ROMANUS IHEJIOBI & ORS v. MRS. GRACE CHINYERE IHEJIOBI & ANOR
(2013)LCN/6274(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2013
CA/PH/374/2005
RATIO
CONSIDERATION TO DETERMINE THE COMPETENCE OF AN ACTION
To begin with, it is well settled that only actions founded on a breach of any of the fundamental rights guaranteed in the Constitution can be enforced under the Rules. The Fundamental Rights (Enforcement Procedure) Rules made by the chief Justice of Nigeria are peculiar rules restricted to the enforcement of citizens’ rights under Chapter iv of the Constitution. It makes no provision for the importation of any other rules of court for the enforcement of such rights. See CHUKWUOGO v. CHUKWUOGO (2007) ALL FWLR (Pt. 349) 1154. It will therefore be wrong for any court to fall back on the high court Rules of any state and purport to derive its power there from. In the instant case, I shall make bold to say that the Imo State High Court Rules quoted by the Appellant’s counsel will not avail them. If it is also a condition precedent to the exercise of the court’s jurisdiction that the enforcement of fundamental right or the securing of the enforcement thereof should be the main aim ad not an accessory claim as in this case. See W.A.E.C. v. AKINOLA OLADIPO AKINKUNMI (2008) LPELR 3468.
It is again settled law that in ascertaining the competence of an action, the determining factor is the plaintiffs claim. It is not the manner in which the claim is couched that matters, nor is the categorization given to the claim by the defendants that counts. The court has a duty to carefully examine the reliefs to ascertain what the claim is all about.PER PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. ROMANUS IHEJIOBI
2. JUDE IHEJIOBI
3. EUGENE IHEJIOBI
4. UCHECHUKWU IHEJIOBI
5. FELICIA OHAEGBU (NEE IHEJIOBI) Appellant(s)
AND
1. MRS. GRACE CHINYERE IHEJIOBI
2. MASTER OGOCHUKWU IHEJIOBI
(By his Next Friend, Mrs. G. C. Ihejiobi) Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the leading Judgment): This appeal is against the judgment of the High Court Owerri in Imo State delivered on the 17th day of July 2002 per Chioma Nwosu Iheme J. The Applicants/Respondents on the 25th day of March 2002 filed a motion ex parte in the lower court praying for leave to enforce their fundamental rights against the Respondents/Appellants.
Leave was however granted on the 27th day of March 2002 and the Respondents filed a motion on notice seeking various reliefs against the Appellants for alleged breaches of their fundamental rights. See pgs. 64 – 67 of the record).
On the 13th day of May 2002, the Applicants/Respondents moved their motion for the enforcement of their fundamental rights and the lower court finally delivered judgment on the 7th day of July, 2002 in favour of the Respondents herein. (see pgs. 118 – 129 of the record). The Appellants feeling aggrieved appealed against the said judgment filed a notice of Appeal containing 6 grounds of appeal (see pgs. 132-138 of the record).
The facts of this case are thus:
The 1st Respondent was the widow of Mr. Desmond Onyebule Ihejiobi (deceased) while the 2nd Respondent is their allegedly adopted son. The 1st 2nd and 5th Appellants are the younger brothers and sister respectively of the said Mr. Desmond Onyegbule Ihejiobi (deceased), while the 3rd and 4th Appellants are the children of the deceased. The 1st and 2nd Respondents herein in their application for enforcement of their fundamental right contended that the Appellants and their relations on the 2nd day of September 2001 forcibly sent them out of their matrimonial/family home and also denied them access to their property.
The Respondents also contended in their affidavit that the Appellants and their relations beat them up mercilessly. The 1st Respondent was married to Mr. Desmond Onyegbule Ihejiobi on the 26th day of December 1993 and in November 1997 the said Desmond Ihejiobi died. Records show that both 1st Respondent and Mr. Desmond Ihejiobi had before the death of the deceased adopted the 2nd Respondent from the HOLY FAMILY SISTERS OF THE NEEDY, Nekede, Owerri in July 1997. The Respondents further contended that soon after the death of her husband, the appellants in collaboration with other family members drove them out of their family house, depriving them of the right to harvest any of the economic trees planted by their late husband and father and finally aligned with other family members to falsely accuse them of plans to kill the appellants with the aid of a native doctor.
The Appellants herein on their part denied all the allegations in their counter affidavit. They categorically stated that the late Desmond Ihejiobi lost his first wife in 1988 from whom he begat 6 children. The Appellants further alleged that after the death of his first wife, the said Desmond Ihejiobi married the 1st Respondent principally to aid in the bringing up of his six children. That during the four turbulent years of the marriage the 1st Respondent resorted to plans to eliminate the children of her husband.
The Appellants further alleged that the deceased died in suspicious circumstances and thereafter the 1st Respondent turned her venom on the family of the deceased husband which resulted in some being remanded in police custody, D.I.D, Owerri for over two weeks. That a number of persons intervened, trying to make peace between the waring parties including the 1st respondent’s younger brother, HON. JUSTICE OHAKWE but to no avail. The Appellants also alleged that the 1st Respondent was so “heartless” that she refused to participate in the burial rites of her husband and that consequently the village elders imposed a fine on her of one goat, one fowl and some Ugba (African oil been).
They further alleged that her incessant invitations of the native doctor so angered the family members that they got the village women to invoke their village custom by sending her packing out of her matrimonial home and back to her own family home and village. The appellants however deny that the 2nd respondent was even adopted by the late Desmond Ihejiobi but that he was merely taken in as a foster child and not as an adopted son.
The Appellants have in the course of this appeal raised two issues for determination to wit:
“1. Whether the applicants’ motion for the enforcement of their fundamental rights was competent enough to clothe the High Court with jurisdiction to hear it, and deliver the judgment appealed from especially in view of the non-compliance with the provisions of the Fundamental Rights (Enforcement procedure) rules applicable under the 1999 constitution of Nigeria, the nature of the reliefs claimed and the mis-joinder of causes and parties as well as the fundamentally conflicting interests of the applicants bordering on a breach of the fiduciary duty of the 1st Applicant/Respondent to the 2nd Applicant/respondent.
2. Whether from the facts and evidence respectively stated by both parties in this case, including the status of the 2nd Applicant/Respondent, the lower court can be said to have rightly come to a decision that the Applicants sufficiently established on the acceptable legal standard that their fundamental rights were breached by the Respondents/Applicants.”
The Respondents on their part have also raised the following issues for determination:
“(a) Whether the trial court had jurisdiction to hear and determine the case as formulated? Ground 1.
(b) Having regard to the processes and evidence before the trial court the fundamental rights of the respondents were breached by the appellants?
Grounds 2, 3, 4, and 6.
(c) If the answer to issue (b) is in the affirmative, whether the respondents were not entitled to be compensated by damages?
I have carefully perused all the issues formulated by both parties in this appeal and I consider the respondents’ counsel’s issues for determination more elegantly couched and for this reason I intend to adopt the said respondent’s issues as my issues for determination in this appeal.
ISSUE A
Whether the trial court had jurisdiction to hear and determine the case as formulated. Learned counsel for the Appellants Okey Amaechi, Esq. stated in his argument that the 1st Respondent sued for herself and also sued as next – friend of the 2nd Appellant. He argued that under Order 11 Rule 10 of the Imo State High Court (Civil Procedure) Rules 1988 and infant may sue by his next friend, but that Order 11, Rule 13 further provides:
“Before the name of any person shall be used in any action as next-friend of any infant or other party, or as relator, such a person shall sign a written authority for that purpose and the authority shall be filed in the Registry.”
Learned counsel further stated that the above provision was not complied with by the 1st Applicant as she was suing for the interest of the infant which created a fiduciary duty on the part of the said next-friend and makes her an officer of the court. That it is fundamentally wrong as held by the courts for such next-friend to also sue for herself and appeal as a party in the same case. He referred to the case of SOFOLAHAN & ANOR v. FOWLER & ANOR. (2002) 5 SCM 173 at 181 also (2002) 4 NWLR (Pt. 788) 664 at 684 – 685 where the court held thus:
“Finally, as to the title of this action supposedly brought on behalf of infants, I have no doubt that it was wrong the way the Plaintiffs/Appellants here were stated in the writ of summons and other processes. The names of each of the two parents were stated and were indicated as suing as a parent and the next friend of… This is against the procedure. It also shows that each of those parents was at the same time pursuing his or her cause since they claim to sue also as parents. The right procedure is that the name of the infant should take the forefront while that of his next friend should follow, labeling each correctly as infant and next friend respectively. The proper format is as per Form 2 in Atkin’s Court Forms, 2nd edition, Vol. 21(3), 1977 issue, page 402. The law is clear that the next friend in a suit is an officer of the court appointed and allowed to pursue the interests of the minor he represents; he is not regarded as a party to the proceedings.
That at the lower court, the learned trial Judge simply held as follows:
“On the competence of the cause of action of the 2nd applicant. The case of Shofolaho v. Fowler, and Order 11, Rule 1 of the Imo State High Court Rules, the way I understand did not make any provision to the contrary. My view is that the action is proper before the court, and the said dual capacity posture of the 1st applicant is proper having sued for herself and the 2nd applicant by his next friend the 1st applicant.”
Learned counsel for the Appellant further argued that the application by the Respondents herein is equally incompetent because under Chapter 4 of the 1999 Constitution; it is fundamentally wrong for more than one person to join in an application for the enforcement of their fundamental rights. He then cited a number of authorities which include: R.T.F.T.G.I.N. v. IKWECHEIGH (2000) 1 WRN 134 at 140; (2000) 13 NWLR (Pt. 683) 1 at 8 where the court thus held:
If an individual feels that his Fundamental Right or Human right has been violated he should take out action personally for alleged infraction as right of one differs in content and degree from the complaints of the other. It is a wrong joinder of action and incompetent. See Swurthwaite & Ors. v. Hunnay (1984) A.C. 494; Cater v. Rose (1998) 4 NWLR (Pt. 544) at P. 37, 44-47; Busari Ayinde v. Adedokun Akanji (1988) NWLR (pt. 68) p. 80; Amajideogu v. Ononakwu (1988) 2 NWLR (pt.78) at 614.”
He also cited the case of OKECHUKWU v. ETUKOKWU (1998) 8 NWLR (Pt. 562) 511 where the court held per NIKI TOBI thus:
“As I indicated above, the Umunwanne family is the center of the whole matter. A family as a t unit cannot commence an action on infringement or contravention of fundamental rights. To be specific, no Nigerian family or any foreign family has the locus to commence action under Chapter 4 of the Constitution or by virtue of the 1979 Rules. The provisions of Chapter 4 cover individuals and not a group or collection of individuals. The expressions, ‘every individual’, ‘every person’, ‘any person’, ‘every citizen’, are so clear that family unit is never anticipated or contemplated.”
Learned counsel further submitted that the reliefs claimed by the Appellants/Respondents cannot be claimed through the enforcement of fundamental rights procedure. That the said reliefs are merely canvassing the rights of the Respondents to inherit and make use of the matrimonial home being part of the estate of the deceased Desmond Ihejiobi. That the right to inherit family property as well as the question of the status of an alleged adopted child are not issues for determination through the enforcement of fundamental rights procedure, since such matters are not part of the fundamental rights guaranteed under Chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria. It was further canvassed for the Appellant that the facts stated in the substantive application of the Respondents in the lower court do not contain any paragraph that clearly verifies the statement of facts as required by the Rules. Counsel submitted further that for the court to believe and act on the facts stated in the statement of fasts, such facts must be verified else they are regarded as false and therefore not before the court. See, OGWUCHE & ORS. v. MBA & ORS. (1994) 4 NWLR (pt. 336) 75.
counsel concluded on that point that failure of the Applicants/Respondents to comply with the requirement of the law renders the application incompetent and therefore robs the court of jurisdiction to entertain the application. See, ATTORNEY GENERAL OF THE FEDERATION v. A.Gs. OF THE 36 STATES (2001) 6 MJSG I.
In his reply brief, learned counsel for the Appellants reiterated the fact that the “next-friend” and “guardian” mentioned in ORDER 11 RULE 10 of the High Court Rules are not severable with regard to the need to be first appointed by the court.
In answer to ISSUE A, learned counsel for the 1st and 2nd Respondents, M. O. NLEMEDIM of the Law Firm of Chief Bon Nwakanma SAN & Co. stated that this suit was instituted by the Respondents to secure their fundamental rights to (i) private and family life, (ii) Freedom of movement, (iii) Freedom from discrimination and (iv) dignity of human person guaranteed under sections 37, 41(1), 42(1) 42(2) and 44(1) of the 1999 constitution and articles 5 and 18(3) of the African charter of Human and peoples Rights respectively. That the suit was commenced by the Respondents applying for leave of court to enforce their fundamental rights which were breached by the Appellants. That the application for leave was supported by a statement pursuant to order 1 Rule 2(3) of the Fundamental Rights (enforcement procedure) Rules 1979 indicating the names and particulars of the Applicants and Respondents, the reliefs sought, the grounds on which the reliefs were sought, the facts deposed to in the supporting affidavit and the affidavit verifying the facts relied on (see pages 1 – 16 of the record).
That this has sufficiently complied with order 1 Rules 2(3) of the F.R.E.P. Rules 1979. See, OKECHUKWU v. ETULOKWU & ORS (1998) 8 NWLR (Pt. 562) 613 at 532.
The Respondents case as clearly narrated in their affidavit in support is that the Appellants with the said of some family members seized all their property and bundled the 1st Respondent into a wheelbarrow and sent them both back to their maiden home. That the 2nd Respondent who had already been discriminated against by reason of the circumstances of his birth was also harassed, intimidated and beaten up by the Appellants and their relations. Learned counsel then stated that it is the law that it is the person whose fundamental right has been, is being or is likely to be violated that can challenge such violation. He then cited the case of SHUGABA DARMAN v. MINISTER OF INTERNAL AFFAIRS (1981) 2 NCLR 459 and the case of GOVERNOR OF EBONYI STATE v. ISUAMA (2003) 8 WRN 123.
That in the instant case, the fundamental rights of the Respondents were violated by the Appellants on the same date and in the same transaction. That the 2nd respondent being an infant rightly sued by his next-friend, the 1st Respondent. Again that the Appellants who have complained of a mis-joinder of parties have not shown how this so-called irregularity has caused the Appellants to suffer any injustice; and that it is incumbent on them to so show. See EKPUK v. OKON (2002) FWLR (Pt. 84) 145 at 169.
Learned Respondents counsel M. O. Nlemedim, Esq. also made reference to ORDER 11 RULE 1 of the Imo State High Court (Civil Procedure) Rules 1988 which provides thus:
“All persons may be joined in one action, as plaintiffs, in whom any right to relief (in respect of or arising out of the same transaction or in a series of transactions) is alleged to exist whether jointly, severally, or in the alternative where if such persons brought separate actions, any common question of taw or fact would arise, and judgment may be given for such one or more of the plaintiffs, as may be entitled to relief, for such relief as he or they may be entitled to, without any amendment: Provided that if, upon the application of any defendant, it shall appear that such a joinder may embarrass any of the parties or delay the trial of the action, the court or a Judge in chambers may order separate trials, or make such other order as may be expedient in the circumstances.”
Counsel also cited ORDER 5 RULE 4 of the same High Court Civil procedure Rules which allows a plaintiff to unite several causes of action in the same suit unless the court thinks otherwise. That in the instant case, the cause of action was tried and judgment given. He then cited the Supreme Court authority in ANYANKOYA & ORS. v. OLUKOYA & ANOR. (1996) 4 WLR (Pt. 440) 1 at 31 where it was held as follows:
“In the present case, the court below conceded that the cause of action of each of the plaintiffs might be said to have arisen out of similar transactions but concluded that the action was incompetent. With profound respect, I think that the court below was in gross error there. On the facts of the case, it is clear that the Oyo State High Court (Civil Procedure Rules Cap.49 of 1978 at all times material to the joinder of persons or parties as plaintiffs in one action as well as the joinder of causes of action. The two conditions of the invocation of the joinder in issue appear to me fully established in that the right to relief arose out of series of transactions in which if separate actions were brought by each of the plaintiffs, a common question of law and, to a great extent, of facts would arise. In subscribe to the view of the court below that the plaintiffs’ action as formulated is incompetent on ground of misjoinder”.
Learned counsel further submitted that the rules permitting joinder of parties and causes of action are designed to prevent multiplicity of actions in order to save parties unnecessary costs and delays. See the affidavit
1. AYANDA v. OLUKOYA (supra)
2. ADEDIRAN v. INTERLAND TRANSPORT LTD. (1991) 9 NWLR (Pt. 214) 155.
3. PEENOK INVESTMENTS LTD v. HOTEL PRESIDENTIAL (1982) 12 SG 1.
Counsel stated that the technical points raised by the appellants in this appeal cannot nullify the suit as courts have held that how compliance with rules of court is an irregularity and not a ground for nullity unless such noncompliance amounts to a denial of fair hearing. That the present altitude of courts is to interpret rules of court and procedure in such a way as not to allow technicalities, to defeat the cause of justice. See ATAMGBA v. EFFIMI (2001) 16 WRN 52.
Learned counsel again referred to the argument of the Appellants that they were allowed only 5 days between service of the motion and the hearing proper. The respondents counsel however, counteracted that argument by stating that the court granted the Respondents leave to apply for enforcement of their fundamental rights on the 27th March 2003 and adjourned for hearing of the substantive application to the 8th day of April, 2002.
That the Appellants filed their counter affidavit on the 3d day of April, 2002 and fully presented and argued their case before the trial court and the substantive suit was heard on the 13th day of May, 2002. Counsel concluded that the Appellants were not in any way prejudiced. He then referred to the case of UZOUKWU v. EZEONU 11 (1991) 6 NWLR (Pt. 2000) 708 where the court held that although the 8 days were not available in the case, there was no miscarriage of justice as the Respondents were neither taken by surprise nor prevented from stating their case. He then urged the court to resolve this issue in favour of the Respondents.
On issue (B), learned counsel for the Appellants submitted that the Respondents failed to prove that the Appellants breached their fundamental rights and cited order 2 Rule 2(1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules 1979 and the 1999 constitution section 315(4) (b). That the lower court in considering the case for the respondents herein relied mainly on the facts deposed to in the affidavit in support of the motion and not on the statement of facts ad further affidavit. He further submitted that there is nothing to show that the Respondents rights to privacy was infringed; neither was the 2nd Respondent subjected to any discrimination as a result of the circumstances of his birth. Also counsel started that the issue of inheritance or entitlement to the estate of a deceased person in Imo State is governed by both statutory and customary laws of Imo State and not by way of Fundamental Rights Enforcement Procedure.
On the status of the 2nd respondent in the family of Ihejiobi, the Appellants counsel submitted that the said 2nd respondent is only a foster child of the 1st Respondent and that the 1st respondent has failed woefully to prove the legal adoption of the 2nd respondent. Counsel further submitted that the so called adoption of the 2nd Respondent was neither legal nor customary as it fell short of the 1995 Adoption law No. 12 Imo State and that the jurisdiction to make adoption orders rests in the High Courts and the Magistrate Courts under the Eastern Nigeria Adoption Juvenile Courts Rules 1966. That any arrangement or purported adoption outside the provisions of the law is of no legal effect and therefore the 2nd Respondent not being a child of the deceased Desmond Ihejiobi has no rights to the estate of the deceased.
In reply to issue B, learned counsel for the 1st & 2nd Respondents submitted that the fundamental rights of the respondents had been violated as copiously and clearly stated in their supporting affidavit. That there was no need for the trial court to have called for oral evidence as the case of the appellants was patently incredible. That the Appellants who are members of Umuaro village admitted that the village sent her packing in September 2001 and the appellants took absolute control of their home and property therein, confiscating all their belongings including vital documents.
Learned counsel further contended that the appellants sought to justify the inhuman treatment meted out to the Respondents by claiming that the 1st Respondent’s husband died in suspicious circumstances. Irrespective of the death certificate which showed that the said Desmond Ihejiobi died or “cerebrovasculer accident (stroke) secondary to severe hypertension.”
Learned counsel further contended that there were enough documents to assist the court in the resolution of any area of conflict in their affidavits. See, AHMED v. MINISTER OF INTERNAL AFFAIRS (2002) 15 NWLR (pt. 990) 204 and AMUKA v. COMMERCIAL BANK LTD (2000) 12 NWLR (pt. 682) 641.
Again, on the issue of the adoption of the 2nd Respondent, learned counsel placed reliance on Exhibit BN2 which is the document showing the said adoption of the 2nd respondent. See page 45 of the record and the letter of 30th March, 2002, which is exhibit 1. That the procedure for adoption does not justify the Appellants violation of the respondents’ fundamental rights. Counsel then maintained that other reliefs in the suit flowed from the said violation of the Respondents’ fundamental rights and that these findings of fact by the court below were supported by affidavit evidence. On the issue of custom, learned counsel, submitted that the trial court was right to have discountenanced the said custom of the people of Umuaro terming the sand custom repugnant to natural justice, equity and good conscience. He then urged the court to resolve Issue B against the Appellants.
On the 3rd Issue, whether the trial court followed the right legal principles in awarding damages in this case, learned counsel for the appellants submitted that a trial court in assessing damages should take cognizance of only credible evidence adduced by the parties, in their statement of facts and further affidavit. He then cited the case of AHMED v. UMARU YA’U (2004) 39 WRN 53.
In answer to the issue on damages, learned counsel for the respondents submitted that once it is proved as in the instant case that the Respondents fundamental right was breached they were entitled to the award of damages. He then cited a number of legal authorities to support this assertion. See, DR. OLU ONAGORUWA v. INSPECTOR GENERAL (1993) NWLR (Pt. 193) 593; JIMOH v. ATTORNEY-GENERAL OF THE FEDERATION (1998) 1 HRLRA 513, JOSEPH ODOGU v. ATTORNEY-GENERAL OF THE FEDERATION & ORS. (2000) 2 HRLRA 82, SHUGABA v. MINISTER OF INTERNAL AFFAIRS (1983) 3 NCR 915.
That in awarding the sum of N250,000.00 to the Respondents the trial court considered the status of the 1st Respondent as the Headmistress of a school (see Exhibit 5 page 85 of the record) and also the shame and disgrace to which the Appellants subjected her . He then urged the court to find for the Respondents.
I have painstakingly perused all the issues canvassed by the parties in this appeal and have observed that there are indeed three main issues that have culminated in the grouse of the Appellants against the decision reached in favour of the respondents herein. The first main issue raised borders on the competence of the respondents’ application to enforce their fundamental rights which they allege have been infringed. The Appellants allege non-compliance with the provisions of the Fundamental rights (Enforcement Procedure) Rules, the nature of the reliefs claimed and the misjoinder of parties and causes. The Appellants also alleged that the 1st Respondent herein cannot sue both for herself and also for her son, the 2nd Respondent as next-friend.
Learned counsel cited Order 11 Rule 10 of the Imo State High Court (Civil procedure) Rules 1988 which allows an infant to issue by his next friend but that Rule 13 of the same Order Provides thus:
“Before the name of any person shall be used in any action as next-friend of any infant or other party, or as relation, such a person shall sign a written authority for that purpose and the authority shall be filed in the registry.”
To begin with, it is well settled that only actions founded on a breach of any of the fundamental rights guaranteed in the Constitution can be enforced under the Rules. The Fundamental Rights (Enforcement Procedure) Rules made by the chief Justice of Nigeria are peculiar rules restricted to the enforcement of citizens’ rights under Chapter iv of the Constitution. It makes no provision for the importation of any other rules of court for the enforcement of such rights. See CHUKWUOGO v. CHUKWUOGO (2007) ALL FWLR (Pt. 349) 1154. It will therefore be wrong for any court to fall back on the high court Rules of any state and purport to derive its power there from. In the instant case, I shall make bold to say that the Imo State High Court Rules quoted by the Appellant’s counsel will not avail them. If it is also a condition precedent to the exercise of the court’s jurisdiction that the enforcement of fundamental right or the securing of the enforcement thereof should be the main aim ad not an accessory claim as in this case. See W.A.E.C. v. AKINOLA OLADIPO AKINKUNMI (2008) LPELR 3468.
It is again settled law that in ascertaining the competence of an action, the determining factor is the plaintiffs claim. It is not the manner in which the claim is couched that matters, nor is the categorization given to the claim by the defendants that counts. The court has a duty to carefully examine the reliefs to ascertain what the claim is all about.
In the case before us, the 1st Respondent sued for herself and also sued as next-friend of the 2nd Applicant. The Appellants have cited order 13 of the Imo state High Court (civil procedure) Rules 1988 which only allows an infant as in this case to sue by his next-friend if such a person shall sign a written authority for that purpose and filed in the Registry; They have claimed that such an undertaking by the 1st Respondent is disallowed by reason of the above provision of the law which has not been complied with by the 1st respondent. In this case, the 2nd Respondent being an infant had sued by his next-friend, the 1st Respondent. It is on record that the 2nd Respondent is the adopted son of the 1st Respondent and her husband while he was alive. Even though the Appellants have attempted to challenge the paternity of the 2nd Respondent, it has not deviated from the fact that the 2nd Respondent was in actual tact adopted, the method of adoption albeit questionable in the eyes of the Appellants. The said issue is now a question of mother and son relationship. I am yet to find any law that debars a mother from standing in for her son in the face of brazen hostilities by members of her husband’s family, all because the appellants have considered her method of adoption and complaint irregular in the eyes of legal technicalities. I am also yet to find a law that forbids adoption of an infant in whatever form. In fact it is to my mind repugnant to natural justice for family members to seek to disinherit an innocent child simply because he was adopted and not born by way of his other siblings.
The complaint of the appellants is indeed three fold:
(i) That the 1st Respondent cannot sue as next friend of the 2nd Respondent thus resulting in a misjoinder of parties.
(ii) That the 2nd Respondent had not been property or regally adopted by the 1st Respondent and so, cannot customarily inherit the property of the deceased Desmond Ihejiobi.
(iii) That the method by which the Respondents have sought a remedy for the breach of their fundamental rights is irregular and not proper before the law.
On Issue 1, the Appellants are claiming that the Respondents cannot sue as next-friend of the 2nd Respondent but only as a separate individual. To begin with, the Federal or State High Court has original jurisdiction to entertain, any suit which seeks to enforce the observance of a fundamental human rights under chapter iv of the 1979 constitution, including the court of any person not to be subjected to torture inhuman or degrading treatment. See the case of KALU v. THE STATE (1998) 13 NWLR (Pt. 583) 531.
The court may however allow many applicants to be joined together in the same application once a common cause of action can be established. See USOUKWU & ORS. v. EZEONU 11 & ORS. (1991) 6 NWLR (pt. 200) 708 at 761. In this case the Respondent and the 2nd Respondent have a common cause of action which has been clearly established in their depositions and affidavit of facts. They were both manhandled, beaten up and sent disgracefully away from their matrimonial home. As a follow up from the case of UZOUKWU & ORS. v. EZEONU (supra) 36 students of the then Obafemi Awolowo University of Ife who were expelled by the authorities were permitted to file a single application for the enforcement of their rights to fair hearing, and also 102 students of the University of Agriculture, Makurdi who were rusticated or expelled, successfully prosecuted one action against the Respondent under the Fundamental Rights (Enforcement procedure) Rules.
See also the following cases: OGWUGHE & ORS. v. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS. 2 NPILR 809, SADIKU & 35 ORS. v. OBAFEMI AWOLOWO UNIVERSITY, IFE 2 NPILR 809.
I agree with learned counsel for the Respondents that once the violation complained of constitutes the principal relief, two or more causes of action may be joined in the same application for the enforcement of ones fundamental rights. See MINISTER FOR INTERNAL AFFAIRS v. ALHAJI SHUGABA DARMAN 1982 2 NCLR 915 AT 997.
The Appellants have not in any way been prejudiced or misled by the form adopted by the Respondents in this suit. The Appellants have also not shown in any way the injustice suffered by them due to the said misjoinder of parties and it behooves on them to show thus: see EKPUK v. OKON (2002) FWLR (Pt. 84) 145 at 169. The era of technicalities has long been jettisoned by the courts
The second leg of the argument of the Appellants is that the 2nd Respondent had not been properly or legally adopted by the 1st Respondent and so the 2nd Respondent cannot customarily live in or inherit the property of the deceased Desmond Ihejiobi. The crux of the Respondents complaint is that both mother and son had been maltreated and disgracefully ousted from their matrimonial home. The 2nd Respondent does not have to be legally or properly adopted before he can bring an action for the enforcement of his fundamental rights.
However, on the question of adoption, the 1st Respondent had stated in her affidavit and statement of facts that both her late husband and herself had gone through the process of adopting the said Ogochukwu Ihejiobi (2nd Respondent) as their son. The 1st Respondent had presented a document (Exhibit 1) obtained from the congregation called The Holy Family Sisters of the Needy, Nekede. There was also tendered, another document (Exhibit 2) which is the Baptismal Certificate of the 2nd Respondent obtained from the Catholic Mission. These two documents, to my mind, are enough proof of the fact that the 2nd Respondent was indeed adopted by both the 1st Respondent and her deceased husband Desmond Onyegbule Ihejiobi. I shall hereby produce verbatim the comments made by the trial Judge on the issue of adoption of the 2nd Respondent.
“Apart from the averment that the late husband of the 1st applicant did not sign Exhibit No. 1 as the signature on Exhibit No. 1 was not his signature, the Respondents did not go further than that. I am therefore left with no option and I have no reason to doubt Exhibit No. 1 more so as the same late husband of the 1st applicant shortly after Exhibit No. 1 participated in the christening/baptism of the 2nd Applicant which resulted in the issuance of Exhibit No. 2.
What is important in my view is the intention of the 1st applicant and her late husband at the time they went to the Holy Sisters of the Needy Nekede to obtain Exhibit No. 1, and not necessarily whether it was legal adoption or customary adoption they contracted.”
I throw my weight behind the reasoning of the trial Judge as quoted above. Again, if the deceased Desmond Ihejiobi and his wife, the 1st Respondent both signed and obtained exhibit 1 from the Reverend sisters at Nekede, and soon thereafter, both physically witnessed the baptism of the same infant in the catholic church, it is indeed too late in the day for the relations of the deceased to turn round and declare that the 2nd Respondent is not the adopted child of the deceased Desmond Onyegbule Ihejiobi. It is my view that the deceased had by his conduct consented and indeed participated in the adoption of the 2nd Respondent. Having taken this stance, it is then clear that the Respondents right under the constitution had been infringed. The learned trial Judge described the actions of the Appellants as “Callous, wicked, most uncivilized and thoughtless.” The Appellants made a vague attempt at justifying their action by describing it as customary. It is however worthy of note that the action of the Appellants which I also describe as barbaric in casting away the 1st Respondent in a wheelbarrow in the full view of members of the public is totally inconsistent with the fundamental rights of the Respondents, and that “custom” I dare to say is repugnant to natural justice, and condemnable.
On the competence of the cause of action of the Respondents, that issue has already been dealt with earlier in this judgment and it is still my considered view that the application of the Respondents to enforce their fundamental rights still holds sway in the face of the various aforementioned authorities. It is now the duty of courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities. See AKPAN v. BOB (2010) 17 NWLR (Pt. 1223) 421.
On the issue of damages, it is my view that since the action is proper before the court, there is no doubt that in view of the affidavit and further affidavit of the Respondents before the court, immeasurable damage had been done to the dignity of the Respondents by the inhuman and degrading treatment meted out to them. There is also the unchallenged evidence that the 1st Respondent is the mistress of a school and her societal status has been grossly lowered in the eyes of the public. They have been ridiculed, disgraced and humiliated and are indeed entitled to damages as mother and son respectively.
Learned counsel has lost track of fact that both 1st and 2nd respondents as mother and son sued jointly for the enforcement of their fundamental rights. The N250,000.00 damages awarded by the court then accrues to both of them jointly.
No doubt, a trial court should act only on credible evidence adduced by the parties. I do not consider the fact that the 1st Appellant was bundled into a wheelbarrow and sent out of her matrimonial home back to her maiden home a fact to be termed “irrelevant” as adduced by Appellant’s counsel. Whatever comments the trial court must have made had been rightly culled from the processes filed in court which the trial court had a duty to look at and adjudge accordingly.
The court should not limit itself to only the statement of facts and further affidavit in deciding the matter before it. All processes before the court ought to be examined and considered and the court will not be wrong to pronounce on them in the cause of adjudication. Accordingly, once it is proved that the Respondents fundamental right had been breached, they are entitled to damages. In awarding N250,000.00 damages, the trial court rightfully took into consideration of status of 1st Respondent as Head Mistress of a school, the shame, disgrace and dehumanization which the Appellants subjected her. The said award of damages was grounded on valid and established legal principles and evidence therein.
Consequent upon all of the above findings the learned trial judge had made the following orders:
(vi) That the applicants are entitled to enjoy their private and family life within their later husband’s/father’s compound/house hold without any discrimination or interference by the Respondents
(ii) That the forceful ejection of the applicants from their matrimonial/family home by the Respondents, and compulsory seizure and possession of the movable and immovable property of the Applicants on the false allegation that the 1st Applicant wanted to kill the Respondents by a doctor and or that the 2nd applicant is not the uterine child of his late father are primitive, uncivilized and incompatible with the provisions of Section 37, 42(2) and 44 of the 1999 Constitution of Nigeria and Sections 5 and 18(3) of the African Charter on Human and Peoples Rights.
(iii) That the applicants who are the wife and son of the late Desmond, Onyegbule Ihejiobi are entitled to enjoy the estate of their late husband and father.
(iv) N250,000.00 (Two hundred and fifty thousand Naira) damages against the Respondents jointly and severally for the inhuman treatment meted out to the applicants on 2nd September, 2001.
(v) That the Respondents should vacate the Applicants’ family house and restore the applicants to possession thereof.
(vi) That the Respondents are restrained from interfering in the Applicants’ enjoyment of their family property.
I cannot agree more with the learned trial Judge on his conclusions and findings herein. In the result, and from the totality of all of the above, there is indeed no gainsaying the fact that this appeal is lacking in merit and substance. It deserves to be dismissed and I hereby dismiss it accordingly.
The judgment of the lower court delivered on the 17th day of July, 2002 is hereby affirmed. Even though costs follow events, I shall make no order as to costs.
JOHN INYANG OKORO, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother, PHILOMENA MBUA EKPE, JCA just delivered and I agree totally with her that this appeal lacks merit in its entirety. My learned brother has meticulously and quite efficiently dealt with all the salient issues submitted for the determination of this appeal and I hereby adopt both her reasoning and conclusion in the appeal. I also dismiss this appeal and abide by all the consequential orders made in the lead judgment. I also make no order as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of preview of the judgment delivered by my learned brother, PHILOMENA MBUA EKPE; JCA.
My learned brother had adequately considered the issues that arose for determination in this appeal. I have nothing else of value to contribute. Accordingly I agree with his reasoning and conclusion that this appeal lacks merit and should be dismissed. I also hold that the appeal has no merit. It is hereby dismissed by me.
I abide by the consequential orders made therein.
Appearances
A. C. Okoroafor, Esq. with S. C. Okpo, Esq.For Appellant
AND
M. O. Nlemedim, Esq.For Respondent
