EZE (DR) EMMA UMEZ ERONINI & ORS. v. LADY C. A. ERONINI & ORS.
(2013)LCN/6701(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/PH/304/2005
RATIO
WHETHER THE ENFORCEMENT OR SECURING THE ENFORCEMENT OF A FUNDAMENTAL RIGHT IS TO FORM THE PRINCIPAL CLAIM OF THE PLAINTIFF WHEN AN APPLICATION IS BROUGHT UNDER THE FUNDAMENTAL RIGHT ( ENFORCEMENT PROCEDURE) RULES 1979.
It is trite that when an application is brought under the Fundamental Right (Enforcement Procedure) Rules 1979, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental right or the securing of the enforcement thereof should, be the main claim and not an “accessory claim. Enforcement of fundamental right or securing the enforcement thereof should form the applicant’s claim as presented be the principal claim or fundamental claim and where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right the jurisdiction of the Court cannot be properly exercised and will be incompetent. See Tukur vs. Government of Taraba State (1997) 6 NWLR (PT 510) 549; B.R.T.C. vs. Egbuonu (1991) 2 NWLR (PT.171) 81. Per UWANI MUSA ABBA AJI, J.C.A.
WHAT MAKES A PARTY A NECESSARY PARTY BEFORE THE COURT?
It is trite that what makes a party a necessary party before the Court is that the action cannot be effectively settled or decided unless he is made a party before the Court or that he would adversely be affected by the decision reached in his absence. Also, it enable a party to be bound by the order or decision makes such a party a necessary party. See Peenok Investment Ltd vs. Hotel Presidential Ltd (1983) 4 NCLR 122; Yakubu v. Governor of Kogi State (1985) 8 NWLR (PT 414) 386. Per UWANI MUSA ABBA AJI, J.C.A.
Before Their Lordships
UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria
Between
1. EZE (DR) EMMA UMEZ ERONINI
2. ATHANACIUS ONYENEGOROM
3. EUGINE ESHIMBU
4. ROBERT NWANEGWOAppellant(s)
c UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Owerri Division presided over by Hon. Justice J. E. Shakarho, delivered on the 30th June, 2005 in suit No. FHC/OW/CS/128/2004. The learned trial judge granted all the reliefs sought by the Applicants/Respondents.
By a motion Ex-parte dated and filed on 13th/12/2004, the Applicants as Respondents applied to the Federal High Court for leave to apply for an order enforcing or securing the enforcement of their Fundamental Rights to peaceful assembly, association and property, Pursuant to the order of Court granted on the 24th January, 2005, the Applicants filed a motion on notice on the 3rd/2/2005 and sought for the following declaratory and injunctive reliefs:
1. A declaration that the purported proscription or banning of the Aladinma Women Organization of the Applicant by the 1st – 4th Respondents is a violation of the Applicant’s right to peaceful assembly and association and therefore unconstitutional, null and void.
2. A declaration that the 1st – 4th Respondents are not entitled to obstruct the Applicants in their construction project of a Hall at Awo Mbieri.
3. An injunction perpetually restraining the 1st – 4th Respondents from continuing to use the 5th and 6th Respondents to enforce their purported proscription order of the Aladinma Women Organization of the Applicants.
4. An injunction perpetually restraining Respondents by themselves, their servants or agents from in any form or manner further interfering with the meetings of members of Aladinma Women Organization in Awo Mbieri and/or the continuation of the construction of their Hall at Awo Mbieri.
The grounds upon which the application is brought are:
(a) By section 40 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 10 and 11 of the African Charter on Human and People’s Rights, the Applicants are entitled to freedom of association and assembly.
(b) By Section 44 of the Constitution of the Federal Republic of Nigeria 1999, the 1st – 4th Respondents are not entitled to interfere with the Applicants’ Hall Construction Project in Awo Mbieri.
The case of the Applicants’ is that the 1st – 4th Respondents allegedly banned the women organization of the Applicants, the Aladinma women Organization and which ban the 5th and 6th Respondents have been giving effect to. The Women Organization had been involved in the Construction of Town Hall in Awo Mbieri through self help efforts, The Respondents through various means tried to prevent the Women Organization from carrying on its meetings and other activities but that they could only do so by joining or registering with another association called Oganihu Women Meeting.
The 1st – 4th Respondents argued that they proscribed the Women Organization because the 1st, 2nd and 3rd Applicants were allegedly using the organization for their selfish interest and had been removed from office as they failed to organize election in accordance with Section 9(c) of the Constitution of Aladinma Women Association. They also argued that under section xi of the Awo Mbieri Progressive Union Constitution and Bye Laws as amended, the Aladinma Women Association is under the Awo Progressive Union (APU). The 1st – 4th Respondents also argued that the Women Organization have at various times opposed the selection and recognition of the 1st Respondent as the Eze of Awo Mbieri Autonomous community and because of the activities of the women Organization, it has to be proscribed.
In a considered judgment delivered on the 30th day of June, 2005, the Learned trial Judge granted all the reliefs sought by the Applicants. The Learned trial Judge held at pages 191 to 192 of the record of appeal as follows:
“On issue one, I hold that the 1st – 4th respondents are not entitled under the Constitution of the Federal Republic of Nigeria, 1999 and the Constitution of Awo Mbieri Progressive Union to proscribe the Aladinma Women Organization of Awo Mbieri consequently relief 2 (a) under the Relief sought is resolved in favour of the Applicants and it is hereby declared that the purported proscription or banning of the Aladinma Women Organization of the Applicants by the 1st – 4th Respondents is a violation of the Applicants’ right to peaceful assembly and association and therefore unconstitutional, null and void and of no effect whatsoever.
On the second issue, I hold that the purported proscription is an infringement of the fundamental rights of the applicants. Relief 2 (b) is resolved in the favour of the applicants and it is hereby declared that the 1st – 4th Respondents are not entitled to obstruct the Applicants in their construction project of a Hall at Awo Mbieri.
On issue three, I resolve same in favour of the Applicants and further make an order of injunction perpetually restraining the 1st – 4th Respondents from continuing to use the 5 & 6 respondents to enforce the illegal proscription order on the Aladinma Women Organization of the Applicants until they are properly removed from office by an order of court of competent jurisdiction in accordance with the relevant laws or bye-laws.
The respondents and more especially the 5th & 6th respondents are restrained perpetually by themselves, their agents, servants or any person acting on their behalf from in any form or manner further interfering with the meetings of members of Aladinma Women Organization in Awo Mbieri. The respondents are also restrained from interfering or obstructing of the applicants Town Hall project at Awo Mbieri.”
The Respondents now Appellants are not satisfied with the said judgment and have appealed to this Court vide a Notice of Appeal filed on the 8th July, 2005 upon two grounds of appeal. The Appellants on the 27th/2/2007 were granted leave to file Additional Grounds of Appeal. The Appellants filed two additional grounds of Appeal and abandoned the two original grounds of appeal.
The two additional grounds of appeal shorn of their particulars are hereby reproduced:
‘1. Error in Law;
The Learned trial Judge erred in law when he heard and granted the substantive application of the Respondents when that application had become incompetent.
2. Error in Law:
The Learned trial Judge erred in law when he granted the application in the court below.
As it is the practice, parties filed and exchanged briefs of argument. The Appellant’s brief of argument was settled by D. C. Denwigwe, Esq. and therein, Learned Counsel nominated the following two issues for determination.
i. Whether the application in the Court below was competent when it was heard and granted.
ii. Whether the trial Court was right in granting the application.
The Respondents briefs of argument was settled by Declan Obioma Madu, Esq. Therein the Learned Counsel raised a Preliminary Objection to the competence of the appeal in that the Notice and grounds of appeal failed to state fully the names and addresses of the parties directly affected by the appeal. He also adopted the two issues nominated for determination by the Appellants’ Counsel should the appeal be found competent.
At the hearing of the appeal on the 21st January, 2013, Learned Counsel for the Respondents, D. O. Madu, Esq. adopted and relied on his Preliminary Objection dated 7/6/2007 and filed on the 8th/6/2007 and urged the Court to dismiss the appeal on the basis of the Preliminary Objection.
Learned Counsel for the Appellants S. O. Akinola, Esq. adopted and relied on the Appellant’s brief of argument dated 26/2/2007 and filed on the 2/3/2007 but deemed properly filed on the 10th/5/2007 as their argument in the appeal and urged us to allow the appeal.
Mr. Madu, Esq, for the Respondents adopted and relied on the Respondents brief of argument dated 7/6/2007 and filed on the 8/6/2007 and urged the Court to dismiss the appeal on both the Preliminary Objection and substantive appeal.
Mr. Akinola, Esq. for the Appellants said that did not respond to the Preliminary Objection.
I will now consider the Preliminary Objection.
Mr. Madu, Esq. arguing the objection urged us to dismiss this appeal on the ground that the Notice of Appeal is incompetent having failed to state fully the names and addresses of the parties directly affected by this appeal.
He referred to Order 3 Rule 2(1) of the Court of Appeal Rules 2002 to submit that the parties at the trial Court as contained on page 1 of the Record of Appeal and those in this court as indicated in the Notice of Appeal are not the same. He submitted that at the Federal High Court, the parties in the suit were indicated as follows:
“IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
SUIT NO. FHC/CS/OW/128/2004
BETWEEN:
1. LADY C. A. ERONINI
2. MRS EUNICE AWOGU
3. LADY PAULINE EJIOBI
(For themselves and as representing members of Aladinma Women Organization of Awo Mbieri, Mbaitoli L.G.A)
AND
1. EZE (DR.) EMMA – ERONINI
2. ATHANACIUS ONYENAGOROM
3. EUGINE ESHIMBU
4. ROBERT NWANEGWO
5. DAVIDSON MADU
(Divisional Police Officer, Mbaitoli)
6. COMMISSIONER OF POLICE, IMO STATE”
That in this Court, the Parties are:
“IN THE COURT OF APPEAL
HOLDEN AT PORT HARCOURT
SUIT NO. FHC/CS/OW/128/2008
APPEAL NO.
BETWEEN
1. EZE (DR) EMMA UMEZ – ERONINI
2. ATHANACIUS ONYENEGOROM – APPLICANTS
3. CHIEF EUGINE ESHIMBU
4. ROBERT NWANEGWO
AND
1. LADY C. A. ERONINI
2. MRS. EUGNIC AWOGU
3. LADY PAULINE EJIOBI
(for themselves and as representing Members of Aladinma Women Organization of Awo Mbieri Mbaitoli L.G.A)”
Learned Counsel thus submitted that Mr. Davidson Madu (Divisional Police Officer, Mbaitoli) and Commissioner of Police, Imo State who were respectively 5th and 6th Respondents in the Suit at the Federal High Court are parties affected by this appeal and the failure to list them as such in the Notice of Appeal and or serve them with the same is fatal to this appeal and placed reliance on the cases of Nwaeze vs. Eze (1999) 3 NWLR (PT 595) 410 at 418; Oruobu vs. Anekwe (1997) 5 NWLR (PT 506) 618; Onyenucheya vs. Mil. Admin Imo State (1997) 1 NWLR (PT.482) 444. He submitted that the omission to join the 5th and 6th Respondents as parties in this appeal is fatal and not a mere irregularity as it was not competent for the Appellants to pick and choose who would be parties in the appeal. He submitted that even though the 5th and 6th Respondents were obviously satisfied with the judgment of the Court below in this matter having not appealed, the Appellants were under obligation to join them as Respondent in this appeal and failure to do so is fatal to the jurisdiction of this Court. He urged the Court to upheld the Preliminary Objection and to dismiss this appeal for being incompetent.
As stated earlier, there was no response by the Appellants and ordinarily the Appellants would have been deemed to have admitted all arguments canvassed on this issue by the Respondents.’ But be that as it may, this Court has legally bounden duty to consider the submissions made in line with the position of the Law and the rules of Court and make appropriate pronouncement on the issue notwithstanding the fact that it has not been responded to by the Appellants.
Order 3 Rule 2(1) of the court of Appeal Rules 2002 under which the Preliminary Objection was brought is in pari material with Order 6 Rule 2(1) of the 2011 Rules of this Court. It provides as follows:
The contention of the Respondents is that the failure of the Appellants to include the names and addresses of the 5th and 6th Respondents who were parties at the trial Court in the Notice of Appeal filed in this Court thereby refusing to make them parties in the appeal even as Respondents is not a mere irregularity but fatal to the case of the Appellants as it touches on the foundation of the appeal and the jurisdiction of this Court to entertain same.
It is trite that what makes a party a necessary party before the Court is that the action cannot be effectively settled or decided unless he is made a party before the Court or that he would adversely be affected by the decision reached in his absence. Also, it enable a party to be bound by the order or decision makes such a party a necessary party. See Peenok Investment Ltd vs. Hotel Presidential Ltd (1983) 4 NCLR 122; Yakubu v. Governor of Kogi State (1985) 8 NWLR (PT 414) 386.
This Court has held in Jaibait Ventures (Nig.) Ltd v. Almaji (2010) 7 NWLR (Pt.1193) 292 at 308, and also in Osigwelem v. INEC (2011) 9 NWLR (Pt.1153) 425 at 441 that failure to state the names and addresses of the persons directly affected by an appeal in the Notice of Appeal is a merely irregularity that will not void or render the Notice of Appeal incompetent and thus the jurisdiction of the Court to adjudicate over the appeal. In fact in the instant appeal, the 5th and 6th Respondents have not contested the suit at the trial Court and having not articulated their interest they are therefore bound by the decision of Court until set aside by a superior Court. The failure to make them parties in this appeal is not fatal as to render the appeal incompetent. This objection is therefore overruled and it is hereby dismissed.
I now come to the main appeal. The issues for determination nominated by the Appellants’ Counsel and adopted by the Respondents are:
1. Whether the application in the Court below was competent when it was heard and granted.
2. Whether the trial court was right in granting that application.
Arguing issue No. One, Learned Counsel for the Appellant D. C. Denwigwe, Esq. submitted that the Fundamental Rights Enforcement proceedings are special proceedings specifically prescribed by the Constitution for protecting specific and substantive Fundamental rights and that the Rules of procedure enacted by the chief Justice of the Federation for enforcement of fundamental rights have full constitutional force. The following cases were referred to: Abia State University, Uturu v. Anyaibe (1996) 3 NWLR (Pt.439) 647 at 660; Ezeadukwa v. Maduka (1997) 8 NWLR (Pt.518) 635 at 669; and Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517 at 549. He submitted that a party who applies under these rules for the enforcement of foundational rights must comply with the provisions of those rules citing the case of Ogwuche v. Mba (1994) 4 NWLR (Pt.336) 75 at 85.
Learned counsel submitted that at page 188 of the record, the trial court held in error that it did not matter whether or not the claim in the main is for the enforcement of fundamental rights, He cited Tukur v. Government of Taraba State (1997) 6 NWLR (Pt.510) 549 at 574. He also referred to Order 2 Rule 1(1) of the enforcement procedure Rules to submit that the rule prescribe that there must be at least eight (8) clear days between the service of the processes on the Respondents and the date named in the application for hearing. He also submitted that Order 2 Rule 1(2) prescribes that an application must be entered for hearing not later than fourteen (14) days from the date when leave is granted. He further submitted that the effect is that the substantive application must be filed and served within six (6) days from the date when leave was granted. He thus submitted that in this case, leave was granted on the 24th day of January, 2005 and the return date was fixed for 7th February, 2005 which was exactly the fourteenth day from the date of when leave was granted. Counsel stated that the Respondents went to sleep until the 4th of February, 2005 when they filed the application which was ten (10) clear days after leave was granted. His view is that the application on notice had become incompetent before it was filed and thus no valid application was served on the Appellants because there were only three days from the date when it was filed and the date named therein for its hearing, Learned Counsel submitted that the provisions of Order 2 Rules 1 are mandatory and a breach thereof renders the entire proceedings void. He placed reliance on the cases of Ogwuche v. MBA (1994) 4 NWLR (Pt.336) 75; Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR (Pt.531) 29 at 40 – 41.
Learned Counsel further submitted that the requirement that affidavit of proof of service must be filed by the Respondents is mandatory and that the application must be filed in Court before the application is listed for hearing, citing Order 2 Rule 1(4) and that non compliance renders the application void. He referred to in Re-Appollos Udoh (1987) 4 NWLR (PT 63) 120 at 126. He further submitted that the facts relied upon for the application were not set out in the statement of particulars but only made reference to sections 40 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 and that this falls short of the requirements of the rules. Learned Counsel referred to the jurisdiction of the Court to grant or refuse the application, that the reliefs sought in the motion Ex parte is a casual reference to right to property and peaceful assembly and thus the prayer couched is inchoate and undeserving of judicial approval. The following cases were relied upon: Fadlallah vs. Arewa iles Ltd (1997) 8 NWLR (PT 578) 546 at 559: and Uzoukwu vs. Ezeonu (No.2) (1991) 16 NWLR (PT 200) 708 at 751. We were urged to resolve this issue in favour of the Appellant.
In his response, Learned Counsel for the Respondents submitted that the issue of alleged procedural incompetence argued at page 4 paragraphs 4.01 to 4.12 of the Appellant’s brief of argument go to no issue because these issues were never canvassed before the Court below. He submitted that these are fresh issues which can only be raised by leave of this Hon. Court and that no such leave was sought nor obtained. It is also his view that it is too late in the day for the Appellants to complain over alleged non compliance with the Rules. He placed reliance on the case of Edokpolo vs. Sem-Edo Ltd (1989) 4 NWLR (Pt.116) 473 at 494; and Saude vs. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 405. He submitted that the Appellants have not alleged any miscarriage of justice from the alleged procedural irregularity and that the case of Ogwuche vs. MBA (1994) 4 NWLR (PT 336) 75 at 85 relied upon by the Learned Appellants’ Counsel is no longer good law and cited Monye vs. P.T.F.T.M (2002) 15 NWLR (PT.789) 209 at 223 to submit that the decision was given per incuriam. He also submitted that at page 241 of the records has the affidavit of service deposed to by the 2no Respondent in the appeal. We were urged to resolve this issue against the Appellants.
The main complaint of the Appellants under this issue is that there was inter alia none compliance with enforcement procedure rules when the application was heard and granted particularly Order 2 Rules 1(1) and (2) precisely when the Eight (8) clear days between service of processes on the Respondent and the date named for hearing and the requirement for setting the application not later than fourteen (14) days was also not complied with. In effect that the application was procedurally defective and incompetent when it was granted. The Respondents argued that these issues go to no issue as they were never canvassed before the trial Court and being fresh issues can only be canvassed by leave of this Court and that such leave was not sought for nor obtained.
I have gone through the length and breadth of the proceedings of the trial Court including its judgment and nowhere was the issue of noncompliance with the rules raised or canvassed or any defect in the competence of the application. The issue raised at the trial was its jurisdiction to entertain the application not on the grounds of noncompliance with the rules of procedure but on the ground that the Court has no jurisdiction to entertain the application having arose from a town union dispute and which the trial Court ruled to the contrary and there was no appeal against the pronouncement.
It is trite that Fundamental Rights (Enforcement Procedure) Rules 1979 are a special class of proceedings and where an application is brought under the rules, a condition precedent to the exercise of Courts jurisdiction must be complied with for the Courts jurisdiction to be invoked.
In the instant case, the Appellants did not raise any issue regarding the incompetence of the Applicants’ application at the Court below and the competence of the Court to grant same. The Appellants failed to seek the leave of this Court before raising this fundamental issue not canvassed or raised before the Court below. The position of the law in this type of situation is trite. A party will not be allowed to raise on appeal any fresh issue or point not raised in the Court below unless with leave of the Appellate Court sought or obtained. This is so because the jurisdiction of the Court of Appeal is primarily to review by way of rehearing, the decision or decisions of the Lower Court. The rational behind this is that the Court below must have been given the opportunity to pronounce on the issue to avail the appeal court of its decision on the matter and to enable the appeal court review the Lower Court’s pronouncement on the same judiciously.
In the instant case, the issue of noncompliance with the rules of procedure and or incompetence of the application was raised for the first time by the Appellants’ counsel in his brief of argument without leave is grossly incompetent. See Standard Trust Bank Plc v. Olusola (2009) ALL FWLR (Pt.450) 777; Netufo v. Omoolorun (2005) 12 NWLR (Pt.938) 1 and Edokpolo vs. Sem-Edo Ltd (1989) 4 NWLR (Pt.116) 477 at 494. It is now too late in the day for the Appellants to complain over the alleged non-compliance with Fundamental Rights (Enforcement Procedure) Rules 1979. It has been established through a plethora of authorities that the appropriate time at which a party to proceeding should raise an objection to the competence of a suit based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party sleeps on that right and allows that proceeding to continue on the irregularity to finality, then the party cannot be heard to complain at the concluding stage of the proceedings or on appeal thereafter, that there was a procedural irregularity which violated the proceedings. The only exception to this general rule when a party would be allowed to complain on appeal is when he can show that he had suffered a miscarriage of justice by reason of the procedural irregularity. See Saude vs. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 405; Ashiru Noibi v. Fikolati (1987) 1 NWLR (Pt.52) 619 at 632; and Ezomo vs. Oyakhire (1985) 1 NWLR (Pt.2) 195 at 202 – 203. In the instant case, no evidence was shown that the Appellants suffered any miscarriage of justice as a result of such procedural irregularity in the proceedings or noncompliance with the rules at the trial Court. I therefore resolve this issue against the Appellants.
On issue two, Learned Counsel for the Appellants submitted that shorn of mere references to fundamental rights, the plank of the complaint at the trial court is a domestic town union dispute. He referred to paragraphs 1 – 14 at pages 5 – 13 of the records, that is the verifying affidavit to submit that it is all about whether or not the women and their union are subject to the authority of the 1st Appellant who is their traditional ruler. Learned Counsel submitted that investigation of complaints alleging any commission of crime is within the statutory duties of the police and that the Respondents needed to allege facts which go beyond legitimate exercise of police power of investigation. Learned Counsel also submitted that the Respondents did not allege any detention beyond the time permitted by the Constitution or use of unreasonable force against them by the police. It is his view that the complaint was founded on a town union dispute and no breach of any substantive fundamental right of any of the Respondents was disclosed to attract the judicial sanction handed down by the trial Court. We were called upon to resolve this issue in favour of the Appellants.
In his response, Learned Counsel for the Respondents submitted that the Learned trial judge determined this on pages 187 to 191 of the Records and that the Appellants have not in any way demonstrated that the finding of the trial Court was perverse. He submitted that the failure of the 5th and 6th Respondent to justify their actions in arresting, detaining and disrupting the meetings of the Applicants/Respondents at the Federal High Court by way of a counter affidavit led to the only conclusion that their actions instigated by the Appellants against the Respondents in this appeal violated the said Respondents Fundamental Rights as enshrined in Sections 40 and 44 of the Constitution of the Federal Republic of Nigeria 1999. He relied on Okafor vs. Asoh (1999) 3 NWLR (Pt.593) 35 at 56. We were also urged to resolve this issue against the Appellants.
The issue of the application at the Court below and indeed as found by the learned trial Judge was whether the rights of the Applicants/Respondents have been violated by the Respondents contrary to sections 40 and 44(1) of the 1999 Constitution.
Sections 40 and 44 (1) of the 1999 Constitution provides as follows:
40. Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the prosecution of his interest.
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to Political Parties to which that commission does not accord recognition.
44(1) No moveable property or any interest in an immorable 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 a law that among other things:
(a) requires the prompt payment of compensation therefore; and
(b) gives 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.
It is clear from the proceedings at the court below that the crux of the Applicants/Respondents’ complain was the purported proscription of the Aladinma women organization of Awo Mbieri to which the Applicants/Respondents belong. An act which the Respondents said was illegal. They also claimed that their town hall project was stopped by thugs or agents of the Appellants. This clearly is not a town union dispute as alleged by the Appellants. It is about the Respondents fundamental right to belong to an association and ownership of property. The verifying affidavit of facts relied upon in support of the application is very clear, particularly paragraphs, 6, 7, 8, 9, 10, 11, 12, 13 and 15. They are hereby reproduced for ease of reference.
6. Before the creation of the Awo Mbieri Autonomous Community there was a dispute precipitated by the 1st Respondent over who should be the Traditional Ruler of the yet to be then created Autonomous Community, the said dispute is still a subject of litigation.
7. The Organisation has not been involved in the said dispute as same has been left for the men folk to determine.
8. The said Organization sole purpose is to ensure the development of Awo Mbieri through self help efforts and currently is building a Town Hall in Awo Mbieri.
9. On the 6th day of February, 2004 the 3rd Respondent purporting to act on behalf of the 1st Respondent issued a letter addressed to so many people purporting that he has proscribed the Organization and directing that its members must register with another association he called Oganihu Women Meeting. He also in the said letter directed that the properties of the Organization be hand over to the 2nd Respondent.
The said letter is exhibited and marked “B”.
10. The Organization like other women organizations in the South East usually hold meetings between August and September, of each year traditionally call “August Meeting”.
11. The Organisation scheduled its August meeting for the 2004 but to thwart the holding of the said meeting, the 1st Respondent on the 10th day of July, 2004 wrote a letter to the 5th Respondent reiterating his said Proscription Order on the Organization and directing him to prevent the said meeting from holding. The said letter is exhibited and marked “C”.
12. The 1st Respondent also proceeded to prevent the Applicants from continuing with their aforesaid Town Hall building project using thugs sometimes and Policemen under the command of the 5th and 6th Respondents.
13. On 18/10/2004 and 2/11/2004 the 1st Respondent caused workmen engaged by the organization at the Town Hall building project to be arrested and detained by Policemen from the office of the 5th and 6th Respondents.
14. The 4th Respondent also wrote to the Police giving approval to the alleged banning Order of the 1st Respondent.
Of course, the Appellants’ counter affidavit was not a complete denial but maintained that is was a town union dispute. They however did not deny the proscription of Aladinma Women Organization by the 1st Appellant and directing that they register with another organization called Oganihu Women Meetings and the transfer of the town hall project to the new organization.
It is trite that when an application is brought under the Fundamental Right (Enforcement Procedure) Rules 1979, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental right or the securing of the enforcement thereof should, be the main claim and not an “accessory claim. Enforcement of fundamental right or securing the enforcement thereof should form the applicant’s claim as presented be the principal claim or fundamental claim and where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right the jurisdiction of the Court cannot be properly exercised and will be incompetent. See Tukur vs. Government of Taraba State (1997) 6 NWLR (PT 510) 549; B.R.T.C. vs. Egbuonu (1991) 2 NWLR (PT.171) 81.
In the instant case, as stated earlier, the case of the Respondents at the Court below is that they have a right of association and that the Appellants have no right or authority to proscribe their association. The facts as contained in the verifying affidavit as reproduced above does not go outside the confines of the claims of the Respondents enforcing their fundamental right to freedom of association. It is trite that every person resident in Nigeria has a right to go about his or her lawful business unmolested or unhampered by anyone else be it a government functionary or a private individual. Thus, the Court will frawn upon any manifestation of arbitrary power assumed by any person or authority over the life or property of another even if that other is suspected of having breached some law or regulation. People must never take the law into their hands by attempting to enforce what they consider to be their right or entitlement Per Ikongbeh JCA (of blessed memory) in Nkpa vs. Nkume (2001) 6 NWLR (PT 710) 543 at 560. In fact, in the instant case, the Respondents were being harassed and molested and prevented from lawfully associating with each under a purported authority which the Respondents do not possess. The Appellants should have tackled the situation in a leadership like manner and not show aggrandizement. In his contributory judgment in Nkpa vs. Nkume (Supra) at page 564, Pats Acholonu, JCA said as follows:
“Time was when the law governing the native community was force of custom good or bad and whether repugnant or not. Now in the 21st century we are governed by a living law – the Constitution fashioned after the Constitution of older democracies. No one can force or coerce any to join club, society or group that he does not intend or wish to be a member. It is an affront and infraction of the Constitutional right to use old age custom that has now been relegated to morbidity to make one acquiesce or become a member to a body that he or she despises. It is atrophy.”
I adopt this reasoning of his Lordship in this appeal and resolved this issue against the Appellants.
Based on the foregoing therefore, that is, having resolved the two issues against the Appellant, this appeal therefore lacks merit and it is hereby dismissed. There shall be costs of this appeal which I assessed as N30,000.00 against the Appellants in favour of the Respondents.
PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the very elucidating and painstakingly laid out judgment of my learned brother UWANI MUSA ABBA AJI, (PJ) JCA.
I am in complete and absolute agreement with her reasoning and conclusions. I agree that this appeal lacks merit and is also hereby dismissed. I abide by my Lord’s order as to cost of N30,000.00 in favour of the Respondents against the Appellants.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment just delivered by my Learned brother, UWANI MUSA ABBA AJI; JCA.
The issues that arose in this appeal were adequately considered. I agree with the reasoning and conclusion thereon. I accordingly, also hold that this appeal lacks merit and is hereby dismissed.
I abide by the order on cost.
Appearances
S. O. Akinola, Esq.For Appellant
AND
D. O. Madu, Esq. with N. I. Amam (Mrs.)For Respondent
