HRH EZE KYRIAN CHINEDO & ORS v. CAROLINE IREKA
(2016)LCN/8530(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of April, 2016
CA/OW/157/2012
RATIO
COURT: DUTY OF COURT TO DETERMINE ALL ISSUES BEFORE IT
It is acknowledged that it is the duty of a Court or Tribunal to entertain and pronounce on the merit or otherwise of a Motion or other application filed before such Court or Tribunal even where it is thought by the Court or Tribunal that there is no strength or merit in the Motion or Application. Failure to hear such application often times results in denial of fair hearing and subsequent setting aside of judgment or order made by a Court
See (1) MOBIL PRODUCING NIG. LTD. VS. MONOKPO 18
NWLR (PART 852) 346a t 412 413 per UWAIFO JSC.
(2) ENAYE SISAMI RICHARD ABAH VS. ERIBO
MONDAY & ORS. (2015) 14 NWLR (PART 1480) 569 at 594 H to 595 A â B per OGUNBIYI, JSC who said:
There is a bounden duty on the Court to hear all applications pending before it whether they be frivolous or even an outright abuse of the process of Court. It is by hearing the parties that the Court will be in position to determine the nature of application in question. It is not within the jurisdiction, discretion or competence of a Court to refuse to take a pending process before it. See also the case of Elike v. Nwankwoala (1984) 12 SC 301, and General Electric Co. v. Akande (2012) 16 NWLR (Pt. 1327) 593 at 611. Further related authorities are: Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 and Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421. PER PETER OLABISI IGE, J.C.A.
FAIR HEARING: WHAT DOES NOT AMOUNT TO FAIR HEARING
A hearing cannot be said to be fair if any of parties is refused a hearing or denied the opportunity to be heard
See Offordile v. Egwuatu (2006) 1 NWLR (Pt. 961) p. 421 at 433, para H PER PETER OLABISI IGE, J.C.A.
APPEAL: ATTITUDE OF APPELLATE COURT TOWARDS EVALUATION OF EVIDENCE
I have also perused and read calmly all the Affidavits/Evidence before the court and the exhibits attached and I am of the firm view that the trial court assiduously assessed and evaluated the said Affidavits and exhibits before him and his findings and conclusions are fully supported by the facts and materials placed before the trial Judge. There is no reason to interfere with the judgment of the Lower Court. See MICHAL ALYEOLA VS RAMOTA YEKINI PEDRO (2014) 12 SCM 71 at 94 A- C per PETER ODILI, JSC who said.
The attitude of the Court of Appeal or the Supreme Court as the case may be, in respect of evaluation of evidence of a trial Court is that in deciding whether or not a trial Court properly evaluated the evidence, the essential focus should be on whether the trial Court made proper findings and reached the correct judgment upon facts before it. it is not the method or approach that necessarily determines this. Thus, so long as a trial Court does not arrive at his judgment merely by considering the case of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Ajibulu v. Ajayi (2004) 11 NWLR (Pt. 885) 458; Woluchem v. Gudi (1981 5 SC 291. PER PETER OLABISI IGE, J.C.A.
JUSTICES:
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
HRH EZE KYRIAN CHINEDO
CHIEF DONATUS NWEKE
CHIEF AMBROSE EZIMOHA
MR. TOBIAS OBINAB
NZE ROMANUS OGBUKA
CHIEF SILAS MUONEKE
HON. LEONARD OGBUKA
CELESTINE MUONEKE – Appellant(s)
AND
MRS. CAROLINE IREKA – Respondent(s)
PETER OLABISI IGE, J.C.A.(Delivering the Leading Judgment): This appeal is against the decision of the HIGH COURT OF Imo State, ORLU JUDICIAL DIVISION in Suit No. HOR/117/2011 contained in the judgment of Honourable Justice L.C. AZUAMA delivered on the 5th day of April, 2012.
The Respondent had by the said Suit or action initiated against the Appellants Fundamental Rights Enforcement Proceedings wherein he sought for the following Reliefs viz:
(i) A DECLARATION that the ostracism/banishment placed on the Applicant by the 1st to 8th Respondents violates the Applicant’s Fundamental Right to freedom of Association as guaranteed by Section 36, 34 (1), (a), (b), (c), 40, 41, 42 and 43, respectively of the Constitution of Federal Republic of Nigeria 2011 as Amended.
(ii) AN ORDER of Honourable Court compelling the 1st to 8th Respondents rescind the order of ostracism placed on the Applicant and to announce same the villages making up Ntueke Community. (sic).
(iii) AN ORDER compelling the 1st to 8th Respondents to write an unqualified letter of public apology to the Applicant and pay N10,000.00 (Ten Million Naira) to the Applicant for breach of the Applicant’s Fundamental Rights and special damage of N6,870.00 for medical treatment, N35,000.00 lost of Applicant’s Goats, N35,000.00 cost of Applicantâs local Fowls, N4,000.00 cost of Applicant’s big house security Dogs, a wallet containing N50,000.00 cash snatched from the applicant on 11/10/2011. (Fifty Thousand Naira), (Total N10,140,870.00) Ten Million One Hundred and Forty Thousand, Eight Hundred and Seventy Naira.
(iv) AN ORDER of the Honourable Court compelling the 1st to 8th Respondents to allow the Applicant entry Ntueke Community and to live in his own house.
(v) AN ORDER restraining the Respondents whether by themselves, servant agents, employees or privies from arresting, threatening to arrest detaining the Applicant or molesting, harassing, torturing, intimidating the Applicant with Police unlawfully.
The grounds upon which the said reliefs were sought are as follows:
GROUNDS ON WHICH RELIEFS ARE SOUGHT
(i) That Applicant as a citizen of Nigeria is guaranteed the Fundamental Right to dignity of his human person, fair hearing, freedom of Association, Freedom of Movement and right to freedom from discrimination in Nigeria it accordance with Sections 36, 34 (1), (a), (b), (c), 40, 41, 42 and 43, respectively of the 2011 Constitution of Nigeria, as amended, subject only to the restrictions under the said Constitution of Nigeria 2011, (sic) and by virtue of Human and People’s Right (Ratification and Enforcement) Act Cap. A9 Laws of the Federation 2004.
(ii) The Applicant’s rights to (i) the dignity of human person(ii), freedom of movement, (iii) freedom from discrimination (iv), freedom of association, (vii) right to fair hearing as well as right to acquire and own immovable property anywhere in Nigeria were threatened and breached by the Respondents on the 11/10/2011 and 14/10/2011, respectively who unlawfully ostracized/banished the Applicant and his family in a well attended meeting at the Eze’s Palace comprising of men, youth and women of Ntueke Community on the said 11/10/2011.
(iii) That the ostracism and banishment of the Applicant by the 1st to 8th Respondents based on the a unfounded criminal allegation of killing the 1st Respondent’s Late father is unconstitutional and it violates Applicant’s right of Freedom of Movement, Freedom of Association, right to fair hearing, and right to dignity of human person as enshrined under constitution of Federal Republic of Nigeria 2011 as Amended. And there is no criminal report against the Applicant anywhere, not even at the death of 1st Respondent’s father about 3 years ago.
(iv) That the said ostracism and banishment of the Applicant were not done in accordance with any procedure permitted by law and not justified in any circumstances stated under the Constitution.
(v) The Applicant committed no offence by reporting to the 1st Respondent the excavation of sand by persons whom he suspected to be selling the sand. The sands on Uhualla roads are collective property of Ntueke citizens. The Applicant has a right of freedom of thought and conscience, freedom of movement, right to freedom of Association, right to freedom from discrimination and fair hearing, right to dignity of human person. The Applicant is not slave.
(vi) It is settled law that where the Respondents have unlawfully breached the Applicant’s Fundamental Rights, the Applicant is entitled to public apology and damages or compensation from the Respondents. See Sections 35 (6), 46(1) Constitution of the Federal Republic of Nigeria 2011 as Amended.
The application was also supported by 63 paragraph Affidavit sworn to by the Respondent (then Applicant) in the Registry of the Lower Court on 19th day of December, 2011.
The Appellants filed 42 paragraph Counter Affidavit against the Respondent’s Motion to enforce his Fundamental Rights sworn to at the Registry of the Court below on 18th day of January, 2012. Meanwhile the Respondent (Applicant in the Court below) filed an application dated 9th January, 2012 on 3rd February 2012 wherein he sought for the following Orders:
(a) Granting leave to amend the defect in Affidavit in Support of Motion dated 19/12/2011 in Suit No. HOR/117/2011 by stating the full names, trade resident and the nationality of the deponent, thus:
I, Mr. Ireka Simon Chidi male, adult, Christian, retired civil servant, Nigerian Citizen and resident native of Ihualla Village in Ntueke Ideato South Local Government Area of Imo State do swear an Oath and states as follows:
(b) An Order of Court deeming the amended and resworn affidavit exhibited herein as properly filed and served filing fees having been paid.
(c) And for such Order as the Honourable Court shall deem fit to make in the circumstances of this Suit.
While the Motion just reproduced was pending, the Respondent filed a 49 paragraph REPLY TO RESPONDENTS COUNTER AFFIDAVIT sworn to at the Registry of the Lower Court on 13th day of February 2012. Respondent’s Learned Counsel also filed Reply on Points of Law contained on pages 166 172 of the record.
The aforesaid Motion filed by Respondent to amend his Affidavit in Support of Motion to enforce his Fundamental Rights was moved on 28th day of February, 2012. The Appellants Learned Counsel E. D. Egbebu Esq. did not oppose the application and the said Motion was granted as prayed on the Motion Papers.
The Respondent’s Learned Counsel Nwanegbo Esq., thereafter moved the originating process, that is the Motion dated 5th day of December, 2011 filed on 19th day of December 2011 wherein the Respondents sought for enforcement of his Fundamental Rights and the Appellants Learned Counsel responded to the Respondent’s Motion. The Learned trial Judge then, after the conclusion of Arguments on 28th day of February, 2012 adjourned the matter till 28th day of March, 2012 for Judgment.
However as can be seen on page 180 of the Record Judgment culminating into this appeal was delivered on 5th day of April, 2012.
The Learned trial Judge held in his Judgment as follows:
In the light of the decision I have reached above, the Issue of whether the Applicant proved that he was ostracized and banished by Respondents is answered in the positive and this Leaves this Court to the question of whether he is entitled to any relief.
This law is where there is an injury there is a remedy. Besides Section 35 Sub Section (6) of the 1999 Constitution of the Federal Republic of Nigeria unequivocally provides the right of on Applicant whose fundamental right is infringed, to damages which need not to be specifically pleaded and proved as it will be implied. See HANNBEATIC INTERNATIONAL LTD. VS. USANG (2003) FWLR (Pt. 49) P. 1563 at 1569. See also the case of OKONKWO VS. OGBOGU Supra. In the final analysis the case succeeds and this Court hereby grants the Applicant reliefs except that the Sum of N1,000,000.00 is awarded for the Applicant’s right aforesaid while the cost of this suit is assessed at N10,000.00.
Aggrieved by the decision, the Respondents now Appellants have now appealed to this Court vide their Notice of Appeal dated 25th day of April, 2012 filed on 26th April, 2012 containing six (6) grounds of appeal. By Leave of this Court the Appellants filed an amended Notice of Appeal dated the 25th day of June, 2012 on 27th day of June, 2012 but same was deemed filed on 27th day of January, 2013.
The said Amended Notice and Grounds of Appeal without their particulars are as follows:
GROUND ONE:
ERROR IN LAW
The Lower Court erred in law when it failed to rule on the competence of a process titled âproposed amended/resowned (sic) affidavit in support of the motion marked Exhibit A
GROUND TWO:
ERROR IN LAW:
The Court below erred in law when it failed to take a decision or deliver its ruling on the competence of the process titled Reply to Respondents Counter Affidavit filed on 13/2/2012, which failure occasioned a miscarriage of justice.
GROUND THREE:
ERROR IN LAW
The Court below erred in law when it held that the appellants vicariously liable for the alleged acts of Emmanuel Ezeala, Chidi Duru, Godian Onuchukwu and Chukwudi Ukaoha who were not parties in this action before the Lower Court.
GROUND FOUR:
MISDIRECTION
The Court below misdirected itself on the facts of the matter when is held that the 1st Respondent was ostracized and banished by the appellants in the arbitration award/judgment. (sic).
GROUND FIVE:
MISDIRECTION
The Court below misdirected itself when it construed appellants averment in their Counter Affidavit that following the abysmal records and notoriety of the 1st Respondent, people may wish to avoid him in their interest to stem his threats, litigations and troubles as the appellant cannot compel anyone to relate with the 1st Respondent, as an admission of the ostracization and banishment of the 1st Respondent from Ntueke Community.
GROUND SIX:
ERROR IN LAW
The Court below erred in law when its held that a prima facie case of assault, ostracism and banishment were established particularly when paragraph 34 of the 1st Respondent affidavit is read in conjunction with paragraphs 35, 36, 37 and 38 and the Lower Court finally concluded that the 1st Respondent with his family members were beaten, taken out of 1st Respondent palace half naked and banished out of the Community on 11/10/11.
The Appellants Brief of Argument dated 23rd day of July, 2012 was filed on the same date but deemed properly filed on 22nd day of January, 2013. The Respondent’s Brief of Argument was filed on 27th day of March, 2013 but deemed filed on 12th day of June, 2014. The Appellants filed REPLY ON POINTS OF LAW dated 13th day of June on 16th day of June 2014.
When the appeal came up on 4th February 2016 the Learned Counsel to the Appellants Chief Evaristus D. Egbebu adopted the Brief filed by the Appellants while the Respondent’s Brief of Argument aforesaid was deemed adopted in the absence of the Respondent and his Counsel who was duly notified of the hearing of the appeal pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules 2011.
It must be noted that after this appeal had been argued and reserved for judgment, on 4-2-16 there was an application filed by the Respondent’s wife stating that her husband had died on 9th April, 2014 and therefore sought for an order to substitute the name of herself as Respondent to this appeal in place of her husband. The application aforesaid which is undated was filed on 24/2/2016. The Motion was moved on 14th day of April, 2016 by Chief Mrs. Adigwe on behalf of Applicant without any opposition from learned Counsel to the Appellants Chief Evaristus D. Egbebu. The application was accordingly granted.
The Learned Counsel to the Appellants Chief E. D. Egbebu distilled three issues for the determination of the appeal. They are as follows:
1. Whether the decision of the Lower Court delivered on 5th April 2012 without Ruling on the objections canvassed by the Counsel for the appellants is sustainable.
2. Whether the decision of the Lower Court on the liability of the appellants on the alleged wrongful acts of persons who are not parties before the Lower Court is lawful.
3. Whether the decision of the Lower Court is supported by the evidence before it.
I have to point it out that the date on the judgment appealed is 5/4/2012. The Learned Counsel for Respondent did not formulate any Issue different from that of the Appellants. The appeal can be determined on the three Issues formulated by the Appellants.
ISSUE 1
WHETHER THE DECISION OF THE LOWER COURT DELIVERED ON 5/4/2012 WITHOUT RULING ON THE OBJECTIONS CANVASSED BY THE COUNSEL FOR THE APPELLANTS IS SUSTAINABLE. (GROUNDS 1 AND 2).
The Learned Counsel to the Appellants Chief Evaristus D. Egbebu made reference to the Respondent’s Motion earlier on in this Judgment reproduced seeking to amend the Respondent’s Affidavit in Support of his Motion to enforce his Fundamental Rights and the Proposed Amended Resworn Affidavit marked as Exhibit A (Pages 97-112 of the record).
That both the Substantive Motion originating the Suit and Motion to amend the Affidavit in Support thereof were both heard on 28th day of February 2012. That the Motion for the amendment was taken first and granted accordingly without objection. That the Substantive Motion was then moved by Respondent’s Counsel, and the Learned Counsel to Respondent adopted his address in Support of the Respondent’s action. That the Respondent cited and relied on his proposed amended/resworn affidavit.
According to Learned Counsel to the Appellants, he opposed the Motion seeking to enforce Respondent’s Fundamental Rights. That the Learned Counsel argued that by Order 11 Rule 3 of Fundamental Rights Enforcement Procedure Rules 2009 an application for Enforcement of Fundamental Rights must be supported by an Affidavit setting out the facts relied upon for the Motion. That Learned Counsel to Appellant contended that the Respondent has no Affidavit in Support of his Motion to Support his application. The Appellants contended that the grant of the Respondent’s application to amend his Affidavit in Support did not render EXHIBIT A attached to Respondent application to amend Affidavit as duly filed. That the proposed Amended Affidavit attached to the Motion of Respondent remained a mere Exhibit A of a Proposed Amended or Resworn Affidavit NOT formally and duly filed before the Court after the grant of the Motion for amendment brought by the Respondent. That the Procedure for enforcement of Fundamental Rights action like Election Petition Proceedings is sui generis and that any mistake or omission under the Fundamental Rules Enforcement Procedure Rules 2002 is detrimental to the Respondent’s application. He relied on the ORDER IX RULE 1 (i) of the Fundamental Rights Enforcement Procedure Rules 2009. That a Proposed Amended Affidavit was not contemplated.
That he Appellants Counsel also argued that the necessary fees were not paid. That an Exhibit is an appendage to another Court process while Affidavit serves different purpose and role as facts deposed on Oath. That the 49 paragraph Reply to Counter Affidavit filed by Respondent was contrary to Order 11 Rule 6 and 7 of the Fundamental Right Enforcement Procedure Rules. That a further Affidavit is not synonymous with a Reply to Counter Affidavit.
That in his judgment the Lower Court granted the reliefs of the Applicant now Respondent relying on the various paragraphs of the proposed Resworn Affidavit marked Exhibit A and the Reply to Counter Affidavit without a ruling on the objections and arguments canvassed by Learned Counsel to Appellants on 28/2/2012. That it is settled that the Courts are bound to determine all pending interlocutory applications before them, before delivering final judgments in the substantive suits. He relied on the cases of:
1. UZUDA V. EBIGHA (2009) ALL FWLR (PT. 493) 1224 at 1249 12-50 EA.
2. 7UP BOTTLING CO. LTD. V. ABIOLA & SONS NIG. CO. LTD. (2001) FWLR (PART 70) 1611.
3. BRAVAL SHIPPING (NIG) LTD. VS. FI. ONWADIKE CO. LTD. (2000) FWLR (Pt. 23) 1254 and
4. OPUIYO V. OMONIWARI (2007) ALL FWLR (PT. 378) 1093.
5. EDET V. STATE (2009) ALL FWLR (PART 463) 1430 at 1443 C â F.
That the omission of the Lower Court to deliver its Ruling on the objections by the Counsel for the Appellants tatamount to a denial of fair hearing which is a Statutory and Constitutional Right. That the decision of Lower Court is unsustainable as Appellants were denied fair hearing and blacked out in the hearing at the Court below.
Responding to the above submissions, the Learned Counsel to the Respondent N. E. ANYASINTI Esq. submitted that there is nothing in the record of proceedings showing any pending objection before the Judgment was delivered. That this allegation by Appellants is an after thought aimed at distorting the facts relying on the case of C.B. N. VS. AMAO (2010) 16 NWLR (Pt. 1219).
That the Appellants Counsel adopted his written address dated 9/1/2012. That the Learned Counsel to Appellant cannot be approbating and reprobating as he cannot resile from the outcome of a binding judgment. He relied on the case of AGALA V. EGWERE (2010) ALL FWLR (Pt. 532) 1160 at 1638 and AGU VS. IKEWIBE (1991) 3 NWLR (PART 180) Page 385 and OFOMATA VS. ANOKA (1974) ECSLR 251.
The principal complaint of the Appellants is that the Learned trial Judge failed to rule on the competence of the Respondent’s Process tilted Proposed Amended Resworned Affidavit in support of Motion marked Exhibit A. That the trial Judge ought to give a Ruling on it as according to them a Court is bound to determine all interlocutory applications before it.
It is acknowledged that it is the duty of a Court or Tribunal to entertain and pronounce on the merit or otherwise of a Motion or other application filed before such Court or Tribunal even where it is thought by the Court or Tribunal that there is no strength or merit in the Motion or Application. Failure to hear such application often times results in denial of fair hearing and subsequent setting aside of judgment or order made by a Court
See (1) MOBIL PRODUCING NIG. LTD. VS. MONOKPO 18
NWLR (PART 852) 346a t 412 413 per UWAIFO JSC.
(2) ENAYE SISAMI RICHARD ABAH VS. ERIBO
MONDAY & ORS. (2015) 14 NWLR (PART 1480) 569 at 594 H to 595 A â B per OGUNBIYI, JSC who said:
There is a bounden duty on the Court to hear all applications pending before it whether they be frivolous or even an outright abuse of the process of Court. It is by hearing the parties that the Court will be in position to determine the nature of application in question. It is not within the jurisdiction, discretion or competence of a Court to refuse to take a pending process before it. See also the case of Elike v. Nwankwoala (1984) 12 SC 301, and General Electric Co. v. Akande (2012) 16 NWLR (Pt. 1327) 593 at 611. Further related authorities are: Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 and Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421.
A hearing cannot be said to be fair if any of parties is refused a hearing or denied the opportunity to be heard
See Offordile v. Egwuatu (2006) 1 NWLR (Pt. 961) p. 421 at 433, para H
There is nothing in the proceeding herein to show that the Appellants filed formal application to have the Proposed Amended/Resworn Affidavit set aside. I do not see any ground or basis for the complaints of the Appellants. The highest that Appellants did was to say that the said Proposed Amended/Resworn/Affidavit cannot support a Motion to enforce Fundamental Rights action as it is unknown under the Fundamental Enforcement Procedure Rules) 2009.
The Appellants are only caught in their own web. The Appellants Learned Counsel is on record on 28th February 2012 as saying he was not opposing the Respondent’s Motion earlier on in this judgment reproduced by me. The Learned Counsel to the Appellants cannot pretend or feign any ignorance that part of the prayers of Respondent on the Motion dated 9/1/12 filed on 3/2/2012 seeking to amend his Affidavit in Support was for an Order of the Lower Court deeming the amended and resworn affidavit exhibited therein as properly filed and served filing fees having been paid.
It is also interesting to note that the Appellants and their Learned Counsel who are now fighting tooth and nail to have the deemed Exhibit A aside point blank told the Court below it was not opposing the said Motion, whereupon the Court granted the Orders sought by the Respondents on his Motion as prayed. The implication of Appellants failure to oppose the Motion filed by Respondent on 3/2/2012 is that all the prayers therein were granted including the deeming of the Respondent’s Amended/Resworn Affidavit in Support as duly filed. Since the Court deemed Exh. A as properly filed there can be no complaint against it. The process was properly before the Court and it is competent.
See: ALHAJI ISA BAYERO VS. MAINASARA & SONS LIMITED (2006) LPELR 7587 CA page 25 per ARIWOOLA, JCA now JSC who said:
In the instant case, the appellant filed the Original Notice of Appeal at the Lower Court which decided the case.
But the appellant later sought and obtained leave of this Court to amend his Notice of Appeal by adding four additional grounds of appeal.
In fact, on 17th October, 2001the Appellant was inter alia granted the following:
Leave to amend his Notice of Appeal herewith attached and marked. Exhibit A by filing and arguing four additional grounds of appeal in terms and in the manner shown in the schedule attached to the Affidavit in Support of this Motion and marked Exhibit B deeming the amended notice of appeal attached to this Motion Paper and as marked Exhibit C as properly filed and served, appropriate filing fees having been paid.
An Order extending the time within which the appellant/applicant may file his brief of argument in this appeal to 31/10/2001.
From the record of this Court, the amended notice of appeal which was deemed to have been properly filed and served contains all the additional four grounds of appeal. The record also shows that appellants brief of argument was duly filed. On 26/10/2001. It is therefore a misconception and misleading, to say the least, for the Respondent to say that the appellant ought to have filed the amended notice of appeal before the Lower Court.
The fact that the word Proposed is on the process deemed amended or resworn will not detract from the Order of the Lower Court deeming Exhibit A to Respondents Motion as having been properly filed appropriate fees having been paid. The Appellants confirmed in paragraphs 2.05 and 2.06 of their Appellants Brief of Argument that they actually consented to and did not object to the use of the Amended/Resworn Affidavit in Support of Respondent notwithstanding the word proposed. Appellants said:
2.05 On 28/2/2012 Respondents Counsel moved his Motion for amendment and deeming the resworned affidavit as properly filed and served as stated in paragraph 2.03. Appellants did not oppose the Motion and it was granted accordingly.
2.06 Soon thereafter the Respondent’s Counsel proceeded to move his application for enforcement of respondent’s fundamental rights. Counsel adopted his written address and relied on his resworned Affidavit to Support his Contention.
Therefore the Appellants are forever estopped from raising any issue of improperly filed Resworn or Amended Affidavit in Support of Motion being in breach or violation of any Order or Rules contained in Fundamental Enforcement (Procedure Rules) 2009. They have waived their right if any to complain about the use of Amended/Resworn Affidavit in Support of the Respondent’s Motion to enforce his Fundamental Rights.
See (1) BRITTANIA NIGERIA LIMITED VS. SEPLAT PETROLEUM DEVELOPMENT COMPANY LTD. & ORS. (2016) 4 NWLR (PART 1503) 541at 593 BE per NGWUTA, JSC who said:
With respect to learned counsel for the 3rd and 5th Respondent, it would appear to me that he is not familiar with the rules of this Court in relation to the filing of briefs of argument.
Not only did he file his brief out of time, he also volunteered the information that he filed out of time. If he knew the rules he would have filed an application to regularise the filing. In the alternative, he could have moved the Court at the hearing to regularise his brief, but did neither. Now the brief is before the Court and the learned Counsel for the appellant, without raising objection to it, reacted appropriately by filing his reply to it.
He knew the process was filed out of time without leave of Court. In the circumstances, the breach of the rules relating to time of filing brief should be treated as a mere irregularity which the appellant waived by filing a reply to the brief. To strike out the brief on the peculiar facts herein will tantamount to doing technical as distinct from substantial justice.
In the case of Nwankwo v. Kanu (2010) 6 NWLR (Pt. 1189) 62 a brief filed out of time was considered in the interest of justice. In view of the above. I will consider the brief in the interest of doing substantial justice.
(2) CHISCO INTERNATIONAL LTD. VS. PRIME MARKETING ASSOCIATES LTD. & ORS. (2016) 3 NWLR (PART 1499) 249 at 279 DE per NDUKWE â ANYANWU JCA who said:
The Appellant’s Counsel complained about the form under which this suit was brought in the Court below. Challenging the form of suit is initiated is a procedural jurisdiction. This may be waived by the parties. However, where a litigant wishes to complain about procedure, it should do so timeously before taking any step in the proceedings. Once an aggrieved party takes a step in the proceedings, it would be deemed that he has waived his right of complaint.
Failure to object to the Respondent’s Motion is an indication that Appellants have no complaints or problem with the use of the Amended/Resworn Affidavit notwithstanding its description. It is too late in the day to raise any eye brow or any issue about it.
I am of the view that since the Lower Court permitted its use upon its amendment or its being resworn the Affidavit has been rendered as regular pursuant to Section 114 of the Evidence Act 2011 which provides:
114 A defect or erroneous affidavit may be amended and re-sworn by leave of the Court, on such terms as to time, costs or otherwise as seen reasonable.
The failure to make allusion to Learned Counsel’s submission that the said Affidavit was incompetent or defective by the learned trial Judge cannot vitiate the judgment appealed against because no miscarriage of justice occurred against any of the parties to this appeal. After all the Appellants filed 42 paragraph Counter Affidavit and written Address against the facts contained in the said Amended/Resworn Affidavit. With or without the Amended/Resworn Affidavit the hearing of the Respondents Motion to enforce his Fundamental Rights was and is in order. The Appellants did not at all raise objection to the Original Affidavit which the Respondent later Amended/Resworn before the Appellants filed Counter Affidavit against it. The judgment is sustainable.
Consequently Issue 1 is hereby resolved against the Appellants.
ISSUE 2
WHETHER THE DECISION OF THE LOWER COURT ON THE LIABILITY OF THE APPELLANTS ON THE ALLEGED WRONGFUL ACTS OF PERSONS WHO ARE NOT PARTIES BEFORE THE LOWER COURT IS LAWFUL.
The Learned Counsel referred to paragraph 64 of the Affidavit in support of the motion to enforce Respondents Rights and made insinuation that the affidavit was not proper as no filing fees was paid. He also reproduced paragraphs 35, 36, 37 and 38 of the said Affidavit to submit that the following person viz:-
1. Mr. Emmannuel Ezeala
2. Chidi Duru
3. Godwin Onuchukwu
4. Chukwudi Ukaoha whom the Respondent said were ordered by 1st â 8th Appellants to beat up and teach Respondent, his wife and son some little sense were not joined as parties to this proceedings and that the Respondent did not address those people as agents of the Appellants. That the Respondents allegations were denied in paragraph 37 of their counter affidavit. The Learned Counsel to the Appellant also referred to the finding of the trial Court that the appellants were liable. The Appellants submitted that those persons allegedly instructed ought to have been joined as they are necessary parties. He relied on the cases of GREEN VS GREEN (2001) FWLR (Pt. 76) 795 at 820 D-G.
Appellants urged this court to set aside the holding of the Lower Court that the Appellants are vicariously liable for the alleged wrongs of persons who are not parties before the Lower Court.
Responding to arguments under issue 2 the Learned Counsel to the Respondent referred to the case of COTECNA INERNATIONAL LTD VS. CHURCHGATE (NIG) LTD (2010) 18 NWLR (Pt. 1225) 341 SC on the meaning of the word Agent. That it was held in the case of DAAR COMM. NIG LTD VS. W.D. NIG LTD (2012) that agent of a disclosed Principal cannot be considered a necessary party to an action. He submitted that the appellants were implicated in this matter and he urged the court to resolve issue 2 against the Appellants.
It must be stated that under the fundamental Rights (Enforcement PROCEDURE) Rule 2009 and section 46 of the Constitution of the Federal Republic of Nigeria 1999 as amended or altered any Applicant for the enforcement of his or her fundamental Rights can institute his action against any or all persons who contravenes/contravene his or her Fundamental Right. The failure to join all those involved in the contravention or breach of Applicants fundamental Rights will not affect the success of the action. In order words failure to join all alleged culprits will not defeat the action once the Applicant can show that those brought before the court or persons made respondents actually participated in the violation of his or her Fundamental Rights the court will go ahead to enforce the rights of the Applicant if he is able to prove his assertions against the respondents. See
(1) CAMEROUN AIRLINES VS MR MIKE E. OTUTUIZI (2001) 4 NWLR (Pt. 1238) 512 at 545 H to 546 A-D per PHODES VIVOUR JSC who said:
Finally the reasoning of the learned trial Judge that the award of $20,000 cannot made because the South African Immigration Officials were not made parties is strange in view of fact that non joinder of a party cannot defeat a claim. It is well settled that it is the duty of the plaintiff to sue all relevant and interested parties but if the plaintiff fails to do so it does not mean that his action would fail. See Mr. Onayemi v. O. Okunubi & Anor (1966) NMLR P.50.
The learned trial Judge rightly held that the appellant as agent is responsible for the acts of a disclosed principal (Airline designated ZC) for the flight from Harare to Manzini and back to Harare. The appellant is a relevant and necessary party in the absence of the principal. There was thus no need to make South Africa Immigrations Officials parties in this case. The Respondent has proved by unchallenged evidence which I find very credible and compelling that he lost $20,000 when the appellant made a detour to Johannesburg South Africa in unexplained circumstances. The act of the appellant flying the respondent to South Africa was responsible for the loss. The award of $20,000 by the court of Appeal was correct.
(2) ATTORNEY GENERAL, RIVERS STATE VS ATTORNEY GENERAL AKWA IBOM STATE & ANOR (2011) 8 NWLR (PT. 1248) N 31 at 129 H to 130 AC per MUHAMMAD, JSC who had this to say:
Looking at the arguments of learned Counsel for 2nd defendant from the angle of misjoinder or non joinder of a party, I believe that this, in a proceeding before a Court, can hardly vitiate such a proceeding. As a matter of procedure; Order 9 Rule 14(1) of the Federal High Court (Civil Procedure) Rules, 2009. Clearly stated that no proceeding shall be defeated by reason of misjoinder or non joinder of parties and a judge may deal with the matter in controversy so far as regards the interest of the parties actually before him. The courts have held it for quite long that no cause or matter shall be defeated by reason of mis-joinder or non joinder of parties and the court may in every cause or matter deal with the matter in controversy so far a regards the right and interest of the parties actually before it.
The judgment of the court goes beyond that of vicarious liability, as the judgment actually found the Respondents directly liable for the atrocities committed against the Applicant by each of the 1st to 8th Respondents which they (Respondents now Appellants) have appealed against. For example in paragraphs 27 and 28 of the Affidavit in support of the of the Motion the Respondent deposed as follows:
27. That on the 01/10/2011, Ntueke community made an announcement at the St Josephs Catholic Church Ntueke at 9:00 Clock Mass through Church catchiest that all Ntueke men, Women, and youth are invited to come at the 1stRespondentâs palace on 11/11/2011 by 3 p.m.
28. That on 11/10/2011 I went with my son Mr. Ebuka and my wife Mrs Caroline Ireka to the 1st Respondents palace for the outcome of the internet report or Oath taking to clear myself of the allegation of killing 1st respondents late father and threatening the 1st Respondent but neither the phone call internet discussion was brought nor Mr. Kevin Joe Nwosu was called for evidence even Oath taking or Bible swearing was not administered for me to vindicate myself rather the Chairman of 1st Respondents Cabinet Chief Silas Moueke (7th Respondent) stood up and read a written document as the judgment of the matter against me as follow:
i. That Mr. Chidi Simon Ireka is a trouble maker and a Litigant who had dispossed many people of their land and properties through litigations and for these reasons, they 1st to 8th Respondents) believed that Mr. Chidi Simon Ireka made the ugly utterance (killing the 1st Respondents late father) and that Mr. Chidi Simon Ireke killed the late Eze Donatus Chinedu.
ii. That Mr. Chidi Simon Ireka and his family members are ostracized/banished from entering, living in Uhualla Ntueke for 30 years.
iii. That Mr. Chidi Simon Ireka upon return to Uhualla Ntueke Community after 30 years should appease the gods of the land by giving Ntueke the following items.
(i) One Igbo Cow
(ii) Eight gallons of palm wine,
(iii) Eight alligator pepper,
(iv) Eight kola nuts
(v) One big fowl
(vi) N50,000 as apology to Umuada
(vii) Apology letter to Ntueke.
(Pages 18-19 of the record).
On page 70 of the record the Appellants admitted the Respondent’s allegations in paragraph 31 of their counter Affidavit thus:
31. That paragraph 27 and 28 are true to the extent that the Church announcement was specifically stated and slated for judgment decision of the arbitration and all attended to receive the judgment/arbitration award which was read and copies given to the 1st respondent and the applicant. Both stated their acceptance and satisfaction with the decision. It was signed by 25 members of the arbitration including Women Leaders Youth Leaders Community Leaders Village Heads, Union Executives and not the respondents alone. It was a unanimous decision of the community.
The appellants exhibited the said judgment read against the Respondent by Appellants as Exhibit 5 to their Counter Affidavit. Facts admitted need no further proof. See MRS. SUNDAY ADEGBITE TAIWO VS SERAH ADEGBORO (2011) 11 NWLR (PART 1259) 562 at 583 G-H to 584 A-C per RHODES â VIVOUR JSC.
The finding and judgment of trial Court against the Appellants is amply justified by the Affidavits evidence and exhibits before the Lower Court. The non joinder of the four persons mentioned earlier does not vitiate the judgment of the Lower Court. The judgment is quite lawful. Issue 2 is resolved against the Appellants.
ISSUE 3
WHETHER THE DECISION OF THE LOWER COURT IS SUPPORTED BY THE EVIDENCE BEFORE IT.
The appellants referred this Court to the statement of particulars dated 5/12/2011 and filed on 19/12/2011 by the applicant on page 3 of the record and the grounds relied upon for Respondents application. Reference was also made to paragraphs 37 and 38 of Affidavit in support of Respondents application. That the Respondent claimed that he was dragged half naked with his son and wife to the market square and ostracized and banished with a warning not to look back in Ntueke Community for 30 years. That this is irreconcilable as the respondent who alleged he was ostracized and banished from his community on 11/10/2011 was still resident in his said community on 19/12/2011 when he filed this action for enforcement in his fundamental rights.
The Respondent Learned Counsel stated that the Affidavit evidence of Respondent was properly before the Lower Court. That it was paid for on 3/2/2012 with Teller No.7986746. That the appellants arguments bordered on technicality.
I agree with Respondent that the Respondent paid for the Amended/Resworn Affidavit in support.
I have also perused and read calmly all the Affidavits/Evidence before the court and the exhibits attached and I am of the firm view that the trial court assiduously assessed and evaluated the said Affidavits and exhibits before him and his findings and conclusions are fully supported by the facts and materials placed before the trial Judge. There is no reason to interfere with the judgment of the Lower Court. See MICHAL ALYEOLA VS RAMOTA YEKINI PEDRO (2014) 12 SCM 71 at 94 A- C per PETER ODILI, JSC who said.
The attitude of the Court of Appeal or the Supreme Court as the case may be, in respect of evaluation of evidence of a trial Court is that in deciding whether or not a trial Court properly evaluated the evidence, the essential focus should be on whether the trial Court made proper findings and reached the correct judgment upon facts before it. it is not the method or approach that necessarily determines this. Thus, so long as a trial Court does not arrive at his judgment merely by considering the case of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Ajibulu v. Ajayi (2004) 11 NWLR (Pt. 885) 458; Woluchem v. Gudi (1981 5 SC 291.
Issue 3 is resolved against the Appellants.
In the end I find that the appellants appeal is lacking in any merit and it is hereby dismissed in its entirety.
Judgment of the High Court of Imo State delivered by Honourable Justice L.C. AZUAMA on the 5th day of April, 2012 is hereby affirmed.
The Appellants shall pay costs of N50,000 (Fifty Thousand Naira) to the Respondent in this appeal.
ITA G. MBABA, J.C.A.: I had the advantage of reading the draft of the lead judgment, just delivered by my learned brother, Peter O. Ige JCA and I agree with his reasoning and conclusions completely and adopt same as mine. I too dismiss the appeal for lacking in merit and abide by the consequential orders in the lead judgment.
FREDERICK O. OHO, J.C.A.: I had had the opportunity of reading the draft of the judgment just delivered by my learned Brother, PETER OLABISI IGE, JCA and I am in total agreement with reasoning and conclusions in dismissing this Appeal as lacking in merit. I abide by the consequential orders made thereto.
Appearances
CHIEF E.D. EGBEBU For Appellant
AND
For Respondent
