H. R. H. EZE SIR J. E. UKAOBASI v. BERTHRAM EZIMORA & ORS
(2016)LCN/8180(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of February, 2016
CA/E/106/2009
RATIO
FUNDAMENTAL RIGHTS; DEFINITION OF FUNDAMENTAL RIGHTS
Furthermore, in BLACK’S LAW DICTIONARY, 8th Edition at 697, the phrase Fundamental right is defined as: 1. A right derived from natural or. 2. Constitutional law. A significant component of liberty, encroachments of which are rigorously tested by Courts to ascertain the soundness of purported governmental justifications.” per. TOM SHAIBU YAKUBU, J.C.A.
FUNDAMENTAL LAW: THE MEANING OF FUNDAMENTAL LAW
And fundamental law is defined at same page 697 of Black’s Law Dictionary, 8th Edition to mean: “The organic law that establishes the governing principles of a nation or State, esp., constitutional law – Also termed organic law; ground – law.” per. TOM SHAIBU YAKUBU, J.C.A.
CONSTITUTION LAW: THE ENFORCEMENT OF FUNDAMENTAL RIGHTS; THE ESSENCE OF AFFIDAVIT EVIDENCE IN AN APPLICATION FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHT
The law is well settled that in an application for the enforcement of fundamental rights, its determination is premised on the affidavit evidence produced and placed before the Court. That is, it is the affidavit evidence which the Court must meticulously peruse in order to reach a just determination of the application. Therefore, the affidavit evidence must be properly evaluated. Bassey Nkanta Mbang v. W/PC Janet & ors (2015) All FWLR (pt.767) 766 AT 784, per Nweze, JCA (as he then was). per. TOM SHAIBU YAKUBU, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE; WHEN DOES A MISCONCEPTION OCCUR
It is clear to me that the learned trial judge, with respects, misconceived the appellant’s application. It is said that: “A misconception occurs when a judge misconceives the issues and summarises the evidence inadequately or incorrectly for one side or the other or makes mistakes in law applicable to the issues in the case” per Ogundare, JSC in Abasi v. Ekwealor (1993) 7 SCNJ 193 at 209. per. TOM SHAIBU YAKUBU, J.C.A.
COURT: DUTY OF TRIAL JUDGE; WHETHER IT IS THE PRIMARY DUTY OF THE TRIAL JUDGE TO EVALUATE EVIDENCE
Furthermore, “the law is very well crystallized that it is the primary duty of the trial judge to receive all relevant evidence. That is perception. The next task for the judge is to weigh the evidence in the case. That is evaluation. A finding of fact involves both perception and evaluation.” per Bode Rhodes-Vivour, JSC in NACENN Nig Ltd v. BEWAC Automotive produces Ltd (2011) LPELR – 8125 (SC). Therefore, it is well settled to the effect that: “A trial judge has the primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his wrongly Stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon by evidence by the parties and is supported by law.” Per Uwaifo, JSC in Adeleke & ors v. Iyanda & ors (2001) 13 NWLR (pt.729) 1 at 20; (2001) LPELR – 114 (SC) at p. 23. per. TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
H. R. H. EZE SIR J. E. UKAOBASI – Appellant(s)
AND
BERTHRAM EZIMORA & 8 ORS – Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant had approached the Anambra State High Court of Justice, holden at Onitsha with a complaint that his fundamental rights as enshrined in Sections 33, 35, 36, 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) had been encroached upon by the Respondents. His Ex parte application was granted on 29th July, 2008. Consequently, he filed a motion on notice pursuant to Order 1 Rule 2 (1); Order 2 Rule 1 (1) and Order 1 Rule 1 (1) & (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. Furthermore, the application was anchored on Sections 33, 35, 36, 40, 45, 44, 46 (1) and 6 (6) (A) & (B) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The appellant, prayed for the following reliefs, to wit:
“1. AN ORDER enforcing the Fundamental rights of the Applicant guaranteed under Sections 33, 35, 36, 40, 43 and 44 of the Constitution of Nigeria, 1990 which rights have been and still being infringed and unless restrained by an Order of this Honourable Court will continue to be violated by the
Respondents use of self-help, thugs and Mobile Police harassments, intimidations, arrests, detention, threats to life, seizures, impoundments and confiscations of movable goods, lock-ups, closures of businesses of the Applicant and or seal-off of the property or Registered Head office of the Applicant?s company at No. 22 Okwei Street, Onitsha on 11th February, 2008 and 11th July, 2008.
2. A DECLARATION that the Respondents use of self-help thugs and Mobile Policemen from the Anambra State Police command to harass, intimidate, arrest, detain and threaten the life of the staff of the Applicant?s company and the Applicant and seize, impound, confiscate the movable goods of the Applicant and or closure, lock-up or seal-off of the property or the registered Head office of the Applicant’s company at No. 22 Okwei Street, Onitsha on 11th February, 2008 and 11th July, 2008 are unlawful, illegal, unconstitutional, arbitrary and violative of the Applicant’s Fundamental rights guaranteed under Sections 33, 35, 36, 40, 43 and 44 of the Constitution of Nigeria, 1999.
3. A DECLARATION that the Respondents has no right to forcefully with the use of the
Police power of arrest, arms and ammunition unlawfully break into the landed, immovable and movable property of the Applicant’s company at No. 22 Okwei Street Onitsha and seal-off the Applicant’s lawful business or seize, impound and confiscate the Applicant’s movable goods the acts of the Respondents were assuming to be and establishing a Court of their own formulation instead of referring same to a Court of law, a fortiori, a rape of rule of law establishing the Applicant’s proprietary rights.
4. AN ORDER OF PERPETUAL INJUNCTION restraining such or similar further infringement of Applicant’s fundamental rights to life, civil liberty, fair hearing, freedom of association and property, and let alone continue to harass, intimidate, arrest, detain, threaten the life of any staff of the Applicant’s company and the Applicant and or seize, impound and confiscate the movable goods of the Applicant and lock-up; or seal-off the property or the registered Head Office of the Applicant’s company and or close-up the lawful business of the Applicant at No. 22 Okwei Street, Onitsha.
5. AN ORDER for payment of the sum of N2, 000,000.00 (TWO MILLION NAIRA) to the
Applicant by the Respondents jointly and severally as special and general damages.
6. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
AND TAKE NOTICE that these ORDER(S) are in terms of the reliefs sought in the STATEMENT accompanying the AFFIDAVIT IN SUPPORT AND OF URGENCY of the Application for LEAVE to apply for the ORDER(S) on the Grounds set out in Paragraph 3 of Copy of the Statement served herewith, used in the Application for the LEAVE to apply for such ORDER(S).
AND FURTHER TAKE NOTICE that in the said High Court No. 2 by AN ORDER made the 29th day of July 2008 annexed and served herewith directed that the LEAVE granted shall operate as a STAY of all actions or matters relating to or connected with the complaints of the Applicant herein until the determination of the substantive Motion on Notice or until this Court otherwise orders.
The grounds upon which the above reliefs were sought as contained at Paragraph 3 of the Statement of the applicant pursuant to Order 1 Rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 were that:
“a. The Applicant is the
alter-ego and Chairman/Managing Director of Jesoj Trading Company Limited, a limited company incorporated under the Companies and Allied Matters Act, 1990 with a registered Head Office at No. 22 Okwei Street, Onitsha.
b. The Applicant’s company is the owner and occupier of property lying situate and known as No. 22 Okwei Street Onitsha fully developed by the Applicant into a five-storey registered Head office complex comprising of warehouses, departments and offices utilized for Applicant’s company’s vast business including importers and exporters and property investments in accordance with its Memorandum and Articles of Association under the Companies Act, 1990.
c. sometime this year, 2009, on inquiry made by the Applicant, Street traders operating along New Market Road and Okwei Street, Onitsha under the name Onitsha Printing paper Dealers Association (OPPDA) then led by one Chief Festus Ohagi appointed an Allocation committee/panel with one Mr. Ifeanyi Ezemorah as Chairman to enforce the movement or re-location of its members to their OPPDA New Market site at Woliwo Layout, Onitsha.
d. Sometime on 11th February 2008, some armed Mobile
Policemen from the Anambra State Police command hired by the 1st to 8th Respondents in company with OPPDA thugs who wield dangerous weapons and an officer of the 8th Respondent stormed the Applicant’s company registered Head office at No. 22 Okwei Street, Onitsha and with gun-points ordered the Applicant and a staff of the Applicant’s company to move out of the Head office complex or be shot dead, seized and confiscated 13 cartons of 40 leaves onward Exercise books belonging to the Applicant and arrested the Applicant?s businesses and property and or Head office and prevented the Applicant from carrying out his lawful businesses.
e. The Respondents detained the said arrested staff of the Applicant’s company Ijeoma at the OPPDA New Market site secretariat for 6 hours before releasing her ad confiscated the 13 cartons of 40 leaves onward exercise books belonging to the Applicant each carton valued at N4,100.
f. The Applicant on inquiry why the Respondents seized, impounded and confiscated the Applicant?s movable goods and sealed-off the Applicant’s company Head office complex discovered that the 1st to 8th Respondents sat and constituted
themselves into a panel or Kangaroo Court and adjudged the Applicant as a Street trader within the meaning of Anambra State law banning Street trading that must be compelled to join OPPDA association and move or re-locate to OPPDA New Market site at Woliwo Layout, Onitsha and insisting that the Applicant?s company must abandon its five-storey Head office complex to rent OPPDA small-scale market stalls.
g. The Applicant is not a member of Onitsha Printing Paper Dealers Association (OPPDA) and do not intend to join as member now or in the foreseeable future.
h. The Applicant’s company operate purely as a limited liability company just like any other corporate entities such as banks, telecom companies and is not a Street trader within the meaning and definition of a Street trader or Street trader or Street trading under the Anambra State law banning Street trading.
i. The Applicant caused his solicitor prince Jezie Ekejiuba, Esq., to write a SOS petition letter dated February 11, 2008 to the 8th Respondent and the officers of the 9th Respondent for urgent protection of the Fundamental rights of the Applicant and attached photocopy of the
Certificate of Incorporation of the Applicant?s company but the petition fell on deaf ears without any reply or redress whatsoever.
j. Sometime on 11th July, 2008, the 1st to 8th Respondents with their armed OPPDA thugs and Mobile Policemen from the Anambra State Police command in company of an officer from the office of the 8th Respondent again stormed the registered Head office of the Applicant?s company at No. 22 Okwei Street, Onitsha and sealed-off, locked-up and or ordered the closure of the Applicant?s business and property or registered Head office and in the same gun-point commando style commanded the Applicant and the staff and employees of the Applicant?s company to move away or be shot dead and seized and confiscated 9 cartons of 80 leaves onward exercise books valued at N4,800 each belonging to the Applicant as was done during the similar incident of 11th February, 2008 invasion and up till the time of filing this action the said seal-off and closure has remained and continued unabated.
k. The Applicant’s lawful business at his registered Head office are suffering and the Applicant is unable to use his property and
registered Head office for his lawful business to meet his contractual obligations, to upkeep family dependants, staff and employees.
i. The Applicant’s rights under Section 33, 35, 36, 40, 43 and 44 of the Constitution of Nigeria, 1999 have been infringed and are still being infringed and are likely to be infringed by the Respondents.
?
WHEREFORE the Applicant claims the sum of N2,000,000.00 (TWO MILLION NAIRA) special and General Damages against the Respondents jointly and severally along with Injunctive Orders, particulars as follows:
i. Respondents threat to life of the staff of the Applicant?s company and the Applicant to illegitimately use the Police power of arrest, arms and ammunition to over-awe and command the staff of Applicant’s company and the Applicant to move away at gun-point or be shot dead on 11th February, 2008 and 11th July, 2008.
ii. Respondents Deprivation of Civil liberty of the staff of the Applicant’s company to illegitimately use the Police power of arrest, arms and ammunition to arrest and detain the staff of Applicant’s company Ijeoma for 6 hours at OPPDA new Market Site Secretariat on 11th February, 2008.
iii. Respondents forceful closure of the business of the Applicant and depriving him from undertaking or carrying out his daily lawful business at the Applicant?s company registered Head office at No. 22 Okwei Street, Onitsha, on 11th February, 2008 and 11th July, 2008 to maintain a source of lifelihood for the staff, family, children and dependants of the Applicant.
iv. Respondents seal-off, and lock-up of the registered Head office or property of the Applicant on 11th February, 2008 and 11th July, 2008 and depriving the Applicant of his proprietary rights for several days.
v. 1st to 8th Respondents Constitution of an Allocation committee/Panel or Kangaroo Court that adjudged the Applicant as a Street trader without giving the Applicant a fair hearing opportunity to defend himself.
vi. Respondents use of self-help, force, harassment, intimidation and compulsion to compel the Applicant to join their OPPDA private Constitution and or OPPDA private decisions.
vii. Respondents seizure, impoundment, and confiscation of movable goods especially more than 13 cartons of 40 leaves onward exercise books valued at N4,100 each on 11th
February, 2008 and 9 cartons of 80 leaves onward exercise books valued at N4,800 each on 11th July, 2008 belonging to the Applicant.
vii. Respondents forceful closure, seal-off or lock-up of the Applicant business on 11th February, 200g and 11th July, 2008 and depriving the Applicant of his daily business profits and incomes of N55,000.00 per day for a minimum of 30 days from Applicant’s valued customers.
The appellant deposed to an affidavit of 21 Paragraphs in support of the application. It is expedient and for ease appreciation that the depositions therein are reproduced. They say:
“I, HRH EZE SIR J. E. UKAOBASI, Male, Nigeria Citizen and Christian residing at Eze’s Palace Umuobi Autonomous Community, Umunneochi L. G. A. in Abia State of Nigeria Do HEREBY make oath and State as follows:
1. That I am the Applicant in this action and very conversant with the facts of this case.
2. That my company Jesoj Trading Company Limited is a limited liability company incorporated under the Companies and Allied Matters Act, 1990 with a registered Head Office at No. 22 Okwei Street, Onitsha.
3. That I am the alter-ego and chairman/Managing
Director of Jesoj Trading Company Limited.
4. That the 1st to 7th Respondents are leaders and members of Onitsha Printing paper Dealers Association (OPPDA) formerly operating along New Market Road and Okwei Street, Onitsha.
5. That the 8th Respondent is the special Adviser to the Governor of Anambra State in charge of the control of Markets and Parks in Anambra State.
6. That the 9th Respondent is the Commissioner of Police in charge of the control of all the Rank and File of Nigeria Police Force in Anambra State
7. That my company Jesoj Trading company Limited is the owner and occupier of property lying situate and known as No. 22 Okwei Street, Onitsha fully developed by me into a five-storey registered Head office complex comprising of warehouses, departments and offices utilized for my said company’s vast business including imports and exports and property investments in accordance with its Memorandum and Articles of Association under the Companies Act, 1990. See EXHIBITS ‘A’, ‘B’ and ‘C’ herewith annexed.
8. That sometime this year 2008, on inquiry made by me, Street traders operating along New Market Road and Okwei Street, Onitsha
under the name Onitsha printing Paper Dealers Association (OPPDA) then led by one chief Festus Ohagi appointed an Allocation committee/panel with one Mr. Ifeanyi Ezemorah as chairman to enforce the movement or re-location of its members to their OPPDA New Market site at Woliwo Layout, Onitsha.
9. That sometime on 11th February, 2008, some armed Mobile Policemen from the Anambra State Police command hired by the 1st to 8th Respondents in company with OPPDA thugs who wield dangerous weapons and an officer of the 8th Respondent stormed my company?s property or registered Head office at No. 22 Okwei Street, Onitsha and with gun-points ordered me and a staff of my company to move out of the Head office complex or be shot dead, seized and confiscated 13 cartons of 40 leaves onward exercise books belonging to me and arrested my company’s staff and ordered the closure and sealing-off of my business and property and or Head office and prevented me from carrying out my lawful business.
10. That the Respondents detained the said arrested staff of my company Ijeoma at the OPPDA New Market site Secretariat for 6 hours before releasing her and confiscated
the 13 cartons of 40 leaves onward exercise books belonging to me each carton valued at N4,100.
11. That I on inquiry why the Respondents seized, impounded and confiscated my movable goods and sealed-off my company’s Head office complex discovered that the 1st to 8th Respondents sat and constituted themselves into a panel or Kangaroo Court and adjudged me as a Street trader within the meaning of Anambra State law banning Street trading that must be compelled to join OPPDA association and move or re-locate to OPPDA New Market site at Woliwo Layout, Onitsha and insisting that my company must abandon its five-storey Head Office complex to rent OPPDA small scale market stalls.
12. That I am not a member of Onitsha printing paper Dealers Association (OPPDA) and do not intend to join as member now or in the foreseeable future.
13. That my company operate purely as a limited liability company just like any other corporate entities such as banks, telecom companies and is not a Street trader within the meaning and definition of a Street trader or Street trading under the Anambra State law banning Street trading.
14. That I caused my Solicitor Prince
Jezie Ekejiuba, Esq., to write a SOS Petition letter dated February 11, 2008 to the 8th Respondent and the officers of the 9th Respondent for urgent protection of my fundamental rights and attached photocopy of the Certificate of Incorporation of my company but the petition fell on deaf ears without any reply or redress whatsoever. See EXHIBITS ‘D’ and ‘E’ herewith annexed.
15. That sometime on 11th July, 2008, the 1st to 8th Respondents with their armed OPPDA thugs and Mobile Policemen from the Anambra State Police command in company of an officer from the office of the 8th Respondent again stormed the registered Head office of my company at No. 22 Okwei Street, Onitsha and sealed-off lock-up and or ordered the closure of my business and property or registered Head office and in the same gunpoint commando style commanded me and the staff and employees of my company to move away or be shot dead and seized and confiscated 9 cartons of 80 leaves onward exercise books valued at N4,800 each belonging to me as was done during the similar incident of 11th February, 2008 invasion and up till the time of filing this action the said seal-off and closure has
remained and continued unabated.
16. That my lawful business at my company’s registered Head office are suffering and I am unable to use my property and registered Head office for my lawful business to meet my contractual obligations, to upkeep family, dependents, staff and employees.
17. That the agents of the Respondents have threatened to arrest me and some staff of my company and are also continuing to threaten my life and that on my family if I did not move or relocate to OPPDA New Market site Woliwo Layout Onitsha.
18. That my solicitor prince Jezie Ekejiuba, Esq., informs me and I verily believe him that the threats to my life, arrest detentions and threats of further arrests and detention of the staff of my company and compulsion to join OPPDA Association, Constitution of Kangaroo Court, seizures, impoundments and confiscations and seal-offs, lock-ups and closure of my company’s registered Head office and business amounts to ‘an invasion of my fundamental rights.
19. That unless urgently restrained, the Respondents through their agents and servants or privies may go ahead to carry out their threats.
20. That the essence of this
Application is for me to enforce my fundamental rights as enshrined in the Constitution of Nigeria, 1999 as prayed for in my Motion paper.
21. That I swear to this Affidavit in god faith ad in accordance with the Oath Acts, 1990.?
?
The appellant, furthermore filed a 5 Paragraph affidavit which verified the facts he relied upon, in support of his application. Also in support of the application, the appellant?s learned counsel, filed a written address dated 1st August, 2008.
?
In reacting to the application, the 8th Respondent deposed to and filed an affidavit of 19 paragraphs, as follows:
“I, Chief, Honourable, Sylvester Nwobu-Alor, male, Christian Nigerian citizen of the office of the Governor, Government House, Awka, Anambra State do hereby male oath and State as follows:
1. That I am the 8th Respondent herein.
2. That I have the consent of all the Respondents to depose to this affidavit.
3. That by virtue of the above facts I am conversant with the facts deposed herein.
4. That as the special Adviser to the Governor on parks ad markets Administration, I am charged with the duty of peace, order and security in
the markets in the State.
5. That I have gone through the grounds upon which the relief’s in this application is brought.
6. That all the grounds for the application are false.
7. That the truth is that State government guided by the desire to sanitise and order the markets directed the relocation and consolidation of dealers in printing paper materials and accessories to Woliwo where they have their permanent site.
8. That Government embarked on extensive publicity to that effect.
9. That after reasonable time further publicity about the intended relocation and consolidation of all dealers in printing papers and allied materials to a permanent site at Woliwo.
10. That all the other dealers complied with the State government directive and are already doing their business at Woliwo.
11. That it is only the applicant who insisted that since he is in his own house he is not bound to obey the State directive on relocation of printing papers and allied materials.
12. That nobody is saying that the applicant does not own his house but the State has directed that the material he is dealing on be carried out at another location
for the purpose of sanity in the city of Onitsha.
13. That I am informed by Don Adizue Esq, and I verily believe him that the applicant is also in breach of the Street trading laws of Anambra State.
14. That the applicant is a dealer in printing papers which the State government has directed to be located at Woliwo for sanity in the cosmopolitan city.
15. That nobody is forcing the applicant to join OPPDA as he does not need to joint the OPPDA to move his business to Woliwo where other dealers in printing papers and allied materials are located.
16. That the applicant is seeking to use his status as a traditional ruler to frustrate the State government directive and policy on having organised markets in the State.
17. That it is in the interest of justice to refuse this application.
18. That the applicant would not be pre-judiced if his application is refused.
19. That I depose to this affidavit in good faith.”
There is also a Further Affidavit deposed to and filed by the 1st Respondent. It contains 13 Paragraphs, thus:
“I, Berthram Ezimora, male, Christian Nigerian citizen of No. 52 Olo Street Omoba Phase I Onitsha
Anambra State do hereby make oath and State as follows:
1. That I am the 1st respondent in this matter.
2. That I have the consent of all the Respondents to depose to this affidavit.
3. That by virtue of the above facts I am conversant with the facts deposed herein.
4. That I am the chairman of the committee appointed to enforce compliance with the State government directives on the relocation of the printing paper and allied materials dealer from the crowded Street of Okwei Street to Woliwo where they would operate without any obstruction in the metropolitan city of Onitsha.
5. That Paragraph d of the grounds for the relief is false as nobody threatened the life of the applicant of his staff with gun.
6. That 13 cartons of 40 leaves onward exercise books was not confiscated or seized from the applicants office.
7. That Paragraph e of the grounds for the relief is false as the staff of the applicant was only asked not to operate or carry on the business of printing paper and allied materials at Okwei Street but Woliwo as directed by the State Government.
8. That Paragraph f of the grounds for the relief is false as the
applicant is yet to be tried before any panel or Court constituted by the committee.
9. That Paragraph j of the ground of the application is false as 9 cartons of 80 leaves onward exercise books was not seized or confiscated from the applicants office, rather when we discovered that he applicants has refused to comply with the State directives on relocation to Woliwo after more than three months we repeated our initial persuasion urging the staff not to carry on their business in Okwei in line with the State government directive.
10. That Paragraph I of the grounds for the relief is false.
11. That it is in the interest of justice to refuse the application.
12. That the applicant would not be prejudiced if the application is refused.
13. That I depose to that affidavit in good faith.”
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The Respondents’ learned counsel filed a written address in support of the Counter affidavit and Further Counter Affidavit, in opposition to the application for the appellant’s enforcement of his fundamental human rights. Thereafter, the appellant’s learned counsel filed a written reply on points of law to the Respondents’ written address.
The learned trial judge in his consideration and determination of the appellant’s application returned the verdict that the appellant did not make out any case whatsoever to entitle him to the reliefs sought, hence the application was dismissed. The appellant, not unnaturally piqued by the decision of the Court below, appealed to this Court. The appeal is erected on five grounds of appeal.
The appellant, in order to prosecute the appeal, was armed with the appellant’s brief of argument dated and filed on 11th May, 2009. It was settled by Prince Jezie Ekejiuba; who identified a sole issue for the determination of the appeal, thus:
“Whether the Learned trial Judge was right in refusing to grant the reliefs sought by the Appellant under the Fundamental Rights 9 Enforcement Procedure) Rules 1979?”
The Respondents’ brief of argument settled by Don Adiziue, Esq., was dated 2nd Sept, 2009 and filed on 3rd September, 2009. He adopted the sole issue nominated by the appellant for the resolution of the appeal. I am in agreement with both counsel herein and adopt the same sole issue for the determination of this appeal.
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The learned appellant’s counsel
submitted that the application of the appellant which comprises the affidavit, the Statement in support thereof and the exhibits placed before the Court below, the appellant demonstrated that his right to life and property were infringed and invaded upon by the respondents and that the onus shifted on the respondents to justify the infringement and invasion of the appellant’s fundamental rights to life and property. He referred to Nigeria Navy v. Garrik (2000) 4 NWLR (pt. 969) III; Director of SSS v. Agbakoba (1999) 3 NWLR (pt. 595) 595 at 371. He furthermore contended that the denial at Paragraph 6 of the 8th Respondent’s counter affidavit was evasive and did not effectively deny the depositions in the appellant’s affidavit in support of the application, hence the undenied depositions in the appellant’s affidavit are deemed ‘as unchallenged and uncontroverted and capable of being acted upon by the Court. He placed reliance on Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (pt.966) 205; Akanbi v. Alao (1989) 3 NWLR (pt. 108)?; UBN v. Osbo (1995) 2 NWLR (pt.380) 647.
Referring to Paragraph 12 of the 8th Respondent’s counter affidavit and Paragraphs 7 and 9 of the
1st Respondent’s counter affidavit, the appellant’s learned counsel contended that the deposition therein admit the fact of the invasion of the appellant’s property at No. 22 Okwei Street, Onitsha. He insisted that the invasion of the appellant’s property was tantamount to a resort to self-help and contrary to Section 43 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He placed reliance on Governor of Lagos State v. Ojukwu (1986)? NWLR (PT. 18) 621; Agbai v. Okogbue (1991,) ? NWLR (PT. 204) 391.
He contended also that the excuse offered in the counter affidavit and further counter affidavit of the 8th and 1st Respondents respectively, to the effect that the respondents only informed the appellant of the need to comply with the State Government Directive to move or relocate his business to another part of the town, had no documentary evidence to support their assertion. He relied on Section 135 (1) & (2) of the Evidence Act, Cap. 113 Laws of the Federation of Nigeria, 1990; Elemo & ors. v. Omolade & ors. (1968)? NWLR (pt. 359) at 36. He submitted that the non-production of the alleged State Government Directive or
Order notwithstanding, the learned trial judge made reference to and relied on it at page 79 – 80 of the record of appeal, which was speculative. He referred to B. Manfag Nig. Ltd v. M/S 0.1 Ltd (2007)? 14 NWLR (pt. 1053) 109; Abacha v. Fawehinmi (2000) 6 NWLR (pt. 660) 228. Furthermore, it was his contention that even if such a State Government Directive or Order were in existence, the same could have been inconsistent with the Provision in Sections 1(1) & (3); 33, 36, 40,43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria (as mended).
He also contended that the learned trial judge misapprehended the appellant’s claim when he held at page 79 line 20 of the record of appeal to the effect the enforcement of the fundamental rights of a citizen cannot be to the detriment of the overriding interest of the society. And that a Court is not supposed to decide cases before it which were not the real issues submitted to him for resolution. He referred to Adetoun Oladeji (Nig.) Ltd v. NB Plc (2007) 5 NWLR (pt. 1027) 415; Ossai v. Wakwah (2006) 4 NWLR (pt. 969) 208; Nwokolo v. Onuma (1990) 3 NWLR (pt. 136) 22; Abasi v. Ekweator (1993) 7 SCNJ
193 at 209.
Learned appellant’s counsel persisted in his submission that the learned trial judge did not properly evaluate the affidavit evidence produced by the appellant and this led to a miscarriage of justice. That where the trial Court makes perverse findings which are not supported by evidence, the appellate Court, can intervene and do justice to the parties. He placed reliance on Ojeleye v. Registered Trustee O. I. M. C. S. C. NCA (2008) 15 NWLR (pt. 111) 520; Lion Buildings Ltd v. Shadipe (1979) 12 S.C. 135 at 153. He urged us to invoke Section 16 of the Court of Appeal Act and grant the reliefs sought by the appellant.
On his Part, learned Respondents’ counsel submitted that the learned trial judge was right in dismissing the appellant’s application because of the superior and convincing facts placed before him by the respondents. He referred to A. G. Ekiti State v. Daramola (2003) FWLR (pt. 169); Egesimba v. Onusikire (2002) FWLR (pt. 128) …?; Onkheroraye v. Igbinovia (2001) 11 NWLR (pt.724) 343 to the effect that where findings of facts made by a trial Court are based on the evidence place before it, the appellate Court will not
interfere with such findings.
He also submitted that the applicant failed to clearly show that his fundamental rights have been or is likely to be infringed upon or violated and that the cases of Nigerian Navy v. Garrik (supra) and Director SSS v. Agbakoba (supra) are not helpful to the appellant. He also referred to Fajemirokun v. C. B. (C.L) Nig. Ltd (2002) 10 NWLR (pt. 774)?; Ezeadukwa v. Maduka (1997) 8 NWLR (pt. 518) 635; Onagoruwa v. IGP (1991) 5 NWLR (pt. 193)?; Mogaji v. Odofin (1978)?.
Learned Respondents’ counsel also submitted that the enforcement of fundamental right procedure is considered on affidavit evidence and it is grantable at the discretion of the Court upon the presentation before the Court, the vital and relevant documentary evidence, which the appellant failed to produce in the instant case. He insisted that the appellant’s right to own immovable property anywhere in Nigeria does exclude any lawful directive of the State where the property is located and that he State Government Law on Street trading and the State Directive thereto are quite consistent with the provisions of the Constitution. He also insisted that the learned
trial judge was right in his appreciation and evaluation of the evidence produced before him and the applicable law to the case
Resolution
The entrenchment of fundamental rights and the mode of enforcing its breach in the Nigerian Constitutions over the years, undoubtedly underscores its importance and the need to zealously protect the sanctity of human life. Therefore, the Courts do not usually shirk their responsibility in ensuring that the human rights of the individual is not compromised and on no account should such rights be swept under the carpet or taken away by any person or government under any guise. The apex Court in Ransome-Kuti & ors. v. Attor. Gen. Federation & ors (1985) LPELR – 2940 (SC) at 33 – 34, per his Lordship, Eso, JSC in defining fundamental rights succinctly Stated thus:
“What is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to political society itself. It is a primary condition to a civilized society existence and what has been done by our Constitution, since independence, starting with the Independence Constitution, that is,
the Nigeria (Constitution) order in council 1960 up to the present Constitution, that is, the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself. It is not in all countries that the Fundamental Rights guaranteed to the citizen are written into the Constitution. For instance, in England, where there is no written Constitution, it stands to reason that a written code of fundamental rights could not be expected. But notwithstanding, there are fundamental rights. The guarantee against inhuman treatment, as specified in Section 19 of the 1963 Constitution, would, for instance, appear to be the same as some of the fundamental rights guaranteed in England, contained in the Magna Carter 1215 – Articles 19 and 40 which provide – “no freeman may be taken or imprisoned, or disused of his freehold or liabilities in free customs or be outlawed or exiled or in any way molested nor judged or condemned except by
lawful judgment in accordance with the law of the land ….”
Furthermore, in BLACK?S LAW DICTIONARY, 8th Edition at 697, the phrase Fundamental right is defined as:
?1. A right derived from natural or fundamental law. 2. Constitutional law. A significant component of liberty, encroachments of which are rigorously tested by Courts to ascertain the soundness of purported governmental justifications.”
And fundamental law is defined at same page 697 of Black?s Law Dictionary, 8th Edition to mean:
“The organic law that establishes the governing principles of a nation or State, esp., constitutional law – Also termed organic law; ground – law.”
Now for the purposes of the present matter which borders on an alleged violation of the proprietary rights of the applicant, Section 43 of the 1999 Constitutions of the Federal Republic of Nigeria (as amended) is germane. It provides, inter alia:
“43. Right to acquire and own immovable property. Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.?
The complaint of
the appellant is that his property situate at No. 22 Okwei Street Onitsha was forcefully with the Police power of arrest, arms and ammunition unlawfully broken into and also that the said property was sealed off such that some of his movable goods were seized and impounded/carted away by the respondents on 11th February, 2008 and 11th July, 2008. Both parties deposed to and filed affidavit evidence. The law is well settled that in an application for the enforcement of fundamental rights, its determination is premised on the affidavit evidence produced and placed before the Court. That is, it is the affidavit evidence which the Court must meticulously peruse in order to reach a just determination of the application. Therefore, the affidavit evidence must be properly evaluated. Bassey Nkanta Mbang v. W/PC Janet & ors (2015) All FWLR (pt.767) 766 AT 784, per Nweze, JCA (as he then was).
?
The grouse of the appellant herein is that the learned trial judge did not properly evaluate the affidavit evidence laid before him by the parties. The law has remained well established beyond reproach that whenever there is a complaint against the evaluation of the
evidence, both oral and documentary, placed before a trial Court and that the said Court did not properly evaluate the evidence and make findings therefrom or that the findings were perverse, the appellate Court, on appeal to it, has the same power as the trial Court to re-evaluate the same evidence in order to find the correctness or perversity of the findings of the trial Court and ensure that justice is served to the parties. Lion Building Ltd v. Shadipe (1976) 12 S.C. 135; Ogboda v. Adulugba (1971) All NLR 68; Eki v. Giwa (1977) 2 S.C. 131; Atolagbe v. Shorun (1985) 1 NWLR (pt. 2) 360.
?
I have myself perused the affidavit evidence and the grounds of the appellant’s application vis-a-vis the respondents’ affidavit evidence at the instances of the 8th and 1st Respondents, counter affidavit and Further Counter affidavit, respectively. The denials in the counter affidavit and Further Counter affidavit aforesaid appear to me, to be evasive and tissues of half-truths, in the light of the weighty allegations contained in the appellant?s affidavit and Statement in support of the application. For example, the respondents seem to justify their interference
with the appellant?s proprietary rights and the invasion of the appellant?s property in question, because of the appellant’s non-compliance with the State Government Directive or Order that the appellant must relocate his printing business from No. 22 Okwei Street, Onitsha to Woliwo. See Paragraphs 7 and 9 of the 1st Respondent’s Further Counter affidavit.
Curiously, the learned trial judge accepted the version of the respondents’ story when his Lordship at pages 79 – 80 of the record of appeal held that:
“The enforcement of fundamental right of a citizen should not be blind to overriding interest of the State to have organized business premises and society. The State government has provided an alternative market for all dealers on printed papers and allied material at Woliwo. The Applicant is bound to respect that directive notwithstanding that he has a five storey building where he is doing business at No. 22 Okwei Street Onitsha. The Government order must be first be complied with and should not be stubbornly opposed. An applicant who is disobedient to a lawful order of the government cannot rush to the Court to seek a remedy of his
fundamental right which is presumed to exist out of a clear case of disobedience which is aimed to be to the best interest of the citizenry.
A fundamental rights enforcement procedure rules should not be used as a judicial fiat to forestall the good ideas of the government directive for people in one type of business to be identified in a particular market instead of being scattered in and around the streets of Onitsha. Nobody can take advantage of his own disobedience. See Quo Vadis Nobel & Restaurant Ltd. Vs Maritime Services Ltd. (1992) 7 SCNJ pt. 1 p. 172 at 173.”
In the first place, the State Government Directive or Order canvassed and parroted by the respondents was not placed before the trial Court, by the respondents. Secondly, there is no paragraph in the affidavit evidence by the 1st and 8th Respondents to the effect that the State Government provided an alternative accommodation specifically to the appellant, who in the circumstances and facts of this case, could not have been assumed to be a Street trader.
?
It is clear to me that the learned trial judge, with respects, misconceived the appellant’s application. It is said that:
“A misconception occurs when a judge misconceives the issues and summarises the evidence inadequately or incorrectly for one side or the other or makes mistakes in law applicable to the issues in the case” per Ogundare, JSC in Abasi v. Ekwealor (1993) 7 SCNJ 193 at 209.
Furthermore, “the law is very well crystallized that it is the primary duty of the trial judge to receive all relevant evidence. That is perception. The next task for the judge is to weigh the evidence in the case. That is evaluation. A finding of fact involves both perception and evaluation.” per Bode Rhodes-Vivour, JSC in NACENN Nig Ltd v. BEWAC Automotive produces Ltd (2011) LPELR – 8125 (SC).
Therefore, it is well settled to the effect that:
“A trial judge has the primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his wrongly Stated or applied principle of law. He must carefully
examine the evidence and clearly understand and appreciate the issues he has to resolve in the case. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon by evidence by the parties and is supported by law.” Per Uwaifo, JSC in Adeleke & ors v. Iyanda & ors (2001) 13 NWLR (pt.729) 1 at 20; (2001) LPELR – 114 (SC) at p. 23.
My Lords, I am satisfied that on the backdrop of the authorities of the apex Court highlighted above, the learned trial judge did not properly evaluate and assess the entirety of the affidavit evidence placed before him by the parties. The appellant’s application for the enforcement of his fundamental rights by virtue of the grounds of the application and the Statement with the verifying affidavit in support of the application, to my mind, clearly made out a case for the violation of his fundamental rights against the respondents. The onus shifted on the respondents to justify the said invasion of the appellant’s fundamental rights. Director of State Security Services (SSS) v. Olisa Agbakoba (1993) 3 NWLR (pt. 595) 595 at 371 (sc).
This, the respondents woefully failed to
discharge. Therefore, the appellant was eminently entitled to his reliefs as claimed and I so hold.
I should say that this case is another sad reminder of the gory military rule in the mid – 1980s, reminiscent of the use of self-help by Government as represented in cases such as The Military Governor of Lagos State v. Chief Chukwuemeka Odumegwu Ojukwu (1986) All NLR 233; (1986) LPELR – 3186 (sc); Obeya Memorial Hospital v. Benue State Govt. & ors (1987) 7 SC (pt. 1) 52; (1987) LPELR – 2163 (sc). It is, more worrisome that the instant matter happened/occurred in 2008 in our democratic dispensation – still a hangover of the military rule. This is unacceptable and must not be tolerated by any Court. Perhaps, it should be reiterated again and again that the Police represented by the 8th Respondent herein should be more circumspect and wary in being used as willingly tools in the hand of government to violate and decimate citizen’s avowed fundamental rights. The slur on the image of the Police, in circumstances such as the instant matter, must be laundered and thoroughly too! EFCC & ors. v. Philip Odigie (2013) 17 NWLR (pt. 1384) 607; (2013) All
FWLR (pt. 692) 1797.
In sum, the sole issue herein is resolved for the appellant. The appeal has onions/merits and it is hereby allowed. The judgment of the Anambra State High Court of Justice holden at Onitsha, in re Suit No. 0/282m/2008 of 27th November, 2008 per F. C. Nwizu, J., is hereby set aside. In its stead, judgment is entered for the appellant as endorsed in reliefs 1, 2, 3 & 4 contained in the application.
Relief 5 thereof is granted partially, hence the appellant is awarded N1m (one Million Naira only) as general damages. Cost of this appeal is assessed at N100, 000.00 against the respondents and in favour of the appellant.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother TOM SHAIBU YAKUBU JCA. I am in complete agreement with His Lordship’s reasoning and conclusion that the appeal has merit and should be allowed.
?I want to add that it is a sad day indeed when law enforcement agents allow themselves to be used as instruments of oppression and violation of fundamental human rights by touts and thugs in order to violate the freedom of association of a
citizen. How can the Respondents justify the violation of the right of the Appellant to conduct his business on premises owned by him when such business did not constitute a nuisance to the environment. I found the reasoning of the learned trial judge on page 79 of the record to the effect that the enforcement of the fundamental rights of a citizen cannot be to the detriment of the overriding interests of the society, both perverse and preposterous in the circumstances of this case. The judge is to protect the citizenry from being overreached or his rights from being compromised by executive action where it occurs.
The judgment of Hon. Justice F.C. Nwizu in suit No. 0/282M/2008 delivered on 27/11/08 is hereby set aside.
I abide by all the orders in the erudite lead judgment delivered by my learned brother. Appeal Allowed.
?EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother TOM SHAIBU YAKUBU, JCA, I agree with reasoning, conclusions and orders therein.
Appearances
J. Ekejimba, Esq.For Appellant
AND
Don Adiziue, Esq.Assistant Chief State Counsel Ministry of Justice, Anambra StateFor Respondent
