OVAI EKPE OKON v. OVAI BASSEY ENEM ENYIEFEM & ORS
(2016)LCN/8476(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/C/224/2012
RATIO
PROCEDURE: HOW SHOULD AN OBJECTION BE RAISED TO CHALLENGE THE DEFECT IN AN ACTION
It is well settled law and the practice in all in our Courts that once an action has not been properly constituted, an objection ought to be timeously raised to challenge the defect in the action; Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 S.C.; First Bank of Nigeria Plc. v. T.S.A. Industries Ltd (2010) LPELR-1283 (SC). Enforcement of fundamental rights is governed by the Fundamental Rights (Enforcement Procedure) Rules, 2009. The objective of the Rules is to protect the fundamental rights of persons in line with constitutional provisions and acceptable global practices. The importance of timely determination of matters to enforce fundamental rights is underscored. In order to prevent undue delay, the Rules provide that any objection must be heard alongside the substantive application for enforcement of fundamental rights. The counter affidavit is to be filed alongside the preliminary objection. See Order VIII Rules 1, 2 and 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. PER ONYEKACHI AJA OTISI, J.C.A.
APPEAL: ERROR IN JUDGMENT; CIRCUMSTANCES AN APPEAL WILL LIE WHERE THERE IS ERROR IN A JUDGMENT
I would however point out that it is well established that not every mistake or error in a judgment will result in the appeal being allowed; Nguma v. A.G., Imo State (2014) LPELR-22252 (SC); Atungwu v. Ochekwu (2013) LPELR- 20935 (SC). An error in a judgment can only be a ground for allowing an appeal if and only if it is substantial in the sense that it would have affected the judgment of the lower Court one way or the other or it has occasioned a miscarriage of justice; Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65; Anyanwu v. Mbara (1992) 6 SCNJ 90; Nguma v. A.G, Imo State (supra). PER ONYEKACHI AJA OTISI, J.C.A.
JURISDICTION: WHAT DETERMINES JURISDICTION OF A COURT
It is firmly established that the jurisdiction of the Court is determined by the subject matter and the claim(s) of the claimant as disclosed in the writ of summons and/or the statement of claim, or other originating process; Goldmark Nigeria Ltd v. Ibafon Co. Ltd (2012) LPELR-9349 (SC); Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169; U.B.A. Plc. v. BTL Industries Ltd (2006) 12 S.C. 63. The Court would examine the entire content and claims submitted to it for adjudication in determining whether or not a Court has jurisdiction. The Court would be clothed with the necessary vires to adjudicate over the matter if the claims submitted are within its competence; Tukur v. Govt. of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; NV Scheep v. MV “Araz” (2000) 15 NWLR (Pt. 681) 668; Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348, Omnia Nigeria Ltd v. Dyktrade Ltd (2007) 12 MJSC 115. PER ONYEKACHI AJA OTISI, J.C.A.
PROCEDURE: CONDITION PRECEDENT FOR THE EXERCISE OF THE JURISDICTION OF COURT IN AN APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS
It is well established that for an applicant to enforce his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009, his claims must be founded on the constitutionally guaranteed rights. The applicant must seek to enforce or protect a right guaranteed by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Courts have continued to restate the position of the law that when an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental rights or the security of the enforcement of those rights should be the main claim and not an accessory claim. Where the claim for the enforcement of fundamental rights is not the main claim but merely accessory, the jurisdiction of the Court cannot be properly exercised as the action would have been improperly commenced and therefore incompetent; Ayewa v. University of Jos (1999) LPELR-674(SC); University of Ilorin v. Oluwadare (2006) 6-7 S.C. 154; Sea Trucks (Nigeria) Ltd v. Anigboro (2001) 1 S.C. (Pt. 1) 45; WAEC v. Adeyanju (2008) 4 S.C. 27; HH Ntoe Edet Etim Omin 111 v. Governor. Cross River State (2007) LPELR-4241(CA). In the case of Abdulhamid v. Akar (2006) 5 S.C (Pt. 1) 44, per Akintan, JSC:
“The position of the law is that for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief sought is for the enforcement or for securing the enforcement of a fundamental right and not from the nature of the claim, to redress a grievance that it ancillary to the principal relief which itself is not ipso facto a claim for the enforcement of fundamental right. Thus, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it will be incompetent to constitute the claim as one for the enforcement of a fundamental right.”
Similarly, in W.A.E.C. v. Akinkunmi (2008) 4 S.C. 1, (2008) 9 NWLR (Pt. 1091) 151 S.C. per Akintan, JSC
“One of the issues is whether the respondent’s action can properly be instituted under the Fundamental Rights (Enforcement Procedure) Rules 1979. The position of the law on that point has long been settled in a number of decided cases. The law on the point, is well settled, is that only actions founded on a breach of any of the fundamental rights guaranteed in the Constitution can be enforced under the Rules. 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 claim and not an accessory claim.”
It is therefore the duty of the trial Court to examine the reliefs sought by the applicant, the grounds for such reliefs and the facts relied upon. If they disclose that breach of fundamental right is the main plank, redress may be sought through the Fundamental Rights (Enforcement Procedure) Rules 2009. But where the alleged breach of fundamental right is incidental or ancillary to the main complaint, it is incompetent to proceed under the Rules; Sea Trucks Nig. Ltd v. Anigboro (supra); Tukur v. The Government of Taraba State (1997) 6 NWLR (Pt. 510) 549; Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR 29. PER ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
Between
OVAI EKPE OKON
(For himself and on behalf of the people of Ebokwo Ward of Usumutong in Abi Local Government Area of Cross River State) Appellant(s)
AND
1. OVAI BASSEY ENEM ENYIEFEM
2. CHIEF OGBODUM EGEDE ODUM
3. CHIEF UNO RIMAN ETTAH
(For themselves and on behalf of the people of Enusokwe Ward of Ediba in Abi Local Government Area)
4. OVAI AUGUSTINE EWA BASSEY
5. OVAI ODOHI AWARA OSU
(For themselves and on behalf of the people of Ezono village of Ediba in Abi Local Government Area)
6. THE GOVERNMENT OF CROSS RIVER STATE
7. THE ATTORNEY-GENERAL OF CROSS RIVER STATE Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State, Calabar Division, Coram Hon. Justice Obojor A. Ogar, delivered on July 19, 2012 in Suit No. HC/348/2011, in an application for the enforcement of the fundamental rights of the 1st to 5th Respondents (the 1st set of Respondents), who were the applicants at the lower Court.
?The facts leading to this appeal as can be gleaned from the Record of Appeal reveal that a land dispute dating as far back as 1938 existed between the Enusokwe people of Ediba, represented in this appeal by the 1st-3rd Respondents, and the Ebokwo people of Usumotong, who are represented by the Appellant. Both communities are in Abi Local Government Area of Cross River State. The dispute between the two Communities in 1938 and 1940 over the said parcel of land resulted in the institution of Suit Nos. E/15/1938 and E/20/1938, which were consolidated. However none of the judgments gave title to either of the parties to those suits.
In 2006, another dispute arose over the boundaries of the two Communities on the disputed area. Although the
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boundary dispute did not escalate to the level of hostilities, the Governor of Cross River State at the material time, Mr. Donald Duke, concerned about the crisis and guided by the need for a peaceful and harmonious co-existence of the two Communities, decided to wade into the matter with view to resolving it amicably. He set up a Judicial Commission of Inquiry to among other things ‘ascertain? the respective claims of the two communities on the said, land’. The Commission of Inquiry concluded that the land was jointly owned and went on to recommend that ‘the entire land … should be divided into three equal parts. The middle of these three parts should be declared a buff and acquired by the State Government without any compensation whatsoever. The portion close to Ediba should be allotted to and owned by Ediba (now 1st to 5th Respondents), while the portion close to Usumutong should be allotted to and owned by Usumutong’ (now Appellants).
?The Cross River State Government subsequently published a White Paper titled Cross River State Official Document No. 9 of 2007 on the report of the Commission of Inquiry in which it accepted the above
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recommendation of the Commission of Inquiry. The 1st to 5th Respondents who were aggrieved by that decision, filed Suit No. HC/455/2007 against the Cross River State Government for an order of certiorari to quash the White Paper. But the suit was dismissed as statute barred.
In 2008, the 1st to 5th Respondents (Enusokwe and Ezono indigenes of the Ediba community) filed suit No. HUG/18/2008 against the Appellant’s Ebokwo Community, for a declaration of title to the disputed land. While the said Suit was still pending at the High Court of Cross River State, the Cross River State Government sought to implement its decision, contained in the White Paper on the Commission of Inquiry Report by acquiring the disputed land without paying compensation and to partition the land. The 1st to 5th Respondents consequently filed Suit No HC/348/2011 challenging the constitutionality of that decision in view of the fundamental rights provisions in Sections 43 and 44 of the 1999 Constitution which prohibit compulsory acquisition without compensation.
Upon being served with the originating motion in the suit leading to this appeal, the Appellant herein, who was
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the 3rd Respondent therein, filed a notice of preliminary objection, a counter-affidavit in opposition to the application and a written address. The learned trial Judge dismissed the preliminary objection as lacking in merit, and on the substantive application, the trial Court delivered judgment on July 19, 2012, granting all the reliefs claimed by the 1st-5th Respondents. It is against the judgment of the learned trial Judge that the Appellant lodged the instant appeal to this Court by Notice of Appeal filed on 4/9/2012 on eleven grounds.
The parties exchanged Briefs of Argument, which were respectively adopted on 21/1/2016. Mba E. Ukweni, Esq. for the Appellant adopted the Appellant’s Brief filed on 17/4/2013 but deemed on 23/5/2013. The 1st-5th Respondents’ Brief, filed on 10/9/20l3 but deemed on 31/3/2014, was adopted by Essien H. Andrew, Esq. The 6th and 7th Respondents’ Brief was filed on 27/11/2013 but deemed on 31/3/2014 and was adopted by Mrs. Ama Ekpo, SSC 1 of the Ministry of Justice, Cross River State.
The Appellant formulated five issues for determination:
1. Whether in view of the provisions of Order viii of the
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Fundamental Rights (Enforcement Procedure) Rules, 2009, the learned trial judge was right in coming to the conclusion that the filing of a notice of preliminary objection is alien to and not contemplated by the rules and in failing to take cognizance of the order he made on the 2nd day of April, 2012 regularizing the notice of preliminary objection filed by the Appellant out of time? (Grounds 1 and 2).
2. Whether from the totality of evidence before him and considering the circumstances of the case, was the learned trial Judge right in holding that the Appellant was a nominal party to the suit? (Ground 3).
3. Whether the learned trial Judge was, in the circumstances of this case, right in his interpretation and application of the provisions of Sections 46(1) and 318 of the Constitution of the Federal Republic of Nigeria; Section 18 of the Interpretation Act and the concept of Public Interest Litigation introduced into the Fundamental Rights (Enforcement Procedure) Rules, 2009 to the facts of the case before him? (Ground 4).
4. Whether the learned trial judge was right when he refused failing to uphold the Appellant’s plea of res judicata
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based on Exhibit MEU-2 but proceeded to entertain and upheld the 1st to 5th Respondents’ action for wrongful revocation of right of occupancy and non-payment of compensation in an action for enforcement of fundamental rights and in anticipation of when title to the land in dispute may be declared in them? Grounds 5, 7, 9 and 11).
5. Whether the learned trial Judge was right in refusing to uphold the objection of the Appellant to the effect that complaint relating to breach of fundamental right arising from the setting up of commission of Inquiry by the Government and the proceedings of the Commission of Inquiry are not cognizable under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and in failing to consider the decisions of the Supreme Court and Court of Appeal cited to him on the issue? (Ground 6).
6.Whether the learned trial judge was right in quashing an administrative and/or executive action of the 6th Respondent as contained in Exhibit G and in making an order restraining the 6th and 7th Respondents from carrying out a completed legal act? (Grounds 8 and 10).
For the 1st – 5th Respondents, the following
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Issues were formulated for determination:
1. Whether this suit was properly commenced under the Fundamental Rights (Enforcement Procedure) Rules, 2009. (1st, 2nd, 3rd and 4th Grounds of Appeal).
2. Whether the lower Court was right to dismiss the Appellant’s plea of res judicata. (9th Ground of Appeal).
3. Whether the lower Court was right to grant the reliefs sought by the 1st to 5th Respondents in this case. (5th, 6th, 7th, 8th, 10th and 11th Grounds of Appeal).
The 6th and 7th Respondents formulated the issues similar to the 1st – 5th Respondents as follows:
1. Whether the Fundamental Procedure. Was the proper mode of commencing the action appealed against.
2. Whether the learned trial Judge was right when he refused to uphold the Appellant’s plea of res judicata.
3. Whether the learned trial Judge was right in quashing an administrative/executive action.
These issues shall now be considered.
It is well settled law and the practice in all in our Courts that once an action has not been properly constituted, an objection ought to be timeously raised to challenge the defect in the action; Hassan v.
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Aliyu (2010) 17 NWLR (Pt. 1223) 547 S.C.; First Bank of Nigeria Plc. v. T.S.A. Industries Ltd (2010) LPELR-1283 (SC). Enforcement of fundamental rights is governed by the Fundamental Rights (Enforcement Procedure) Rules, 2009. The objective of the Rules is to protect the fundamental rights of persons in line with constitutional provisions and acceptable global practices. The importance of timely determination of matters to enforce fundamental rights is underscored. In order to prevent undue delay, the Rules provide that any objection must be heard alongside the substantive application for enforcement of fundamental rights. The counter affidavit is to be filed alongside the preliminary objection. See Order VIII Rules 1, 2 and 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009.
?The Appellant herein complied with these provisions, albeit, out of time. An application to regularize both the counter affidavit and the notice of preliminary objection was dated 16/1/2012 and filed on 19/1/2012, pages 127-128 of the Record of Appeal. By the application, the Appellant, as 3rd Respondent therein, sought extension of time to file his counter-affidavit
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and written address; as well as an order to deem the counter affidavit and written address together with the notice of preliminary objection argued in the written address as duly filed and served. This application was moved by the Appellant’s counsel and granted by the learned trial Judge on 2/4/2012. The Record of Proceedings at page 202 transcribed:
UKWENI: Refers to Motion on Notice dated 16th January, 2012 and filed on 19-1-2012 for extension of time to file counter affidavit and written address.
BASSEY (MISS): No objection.
ANDREW: No objection.
COURT: Motion on Notice dated 16th January, 2012 and filed on 19th January, 2012 is granted with orders as prayed.
?It appears the learned trial Judge failed to advert his mind to these proceedings while writing his judgment. He had already regularized these processes. The preliminary objection was therefore properly placed before him, both by virtue of the Fundamental Rights (Enforcement Procedure) Rules and by virtue of the orders made by the learned trial Judge on 2/4/2012. The learned trial Judge simply failed to take cognizance of his own records. I would therefore resolve Issue No. 1
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formulated by the Appellant in his favour.
I would however point out that it is well established that not every mistake or error in a judgment will result in the appeal being allowed; Nguma v. A.G., Imo State (2014) LPELR-22252 (SC); Atungwu v. Ochekwu (2013) LPELR- 20935 (SC). An error in a judgment can only be a ground for allowing an appeal if and only if it is substantial in the sense that it would have affected the judgment of the lower Court one way or the other or it has occasioned a miscarriage of justice; Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65; Anyanwu v. Mbara (1992) 6 SCNJ 90; Nguma v. A.G, Imo State (supra).
The erroneous observations and conclusion made by the learned trial Judge regarding the competence of the preliminary objection cannot solely be basis for overturning the judgment on appeal. This is because, although the said erroneous observations and conclusion on the competence of the preliminary objection, the learned trial Judge proceeded to consider the issues raised in the said preliminary objection, which were argued in the body of the Appellant’s written address. No miscarriage of justice was therefore occasioned the
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Appellant thereby. The error cannot, for that reason, sustain this appeal being allowed.
The learned trial Judge, noting the claims submitted before the trial Court by the 1st – 5th Respondents, at pages 212-213 of the Record of Appeal, stated that:
“I must note that none of the reliefs claimed by the applicants relate to any act or omission of the 3rd respondent… In a sense therefore, the 3rd respondent is only a nominal party, there being no cause of action against them in these proceedings. I will however consider their arguments.” (Emphasis mine).
A nominal party has been defined by this Court in Padawa v. Jatau (2002) LPELR-5380, (2003) 5 NWLR (Pt. 813) 247, per Muhammed, JCA (as he then was) thus:
“A party is referred to be nominal or formal, who, having some interest in the subject-matter before the Court will not be affected by any judgment but is nonetheless joined in the matter to avoid procedural defects.”
The claims submitted by a claimant to the trial Court for adjudication determine which of the defendants can be described as a nominal party. The reliefs contained in the originating motion on notice
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sought declaration and orders against the 1st and 2nd Respondents. The 3rd Respondent was joined since they would also be affected by the orders. The learned trial Judge described the Appellant as a nominal party because there was no cause of action against the Appellant and no orders were sought against him. But, with respect, in my considered opinion, that was a rather simplistic view of the status to ascribe to the Appellant therein.
The learned trial Judge had already recognized that the Appellant and the 1st-5th Respondents had had a long standing dispute over the land, subject matter of the compulsory acquisition by the Cross River State Government, which was in issue, and that the Appellant was going to be a beneficiary of the proposed acquisition. The learned trial Judge noted:
“By the Government’s decision, one-third of the land is to be ceded to the 3rd respondent.”
?In other words, there was no doubt that the Appellant, 3rd Respondent therein, would stand to gain by the implementation of the Government’s decision. If the decision were to be jettisoned, the Appellant would also lose out. The Appellant, in my respectful opinion,
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was in this light a necessary party who ought to be heard on the orders sought, and not merely a nominal party. He ought not to have been described as merely nominal. I would therefore resolve Issue No. 2 in favour of the Appellant.
I would again however point out that an error in a judgment can only be a ground for allowing an appeal if and only if it is substantial in the sense that it would have affected the judgment of the lower Court one way or the other or it has occasioned a miscarriage of justice; Agbi v. Ogbeh (supra); Anyanwu v. Mbara (supra); Nguma v. AG, Imo State (supra).
It is obvious the trial Court in some way recognized that the Appellant would be affected by the orders made by trial Court. This informed the decision of the learned trial Judge that:
“I will however consider their arguments.”
He then proceeded to consider the arguments of the Appellant. No miscarriage of justice was therefore occasioned the Appellant thereby. Again, this error cannot sustain the appeal being allowed.
It is firmly established that the jurisdiction of the Court is determined by the subject matter and the claim(s) of the
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claimant as disclosed in the writ of summons and/or the statement of claim, or other originating process; Goldmark Nigeria Ltd v. Ibafon Co. Ltd (2012) LPELR-9349 (SC); Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169; U.B.A. Plc. v. BTL Industries Ltd (2006) 12 S.C. 63. The Court would examine the entire content and claims submitted to it for adjudication in determining whether or not a Court has jurisdiction. The Court would be clothed with the necessary vires to adjudicate over the matter if the claims submitted are within its competence; Tukur v. Govt. of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; NV Scheep v. MV “Araz” (2000) 15 NWLR (Pt. 681) 668; Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348, Omnia Nigeria Ltd v. Dyktrade Ltd (2007) 12 MJSC 115.
The matter before the trial Court was founded on enforcement of fundamental rights. The Fundamental Rights (Enforcement Procedure) Rules 2009 achieved laudable advancements in human rights litigation in Nigeria, in line with global determinations to ensure basic human rights are protected. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 construes an applicant under the
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Rules to mean:
a party who files an application or on whose behalf an application is filed under these Rules.
The preamble to the said Rules states the objectives of the Rules. Under these objectives, the Courts are enjoined to constantly and conscientiously seek to give effect to the overriding objectives of the Rules at every stage of human rights action, especially whenever it exercises any power given to it under the Rules or any other law and whenever it applies or interprets any rule. Section 3(e) (iii) of said preamble provides:
(e) The Court shall encourage and welcome public interest litigations in the human right field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organizations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following:
(i) Anyone acting in his own interest;
(ii) Anyone acting on behalf of another person;
(iii) Anyone acting as a member of, or in the interest of a group or class of
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persons;
(iv) Anyone acting in the public interest, and
(v) Association acting in the interest of its members or other individuals or groups.
Notwithstanding the seemingly very wide margin provided to accommodate who a potential applicant may be, the first step is to ensure that the action actually falls within the ambit of fundamental rights.
It is well established that for an applicant to enforce his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009, his claims must be founded on the constitutionally guaranteed rights. The applicant must seek to enforce or protect a right guaranteed by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Courts have continued to restate the position of the law that when an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental rights or the security of the enforcement of those rights should be the main claim and not an accessory claim. Where the claim for the enforcement of fundamental rights is not the
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main claim but merely accessory, the jurisdiction of the Court cannot be properly exercised as the action would have been improperly commenced and therefore incompetent; Ayewa v. University of Jos (1999) LPELR-674(SC); University of Ilorin v. Oluwadare (2006) 6-7 S.C. 154; Sea Trucks (Nigeria) Ltd v. Anigboro (2001) 1 S.C. (Pt. 1) 45; WAEC v. Adeyanju (2008) 4 S.C. 27; HH Ntoe Edet Etim Omin 111 v. Governor. Cross River State (2007) LPELR-4241(CA). In the case of Abdulhamid v. Akar (2006) 5 S.C (Pt. 1) 44, per Akintan, JSC:
“The position of the law is that for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief sought is for the enforcement or for securing the enforcement of a fundamental right and not from the nature of the claim, to redress a grievance that it ancillary to the principal relief which itself is not ipso facto a claim for the enforcement of fundamental right. Thus, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it will be incompetent to constitute the claim as one for the enforcement of a
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fundamental right.”
Similarly, in W.A.E.C. v. Akinkunmi (2008) 4 S.C. 1, (2008) 9 NWLR (Pt. 1091) 151 S.C. per Akintan, JSC
“One of the issues is whether the respondent’s action can properly be instituted under the Fundamental Rights (Enforcement Procedure) Rules 1979. The position of the law on that point has long been settled in a number of decided cases. The law on the point, is well settled, is that only actions founded on a breach of any of the fundamental rights guaranteed in the Constitution can be enforced under the Rules. 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 claim and not an accessory claim.”
It is therefore the duty of the trial Court to examine the reliefs sought by the applicant, the grounds for such reliefs and the facts relied upon. If they disclose that breach of fundamental right is the main plank, redress may be sought through the Fundamental Rights (Enforcement Procedure) Rules 2009. But where the alleged breach of fundamental right is incidental or ancillary to the main
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complaint, it is incompetent to proceed under the Rules; Sea Trucks Nig. Ltd v. Anigboro (supra); Tukur v. The Government of Taraba State (1997) 6 NWLR (Pt. 510) 549; Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR 29.
The Respondents had sought the following reliefs in the Originating Motion on Notice at pages 1 – 2 of the Record of Appeal:
1. A Declaration that the decision of the 1st Respondent as contained in Cross River State Official Document No. 9 of 2007 to seize the land the subject matter of a boundary dispute between the Applicants and the 3rd Respondent without paying ‘any compensation whatsoever’ and hand over one third of the seized land to the 3rd Respondent is likely to infringe the Applicants’ fundamental right to own immovable property as guaranteed in Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria.
?2. An Order quashing the above decision of the 1st Respondent as contained in Cross River State Official Document No. 9 of 2007 titled ‘Views of the Cross River State Government on the Report of the Judicial Commission of Inquiry into the Boundary Dispute between Ediba and Usumutong
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Communities in Abi Local Government Area’ for violating Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria.
3. An Order restraining the 1st and 2nd Respondents from seizing, partitioning or interfering with the land the subject matter of the boundary dispute between the Applicants and the 3rd Respondent without paying compensation as guaranteed in Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria to the Applicants should they be adjudged in Suit No. HUG/18/2008 to be the owners of the land.
4. And for such further order or orders as this honourable Court may deem fit to make.
(Emphasis Mine)
Sections 43 and 44 of the 1999 Constitution, as amended were relied upon by the 1st ? 5th Respondents and by the learned trial Judge. These provisions guarantee the right of every citizen to acquire and own immovable (and movable) property anywhere in Nigeria. And in the event that the State compulsorily acquires such property or interest in such property for lawful purposes provided, prompt payment of compensation shall be made; Aigoro v. Commissioner of Lands and Housing, Kwara State (2011)
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LPELR-9112(CA). By these provisions, the State cannot interfere with the property of a citizen except the legality of its action can be defended.
?A comprehensive scrutiny of the reliefs claimed by the 1st-5th Respondents will reveal that the issues at stake bordered on the decision of the 6th Respondent herein to seize and partition a parcel of land, which was subject matter of a prevailing dispute between the Appellant and the 1st-5th Respondents, and to give one-third of the said land in dispute to the Appellant and without paying compensation. It is also patently discernable from these claimed reliefs that title to the said parcel of land in dispute had not been judicially pronounced in favour of either the Appellant or the 1st-5th Respondents. In other words, both parties were laying claim to the said parcel of land, elevating it to an ongoing boundary dispute. Indeed, the reliefs sought by the 1st-5th Respondents further reveal that a pending action, Suit No. HUG/18/2008 is also between them and the Appellant over the same parcel of land in dispute. As already noted above, these facts culminated to underscore the fact that neither the 1st-5th
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Respondents nor the Appellant had been judicially adjudged owners of the parcel of land in dispute.
?In my considered opinion, the provisions of Sections 43 and 44 of the 1999 Constitution were inapplicable to the complaint of the 1st-5th Respondents in the circumstance of this matter. The reason basically is that these provisions can only be relied upon by a person who is in lawfully adjudged ownership of properly. A citizen or group of persons would be within his or their guaranteed fundamental right to acquire and own movable or immovable property anywhere in the Country. This is a fundamental right that constitutionally is enforceable. But if the property is in dispute, neither of the combatants can lay exclusive claims to the property until it is adjudged to belong to the particular party. The 1st-5th Respondents need first to have title to the parcel of land adjudged in their favour before they can lay exclusive claims to it. Land or property that is in dispute cannot be the enforceable fundamental right of one side. The fundamental rights enforcement procedure cannot be employed to indirectly pronounce title to a piece or parcel of land in
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dispute.
It is also important to note that the procedure of fundamental rights was certainly not a procedure to employ to challenge the constitutionality or otherwise of the Report of the Judicial Commission of Inquiry into the Boundary Dispute between Ediba and Usumutong Communities in Abi Local Government Area for an alleged violation of Sections 43 and 44.
As, Mr. Ukweni, learned Counsel for the Appellant consistently and rightly maintained, the procedure employed by the 1st-5th Respondents to ventilate their grievance was wrong.
The condition precedent to commencing an action under the fundamental rights enforcement procedure was therefore not met by the 1st-5th Respondents as applicants. The law is settled that where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly exercised. An incompetent originating process can only give birth to incompetent proceedings and to a null judgment; Sea Trucks (Nigeria) Ltd v. Anigboro (2001) 1 S.C. (Pt. 1) 45; Tukur v. The Government of Taraba State (supra) University of Ilorin v. Oluwadare (supra).
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Accordingly, Issues 3 and 5 formulated by the Appellants and Issues 1 and 3 formulated by the 1st set of Respondents are resolved in favour of the Appellants.
Having come to the inevitable conclusion that there was non-compliance with the condition precedent to ground the competence of the originating processes, the ensuing judgment amounted to a nullity and cannot stand. It would therefore be merely academic to further consider the issue of res judicata.
This appeal is therefore meritorious and is accordingly allowed.
It is hereby ordered that the judgment of the High Court of Cross River State, Calabar Division, Coram Hon. Justice Obojor A. Ogar, delivered on July 19, 2012 in Suit No. HC/348/2011 be and is hereby set aside.
Costs are assessed at N50,000.00 against the 1st-5th Respondents in favour of the Appellant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I concur with the reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice Onyekachi Aja Otisi, J.C.A., to the effect that the instant appeal is meritorious.
?Hence, having adopted the said reasoning and
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conclusion reached in the judgment as mine, I too hereby allow the appeal and set aside the judgment of the High Court of Cross River State, delivered by O. A. Ogar, J; on July 19, 2012 in SUIT NO. HC/348/2011. I abide by the order of cost of N50,000.00 awarded in favour of the Appellant against the 1st-5th Respondents.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading before now the judgment delivered by my learned brother, O. A. OTISI, JCA.
I adopt the facts of this case as properly set down in the lead judgment.
I totally agree with the reasoning and conclusion. There is no doubt that there is merit in this appeal and it is hereby allowed. Consequently, the judgment of the trial Court in Suit No. HC/348/2011 delivered by O. A. Ogar, J, on the 19/7/2012 is accordingly set aside.
I endorse the order as to costs made by OTISI, J.C.A.
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Appearances
Mba E. Ukweni, Esq. with him, M. T. Otu, Esq., E. E. Eteng, Esq. C. A. C. Efife, Esq.., E. Ekpe, Esq. and Miss J. B. IkpemeFor Appellant
AND
Essien H. Andrew, Esq. for 1st-5th Respondents
Mrs. Ama Ekpo (S.S.C 1, Ministry of Justice, Cross River State ) for 6th and 7th RespondentsFor Respondent
