DR. CHAMBERLINE NWELE V. MR. SUNDAY ODUH
(2013)LCN/6320(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2013
CA/E/129/2010
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
DR. CHAMBERLINE NWELE Appellant(s)
AND
MR. SUNDAY ODUH Respondent(s)
RATIO
WHETHER OR NOT A CORT IS BOUND BY THE JURISDICTION CONFERRED UPON IT BY THE ENABLING STATUTE
A court of law as a creation of statute is bound by the jurisdiction conferred upon it by the enabling statute. There is no amount of misconstruing of the statute that will vest any jurisdiction outside the one vested in it by Law. See Erokoro V. Government of Cross River State (1991) 4 NWLR (Pt. 185) 322, Ogunmokun V. Milad, Osun State (1999) 3 NWLR (Pt. 594) 261.The appellant argues that the lower court lacked the jurisdictional competence to hear the instant case ab initio. The respondent contends that the lower court had the competence to assume jurisdiction in the case at the trial. The arguments of counsel for the parties had earlier been posited before the lower court where the learned trial Judge in his considered decision at page 56 of the record declared that the court has the jurisdiction and competence to entertain the respondent’s application. PER ABDUL-KADIR J.C.A
FACTORS TO CONSIDER FOR A COURT TO BE COMPETENT TO ENTERTAIN A CASE
A court is competent to entertain a case when:
(a) it is properly constituted with respect to the number and qualification of its membership;
(b) the subject matter of the action is within its jurisdiction;
(c) the action is initiated by due process of law; and
(d) any action to the exercise of its jurisdiction has been fulfilled.
The above stated facts are contained in opinion of Court of Appeal in the case of Soyannwo V. Akinyemi (2001) 8 NWLR (Pt. 714) page 95 at 116 paragraphs H – B. See also Madukolu V. Nkemdilim (1962) 2 SCNLR 341, Ogunmokun V. Military Administrator, Osun State, (1999) 3 NWLR (Pt. 594) 261, A.G. Federation V. Guardian Newspapers Ltd, (1999) 9 NWLR (Pt. 618) 187.In the instant case, it is the applicant’s relief that determines whether the court has jurisdiction to entertain same as he is the one who invokes the judicial powers vested by the constitution in the courts in the determination of his rights.
In the determination of the issue of jurisdiction whether or not to entertain a claim, the applicable laws is that which was in force at the time when the cause of action arose. See Uwaifo V. A.G. Bendel State (1982) 4 NCLR 1 A.G., Federation V. Guardian Newspapers Ltd, (1999) 9 NWLR (Pt. 618) 187. PER ABDUL-KADIR J.C.A.
RIGHT OF ELECTION IN RESPECT OF PROCEDURE TO BE ADOPTED FOR OBTAINING REDRESS FOR INFRINGEMENT OF FUNDAMENTAL RIGHT
The relief as sought by the Applicant/Respondent can constitute an action in trespass as well as an infringement of the Fundamental Right of the Applicant/Respondent. In a situation such as this, the litigant has a right of election in respect of the procedure to be adopted for obtaining redress. He may either initiate an ordinary civil claim under the relevant rules of court or may invoke the constitutional procedure under the Fundamental Rights (Enforcement Procedure) Rules 1979.
In N.U.I. V. COSST. (2006) 5 NWLR (PT. 974) 590 this court held thus:-
“Where the alleged infraction of a person’s Fundamental Rights also constitutes a tortuous act, the victim has a right of election in respect of the procedure to be adopted for obtaining redress. He may either initiate an ordinary civil claim under the relevant rules of court as the Respondents have done in the instant case or may invoke the constitutional procedure under the Fundamental Rights (Enforcement Procedure) Rules”. PER ABDUL-KADIR J.C.A
ABUBAKAR JEGA ABDUL-KADIR J.C.A.: (Delivering the Leading Judgment): This is an appeal brought pursuant to the Ruling/Judgment of High Court of Justice, Ebonyi State, sitting at Abakaliki delivered on the 3rd day of March, 2010 by Hon. Justice E. NGENE (hereinafter referred to as the Trial Judge).
The respondent in the instant appeal by a motion Ex-parte dated 13/10/2009 and filed on 14/10/2009 at the lower court seeking the leave of court for enforcement of his fundamental rights as provided by the Constitution of the Federal Republic of Nigeria 1999. The said application was granted on 16/10/2009.
In his statement pursuant to Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, the respondent as Applicant at the lower court sought for three reliefs to wit:
“2(a) A declaration that the degrading treatment, the locking up of the Applicant’s building consisting of eight rooms located at Iboko and the prevention of the Applicant from entry into the said Applicant’s building at Iboko Izzi Local Government Area of Ebonyi State for no just cause are unlawful and unconstitutional as they offend the Applicant’s right to dignity of human person, right to liberty, right to acquire and own immovable property and right to compulsory acquisition of property, the interest therein, as provided by Sections 34 (1), 35 (1), 43 (1) and 44 (1) of the Constitution of Federal Republic of Nigeria, 1999.
(b) Damages in the sum of One Million Naira (N1, 000,000.00) only being loss suffered by the Applicant from the acts of the respondent.
(c) A written apology from the Respondent to the Applicant.
The appellant who was the respondent at the lower court vehemently opposed the application by filing a 20 paragraph counter affidavit in opposition thereof and relied on the paragraphs of the said counter affidavit to challenge the competence of the suit and the jurisdiction of the court to entertain same. Learned counsel for the parties duly addressed the court and filed their respective written addresses to sustain their arguments.
The learned trial Judge in his considered Ruling/Judgment of 3rd March, 2010 granted only relief 2 (a) to the applicant and refused reliefs 2(b) and (c). The respondent (now appellant) being dissatisfied with the decision of the court filed a Notice of Appeal to this court. The said Notice of Appeal of three grounds is dated 14/4/2010 and filed on the same date.
In compliance with the rules of this court, learned counsel representing the parties in this appeal filed, exchanged and adopted their respective Brief of Argument in support of their contentions in the appeal.
The Appellant’s Brief of Argument dated 28th July, 2010 and filed on the same date was settled by Luke O. Nkwegu Esq. for the appellant. The respondent’s Brief of Argument dated 6th July, 2011 and filed on the same date was settled by Chief Jossy C. Eze for the respondent. The appeal was heard on the 25th March 2013.
The learned counsel for the appellant formulated two (2) Issues for the determination of this appeal. The Issues read thus:
“Issue 1:
Whether the trial court properly assumed jurisdiction to try the action under fundamental Rights Enforcement Procedure Rules, when the substance of the Applicant’s claim is, in the main, Declaration of title to land.
Issue 2:
Whether the Applicant at the lower court established any case of violation of his Rights as contained in Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 to sustain the court’s finding in that regard.”
Appellant’s Issue 1:
In his argument on the Appellant’s Issue No. 1, the learned counsel for the appellant emphasized that the whole proceedings at the lower court were vitiated and amounted to exercise in futility on the ground that the court erroneously assumed jurisdiction to try the suit. He stated that jurisdiction is fundamental to adjudication that it strikes at the root of the matter and its absence vitiates the proceedings no matter how well concluded. He cited the cases of Osungwu V. Onyeikigbo (2005) 16 NWLR (Pt. 950) 80 at 92 and Madukolu V. Nkemdilim (001) 46 WRN 1 in aid.
It was the contention of the learned counsel that the issues involved in the instant case are contentious and border on common Law wrongs of trespass and title to land. He emphasized that the issues are by their nature contentious and hostile and as such could not be properly determined under Fundamental Rights Enforcement Procedure Rules. He cited the case of Doherty V. Doherty (1968) NMLR 247 at 242 and Ossai V. Wekwah (2006) LRCN 756 at 760. He further pointed out that if the sustenance of the claim is in the main, a declaration of title, the best way to commence action is by taking out a writ of summons where pleadings will be filed and exchanged. He cited the cases of Sokoto L.G. V. Amale (2001) 8 NWLR (Pt. 714) ratio 1 & 2, Achebe V. Nwosu (2002) 19 WRN 42, Alhaji Ibrahim Abdulhamid V. Tatal Arkah and Anor (2006) 13 NWLR (Pt. 996) 127 ratio 1 & 8.
The learned counsel for the appellant emphasized that the case of the respondent was locking up of doors and a claim to ownership of land on which the house was built. He contends that the matter cannot come within the provisions of chapter of the IV of the 1999 Constitution of the Federal Republic of Nigeria. He further cited the cases of Tukur V. Government of Taraba State (1997) 6 NWLR (Pt. 510) 549, Egbuonu Vs. Bornu Radio Television Corporation (1997) 12 NWLR (Pt. 531) 29, Alhaji Ibrahim Abdulhamid V. Arkar (supra) Gafar V. Government of Kwara State (2007) 4 NWLR (Pt. 1024) 375 ration 3, Sokoto L.G. V. Amale (supra).
The learned Counsel further emphasized that it was wrong for the learned trial Judge to concede at page 55 – 56 of the record that the alleged action of the appellant constituted a trespass as well as an infringement of the respondent’s fundamental right, but concluded that the respondent has the right of election as to which procedure to use. He refers this court once more to the already cited cases of Bornu Radio Television Corporation V. Egbuonu and Tukur V. Government of Taraba State. He urges this court to hold that the lower court lacked the jurisdiction to hear the matter and allow the appeal, and set aside the judgment of the lower court.
Appellant’s Issue 2:
On this Issue, it was the contention of the learned counsel for the appellant that the averment of the respondent in paragraphs “6” – “9” of his statement do not in any way disclose the violation of any of the rights stated under Sections 34 (1), 38 (1), 43 (1) and 44 (1) of the 1999 Constitution of the Federal Republic of Nigeria. The learned counsel questioned whether the claim of the respondent that the appellant locked up his house without cause come within the contemplation of Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999. The learned counsel further questioned whether there was any basis for the conclusion of the court that indeed, the respondent’s rights were violated since the allegation of the respondent was denied on the appellant’s counter – affidavit. He pointed out that the court was unable to determine the veracity or otherwise of the allegation. He further contended that for a claim of violation to come within the contemplation of Section 43 of the Constitution, the claimant must show as a fact that he made effort to acquire property but such effort was turned down perhaps, on the basis that he is not an indigene of the place where the property is situate or that such property was forcefully collected from him.
Counsel to the Appellant contends that the rights guaranteed under Section 44 of the Constitution are usually enforceable against government and its agencies. That if it is enforceable against private individual, it is submitted that in all the circumstances the applicant still has to show that he has good title to the property, the law being nemo dat quod non habet. He cited the cases of Alhaji Ibrahim Abdulhamid V. Arkah (supra) and Co-op. Community Bank Plc V. Ekperi (2007) 145 LRCN 571 at 581.
The learned counsel contended that the Judgment of the lower court was perverse in that the learned trial judge was in grave error when he held that the applicant’s rights under Sections 43 & 44 of the Constitution were infringed upon. He stressed that the use of “self help” by the appellant does not amount to an infraction of the respondent’s right. He stated that self help can only result to either criminal act, not an infraction of fundamental rights as contemplated under chapter IV of the 1999 Constitution.
The Learned Counsel for the respondent adopted the two (2) issues formulated by the appellant for the determination of this appeal.
In arguing Issue No. 1, the learned counsel for the respondent pointed out that the Applicant/respondent’s application at the trial court was never a claim for declaration of title at all. He submitted that the appellant misconceived the nature of the suit. He refers the court to the application of the applicant at page 2 of the record. He stated that the lower court properly assumed jurisdiction. He refers this court to Section 46 (1) of the Constitution of Federal Republic of Nigeria, 1999 and Order 1 Rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules 1979 applicable at the time the action was entertained at the lower court. He cited the case of Madukolu V. Nkemdilim (2000) 2 L.C. 208, (1961) NSCC (Vol. 2) 374 at 379. He stated that the applicant/respondent duly satisfied the conditions/requirements and the provisions of Order 1 Rule 2 (2) and (3) of the Fundamental Rights Enforcement Rules 1979. He argues that the issues under consideration in the suit were not on common law wrongs of trespass to land or declaration of title as posited by counsel for the respondent/appellant. He urges the court to discountenance the submission of the learned counsel for the appellant.
The learned counsel for the respondent further contended that the reliefs sought by the respondent were very proper before the court. He emphasized that the locking of the respondent’s building or house and the persistent prevention of the respondent and his family from entry into their house undoubtedly offended the fundamental human rights of the respondent guaranteed under Section 43 and 44 of the Constitution of Federal Republic of Nigeria, 1999 as decided or adjudged by the court below. He cited the case of Nigerian Navy V. Garrick (2006) 4 NWLR (Pt. 969) 69 at 703 – 704 paragraph H – A per Omokri J.C.A.
It is the further submission of the learned counsel for the appellant that a trial court has the powers or latitude to assess, weigh and attach probative value to evidence before it, to effectively and effectually resolve issues before it and finally determine it. He cited the case of Noisaodu & Anor V. Elewuju & Anor. (2006) 14 NWLR (Pt. 998) 517 at 519 ratio 1. He submitted that the case under consideration differs from the cases cited by the learned counsel for the appellant. He therefore urges this court to hold that the lower court was right in assuming jurisdiction in the matter.
In arguing the Issue No. 2, the learned counsel for the respondent affirms that the applicant/respondent duly proved his case at the court below. He refers to Exhibit ‘A’ tendered at the court below. He demonstrates that oral arguments are not enough to controvert affidavit evidence. The learned counsel pointed out that the appellant did not waste time in complying with the order of the lower court in effect of the ruling/judgment of 3rd March, 2010. He maintains that the respondent has since re-entered into his house with members of his family and they have been in possession of the building in question since the appellant unlocked the building. On this note, the learned counsel wonders whether the appellant now wants the Court of Appeal to order that he should lock the building again. He stressed that the journey to the Court of Appeal is completely as effort in futility calculated to punish the respondent to make him spend his hard earned income in frivolous and vexatious litigation. He urges this court to strongly deprecate this attitude by awarding substantial cost to the applicant/respondent.
I have carefully studied the proceedings of this matter at the lower court and the judgment of Ngene J. which gave rise to this appeal. I have also read through and comprehended the arguments of learned counsel for the parties in this appeal. I will now proceed to determine this appeal based on the two issues formulated by the appellant as duly adopted by the respondent.
Issue No. 1:
This issue strictly borders on jurisdiction. A court of law as a creation of statute is bound by the jurisdiction conferred upon it by the enabling statute. There is no amount of misconstruing of the statute that will vest any jurisdiction outside the one vested in it by Law. See Erokoro V. Government of Cross River State (1991) 4 NWLR (Pt. 185) 322, Ogunmokun V. Milad, Osun State (1999) 3 NWLR (Pt. 594) 261.The appellant argues that the lower court lacked the jurisdictional competence to hear the instant case ab initio. The respondent contends that the lower court had the competence to assume jurisdiction in the case at the trial. The arguments of counsel for the parties had earlier been posited before the lower court where the learned trial Judge in his considered decision at page 56 of the record declared that the court has the jurisdiction and competence to entertain the respondent’s application.
A court is competent to entertain a case when:
(a) it is properly constituted with respect to the number and qualification of its membership;
(b) the subject matter of the action is within its jurisdiction;
(c) the action is initiated by due process of law; and
(d) any action to the exercise of its jurisdiction has been fulfilled.
The above stated facts are contained in opinion of Court of Appeal in the case of Soyannwo V. Akinyemi (2001) 8 NWLR (Pt. 714) page 95 at 116 paragraphs H – B. See also Madukolu V. Nkemdilim (1962) 2 SCNLR 341, Ogunmokun V. Military Administrator, Osun State, (1999) 3 NWLR (Pt. 594) 261, A.G. Federation V. Guardian Newspapers Ltd, (1999) 9 NWLR (Pt. 618) 187.In the instant case, it is the applicant’s relief that determines whether the court has jurisdiction to entertain same as he is the one who invokes the judicial powers vested by the constitution in the courts in the determination of his rights.
In the determination of the issue of jurisdiction whether or not to entertain a claim, the applicable laws is that which was in force at the time when the cause of action arose. See Uwaifo V. A.G. Bendel State (1982) 4 NCLR 1 A.G., Federation V. Guardian Newspapers Ltd, (1999) 9 NWLR (Pt. 618) 187.
The reliefs of the applicant/respondent had earlier been reproduced at page 2 of this judgment. It is therefore needless reproducing same. The applicable laws here are those on which the applicant based his motion on notice, and the constitution. The applicant’s motion on record was brought pursuant to:
1. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979.
2. Section 46 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999
3. Under the Inherent Jurisdiction of the Lower Court as preserved under Section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999.
The enforcement of fundamental rights under which the respondent brought his action at the State High Court, Abakaliki is provided for in Chapter IV of the 1979 Constitution. Section 42 thereof confers special jurisdiction on the High Court. This Section states:-
“42 (1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to the High Court in that State for redress.
(2) Subject to the provision of this constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provision of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purpose of this Section.”
It is quite clear from the above provisions of the 1979 Constitution that a person whose fundamental rights is breached, being breached or about to be breached, may apply to a High Court in that State for redress. However by Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure), Rules, 1979 made by the Chief Justice of Nigeria under subsection (3) of Section 42 of the 1979 Constitution quoted above which came into force on 1 – 1- 1980, the word ‘Court is defined as’ the Federal High Court or the State High Court’. By this definition, in all matters dealing with the enforcement of fundamental rights, both the Federal High Court and the High Court of a State within which the violation of these rights have been alleged to occur, have concurrent jurisdiction in such matters. See Gafar V. Govt. of Kwara State & Ors (2007) Vol. 146 LRCN 744, Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517.In the instant case, the main claim of the applicant, now respondent was that the appellant unlawfully locked his 8 rooms building situate at Iboki Izzi Local Government Area of Ebonyi State and the appellant has persistently refused to unlock the apartment despite several approaches made to him. I have carefully studied the relevant Sections of the Constitution referred to in this matter to wit:
Section 34 (1), S. 35 (1), S. 43 (1) and S. 44 (1) of the 1999 Constitution of the Federal republic of Nigeria. I have examined the whole circumstances of this matter. I disagree entirely with the learned counsel for the appellant that the claim of the applicant/respondent is in the main a Declaration to title to land. From the facts and circumstances of this appeal, the main claim of the Respondent at the lower court is a declaration that the locking of his 8 rooms building by the Respondent/Applicant constitutes an infringement of his fundamental human right. I also agree with the reasoning of the learned trial judge that the alleged action of the Appellant against the Respondent constitute a trespass as well as infringement of his fundamental of the applicant, now respondent.
In the instant appeal the principal relief sought by the Applicant/Respondent in his statement pursuant to Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement Procedure) Rules 1979 is a declaration that the degrading treatment, the locking up of the Applicant’s building consisting of eight rooms located at Iboko and the prevention of the Applicant from entry into the said Applicant’s building at Iboko Izzi Local government Area of Ebonyi State for no just cause are unlawful and unconstitutional as they offend the Applicant’s rights to liberty, right to acquire and own immovable property and right to compulsory acquisition of property, the interest therein, as provided for in Sections 34(1), 35 (1), 45 (1) and 44 (1) of the Constitution of Federal Republic of Nigeria, 1999.
The relief as sought by the Applicant/Respondent can constitute an action in trespass as well as an infringement of the Fundamental Right of the Applicant/Respondent. In a situation such as this, the litigant has a right of election in respect of the procedure to be adopted for obtaining redress. He may either initiate an ordinary civil claim under the relevant rules of court or may invoke the constitutional procedure under the Fundamental Rights (Enforcement Procedure) Rules 1979.
In N.U.I. V. COSST. (2006) 5 NWLR (PT. 974) 590 this court held thus:-
“Where the alleged infraction of a person’s Fundamental Rights also constitutes a tortuous act, the victim has a right of election in respect of the procedure to be adopted for obtaining redress. He may either initiate an ordinary civil claim under the relevant rules of court as the Respondents have done in the instant case or may invoke the constitutional procedure under the Fundamental Rights (Enforcement Procedure) Rules”.
In the appeal at hand the Applicant/Respondent elected to approach the court by invoking the constitutional procedure under the Fundamental Rights (Enforcement Procedure) Rules. I hold that the Applicant/Respondent is right to have adopted the constitutional procedure under the Fundamental Rights (Enforcement Procedure) Rules in approaching the court to seek redress. Issue No. 1 is accordingly resolved in favour of the Respondent against the Appellant.
ISSUE NO. 2:
The crux of the matter that brought the instant litigation was the locking of the respondent’s 8 room apartment by the appellant in May, 2009. The respondent, prior to the appellant’s action had been in quite possession of the said building which he erected personally, pursuant to Exhibit “A” at page 14 of the record of appeal. The applicant/respondent averred in paragraph 6 & 7 of the facts in support of his motion as follows:
“6. That on the 15th May, 2009 the Respondent locked up the building of the Applicant and prevented the said Applicant entry into his said building.
7. That the sale of the land in which my said building is situated was to the acknowledging of the Respondent who deposed to an affidavit with me, a copy of the said affidavit is annexed herewith and marked as Exhibit “A.”
The respondent/appellant deposed to a counter affidavit in opposition to the applicant’s motion of 19th October, 2009. Paragraphs 6, 7 and 9 (d) (e) and (f) of the said counter-affidavit read thus:
“6. That I deny paragraph 6 of the applicant’s statement and state that my brothers reported to me that one Anthonia Olakuba had trespassed on our land and that they have gone there to warn the said Anthonia Olakuba to stop trespassing on the said land.
7. That neither me nor my late father Chief A.B.C. Nwele nor any other person to the respondent’s knowledge, ever sold the piece of land in question to the applicant or any other person for that matter and I never executed any affidavit with anybody with respect to the said piece of land.
9. (d) That about the month of May, 2009 my brothers went to Iboko and were utterly surprised to discover that some persons were making arrangement to buy a piece of land which on enquiry turned out to be the piece of land which my late father’s (sic) used to lease to Miss Olakuba for farming.
(e) That when my brothers went to the portion of land in question they discovered to their greatest chagrin that there was a house standing on the said land.
(f) That it was as a result of the above state of affairs that my brothers warned those that were there to keep off.
Sections 43 and 44 (1) of the Constitution of Federal Republic of Nigeria, 1999 provides as follows:
“Section 43: Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.
Section 44 (1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by law that, among other things -”
(a) requires the prompt Payment of compensation therefore; and
(b) given to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.
In examining the above stated facts, the appellant’s counsel in arguing this issue at paragraph 6.04 of the appellant’s brief contended that since the allegation of the respondent was denied at the lower court in the appellant’s counter affidavit and court was unable to determine the veracity or otherwise of the allegations, there was no basis for the conclusion that, indeed the respondent’s rights were violated.
In his reaction to the above, the learned counsel for the respondent in paragraph 3.09 of the respondent’s brief stated thus:
“It is imperative to place before the Court of Appeal that immediately the Judgment of the lower court was delivered, the Respondent/Appellant invited the Applicant/Respondent and family, unlocked the building and asked them to enter. The Applicant/Respondent and family have been in possession of the building in question since the Respondent/Applicant unlocked the building. This development questions the competence of the present suit as the Ruling (Judgment) has now been completely executed.”
It is of obvious necessity to point out that the learned counsel for the appellant did not file any reply to the assertion of the respondent’s counsel in his argument on Issue No. 2. By virtue of Order 18, Rule 5 of Court of Appeal Rules, a reply brief should be filed when an issue of law or facts or argument raised in the respondent’s brief calls for a reply.
The complaint of the Respondent in this appeal at the court below was that the Appellant locked up the Respondent’s building. The complaint comes with the purview of Sections 43 and 44 (1) of the 1999 Constitution. The Appellant in re-action to the allegation denied locking up the building and states that the appellant trespassed on their land and was warned to stop trespassing on the said land.
From the depositions of the Appellant he appears to be laying claim to the land upon which the building alleged to have been locked up was built. The simple question is assuming that the assertion of the Respondent that they own the land on which the building is erected is correct, is the Appellant permitted in law to resort to self help by locking up the building as alleged. The answer is certainly in the negative. Nobody is allowed to resort to self help, this court in NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (PT 969) at pages 163 – 104 states thus:
“Everybody (including private individuals, public individuals, government or police) is forbidden to take possession or repossession of premises by self help, force and strong hand or with multitude of people. Everyone entitled to possession or repossession of premises can only do so by due process of the law. They must not take the law into their hands. They must apply to the courts for possession and act on the authority of the court”.
It is clear by the depositions before the court that the Appellant resorted to self help by locking up the Respondent’s building, this is forbidden in law. If the Respondent had trespassed on his family land as he claimed the option open to him to go to court to obtain a redress for same instead of resorting to self help as he apparently did in the instant matter.
It is instructive to note that after the ruling of the lower court ordering the Appellant to unlock the 8 rooms building, the Appellant complied with the order of the court as stated in paragraph 3.09 of the Respondent’s brief of argument.
Issue No. 2 is resolved against the Appellant in favour of the Respondent.
On the whole this appeal is totally lacking in merit and ought to be dismissed and it is hereby dismissed. The Ruling of the trial court delivered by Ngene, J. on 3rd March, 2010 in Suit No. HAB/15 am/2010 is affirmed.
No order as to cost.
MOJEED ADEKUNLE OWOADE J.C.A.: I have had the advantage of reading before now, the lead judgment just delivered by my learned brother, A. J. Abdulkadir, JCA. I am in complete agreement with the reasoning and conclusions and adopt same as mine.
I abide by all orders made in the said judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my learned brother, ABUBAKAR JEGA ABDUL-KADIR, JCA. I agree with the reasoning and conclusions therein. I also hold that the appeal lacks merit and is accordingly dismissed. The ruling of the High Court of Ebonyi State, per Ngene J. delivered on 3-3-2010 is hereby affirmed. I make no order as to costs.
Appearances
Mr. Luke O. Nkwegu Esq.For Appellant
AND
Chief Jossy C. EzeFor Respondent
