion I resolve issue I against the respondent. The term ‘Order’ in this context is a term applied to instruments. Pursuant to the rules of this court fawhinmi parties filed and exchanged their respective fawehiinmi briefs of arguments. From these authorities the court below could not be right when it held that the respondent came by a wrong procedure. While rejecting the cross-appellant’s submission of the Chief of General Staff being nonexistent under the aabcha of Decree No.

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It is also counsel’s submission that the principles of International law adumbrated herein cannot apply in the instant case as the parties arc not states and it is not a claim by one nation against another for breach of a treaty between them. It is common place knowledgethat no Government will be allowed to contract out by local legislation.

The respondent, a legal practitioner, was arrested without warrant at his residence, No 9A, Ademola Close, G. He calls in aid Madike v. The principle in Liversidge case was applied in many Nigerian cases where the jurisdiction of abahca of law had been muzzled by the inclusion of ouster clauses in statutes.

Case Abacha v. Fawehinmi

No authority was given in support of this far-reaching proposition. He is not known to have committed any offence under the law and has never been charged with the commission of any crime in any court.

It is thus enacted that all authorities and persons exercising legislative, executive or judicial powers in Nigeria are enjoined to give full recognition and effect to the 0 Africa, in Charter.

That the Decrees of the Federal Military Government cannot oust A the jurisdiction of the court when called to do so in relation to matters pertaining to Human Rights under fwwehinmi African Charter. To counsel, this constitutional provision makes it clear that the provisions of the Constitution will have no binding force e. II of which provides as follows:. Put very succinctly, counsel’s submission is that the ouster clauses erected abaacha those Decrees could not rob the respondent of rights protected or guaranteed under the African Charter; in support of this proposition her dies on the authority of Oshevire v.

Fawehiinmi ‘subsidiary instrument’ means any ‘order. Referring to Article 10 of the African Charter, counsel emphasizes that there is the need for adoptive state to exhaust all local remedies before any recourse is made to the African Charter. Had the lower court done so.

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Domestic Courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change abaxha law of the land. Whether the Court of Appeal was right to have held that the. And at the oral hearing of appeal, their learned counsel proffered oral arguments in further elucidation of the issues raised in their respective briefs.

First, I take some aspects of the preamble enunciated by the member states of the OAU which read:. The respondent, ‘a human rights activist, was arrested at his residence on Tuesday. On the fact of it the purport of the provision is that the jurisdiction of the court is completely ousted. So also the cross-appeal. Whether the Court of Appeal was right in remitting the case back sic to the trial court to consider the consequences of the detention of the respondent for the period of four days not covered by the detention order.

Counsel also submits that the principle of privacy of contract as it applies in domestic law does not govern international law because rights ensure to individuals under a treaty concluded on their behalf by a member state and may be available for enforcement in a municipal court; he refers to Garden Cottage Foods Ltd. Attorney-General of the Federation JCA Cross-respondents’ counsel calls in aid the decision of this Court in ldise v.

C at where Viscount Simonds, delivering the judgment of the House of Lords expressed this principle of law as follows:.

Again, the cross-respondents made no impute in respect of this issue in their briefs. The two lower courts made their respective orders as to costs in the exercise of abachz discretion with which this court cannot interfere. No one has disputed the facts fasehinmi therein. The Court of Appeal in a unanimous judgment allowed the appeal in part and remitted the case back to the trial Court to consider the issue of the consequences or the detention for the four days of the detention of the appellant which is apparently not covered by the order.