EKENGO & ORS v. NDDC & ANOR
(2022)LCN/16459(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, January 14, 2022
CA/C/158/2015
Before Our Lordships:
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. CHIEF HAROLD EKENGO 2. MADAM CHRISTIANAH GABRIEL 3. MADAM GLORY EZEKIEL 4. MR. EBICHEN FRIDAY 5. MR. ATA-EJIT FRANCIS (For Themselves And As Representing The Residents And House Owners Of Okut-Itak Community In Ibeno Local Government Area Of Akwa Ibom) APPELANT(S)
And
1. NIGER DELTA DEVELOPMENT COMMISSION 2. ZEMENT AND ZEMENT CONSTRUCTION LIMITED RESPONDENT(S)
RATIO:
POSITION OF LAW ON WHAT AN APPEAL CAN BE COMPLAINED
An appeal should be a complaint against a decision of the Court. Thus in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 172. JAMES SHEHU ABIRIYI, J.C.A.
POSITION OF LAW ON ENFORCEMENT OF A FUNDAMENTAL RIGHT
Fundamental rights procedure rules can be invoked when the principal claim or complaint is enforcement or securing the enforcement of a fundamental right, it is only then that the Court would exercise jurisdiction to entertain the application under the Fundamental Rights (Enforcement Procedure) Rules. See Tukur v. Government of Taraba State & Ors (1997) LPELR – 3273 SC and Emeka v. Okoroafor & Ors (2017) LPELR – 41738 SC. JAMES SHEHU ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 6th May, 2015 in the High Court of Akwa Ibom State in the Ikot Abasi Judicial Division striking out the application of Appellants for the enforcement of their fundamental human rights for being incompetent.
The Appellants had applied under Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 for the following reliefs:
1. A declaration that the acts of the Respondents in compulsorily taking over and demolishing seventy-five houses in the course of their dredging shore reclamation contract without compensation is illegal, unlawful and unconstitutional.
2. N100,000 compensation for depriving them of the constitutional rights to own seventy-five houses belonging to them.
3. An order restraining the Respondents from further taking over of the immovable properties of the appellants until the Appellants are adequately compensated.
The case of the Appellants as can be made out from the affidavit in support of the application was that the 2nd Respondent while dredging and protecting Appellants’ community Okut-Itak community resorted to doing the contrary by demolishing seventy-five houses of the Appellants without payment of compensation. That it is in the interest of justice that adequate compensation be paid by the Respondents.
Although the Respondents raised a preliminary objection to the hearing of the application on the ground that it was an abuse of process and also that it ought not to have been by way of the fundamental rights enforcement procedure rules they none the less filed a counter-affidavit in opposition.
The Court below upheld the preliminary objection of the Respondents on the ground that the action ought not have been brought under the fundamental rights enforcement procedure rules and struck it out for being incompetent.
The Appellants proceeded to this Court by a notice of appeal dated 4th June, 2015 but filed on 9th June, 2015. The notice of appeal contains six grounds of appeal. From the grounds of appeal, the Appellants in an Appellants’ brief of argument filed on 16th October, 2015 but deemed duly filed and served on 18th January, 2017 presented the following issues for determination:-
1. Whether the failure of the learned trial judge to apply the Interpretation Act in the interpretation of Sections 43 and 44 (1) of the Constitution has occasioned miscarriage of justice in the circumstance of this case (Distilled from ground 1).
2. Whether the learned trial judge was right when he struck out the reliefs of the appellants as not being within the purview of Chapter IV of the Constitution, considering the affidavit evidence and the grounds upon which the reliefs were sought. (Distilled from grounds 2, 3, 4, 5 and 6).
The Respondents raised a preliminary objection to ground 1 of the affidavit and formulated a similar issue to the Appellants’ issue 2 thus:-
“Whether the learned trial judge was right when he struck out the Appellants’ case for being wrongfully brought under the fundamental right enforcement procedure.”
The purpose of a preliminary objection is to terminate the hearing of the appeal. It is not intended to challenge a ground or only some grounds of the appeal. The preliminary objection of the Respondents in this appeal is challenging only one ground out of six grounds of appeal. It is therefore not competent and is hereby struck out.
On issue 1, learned counsel for the Appellants contended that the failure of the Court below to have recourse to the Interpretation Act in considering their application brought under Sections 43 and 44 (1) of the Constitution amounted to a miscarriage of justice against the Appellants. Learned counsel for the Appellant argued at length and cited several authorities on the interpretation of statutes.
On issue 2, learned counsel for the Appellants contended that the Appellants sought the enforcement of fundamental rights to own immovable properties compulsorily taken over and demolished by the Respondents without recourse to any due process of law which amounted to interference with their fundamental rights to own immovable properties as guaranteed under Chapter IV of the Constitution.
The Appellants, it was further contended, have multiple causes of actions including action in tort, negligence, nuisance and breach of fundamental right to own immovable properties against the Respondents. However, it was argued, it was the sole prerogative of the Appellants to elect the procedure to adopt for obtaining redress. The Court was referred to National Union of Teachers v. Conference of Secondary School Tutors of Nigeria (2007) 23 WRN 63 at 90. In this matter, the Appellants, it was argued, chose to proceed under the Fundamental Rights (Enforcement Procedure) Rules 2009.
It was also argued that the reliefs sought by the Appellants being admixture of reliefs under Chapter IV of the Constitution and reliefs associated with action in tort the Court had an inherent jurisdiction to severe reliefs bordering on violation of fundamental rights of the appellants from reliefs which are not within the purview of Chapter IV of the Constitution. The Court was referred Opuogbo v. C.B.N (2002) N.L.H.C.R (pt. 15) 92.
Learned counsel for the Respondents argued that the allegation of Appellants’ counsel that the Court below failed to refer to the Interpretation Act was strange in the light of the facts of the case.
The Court below, it was contended, rightly held that the Appellants did not allege that their right to own immovable property had been interfered with by the Respondents. That the Appellants complained of demolition of their houses by the 2nd Respondent in the course of executing a contract job awarded it by the 1st Respondent which by itself is not an illegal act as it is permitted by the Land Use Act.
Learned counsel for the Respondents maintained that from the claim of the Appellants, they were alleging that the Respondents destroyed or pulled down their houses in the course of dredging work in their community without payment of compensation to them. They then sought compensation for the demolition. The Court was referred to pages 3, 5, 6, 8, 9 and 10 of the record of appeal. A careful reading of the entire case of the Appellants, it was argued, will reveal that none of the reliefs claimed by the Appellants borders on fundamental rights.
An appeal should be a complaint against a decision of the Court. Thus in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 172. Ground 1 and issue 1 formulated from it did not arise from the judgment of the Court below. The Court below was not invited or called upon to consider Section 318 of the Constitution in interpreting provisions of Chapter IV under which the application was brought. The Court’s judgment therefore did not touch on this.
In the circumstances, issue 1 and ground 1 from which it was formulated are incompetent and are hereby struck out.
Issue 1 is consequently resolved against the Appellants and in favour of the Respondents.
The rights guaranteed by the provisions of the Constitution are not mere rights. They are special rights the remedy for which is outside the purview of an ordinary action for a wrongful act giving rise to a claim for compensation. Therefore, where the claim is for damages for a tort, the ordinary common law is the answer. See Ransome-Kuti & Ors v. A.G Federation & Ors (1985) LPELR – 2940 SC page 40. Fundamental rights procedure rules can be invoked when the principal claim or complaint is enforcement or securing the enforcement of a fundamental right, it is only then that the Court would exercise jurisdiction to entertain the application under the Fundamental Rights (Enforcement Procedure) Rules. See Tukur v. Government of Taraba State & Ors (1997) LPELR – 3273 SC and Emeka v. Okoroafor & Ors (2017) LPELR – 41738 SC. Where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the fundamental rights enforcement procedure rules. See Incorporated Trustees of Digital Rights Initiative & Ors v. National Identity Management Commission (2021) LPELR – 5563CA.
In determining whether or not the action is properly commenced under the fundamental right enforcement procedure rules, the Court will examine the reliefs, the grounds upon which the reliefs are sought and the facts disclosed in the affidavit in support of the application.
The Court below in its judgment at page 71 of the record found that the application ought not have been brought under the fundamental rights enforcement procedure rules. This is what the Court said:
“Rather, as I have pointed out, their complaint or claim is simple that the 1st and 2nd respondents illegally demolished or destroyed their properties in the course of the dredging work in their community and thereby exposed them to untold hardship and peril. Or which they are claiming from them N100M (One Hundred Million) as compensation and from this Court an order of injunction to restrain them from further destruction of their properties until adequate compensation is paid therefor (sic).
It is on account of the foregoing that I agree with the submission of learned counsel for the objectors and I hereby hold that the applicant’s claims in this application are not within the purview of Section 43 and 44 of the 1999 Constitution of Chapter IV therefore to warrant their initiating this suit under the fundamental rights (Enforcement Procedure) Rules, 2009 or Section 46 of the 1999 Constitution.”
It is clear from the affidavit in support of the application especially paragraphs 8, 10, 12 and 17 that the Appellants complaint is that the construction work of the Respondents especially the 2nd Respondent led to the demolition of seventy-five houses of the Appellants. That they were not paid compensation for the demolition despite demand by their solicitor. The Court below was therefore on firm ground when it held that the action was not one for the enforcement or the securing the enforcement of the fundamental rights of the Appellants and therefore rightly struck it out. Issue 2 is also resolved against the Appellants and in favour of the Respondents and the appeal dismissed for lacking in merit.
Parties shall bear their costs of the appeal.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother, James S. Abiriyi, JCA. I agree entirely with the reasoning and conclusion.
The Fundamental Rights Enforcement Procedure is sui generis and that any claim touching on violation of rights to personal liberty guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are usually made pursuant to it.
In the instant case, the appellants’ complaint is that the construction work of the respondent led to the demolition of their houses and hence entitle to compensation. Clearly, the claim was not cognizable under the Fundamental Rights Enforcement Procedure Rules and the lower Court was therefore right to have struck it out. The appeal being unmeritorious, it is accordingly dismissed.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read in draft from the judgment delivered by my learned brother, JAMES SHEHU ABIRIYI, JCA. I am in total agreement with his reasons and conclusion. I adopt them as mine.
All the issues canvassed and argued by the Appellants are hereby resolved against them. This appeal lacks merit. It is accordingly dismissed.
Parties to bear their respective costs.
Appearances:
O. C. Mbaba, Esq. served by phone call on phone number 08064163162 For Appellant(s)
Effiom Ayi, Esq. holding brief of Kennedy C. Uduagwuike For Respondent(s)
