WHEN A LACUNA IN LAW MEETS WITH THE RIGHT OF A CITIZEN

A lacuna is said to exist in law when there is a lack of specific and or general law or a law which is of universal application which can be applied in a matter or situation before the Court. Where there is no specific law but there are existing general laws enacted in respect of similar matters, the general principle is that the general law enacted in respect of similar matters or a law which is of universal application and which has provisions relating to a similar situation before the Court must be applied to resolve the situation. Even, where in very rare cases, there is no existing law regulating or relating to a particular situation brought before the Court, a citizen who has a genuine grievance and has approached the Court for a solution will not be left without a remedy. That is the purport of the Supreme Court’s decision in PDP v. INEC (SUPRA) AT 241 (D-F) where the Court per Uwais JSC held as follows: “For this Court to perform its function under the Constitution effectively and satisfactorily, it must be purposive in its construction of the provisions of the Constitution. Where the Constitution bestows a right on the citizen and does not expressly take away nor provide how the right should be lost or forfeited in the circumstance, we have the duty and indeed the obligation to ensure that the enured right is not lost or denied the citizen by construction that is narrow and not purposive. To this end the established practice of this Court is where the constitutional right in particular, and indeed any right in general, of a citizen is threatened or violated, it is for the Court to be creative in its decisions in order to ensure that it preserves and protects the right by providing remedy for the citizen.”

— M.O. Bolaji-Yusuff, JCA. CCB v Nwankwo (2018) – CA/E/141/2017

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CONSTITUTIONAL RIGHT OF ONE PARTY CANNOT DEPRIVE ANOTHER OF HIS CONTRACTUAL RIGHT

It is unfortunate that the 2nd defendant/respondent felt satisfied with the conviction for stealing the N9,600 and failed to file notice of appeal against the judgment. There is no doubt that from the facts on record in Exhibit ‘T’, he would have secured an acquittal and discharge from the High Court in its appellate jurisdiction. The failure to take advantage of his constitutional right of appeal cannot deprive the appellant of his contractual rights.

— Obaseki, JSC. Osagie v. Oyeyinka & Anor. (1987) – SC.194/1985

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RIGHTS ARE QUALIFIED

IN AMERICAN BANK & TRUST CO. VS. FEDERAL RESERVE BANK OF ATLANTA (1921) 256 @ 500 US. 350, 358, 41 SC et 499 @ 500, the US Supreme Court aptly held: “[T]he word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.”

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COURT SHOULD PROVIDE REMEDY WHERE THERE IS A RIGHT

Both lower courts agreed that the factual situation in the transaction between the parties reveals a right vested in the appellant. The law is that the court must provide a remedy where the plaintiff has established a right. The court is also to look into the substance of an action and not the form. The appellant is entitled to a remedy and justice.

— O.O. Adekeye, JSC. BFI v. Bureau PE (2012) – SC.12/2008

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RIGHT VS PRIVILEGE

I hold that when a claim of right metamorphoses into one of supplication, it ceases to wear the clothe of a right but a mere privilege. In this case the appellant was literally begging the respondent for mercies.

– Pats-Acholonu, JSC. ADECENTRO v. OBAFEMI (2005)

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IMPROPER & IRREGULAR EXERCISE OF RIGHTS CONSTITUTES ABUSE

As I have observed, it is not the exercise of the right, per se, but its improper and irregular exercise which constitutes an abuse. Essentially, it is the inconvenience, inequities, involved in the aims and purposes of the application which constitute the abuse. Otherwise, where there is a right to bring an action the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise. The proposition has been aptly expressed by Lord Halsbury in Mayor & City of Bradford v. Pickles (1895) AC at p.594 when he said, “If it was a lawful act, however, ill the motive might be, he had a right to do it. If it was an unlawful act however good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before your Lordships seem to me absolutely irrelevant.”

— A.G. Karibe-Whyte, JSC. Saraki v. Kotoye (1992) – S.C. 250/1991

TWO WRONGS DO NOT MAKE A RIGHT – GARBA’S CASE

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WHEN A LACUNA IN LAW MEETS WITH THE RIGHT OF A CITIZEN

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CONSTITUTIONAL RIGHT OF ONE PARTY CANNOT DEPRIVE ANOTHER OF HIS CONTRACTUAL RIGHT

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RIGHTS ARE QUALIFIED

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COURT SHOULD PROVIDE REMEDY WHERE THERE IS A RIGHT

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RIGHT VS PRIVILEGE

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IMPROPER & IRREGULAR EXERCISE OF RIGHTS CONSTITUTES ABUSE

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