Courts Can Now Call Oral Evidence in Fundamental Rights’ Cases: The Bitter-Sweet Court of Appeal Decision in Olumide Babalola and Emerging Market & Ors


By Olumide Babalola

In 2016, I filed a privacy class action against the four telecommunications giants (MTN, Etisalat, Airtel and Glo) for unsolicited telephone calls and telemarketing at the High Court of Lagos State.

The certification order was granted by My Lord, S.A. Onigbanjo (Rtd) and we same was publicised in print and electronic media. Upon service of the originating processes on the Respondents, they expectedly briefed eminent legal practitioners (including two senior advocates) to defend the class action.

After hearing the parties, the High Court delivered its judgment on the 17th day of January 2018 when the court held that our suit was not properly suited for fundamental rights and that our case could not be determined without calling oral testimonies.

We immediately appealed the decision on two grounds and our appeal was allowed on the 29th day of September 2021but the decision raises some interesting issues worthy of emphasis.

Our suit before the High Court was a fundamental rights action

As of 2016 when we filed the suit, there was no record of any decision of the Court of Appeal where an umbrage at unsolicited telephone calls was litigated under the Fundamental Rights Enforcement Procedure Rules 2009 (Eneye’s case was decided much later in May 2018).

At the High Court, the learned Judge was of the opinion that our suit was inappropriate as a fundamental rights action but the Court of Appeal per M.I. Sirajo, JCA held otherwise that:

“The appellants action before the trial court was for enforcement of fundamental rights. It was filed pursuant to … section 37 of the Constitution…. Before the trial court, the Appellants sought two declarations with respect to the infringement of their right to privacy by the Respondents’ unsolicited telephone calls and sms messages to their telephone lines…The jurisdiction of the Federal, State and FCT High Courts to entertain cases of breach of fundamental rights is not in dispute. It is not also in dispute that the two principal reliefs sought by the Appellants before the lower court are for enforcement of fundamental right to private and family life. (see page 16 of the judgment)

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Oral evidence can be called in fundamental rights cases

At the appeal, we argued strenuously that oral evidence cannot be called in fundamental rights enforcement cases and relied on Ogunwunmiju, JCA’s (now JSC) statement in Afribank v Adigun’s case that the law does not contemplate calling of oral evidence in fundamental rights cases.

Surprisingly, My Lord Sirajo, JCA quoted extensively and relied on same decision to rule that: “From the decision quoted above, what the trial court in the instant case ought to have done, having found that there are material conflicts in the opposing affidavits of the parties, was to consider the documentary exhibits annexed to the affidavit and try to resolve the conflicts. Where the trial court finds that the documentary exhibits cannot resolve the conflicts in the affidavits then it can call for oral evidence.” (see page 23)

This decision appears a paradigm shift from the popular position that oral evidence cannot be called in fundamental rights cases which ought to be exclusively won or lost on affidavit evidence.

Conclusively, the Court of Appeal refused to invoke the provision of section 15 of the Court of Appeal Act due to the inadequacy of the record of appeal, hence the parties were ordered to return to the High Court of Lagos State to start afresh.

Notwithstanding the disappointment of starting de novo, the gains of the Court of Appeal’s decision especially on identification of cause of action (privacy) and the proper forum are arguably important for the continued growth of the jurisprudence around right to privacy in Nigeria.

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