OPAYEMI V. THE STATE

• Pages: 921-932

OPAYEMI V. THE STATE

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921

ii. The Court had no jurisdiction to grant an injunction against the government.

The above was the decision

in Jaundoo's

case. Contrary to what happened in

the case on appeal, Jaundoo's claim was correctly brought under one of the fun-

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damental rights provisions of the Guyana Constitution. The right of access to the

court as decided by the Judicial Committee of the Privy Council was circumscribed

by and predicated on the peculiar facts and circumstances of

Jaundoo's

case. It

was not a general right (as learned counsel for appellants seemed to imply) giv-

ing the present appellants whose action sounded in tort, a right to sue under the

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fundamental rights provision of our Constitution. We have in our 1963 Constitu-

tion (No. 20 of 1963) a section 31(1) which is

in pari materia

with Article 8(1) of

the Guyana Constitution. The appellants' land and/or house were not compulsor-

ily acquired. They cannot therefore rely on any

ratio

or even

obiter

in

Jaundoo's

case. Both the court of trial and the court below held that the appellants did not

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bring their action under the 1963 Constitution at all. I agree, but I will add that they

even could not bring their action under the 1963 Constitution. Thus the distinction

between an action founded in tort (as the present action of the appellants) and an

action founded on an infringement of any of the fundamental rights provisions of

Chapter 3 of the 1963 Constitution is a very important and far-reaching distinction.

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It cannot be so easily dismissed as "immaterial" as Mr. Braithwaite submitted.

In the final result, this appeal fails and it should be dismissed for all the rea-

sons given above and also for the very succint and lucid reasons given in the lead-

ing judgment of my learned brother Eso, J.S.C. I too will dismiss the appeal. The

appeal is hereby dismissed. I also make no order as to costs.

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Appeal dismissed.

OPAYEMI V. THE STATE

30

ANOFI ADEKUNBI OPAYEMI

V

35 THE STATE

SUPREME COURT OF NIGERIA

BELLO,



J.S.C.

OBASEKI,



J.S.C.

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

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

KAWU,



J.S.C.

28th June, 1985

APPELLANT

RESPONDENT

SUIT NO. SC 13

1

/

1

984

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Criminal Law and Procedure - Witnesses - Calling of Witnesses - Duty of

Prosecution and Court - Defences raised by Accused - Duty of prosecution

and Court - Failure to consider.

Evidence - Witnesses - Material Discrepancies - Effect on prosecution's case

-

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Failure to call vital witnesses - Effect of.

ISSUES:

1. Whether in a criminal trial there is a duty on the prosecution to call all known

material witnesses.