The Federal High Court in Abuja on Wednesday dismissed a N10 billion fundamental rights suit filed by a Nollywood actor, Emeka Ike, against Lere Olayinka, Senior Special Assistant to FCT Minister, Nyesom Wike, and the Independent National Electoral Commission, INEC.
Justice Salim Ibrahim, in a judgment, upheld the preliminary objection of the respondents on the grounds that the suit was incompetent and improperly constituted.
Justice Ibrahim said that the court lacked the jurisdiction to entertain the suit as presently constituted.
“For an applicant (Ike) to succeed in the enforcement of his fundamental right, he must clearly show how it occurred.
“The applicant had the burden to provide strong, convincing and credible evidence to support assertions, as vague or general assertions will not suffice.
“If allegations are contested, the applicant must present additional evidence to bolster his position,” he said.
According to the judge, the applicant has the burden to prove by cogent, credible and convincing evidence, the facts as alleged by him.
The judge observed that the actor hinged his case on the breach of Section 37 of the 1999 Constitution (as amended), which guarantees and protects the right to private and family life.
He said the section guaranteed and protected the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications.
“An analysis of the section tells us, the type of privacy it protects, which are privacy of the citizens, inviolability of their homes, correspondence, telephone conversations and telegraphic communications.
“No doubt, there exist a relationship between Section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Nigeria Data Protection Act (NDPA) 2023.
“Section 1 of the NDPA explicitly states that its objective is to safeguard the fundamental rights, freedoms and interests of data subjects as guaranteed under the constitution.
“Under the applicant’s current relief as evidence from the relief sought, the affidavit in support and exhibits attached to the applicant’s claim properly fits into breach of data protection and privacy.
“From the processes filed on behalf of the applicant, I have not seen any of his inalienable right to privacy that has been breached,” the judge said.
He further observed that Ike filed the action vide fundamental right enforcement rule, but all his arguments were related to breach of his data, information and data protection, which Section 37 of the 1999 Constitution does not explicitly contain.
Justice Ibrahim held that NDPA, 2023, instead, explicitly provided for the actor’s claims.
He said if the right to privacy would cover data protection, there would have been no need to enact a new legislation that is specially dedicated and crafted to address the issue of data privacy and protection.
“NDPA in my view would have given more meaning to the claim of the applicant. I so hold,” the judge held.
The judge also observed that part of the issues raised in the preliminary issue was the mode of commencement of action.
“Mode of commencement of action, are the ways in which actions/matters are commenced in court,” he said, citing a previous Supreme Court case.
According to him, it is trite that an originating summons or originating motion is not meant to be invoked in a hostile action between parties.
He said “in matters of disputed facts where originating summons procedure cannot resolve, and disputed facts are substantial, the proper mode of commencing such action is by writ of summons.
“In the instant case, the disputed facts are quite substantial, and the action is quite hostile, and contentious.
“I am of the firm view that the mode of commencement of this suit as employed by the applicant is not proper, as facts alleged cannot be fought on affidavit evidence. I so hold.
“I also align myself with the submission of learned senior Counsel for the 2″ Respondent in paragraph 2.5 of his Written Address on the preliminary issue raised.”
Besides, he observed that Ike did not raise any argument on the preliminary issues to jurisdiction raised by INEC.
“As facts not disputed are deemed admitted.
“On the whole the notice of preliminary objection hereby succeeds, and this suit is accordingly dismissed.
“The cumulative effect of these, is that the suit is incompetent, improperly constituted, in the form presented and unsuitable for determination by originating motion.
“This court therefore lacks jurisdiction to entertain the suit as presently constituted,” the judge ruled.
On the merit of the substantive suit Justice Ibrahim said the sole issue formulated for determination was whether Ike had been able to prove his case.
The judge held that Ike had failed to prove his case to warrant the reliefs sought.
“On the issue of damages, the applicant is asking for the sum of N10 billion as damages.
“Damages have been defined in the case of POLARIS BANK PLC V. PINHEIRO (2024) LPELR-80293 (SC) as ‘money claimed or monies ordered to be paid to a person as compensation for loss or injury.’
“For a plaintiff to be entitled to damages, a wrong must have been committed.
“For damages to be recoverable by a plaintiff, such must be attributed to an act of the defendant or breach of some duty by the defendant.
“From the affidavit in support of the originating motion, counter affidavits, and further affidavits, I have not seen a breach of any duty of care in the hand of the 2nd respondent (INEC), neither as the applicant shown the duty the 1st respondent (Olayinka) owe to him.
“And since no relationship exists between them, the issue of breach of duty of care cannot come in.
“Once injury and loss have not been proved, then damages cannot be awarded. Therefore, the issue of damages goes to no issue,” he said.
The judge also observed that though Ike sought damages in the sum of N10 billion, he said the issue of data protection, which he hinged his claim on through the NDPA, 2023 only provided for the sum of N10 million or 2 per cent of the organisation’s annual gross revenue in the preceding financial year as provided for under Section 48 of NDPA, especially Section 48(4).
“The applicant cannot ask more than what the law prescribes,” he said.
“From the totality of facts before me, the applicant has not proved his case to warrant the relief sought.
“I hereby resolve the sole issue formulated by this court against the applicant, and this case is hereby dismissed for lack of proof,” Justice Ibrahim declared.
Ike, who aspired to vie for the House of Representatives’ seat for AMAC/Bwari Federal Constituency, Abuja for the 2027 general elections on the platform of Nigeria Democratic Congress (NDC), lost the bid in a primary poll.
The FCT minister’s aide, through a post on X in May, was alleged to have mocked Ike by leaking his confidential voter registration details on social media.
The post was said to have shown details of Ike’s voter registration transfer from Imo to the nation’s capital.
Meanwhile, Ike, in the suit filed by Leonard Adeh, sued Olayinka and INEC as 1st and 2nd respondents in the suit marked: FHC/ABJ/CS/1272/2026.
He asked the court to declare that Olayinka’s decision to publish his database on X without his approval “amounts to gross breach and violation of the applicant’s fundamental right to privacy and the protection of personal data”.
Ike argued that Section 37 of the 1999 Constitution, Article 12 of the universal declaration of human rights, and Sections 24 & 39 of the Nigeria Data Protection Act, 2023 guaranteed his right to privacy and protection of personal data.
The actor, therefore, prayed the court to award him N10 billion against Olayinka and INEC as aggravated and general damages, to be paid jointly and severally for violating his fundamental right to privacy, among other reliefs.
Source: NAN
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