BASSEY & ANOR v. ASUQUO & ORS (2020)

BASSEY & ANOR v. ASUQUO & ORS

(2020)LCN/14493(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/238/2015

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

1. CHIEF SUNDAY BASSEY BASSEY 2. UDOWONG EDIM UDOWONG APPELANT(S)

And

CHIEF ASUQUO BASSEY ASUQUO 2. CHIEF BASSEY SAUL BASSEY 3. THE ASSISTANT INSPECTOR GENERAL OF POLICE, CRS- ZONE 6 RESPONDENT(S)

RATIO

CONDITION PRECEDENT FOR AN APPLICATION MADE UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES

It is the law that when an application is made 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 securing of the enforcement thereof should be the main claim and not an accessory claim. Where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly exercised as it will be incompetent. See GAFAR vs. GOVERNMENT OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375 SC; (2007) ALL FWLR (Pt. 360) 1415 SC; TUKUR vs. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (Pt. 510) 549 SC. PER OWOADE, J.C.A.

WHETHER OR NOT WHERE A COURT HAS NO JURISDICTION TO HEAR AND DETERMINE A CASE BUT GOES AHEAD TO DO SO, THE DECISION ARRIVED AT AMOUNTS TO A NULLITY

Clearly, where as in the instant case a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity. See UMANAH vs. ATTAH (2006) 17 NWLR (Pt. 1009) 503 SC; MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587 SC; SKEN CONSULT vs. UKEY (1981) 1 SC 6; BENIN RUBBER PRODUCERS LTD. vs. OJO (1997) 9 NWLR (Pt.521) 388 SC; MAGAJI vs. MATARI (2000) 5 SC 46; ALAO vs. AFRICAN CONTINENTAL BANK LTD. (2000) 6 SC (Pt. 1) 27; GALADIMA VS. TAMBAI (2000) 6 SC (Part 1) 196; ARAKA vs. EJEAGWU (2000) 12 SC (Pt. 1) 99. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Cross River State High Court, Calabar delivered by Hon. Justice Michael Edem on 3rd November, 2014.

The suit was commenced by the 1st and 2nd Respondents against the Appellants and the 3rd Respondent by motion under the Fundamental Rights (Enforcement) Procedure Rules.
The 1st and 2nd Respondents as Applicants in the Court below seek the following reliefs:
a) An Order compelling the Assistant Inspector General of Police in charge of zone 6, Calabar, Cross River State to comply with Section 4 of the Police Act and Section 44 of the Nigerian Constitution 1999 (as amended).
b) An Order that the Respondents desist from harassing, molesting, arresting detaining the Applicants without lawful cause and being arrested and detained by men under the 1st Respondent for no cause.
c) A Declaration that the Applicants are entitled to manage, control and enjoy their properties including their parcels of land Afia Mbat Okpor and Edem Oko Okpor situate behind Okpor village, Ukwa Ibom Clan free from molesting and harassment by the Respondents.

d) N20,000,000.00 (Twenty Million Naira) being general damages for the embarrassment, and the unlawful harassment, molestation, unlawful arrest and detention of the Applicants.The grounds upon which the 1st and 2nd Respondents/Applicants reliefs were sought are as follows:
That we are the bonafide owners of the land called Afia Mbat Okpor and Edem Oko Okpor situate behind Okpor Village, Ukwa Ibom Clan, Odukpani Local Government Area.
2. The said land was inherited by the Applicants from their fore fathers.
3. That sometime on the 5th of March, 2014 the 1st Respondents men led and directed by the 2nd and 3rd Respondents arrested the Applicants and ordered them to produce 26 other persons from their village Okpor village in Ukwa Ibom Clan.
4. That the Applicants now fear for their lives due to the frequent harassment by the Respondents.
5. That the continued molestation and harassment by the Nigeria police violates Applicants’ right to own and use their land.
6. That the Applicants cannot now use and occupy their land without molestation by the Respondents.
7. That the Applicants do not have the

names of the 26 people the 1st Respondent have asked them to produce and the Applicants do not know their whereabouts.
8. That the Applicants are apprehensive of further arrest and detention as they cannot produce 26 people from their village.

The 2nd and 3rd Defendants/Appellants filed a Counter – Affidavit in the Court below wherein one Udowong Edim Udowong deposed in paragraphs 1 – 13 as follows:
1. That I am the 3rd Respondent and the village secretary of Obukwo Esa village and I have the consent of the 2nd Respondent to depose to this counter-affidavit.
2. That the entire parcel of land lying and situate in Obukwo Esa village the subject matter in this case is the communal property of Obukwo Esa village council.
3. That paragraph 2, 3 and 4 of the Applicants’ affidavit are false, the Applicant have never been in possession of this parcel of land.
4. That we have never molested the Applicants on this land rather the Applicants trespass to our land and we sued them to Court in Suit No. HC/323/2012. The writ of summons is hereto attached and marked Exhibit A.
5. That this parcel of land had earlier been

surveyed by our community. The said survey plan No. JEJ/CR/2913 is hereto attached and marked Exhibit B.
6. That during the pendency of Suit No. HC/323/2013. The Applicants with thugs numbering over 26 went into the disputed land forcefully and started removing beacons stones. The 1st Applicant admitted this fact in his statement to the police at zone 6, Calabar.
7. That paragraph 8 to 12 of the Applicant’s affidavit are correct to the fact that they forcefully entered the land in dispute during the pendency of a civil suit illegally removed beacons stones planted on the land.
8. That their act could have cause serious breach of peace to the community hence we petition the police about their criminal activities to our communal land. The said petition is hereto attached and marked Exhibit C.
9. That paragraph 13 of the Applicants’ affidavit is not correct. The Applicants were arrested for offence bordering on forcible entry to our communal land and illegal removal of beacon stones.
10. That paragraph 14 and 15 of the Applicants’ affidavit are false. The 1st Respondent has the duty to arrest the Applicant on a complaint

of allegation of crime.
11. That paragraph 16 of the Applicants’ affidavit is false. Our solicitor, U. E. Eba, Esq., informed us in his chambers around 1pm on 7th March, 2014 and we verily believed him that the Applicants have no fundamental right to commit offence in forcible entry and removal of beacons stones.
12. That paragraph 17 of the Applicants’ affidavit is false. The land is currently in dispute in Suit No. HC/323/2012.
13. That it was the Applicant who told Police in zone 6, Calabar that he went to the land in company of 26 thugs hence the request by police for the suspects to be interrogated by the Assistant Inspector General of Police to confirmed whether the crime was actually committed.

The learned trial judge held in favour of Respondents/Applicants and concluded on page 55 of the Record of Appeal as follows:
1. The Assistant Inspector General of Police zone 6, Calabar to safeguard Section 4, Police Act and Section 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
2. The Respondents shall not whatsoever and howsoever harass, molest, arrest and detain the Applicants without

lawful cause.
3. The Applicants are entitled to manage, control and enjoy their properties including their parcel of land Afia Mbat Okpor and Edem Oko Okpor situate behind Okpor village, Ukwa Ibom Clan free from molestation and harassment by the Respondent.
4. N20,000,000.00 (Twenty Million Naira) being general damages for the embarrassment, and the unlawful harassment, molestation, unlawful arrest and detention of the Applicants is refused from the Constitutional angle aforestated. Parties to bear their costs.
5. This is my judgment.

Dissatisfied with this judgment, the Appellants/Defendants filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 12th December, 2014. The relevant Briefs of Argument are:
1. Appellant’s Brief of Argument filed on 8th April, 2016 but was deemed filed on 18th January, 2017. It is settled by Emmanuel David Esq.
2. 1st and 2nd Respondent’s Brief of Argument (incorporating preliminary objection) was filed on 7th February, 2017. It is settled by NTA A. NTA, Esq.
3. Appellant’s Reply Brief was filed on 25th March, 2020. It is settled by Ukpong Eba, Esq.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel for the Appellant nominated a sole issue for the determination of this appeal. It is:
Whether the fundamental rights application of the 1st and 2nd Respondents to the Lower Court filed on 11th March, 2014 in Suit No. HC/82/2014 upon which the trial Court made a declaratory Order that the 1st and 2nd Respondents are entitled to manage, control and enjoy properties including their parcel of land at Afia Mbat Okpor and Edem Oko Okpor situate behind Okpor village, Ukwa Ibom Clan free from molestation and harassment by the Appellant was competent and justifiable.

Learned Counsel for the 1st and 2nd Respondents equally nominated a sole issue for the determination of the appeal. It is:
WHETHER THE COURT BELOW HAD THE COMPETENCE IN HC/82/2014 A FUNDAMENTAL RIGHT ACTION TO MAKE A DECLARATORY ORDER THAT THE 1ST AND 2ND RESPONDENTS ARE ENTITLED TO THE USE, MANAGEMENT, CONTROL AND ENJOYMENT OF THEIR LANDED PROPERTY WITHOUT ANY MOLESTATION AND HARASSMENT FROM THE APPELLANTS. – Grounds I and II.

THE PRELIMINARY OBJECTION
Learned Counsel for the Respondent filed a Notice of preliminary objection to the hearing and

determination of the appeal on the following grounds:
1. That Order 6 Rules 2 of the Court of Appeal Rules 2011 requires the Appellants to give the particulars of the error in law the Appellants is alleging in their grounds of appeal.
2. That all the two grounds of appeal filed in this Appeal by the Appellants on 12th December, 2014 are not accompanied by the particulars of error to show the nature of the error in law alleged by the Appellants in their Appeal.
3. That the said grounds of appeal are incompetent by virtue or Order 6 Rules 6 of the Court of Appeal Rules 2011.
4. That by virtue of Order 6 Rules 6, Order 6 Rules 3 of the Court of Appeal Rules 2011 this appeal is liable to be struck out.

In his Reply Brief, learned counsel for the Appellants submitted on the preliminary objection that the grounds of appeal herein are competent as the object of a ground of appeal is to appraise the opposite party on the nature of complaint of the Appellant and so where such a complaint is clear and unambiguous such a ground should be regarded as competent.

He added that the attitude of the Court has always been that wherever it is

possible to determine a case on its merit rather than technicality the Court should not refuse a complainant the opportunity of being heard as rules of Court should not be stumbling blocks in the Court’s way of doing substantial justice.
He referred to the cases of CIVIL ENG. NIG. LTD. vs. MAHMOOD YAHAYA (2005) 22 NSCQR 1 @ 20; EDE vs. MBA (2012) 6 WRN 13 page 35; STOWE vs. BENSTOWE (2012) 1 MJSC (Pt. 169) 182; AFOLABI vs. ADEKUNLE APPIO (1983) 2 BCLR 141 @ 150; NALSA & TEAM ASSOCIATES vs. N. N. P. C. (1991) 8 NWLR (Pt. 212) 625.
He urged us to discountenance the 1st and 2nd Respondents preliminary objection and hold that the Appellants grounds of appeal are incompetent.

In essence, the 1st and 2nd Respondents complaint in their preliminary objection is that the Appellants two grounds of appeal which alleged errors in law do not contain particulars and the nature of the errors as stipulated by the Court of Appeal Rules.

The said Appellant’s grounds of appeal together with the reliefs sought are reproduced here under as contained on pages 56 – 57 of the Record of Appeal.

GROUND OF APPEAL
GROUND I
1. The learned trial judge erred in law when he made the following orders on 3rd November, 2014 in Fundamental Human Right proceedings.
“The Appellants are entitled to manage, control and enjoy their properties including their parcel of land Afia Mbat Okpor and Edem Oko Okpor situate behind Okpor village, Ukwa Ibom Clan, free from molestation and harassment by the Respondent.”
GROUND II
The learned trial judge has no jurisdiction to entertain the application of declaration of title in land, as the subject matter of the application is incompetent before the Court in a Fundamental Human Right application.
RELIEF SOUGHT FROM THE COURT OF APPEAL
1) An Order setting aside the judgment and order of the Lower Court dated 13th November, 2014 on the relief relating to declaration of title to the parcel of land called Afia Mbat Okpor and Edem Oko Okpor situate behind Okpor village Ukwa Ibom Clan made in the Fundamental Human Right Proceedings.

Clearly, the Respondents are in no way misled by the above on the nature of complaint brought by the Appellants from the above grounds of appeal. I do agree with the learned counsel for the

Appellants that the grounds of appeal are substantially in conformity with the provisions of Order 7 Rule 2 (2) of the Court of Appeal Rules, 2016.

For this reason, the Appellant’s grounds of appeal are not incompetent and the preliminary objection of the 1st and 2nd Respondents is accordingly dismissed.

THE MAIN APPEAL
On the sole issue for determination in the appeal, learned counsel for the Appellants submitted despite the facts of the pendency of the land matter in HC/323/2014, the learned trial judge proceeded in a Fundamental Rights Application declaring the 1st and 2nd Respondents title to land in Fundamental Rights proceedings.

He submitted that the learned trial judge has no jurisdiction to entertain the application of declaration of title to land in Fundamental Right proceedings. He referred to the cases of TUKUR vs. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517; UZOUKWU vs. EZEOMA II (1991) 6 NWLR (Pt. 200) 708 and submitted that the lack of jurisdiction inexorably nullified the proceedings and judgment as an exercise in futility.

He submitted that where a right does not fall within any of the provision of

Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended), no declaration can be made in the name of Fundamental Rights.

Appellant’s counsel submitted that the lower Court has no jurisdiction to declare title of management of land in an application for Fundamental Human Rights. Any defect in the competence of the Court as in this case is fatal and will vitiate proceedings. He referred to the cases of MADUKOLU vs. NKEMDILIM (2001) 46 WRN; DADA vs. ITL (2005) 11 NWLR (Pt. 936) 293.

He submitted that the 1st and 2nd Respondents indirectly sought a declaration of title to the said parcel of land which cannot be obtained or entertained in a Fundamental Rights Procedure and the said land is a subject matter in a pending suit in HC/323/2012. He referred to the case of OGBORU vs. PRE- COURT OF APPEAL (2007) 24 WRN 147 @ 187; UZOUKWU vs. EZEOMA II (1991) 6 NWLR (Pt. 200) 708 to say that for an action to be commenced and determined under the Fundamental Rights Proceedings the action has to fall within the provision of Chapter IV of the Constitution.

Learned counsel for the 1st and 2nd Respondents submitted that the action

was instituted against the Appellants to enforce their Fundamental Rights to acquire and own immovable property as contained in Section 43 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). And also, to enforce their right to the dignity of the human person under Section 34 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) due to the continuous violation, harassment and disturbance of the said right by the Appellant and their allies.

After referring to the case of NIGERIAN NAVY vs. GARRICK (2006) 4 NWLR (Pt. 969) 69 @ 102 – 103, he submitted that a perusal of the facts of the case will reveal that the case was a Fundamental Rights action and not an action for declaration of title as it was against the Appellants for the incessant violation of the Respondents to use, manage, control and enjoy their landed property without any molestation and harassment from the Appellants.
He referred again to the case of NIGERIAN NAVY vs. GARRICK (supra) and also to the cases of A. G. F. vs. ABULE (2005) 11 NWLR (Pt. 936) 369; DIRECTOR, S. S. S. vs. AGBAKOBA (1999) 3 NWLR (Pt. 595) 425 that declaratory and other

reliefs can be sought and obtained to enforce and protect fundamental right by filing an action in a High Court.

He concluded that the judgment and orders of the Court below are competent and justifiable in respect of the enforcement of the fundamental right of the applicants therein.

The core issue in this appeal is the attempt by the 1st and 2nd Respondents to secure title to land under the guise of Fundamental Rights Proceedings. A perusal of the claims of the Respondents/Applicants together with the Affidavit in support and the Counter – Affidavit reveal that the main claim of the 1st and 2nd Respondent was for –
(C) “A Declaration that the Applicants are entitled to manage, control and enjoy their properties including their parcels of land Afia Mbat Okpor and Edem Oko Okpor situate behind Okpor village, Ukwa Ibom Clan free from molestation and harassment by the Respondents.”

the enforcement thereof should be the main claim and not an accessory claim. Where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly exercised as it will be incompetent. See GAFAR vs. GOVERNMENT OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375 SC; (2007) ALL FWLR (Pt. 360) 1415 SC; TUKUR vs. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (Pt. 510) 549 SC.
The case of NIGERIA NAVY vs. GARRICK (2006) 4 NWLR (Pt. 969) 69 @ 102 – 103 heavily relied on by the learned counsel for the 1st and 2nd Respondents to convey the impression that the instant case is entertainable under Fundamental Rights Procedure and is not principally for “declaration of title to land” is distinguishable from the facts and circumstances of the instant case. Indeed, the Respondent in the case of NIGERIAN NAVY vs. GARRICK (supra) clearly stated his grounds on which the reliefs were sought namely-
“…the forceful and unlawful ejection and the barbaric and wanton destruction embarked upon by the officers and men of the Nigerian Navy, which acts were not denied by the Appellants.

The Respondent’s house was vandalized and plundered. There was no Court order to that effect. He was held hostage for eight (8) hours on his property…“
Those facts are quite different from the grounds of reliefs sought by the 1st and 2nd Respondents in this case which includes-
“We are the bonafide owners of the land called Afia Mbat Okpor and Edem Oko Okpor situate behind Okpor village, Ukwa Ibom Clan, Odukpani Local Government Area. The said land was inherited by the Applicants from their fore fathers.”
Suffice to say that the application of the 1st and 2nd Respondents under the Fundamental Rights (Enforcement Procedure) Rules was incompetent ab initio and was not properly constituted or brought by due process of law as to trigger or ignite the jurisdiction of the Court that heard the application.

SC; SKEN CONSULT vs. UKEY (1981) 1 SC 6; BENIN RUBBER PRODUCERS LTD. vs. OJO (1997) 9 NWLR (Pt.521) 388 SC; MAGAJI vs. MATARI (2000) 5 SC 46; ALAO vs. AFRICAN CONTINENTAL BANK LTD. (2000) 6 SC (Pt. 1) 27; GALADIMA VS. TAMBAI (2000) 6 SC (Part 1) 196; ARAKA vs. EJEAGWU (2000) 12 SC (Pt. 1) 99.
The sole issue in this appeal is resolved in favour of the Appellants.
The appeal has merit and it is allowed.

The judgment and orders of Hon. Justice Michael Edem in Suit No. HC/82/2014 delivered on 3rd November, 2014 are hereby set aside. Suit No. HC/82/2014 is accordingly struck out.
Parties to this appeal are to bear their respective costs.

PHILOMENA MBUA EKPE, J.C.A.: I was given the privilege of reading in advance the draft copy of the judgment just delivered by my learned brother, M.A. Owoade JCA. I agree that the appeal is meritorious and it is hereby allowed.
I also abide by the orders made in the lead judgment.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my Lord Mojeed Adekunle Owoade, JCA was made available to me in draft before now. I agree with the resolution of the preliminary objection as well as the main appeal, holding

that the appeal has immense merit and is thereby allowed. I abide on all orders made including that as to costs in the lead judgment.

Appearances:

EMMANUEL DAVID, ESQ. For Appellant(s)

NTA A. NTA, ESQ. – for 1st and 2nd Respondent For Respondent(s)