ANAMBRA STATE GOVT & ORS v. ASIEGBU (2022)

ANAMBRA STATE GOVT & ORS v. ASIEGBU

(2022)LCN/16215(CA)

In the Court of Appeal

(AWKA JUDICIAL DIVISION)

On Wednesday, March 30, 2022

CA/AW/765/2018

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

1. ANAMBRA STATE GOVERNMENT 2. ATTORNEY GENERAL ANAMBRA STATE 3. COMMISSIONER OF POLICE ANAMBRA STATE APPELANT(S)

And

BARR. MAYOR ASIEGBU RESPONDENT(S)

RATIO

WHETHER OR NOT TEH RIGHTS GURANTEED UNDER THE CONSTITUTION ABSOLUTE

I agree with the submission of learned counsel for the Appellants that the right to freedom of movement of the Applicant is not absolute, such right is subject to the law as well as subject to national security, safety, health, morality rights and freedom of others. “One has to bear in mind that the rights guaranteed under Sections 34, 35, 37 and 38 of the 1979 Constitution are “qualified rights”. They are not absolute rights. They are subject to any law that is reasonably justifiable in a democratic society: (a) in the interest of defence, public safety, public order, public morality or public health or (b) for the purpose of protecting the rights and freedom of other people”;
Per Chukwudifu Akunne Oputa JSC in OSAWE & ORS V. REGISTRAR of TRADE UNIONS (1985) LPELR – 2792.
There was therefore no justification for the learned trial Judge in holding the restriction of movement during the monthly environmental sanitation exercise in Anambra State, illegal, unconstitutional, null and void for reason of inconsistency with Section 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): This is an appeal brought by Appellants against the judgment of the Anambra State High Court, Awka Judicial Division, presided over by Hon. Justice S. N. Odili, which was delivered on Tuesday the 13th day of March 2017, granting the reliefs sought by the respondent.

Being dissatisfied with the judgment aforesaid, the Appellants appealed and filed four grounds of appeal.

SUMMARY OF RELEVANT FACTS:
The respondent herein commenced this suit as applicant on the 13th day of November, 2017, by an originating motion for enforcement of fundamental rights and claimed the following reliefs:
a. A declaration that the restriction of movement of people in Anambra State or anybody whatsoever within the State by the Respondents themselves or through any of their agencies or agents between the hours of 7.00 am and 10.00 am on every last Saturday of the Month, during the State environmental sanitation exercise, is illegal, unconstitutional, null and void for reasons of inconsistency with Section 41 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

b. A declaration that barricading of Enugu/Onitsha old road at Amawbia axis by officials of the Respondents at about 7.10 am on the 30th of September, 2017, thereby restricting the movement of the Applicant, who among other passengers was travelling to Lagos on board “God is Good” Toyota commuter bus with Delta State Registration No. AYB 111 XP is illegal, unconstitutional, null and void for reasons of inconsistency with Section 41 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

c. A declaration that the directive of the 1st Respondent restricting movement of people in Anambra State, within the hours of 7.00am and 10.00 am, during the environmental sanitation exercise of last Saturday of the month, without an enabling law in that respect, is illegal, unconstitutional, null and void for reasons of inconsistency with the 1999 Constitution of the Federal Republic of Nigeria, as amended.
d. An order of perpetual injunction restraining the Respondents whether by themselves, officials or agents from further restricting the movement of the applicant or that of any other person whatsoever in Anambra State, between the hours of 7.00am and 10.00am, during the environmental sanitation exercise of last Saturday of the month in the State.
e. An order of the honourable Court awarding the sum of N500,000.00 (Five Hundred Thousand Naira Only) as compensation due and payable jointly and severally by the Respondents to the Applicant for denying him his right to freedom of movement at the Amawbia axis of Enugu/Onitsha old road, when it barricaded the road between the hours of 7.00 am and 10.00 am, during the monthly environmental sanitation exercise of last Saturday of the month in the State on the 30th of September, 2017, and restricted his movement to Lagos.
f. An order of the honourable Court awarding the sum of N5,000,000.00 (Five Million Naira Only) as general damages against the Respondents in favour of the Applicant for the violation of his fundamental rights.
g. An order of the honourable Court mandating the Respondents to apologize to the Applicant in writing for the infringement of his fundamental rights.
h. And for such further order or other orders as the honourable Court may deem fit to make in the circumstances of the case. (See pages 4 and 5 of the record.)

Upon service of the originating processes on the Appellants, the 1st and 2nd Appellants filed counter affidavit and written address in opposition to the originating motion (see pages 34 to 40 of the record). Applicant filed further affidavit with written address (see pages 41 to 49 of the record). 1st and 2nd Appellants filed another counter affidavit and written address with a motion for extension of time through another counsel who was briefed by the Hon. Attorney General of Anambra State to represent the 1st and 2nd Respondents (see pages 50 to 72 of the record).

The trial Court discountenanced the latter processes filed by the 1st and 2nd Appellants maintaining that it was meant to arrest the judgment of Court (see pages 74 to 75 of the record) and proceeded to deliver its judgment.
Being dissatisfied with the above judgment of the trial Court, the Appellants have appealed to this Court and have in all filed four grounds of appeal.

Learned Counsel for the Appellants C. G. Okonkwo-Okon Esq distilled four issues for determination as follows:
a. Whether the trial Court rightly held the restriction of movement during the monthly environmental sanitation exercise in Anambra State unjustifiable, unlawful, illegal and unconstitutional.
b. Whether the trial Court was right when it failed to consider the provisions of the decree that empowered the restriction of peoples’ movement on sanitation day on the grounds that no section was referred to and that military decrees were abolished and/or repealed upon enthronement of civilian regime in 1999.
c. Whether the trial Court was right when it held that the Applicant needs no further proof of his allegation of the infringement of his Fundamental rights by the Respondents vis a vis paragraphs 5, 6 and 7 of the 1st and 2nd Respondents counter affidavit.
d. Whether the trial Court was right to hold that the Applicant was entitled to damages on most liberal terms since the Applicant failed woefully to prove any infraction of his fundamental rights by the respondents.

Learned Counsel for the Respondent, Mayor Asiegbu Esq. distilled two issues for determination as follows:
a. Whether the trial Court was right when it held the restriction of movement during the monthly environmental sanitation exercise in Anambra State unjustifiable, unlawful, illegal and unconstitutional.
b. Whether the Applicant/Respondent proved his case against the Respondents/Appellants to warrant the award of damages in his favour and against the Respondents/ Appellants.

The submissions by both counsel are as contained in their respective briefs. I do not intend to reproduce same.

The issues distilled by both counsel can be summarized into one single issue, thus:
“Whether on the facts and circumstances of this case the restriction of movement of the Respondent on the 30th September, 2017 was enough to justify abrogation of the Anambra State Waste Management Authority law and proceed to declare the sanitation exercise as unlawful and illegal.”

There is nothing wrong with the clean-up exercise at the end of every month to keep the environment clean. Some overzealous officials take laws into their own hands by restraining vehicles even those travelling outside the State.
The Monthly Environmental clean-up is lawful and therefore cannot be abrogated, cleanliness they say is next to Godliness.

What is in issue is the conduct of the Government officials on that particular day which cannot be used to issue a blanket ban on what ordinarily was put in place to see that people live in a clean environment.

It should therefore be noted that what is before this Court on Appeal is not to use the conduct of few overzealous men on a particular day to completely repeal a harmless law.
This Court will therefore limit itself to the conduct of those overzealous officials who overstepped their bounds that very day and not to go beyond that.

There is no doubt that the movement of the Respondent was restricted on the said day which he has proved, but that does not justify or warrant a blanket order on other people passing through Anambra on clean-up days whether their rights were violated or not. The Appellants can only be restrained from further restraining the movements of the Respondent only and not the whole world.

I agree with the submission of learned counsel for the Appellants that the right to freedom of movement of the Applicant is not absolute, such right is subject to the law as well as subject to national security, safety, health, morality rights and freedom of others.

“One has to bear in mind that the rights guaranteed under Sections 34, 35, 37 and 38 of the 1979 Constitution are “qualified rights”. They are not absolute rights. They are subject to any law that is reasonably justifiable in a democratic society: (a) in the interest of defence, public safety, public order, public morality or public health or (b) for the purpose of protecting the rights and freedom of other people”;
Per Chukwudifu Akunne Oputa JSC in OSAWE & ORS V. REGISTRAR of TRADE UNIONS (1985) LPELR – 2792.
There was therefore no justification for the learned trial Judge in holding the restriction of movement during the monthly environmental sanitation exercise in Anambra State, illegal, unconstitutional, null and void for reason of inconsistency with Section 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

I agree with the lower Court that the barricading of Enugu/Onitsha Old Road at Anambra axis by officials or Agents of the Appellants at about 7.10am on the 30th of September, 2017, which restricted the movement of the Respondent who was travelling to Lagos was unnecessary and an infringement on his fundamental rights. This of course is as far as the Respondent was concerned and should not be extended to any other person. He is entitled to compensation for the said infringement.

There was no justification for the blanket order made by the learned trial Judge restraining the Appellants or their Agents from further restriction of movement of the Respondent or that of any other person whatsoever in Anambra State between the hours of 7.00am and 10.00am during the environmental sanitation exercise of the last Saturday of the month in Anambra State. That order is hereby set aside.

I am in agreement with the learned trial Judge that the Respondent having been restricted from travelling out of Anambra to Lagos on the said day which resulted in his arriving Lagos very late is entitled to compensation. I affirm the award of Five Hundred Thousand Naira to the Respondent as compensation for breach of his right to freedom of movement on the 30th of September, 2017 for about three hours.

This appeal succeeds in part. The Judgment of S. N. Odili, J, of the Awka division of the Anambra State High Court delivered on the 13th of March, 2018 in Suit No A/310/2017 is affirmed in part with some modification as already enumerated above. I affirm the payment of Five Hundred Thousand Naira as compensation for the breach of the Respondent’s Fundamental right to freedom of movement.
I make no order as to costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, CHIOMA E. NWOSU-IHEME, PhD-JCA and I am in agreement with the reasoning and conclusions in partly allowing this Appeal. I also subscribe to the consequential orders made thereto in the lead judgment.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the lead judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA in Appeal No. CA/AW/765/2018. I agree with the reasoning and conclusions therein.