ANIOKE & ORS v. OGUGUO & ORS (2020)

ANIOKE & ORS v. OGUGUO & ORS

(2020)LCN/14085(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/306/2012

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

1. UCHE ANIOKE 2. ANTHONY UDEGBU 3. JOSEPH ANI 4. SOLOMON EGBO (ARA ”OBA”) 5. INNOCENT OKEKE 6. CHUKWUEMEKA UZOCHUKWU 7. UCHENNA UDEGBU 8. ERIC ULOGU 9. ANTHONY OBIANYO APPELANT(S)

And

1. COMMODERE (BARR.) A. OGUGUO 2. BARR. OZOUGWU 3. ENGR. SAMUEL EDEJI 4. CHIEF JOHNSON CHINEMEREM 5. BARNABAS OZOR 6. CHINEDU OGBU 7. CAROLINE UDEH 8. JOSEPH OKONKWO 9. JERRY CHIJIOKE 10. IBEAKA IKECHUKWU 11. BARR UZOIGWE SIMON 12. CHIEF RALPH OKAFOR 13. CHIEF CHARLES AGWU 14. PRINCE IKE CHUKWU 15. CHIEF DOUGLAS IGWEONU 16. PRINCE F.B.I CHUKWU 17. CHIEF MARTIN OBIANYO ONWO 18. DR. BERNARD EKPETE RESPONDENT(S)

RATIO

RIGHT OF APPEAL

The right of appeal from a decision of the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a Court martial or other Tribunals as may be prescribed by an Act of the National Assembly is a constitutional right conferred by Sections 240-245 of the Constitution. Section 243 (1) provides that:
“243. (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court, or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court, or High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.” PER BOLAJI-YUSUFF, J.C.A.

RULES RELATING TO APPEAL UNDER THE COURT OF APPEAL RULES

Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016 provides that:
“(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties”
In Order 1 Rule 5 of the Court of Appeal Rules 2016, it is stated that Appellant means any person who appeals from a decision of the Court below and includes a Legal Practitioner representing such a person in that behalf; “Respondent” in a civil appeal means, any party (other than the Appellant) directly affected by the appeal and in a criminal appeal means the person who undertakes the defence of the judgment appealed against and includes a legal practitioner representing such a person in the proceedings before the Court; In AKUNEZIRI VS. OKENWA & ORS (Supra), (2000) LPELR-393 (SC) at Page 10 (C-D) the Supreme Court held that:
“A party to an appeal must be a person exercising the right of appeal to the Court of Appeal who is named in the record or a person having “an interest” in the proceedings which term would include a person affected or likely to be affected, or aggrieved or likely to be aggrieved by the proceedings. See Akande v. General Electric Ltd. (1979) 3- 4 SC 115 and Maja and Ors v. Johnson (1951) 13 WACA 194.” PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT EACH JOINT PARTY TO AN OFFENCE WILL BE JOINTLY RESPONSIBLE IRRESPECTIVE OF THE EXTENT OF EACH PARTIES PARTICIPATION

The law is settled that if a number of persons jointly participate in the commission of a tort, each is responsible jointly with each and all of the others, and also severally, for the whole amount of the damage caused by the tort, irrespective of the extent of his participation”. EZE & ORS. V. OWUSOH & ANOR. (1962) LPELR-25036 AT 6-7 (E-B), IFEANYI CHUKWU (OSONDU) CO.LTD V. SONEL BONEH NIG. LTD. (2000) LPELR-1432 (SC) at 24-26 (A-E). In IYERE V. BENDEL FEED AND FLOUR LTD. (2008) LPELR- 1578 (SC) AT 26-27 (F-C) where the Supreme Court Per MUHAMMAD, J.S.C held as follows:
“In case of a tortfeasor each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. See: DE BODREUGAM V. ARCEDEKERE (1302) YO 30 EDW 1 (ROLLS SERIES) 106. The following for instance, are joint tortfeasors: 1. Employer and employee where the employer is vicariously liable for the tort of the employee. 2. Principal and agent where the principal is liable for the tort of the agent. 3. Employer and independent contractor where the employer is liable for the tort of his independent contractor. 4. A person who instigates another to commit a tort and the person who then commits the tort. 5. Persons who take concerted action to a common end and in the course of executing that joint purpose commit a tort.”PER BOLAJI-YUSUFF, J.C.A.

CIRCUMSTANCES WHERE A PLAINTIFF FAILS TO STATE THE SPECIFIC LAW UNDER WHICH AN ACTION IS BROUGHT

It is settled law that even if a Plaintiff fails to state the specific law under which an action is brought, once the facts and the evidence before the Court establishes a wrong, the Court has a duty to give a remedy recognizable by the law and which will serve the interest of justice. The duty of the Court at all times is to ensure that not only that justice is done but that it is seeing as having been manifestly done. SeeBELLO & ORS. V. A.G.OYO STATE (1986) LPELR- 764 (SC) AT 70 (A-E). EZE & ORS. V. GOV. ABIA STATE & ORS. (2014) LPELR-23276 (SC) AT 29 (E-F), BFI GROUP CORPORATION V BPE (2012) LPELR-9339 (SC) AT 33(A-D), OPIA V . INEC & ORS. 2014 (LPELR) 22185 (SC) AT 60-61 (E-B). PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court of Nigeria holden at Enugu delivered in suit no. FHC/EN/M/323/2010 on 31/5/2012. The case of the Respondents at the Court below was that the 1st respondent, a lawyer, an ex-Military Administrator of old Imo State and currently, a community leader of his people, i.e, Awgu people of Awgu Local Government Area of Enugu State, conveyed a meeting of Awgu people at his country-home on 28/10/2010 to discuss issues of socio-economic development of the community. The 2nd-9th appellants in company of some thugs acting at the behest of the 1st appellant and aided by the police invaded the country-home of the 1st respondent. The appellants attacked the 1st respondent and the attendees of the said meeting, inflicted varying degrees of injury on them and robbed them of their valuables. The respondents instituted the suit and sought for the following reliefs against the appellants herein and four others who were police officers but are not parties to this appeal:

“(a). A declaration that the applicants are entitled to

their fundamental right to wit: dignity of the human person; personal liberty, freedom of movement; freedom of thought, conscience and religion; peaceful association and assembly; private and family life; and security of their persons; as enshrined under Chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria, and in the African Charter on Human and People’s Rights (Ratification & Enforcement) Act, Laws of the Federation of Nigeria, 2004.
(b). A declaration that the fundamental rights of the Applicant to wit: right to liberty, dignity of the human person; personal liberty freedom of movement; freedom of thought, conscience and religion; peaceful association and assembly private and family life; and security of their persons have been breached by the respondents.
(c). An Order directing the respondents to tender public apology for the illegal molestation, hounding and harassing, battery and armed robbery of the applicants as well as the invasion of the country home of the 1st applicant and the desecration of the said private residence, by advertising the said apology in five national newspapers, or in any other manner as may

seem fit to the Honourable Court.
(d). Five Hundred Million Naira (N500M) only, in favour of each of the applicants, being exemplary and general compensation against the 1st, 2nd, 5th – 10th Respondents jointly and severally for the unlawful and illegal violation of the Applicant’s Fundamental Rights of dignity of human person, personal liberty; freedom of movement; freedom of thought, conscience and religion; peaceful association and assembly; private and family life; and security of their persons.
(e). One Hundred Million Naira (N100M) only being exemplary and general compensation against the 1st, 2nd, 5th – 10th Respondents jointly and severally for the unconstitutional invasion of the country home of the 1st applicant and the unwarranted desecration of the said private residence.
(f). And for other order, or further orders as the Honourable Court may deem fit to make in the circumstance.’’

All requisite processes were filed, exchanged and adopted by the parties. The Court in its considered judgment granted all the reliefs sought by the respondents and awarded N2.5m only jointly and severally against all

the Respondents in the application.

The Appellants herein ( 5th -13th Respondents at the Court below) being aggrieved by the judgment filed a notice of appeal against the judgment on 5/6/2012. An amended notice of appeal filed on 24/3/2015 was deemed as properly filed and served on 19/1/2017. The Appellants’ brief was filed on 24/3/2015 and deemed as properly filed and served on 19/1/17. The respondents’ brief was filed on 4/10/2017 and deemed as properly filed and served on 30/1/ 18. Appellants’ reply to the Respondents’ brief was filed on 12/9/2018. It was deemed as properly filed and served on 18/9/18.

The Respondents by a notice of preliminary objection incorporated in their brief raised objection to the hearing of this appeal on the ground that “the Appellants contrived a case different from the case at the lower Court thereby robbing the Court of jurisdiction to entertain the appeal.

The Respondents’ counsel submitted that an appeal being a continuation of the case as determined by the Court below, the parties to the appeal must be one and the same with the parties at the Court below. He argued that

the Appellants having removed the names of the parties who were 1st, 2nd, 3rd and 4th Respondents at the Court below from this appeal, without any express order by this Court or the Court below striking out their names at any time, the present appeal is different, separate and unconnected with the case as decided by the lower Court in Suit No: FHC/EN/M/323/2010 and cannot be said to be a continuation of same in line with the decision in the case of ABUBAKAR VS. NASAMU (2012) 17 NWLR (PT. 1330 P. 407. He argued further that the appeal as presently constituted is wholly incompetent and cannot be said to have any bearing with the matter in Suit No: FHC/EN/M/323/2010, as was heard and determined by the Court below, and to that extent, the Court has no jurisdiction to entertain same.

The Appellants’ response to the objection is that the right of appeal conferred by Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is a personal right, which is not based upon a concurrence of a co-litigant and when a party exercises his constitutional personal right of appeal, the mere fact that another party to the proceedings from

which the decision appealed against arose chose not to appeal the decision, or having appeal, chose to withdraw his appeal, has no effect whatsoever on the appeal of another party. He referred to MR KELVIN IHESIABA & ORS. VS. CHIEF MATTHEW OCHEPA (2015) LPELR 24822 (CA). AKUNEZIRI VS. OKENWA & ORS (2000) 12 S.C (PT. 11) 75, EGHOBAMIEN & ORS VS. EGHOBAMIEN & ORS. (2012) LPELR – 8551. He submitted further that the Appellants are free to proceed against the Respondents, without the concurrence of the other parties to the suit at the Lower Court and those other parties are in turn, free not to appeal the decision of the Court below. He finally submitted that the preliminary objection is misconceived, frivolous, and an attempt to enthrone technicalities at the expense of the substantial issues between the parties as the Respondents have not shown the miscarriage of justice, if any, occasioned to them, by the absence of the names of the 1st – 4th Respondents at the lower Court from the notice of appeal.

RESOLUTION:
The right of appeal from a decision of the Federal High Court, the National Industrial Court, the High Court of

the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a Court martial or other Tribunals as may be prescribed by an Act of the National Assembly is a constitutional right conferred by Sections 240-245 of the Constitution. Section 243 (1) provides that:
“243. (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court, or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court, or High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as

may be prescribed;
(b) Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016 provides that:
“(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties”
In Order 1 Rule 5 of the Court of Appeal Rules 2016, it is stated that Appellant means any person who appeals from a decision of the Court below and includes a Legal Practitioner representing such a person in that behalf; “Respondent” in a civil appeal means, any party (other than the Appellant) directly

affected by the appeal and in a criminal appeal means the person who undertakes the defence of the judgment appealed against and includes a legal practitioner representing such a person in the proceedings before the Court; In AKUNEZIRI VS. OKENWA & ORS (Supra), (2000) LPELR-393 (SC) at Page 10 (C-D) the Supreme Court held that:
“A party to an appeal must be a person exercising the right of appeal to the Court of Appeal who is named in the record or a person having “an interest” in the proceedings which term would include a person affected or likely to be affected, or aggrieved or likely to be aggrieved by the proceedings. See Akande v. General Electric Ltd. (1979) 3- 4 SC 115 and Maja and Ors v. Johnson (1951) 13 WACA 194.”
In the instant case, the 1st -4th Respondents at Court below were police officers who were sued along with the Appellants herein jointly and severally. The Court found that the respondents proved the violation of their fundamental human rights against the two sets of Respondents jointly and severally and awarded damages against them accordingly. The law is settled that if a number of persons jointly participate in the

commission of a tort, each is responsible jointly with each and all of the others, and also severally, for the whole amount of the damage caused by the tort, irrespective of the extent of his participation”. EZE & ORS. V. OWUSOH & ANOR. (1962) LPELR-25036 AT 6-7 (E-B), IFEANYI CHUKWU (OSONDU) CO.LTD V. SONEL BONEH NIG. LTD. (2000) LPELR-1432 (SC) at 24-26 (A-E). In IYERE V. BENDEL FEED AND FLOUR LTD. (2008) LPELR- 1578 (SC) AT 26-27 (F-C) where the Supreme Court Per MUHAMMAD, J.S.C held as follows:
“In case of a tortfeasor each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. See: DE BODREUGAM V. ARCEDEKERE (1302) YO 30 EDW 1 (ROLLS SERIES) 106. The following for instance, are joint tortfeasors: 1. Employer and employee where the employer is vicariously liable for the tort of the employee. 2. Principal and agent where the principal is liable for the tort of the agent. 3. Employer and independent contractor where the employer is liable for the tort of his independent contractor. 4. A person who instigates another to commit a tort and the person who then commits the tort. 5. Persons who take concerted action

to a common end and in the course of executing that joint purpose commit a tort.”
The implication of the judgment entered jointly and severally against the Appellants herein and the 1st – 4th Respondents at the Court is that each is liable for the entire judgment and the Respondents herein are at liberty to execute the judgment against any of them severally for the entire judgment or jointly against all the parties. The further implication of the judgment in my view is that the liability of the parties being joint and several, each is entitled to exercise his right of appeal either jointly with the other joint tortfeasors or severally on his own. None of the parties can be forced or dragged into an appeal against his will. The 1st – 4th Respondents at the Court below were represented by separate counsel and they filed separate processes to defend the action. Neither the appellants nor the Respondents herein can drag the 1st- 4th Respondents into the appeal either as Appellants or as Respondents. The Appellants cannot join the 1st – 4th Respondents to the appeal when they have no grievance against them. In ERONINI ORS. V. EJIOBI & ORS.(2013)

LPELR-20636 AT 13-14 (G-D) this Court per ABBA AJI, JCA now JSC held that:
“This Court has held inJALBAIT VENTURES (NIG.) LTD VS. ALMAJI (2010) 7 NWLR (PT. 1193) 292 AT 308 AND THE CASE OF OSIGWELEM VS. INEC (2011) 9 NWLR (PT. 1253) 425 AT 441, that failure to state the names and addresses of the persons directly affected by an appeal in the Notice of Appeal is a mere irregularity that will not void or render the Notice of Appeal incompetent. In the instant case, the failure of the Appellants to state the names and addresses of the 4th, 5th and 6th Respondents as Respondents in the appeal is not fatal in that the 4th, 5th and 6th Respondents at the trial Court having not appealed the failure to name them as Respondents did not void or render the appeal filed by the Appellants incompetent.”
I am of the firm view that the effect of the omission of the name of a party to the proceedings at the Court below from the notice of appeal is dictated by the facts and circumstances of each case. Where a party at the Court below is neither an appellant nor a respondent, the omission to state his name on the notice of appeal will not render the notice of appeal

incompetent. Even if The 1st – 4th Respondents qualify as parties that may be affected by the outcome of the appeal since they were adjudged to be joint tortfeasors with the appellant, it is the consensus of the authorities that failure to state the name of a person that may be affected by an appeal in a notice of appeal is an irregularity which does not rob the Court of the jurisdiction to entertain the appeal. See MACHIKA V. IMAM & ORS. (2010) LPELR-4448 (CA) AT 12-18 (B). EWII & ANOR. V. PDP & ORS. (2010) LPELR-4131 AT 32-33 (D-A). ERONINI & ORS. V. ERONINI & ORS. (2013) LPELR-20651(SC) AT 11-12 (F-D).SKYE BANK PLC V. DAVID & ORS. (2014) LPELR-23731 CA AT 15 (A-F), NYAVO V. ZADING (2016) LPELR-40803 (CA) AT 12 (B-D). Based on the foregoing, I hereby hold that the 1st- 4th Respondents in the Court below having not appealed, failure of the appellants to state their names and addresses as appellants or Respondents in this appeal does not void or render the appeal filed by the Appellants incompetent. The objection fails and is hereby dismissed.

From the six grounds of appeal contained in the amended notice of appeal, the Appellants

formulated six issues for determination. The respondents also formulated six issues for determination. I have considered the issues formulated by both parties along with the grounds of appeal. In my view, all the issues can be subsumed into one issue. The issue is whether on the entire facts and evidence disclosed by the affidavits of both parties, the Court below was right when it held that the Respondents proved the violation of their fundamental human rights and were entitled to compensation and public apology.

It is the submission of the Respondents’ counsel that the trial judge was wrong in making a blanket and sweeping finding that the Respondents proved the violation of their fundamental rights by the respondents and the police – 1st to 4th respondents in the Court below when there are several fundamental rights enshrined in the Constitution of the Federal Republic of Nigeria 1999 and the African Charter on Human and Peoples Rights (ratification and enforcement) Act, Laws of the Federation of Nigeria 2004 and there were 18 (eighteen) applicants before the Court, seeking the enforcement of their rights. Counsel argued that in the light

of the disparate and individualized fates allegedly suffered by the Respondents in the hands of the appellants and the police and in the face of the denial of all those allegations by the appellants as well as the police, the lumping together of all the fundamental rights and the sweeping statement that they have been violated by the appellants is unjustifiable and indefensible.

Counsel submitted that the learned trial judge’s perceived inconsistency in the deposition of the appellants on the point of whether they attended the meeting or not, led to a miscarriage of justice. He argued that even if it is admitted or proved that the appellants attended the said meeting, it would still not relieve the Respondents of the burden of proving that there was mayhem at the meeting and the appellants were the perpetrators of the mayhem more so when all the allegations against the appellants are criminal offences. He submitted further that the law is settled that in a case fought on affidavit evidence, if there are material conflicts in the affidavits of the parties as the instant case where practically every allegation of fact on which the respondents’

case was premised were denied by the appellants, viva voce evidence ought to have been called for by the Court to resolve the conflicts which was not done and the failure to so do has occasioned a miscarriage of justice.

In response to the above submissions, the Respondents’ counsel submitted that the Respondents adduced abundant, cogent, compelling and unassailable evidence in proof of their case while the Appellants on their own part by their counter-affidavits could not place any shred of cogent evidence capable of controverting or dislodging the compelling and unimpeachable evidence adduced by the respondents in their affidavits. It is submitted that rather than material contradictions between the affidavits filed by the Respondents and the counter-affidavits as filed by the appellants, what exists are contradictions, extraneous materials and outright admissions by the appellants in the counter-affidavits filed by the appellants on 24/3/2011 and 28/4/2011. He referred to paragraphs 11, 12, 13, 14 and 10 of the affidavit of 18/11/2010 filed by the Respondents contained in pages 9-10 of the record of appeal, paragraphs 5(c) (d), (ei), (eii),

(eiii), (eiv), (ev), (vi), (evii), (f), (g), (gi), (gii), (giii), (h), (hi), (hii) (hiv) and (hv) of the further affidavit of 6/4/2011 contained in pages 52-55 of the record, the Joint Further Affidavit of 13/4/2011 filed by the respondents contained in pages 59-62 of the record and paragraphs 2(i)-(vii), 3(a)-(e) of Joint further affidavit of 13/4/2011.

In reply to the Respondents’ arguments, the Appellants’ counsel submitted that since the case of the Respondents was strongly contested, the Court should have called for oral evidence from the parties, to test the credibility of their stories by observing the demeanour of the witnesses under the fire of cross-examination more so when the Respondents’ affidavit contains allegations of commission of crime. He referred to ADKINS SCIENTIFIC LTD VS ALADETOYINBO & ANOR (1995) 7 NWLR (PT. 409) 526; (1995) LPELR-187 (SC). UBN PLC VS ASTRA BUILDERS (W.A) LTD (2010) 5 NWLR (PT.1186) 1, AYILARA V. FEDERAL MINISTRY OF WORKS HOUSING (2013) LPELR -20772 (CA) and EZECHUKWU V. ONWUKA (2001) FWLR (PT.50) 1713.

RESOLUTION
The first complaint of the Appellants is that the Court below erred in

making a finding that the respondents proved that their fundamental rights were breached without specifying the particular fundamental right that was breached. Even if the contention of the Appellants that the finding of the Court below leaves the impression that all the fundamental rights guaranteed by the Constitution or listed as having been breached were in each case violated is correct which is not even so, the Court still had a duty to grant the remedy prescribed by the Constitution. The Court could not have done otherwise. The respondents sought declarations that they have rights to liberty, dignity of the human person, personal liberty freedom of movement, freedom of thought, conscience and religion, peaceful association and assembly, private and family life and security of their persons have been breached by the respondents and that those rights were breached by the appellants. These are fundamental rights guaranteed by Sections 33, 34, 35, 37, 38, 39, 40 and 41 of the Constitution of this country. Section 46 (1) and (2) of the Constitution provides that:
“46. (1) Any person who alleges that any of the provisions of this Chapter has been,

is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.”
The Respondents by the declarations sought specified their rights which were breached. Therefore, the finding by the Court below that the Respondents proved that their fundamental rights were breached is only referable to those rights specifically mentioned by the Respondents. Even if the respondents had not mention the particular fundamental rights that were breached, the Court had a duty to make a finding on whether or not any of the respondents’ fundamental rights guaranteed by the constitution has been breached. UBI JUS UBI REMEDIUM, where there is a right,

there is a remedy. It is settled law that even if a Plaintiff fails to state the specific law under which an action is brought, once the facts and the evidence before the Court establishes a wrong, the Court has a duty to give a remedy recognizable by the law and which will serve the interest of justice. The duty of the Court at all times is to ensure that not only that justice is done but that it is seeing as having been manifestly done. SeeBELLO & ORS. V. A.G.OYO STATE (1986) LPELR- 764 (SC) AT 70 (A-E). EZE & ORS. V. GOV. ABIA STATE & ORS. (2014) LPELR-23276 (SC) AT 29 (E-F), BFI GROUP CORPORATION V BPE (2012) LPELR-9339 (SC) AT 33(A-D), OPIA V . INEC & ORS. 2014 (LPELR) 22185 (SC) AT 60-61 (E-B).

The second grievance of the Appellants is that the Court below ought to have called for oral evidence to resolve what they perceived as conflicts in the affidavit evidence before the Court. The law is trite that where there is a conflict on a material fact in a case that is tried on affidavit evidence, the Court is in law bound to call on the parties to proffer oral evidence to enable the Court to resolve the conflict unless there is a

document before the Court which can be used to resolve the conflict. The conflict must be material to a just determination of the case. It must be a real conflict and not an imaginary or concocted conflict. The material facts in the instant case are that a meeting was held in the private home of the 1st respondent herein on 28th October, 2010 and the meeting was disrupted by thugs who attacked and injured the Respondents aided by the police. The police denied the account of the event narrated by the Respondents and stated that they knew nothing about the event. The Appellants also denied the allegations made against them and the mayhem described by the Respondents. However, in paragraphs 16 (i),(ii) and (v) of their counter affidavit, the appellants confirmed the fact that the 1st appellant informed the police about the meeting. He requested the police to conduct investigation to make sure that the meeting will not lead to breach of peace. The appellants stated that the meeting in the 1st Respondent’s house was a political meeting and not a meeting of stake holders or Awgu elders meeting as claimed by the 1st respondent. The material fact in this

application is the holding of the meeting in the private residence of the 1st Respondent and the instigation of the police by the 1st appellant. From the entire affidavit evidence on record, the finding of the Court below that the 6th -13th respondents were at the 1st Respondent’s home even though uninvited cannot be faulted. The finding of the Court that there is a contradiction between the depositions in paragraphs 10 and 16 (viii) of the appellants’ counter affidavit is unassailable. Those paragraphs of the counter affidavit read:
10.“The 5th – 13th Respondents deny paragraphs 6, 7, 8, 9, 10, 11, 12, 14 of the affidavit in support as the facts deposed are facts within the exclusive knowledge of the 1st Applicant. In further answer, the 6th to the 13th respondents attended the function like every other Awgu person since attendance was not selective.
16(vii). That the 5th Respondent and other officers of the Local Government Council were not informed by the 1st Applicant of the meeting he held in his house and as such neither the 5th nor any of the 6th – 13th Respondents showed interest in the said meeting and non took

part in what happened in his premises which he said happened in the presence of the 2nd Respondent and the police patrol team dispatched to his house by the 1st Respondent as he (1st Applicant) arranged with the 1st and 2ndRespondents.”

I agree with the Court below that the above depositions were calculated to deceive the Court about the invasion of the 1st respondent’s home by the Appellants. It is obvious that the appellants spoke from both sides of their mouth. The appellants in one breadth stated that the 6th-9th respondents attended the function like every other Awgu person since attendance was not selective. In another breadth, they stated that they were not informed about the meeting. They were not interested in the meeting. Yet, they had enough interest to inform the police about the meeting for investigation. They had no interest in the meeting but they attended the meeting like every other Awgu person. The Court below was on a very firm ground in believing the facts deposed to by the respondents in their affidavits. The Court below was really left with no other choice. The conflict which the appellants hammered on in their argument

is an imaginary conflict concocted by the appellants aimed at confusing the Court. There was no conflict on the material facts in the case to warrant calling on the parties to proffer oral evidence. The Court properly evaluated the affidavit evidence of both parties and made the correct findings. There is no legally acceptable reason to warrant interference in the finding of the Court below that the Respondents proved the violation of their fundamental rights.

For the above reasons, the issue formulated for determination is resolved against the Appellants. The appeal fails. It is hereby dismissed. There shall be one hundred thousand naira (N100,000:00) costs in favour of the Respondents and against the Appellants.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.

For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I dismiss it accordingly.
I adopt the consequential orders in the lead judgment as mine.

ABUBAKAR SADIQ UMAR, J.C.A.: I have read the draft lead judgment delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA. In this appeal, I find myself in agreement with my Lord’s reasoning and conclusion that the appeal is devoid of merit.

I also found that the Respondents proved the violation of their fundamental rights and consequently, I too dismiss the appeal and abide by the order made as to costs.

Appearances:

Catherine Ejimkaraonye For Appellant(s)

Nwabueze Ugwu, with him, Chinasa Okeke (Mrs.) For Respondent(s)