FREDRICK NWOKOLEME v. PAULINUS AJAERO & ORS
(2016)LCN/8086(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of January, 2016
CA/PH/560/2008
RATIO
PRACTICE AND PROCEDURE: LEAVE OF COURT; THE ESSENCE OF SEEKING THE LEAVE OF COURT BY MOTION EX-PARTE, TO BRING AN ACTION ON THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES
The essence of seeking the leave of Court, by motion ex-parte, to bring an action on the Fundamental Rights (Enforcement Procedure) Rules, is to afford the Court the opportunity to study and appraise the claim of the Applicant and satisfy itself that it is one to be heard as Fundamental Rights matter. After the Court had so satisfied itself and proceeded to hear the case as a fundamental rights case, it is completely, unacceptable, in my view, for the same trial Court to shy away from pronouncing on the rights of the parties or on the merits of the case, and rather go back to the starting block, to say that the matter is not one to be heard by way of Fundamental Right Enforcement Procedure, the very procedure the Judge caused the parties to initiate and pursue the case! Of course, it is clear that in fundamental rights enforcement matter, the complaint must centre on fundamental rights breach(es) as per the chapter 4 of the 1999 Constitution, such that the main grievance or complaint is the breach of fundamental right(s) and the breach is not brought as ancillary claim(s). See Egbonu V. Borno Radio Television Corp. (1997) 12 NWLR (pt.531) 29; Tukur V. Govt. of Taraba State (1997) 6 NWLR (pt.510) 459; Unachukwu V. Ajuzie (2009) 4 NWLR (pt1131) 336.
See also Agbaso V. Iwunze (2015) 11 NWLR (pt.1471) 527 at 571, where it was held:
Chapter IV of the 1999 Constitution (Sections 33 to 44), as amended, carry the bill of rights that qualifies as fundamental rights? It is true that where one is removed from office, on account of wrong doing, without being given a hearing or fair hearing on the alleged wrong doing, the issue of denial of fair hearing can be raised in a suit taken out to contest the wrongful removal from office. Of course, such a case of wrongful removal from office, cannot be sustained, primarily, as a fundamental rights action
Thus, where the fundamental rights claims is only accessory or ancillary to the man complaint of the Applicant, the case cannot be one for enforcement of fundamental rights, and the trial Court is expected to detect this at the point of application for leave to bring the action under Fundamental Rights Enforcement Procedure Rules. See Tukur V. Govt. of Taraba State (supra) Appellant’s claim was founded on breach of his fundamental rights to acquire and own immovable property and protection of the same against compulsory or forceful acquisition by the Respondents; he relied on Sections 43 and 44 of the 1999 Constitution. The sections stipulate, as follows: (43) Subject to the Provisions of this Constitution, every Nigerian citizen shall have the right to acquire and own immovable property anywhere in Nigeria.
(44) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over 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, among other things ?
(a) requires the prompt payment of compensation therefor; etc
And one of such few exceptions, provided by law, is found in Subsection 2 (m) of the 44 of the Constitution, which says:
?(m) subject to prompt payment of compensation for damages to buildings, economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect poles, cables, wires, pipes or other conductors or structures on any land, in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.” per. ITA GEORGE MBABA, J.C.A.
APPEAL: POWER OF THE COURT; THE POWER OF AN APPELLATE TO GRANT SUCH RELIEF OR REMEDY WHICH THE LOWER COURT OUGHT TO HAVE GRANTED
Of course, by Section 15 of the Court of Appeal Act, 2004, this Court has power to grant such relief or remedy which the lower Court ought to have granted, after hearing the case in full, as the justice of the case requires. See Ikoku & Anor. V. Onuyereri & Ors (2015) LPELR ? 25699 (CA); Afribank Plc V. Yelwa (2011) 12 NWLR (pt.1261) 286; (2011) ALLFWLR (pt.586). per. ITA GEORGE MBABA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
FREDRICK NWOKOLEME Appellant(s)
AND
1. PAULINUS AJAERO
2. CHIEF ISREAL OKPACHU
3. BARRISTER VITALIS OGBONNA Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the leading Judgment): This appeal is against the judgment of Imo State High Court in Suit NO. HAM/25/2006, delivered by Hon. Justice Goddy I. Anunihu on 31/7/2007, whereof the trial judge struck out the fundamental rights application by the Appellant, saying the Suit could not be effectively and effectually adjudicated under Fundamental Rights Enforcement Procedure, Rules; that the Suit was based on trespass to land and remedy lied in the ordinary writ of summons.
At the lower Court, Appellants (two brothers) had sought the following reliefs, via fundamental rights enforcement procedure rules:
(1) “A declaration that the compulsory and forceful acquisition and confiscation of the Applicants land known as and called Ala Azuio Mugin? situtate at Umunama, Ezinihite Local Government, Imo State, Nigeria, and the gift or assignment of the personal need and purpose by the 2nd and 3rd Respondents on 5/12/05 is unconstitutional and unlawful.
(2) A declaration that Applicants have a right to acquire and own land anywhere in Nigeria, including Umunama in Ezinihite LG of Imo State,
Nigeria, unimpeded by anybody including the Respondents
(3) An Order for the Respondents to pay to the Applicants jointly and severally the sum of N5million (Five Million Naira) being damages or compensation for their violation of the Applicants right to acquire and own immovable property as enshrined under Sections 43 and 44 of the Constitution of FRN 1999 and Article 14 of the African Charter on Human and Peoples? Right (Ratification and Enforcement) Act, Cap 10 LFN, 1990.
(4) An Order for the Respondents to return to the Applicants forthwith the Applicants? land confiscated and compulsory acquired by the 2nd and 3rd Respondents and giving to the first Respondent for his personal use and purpose.
(5) An Order for the Respondents to render to the Applicants a public apology published in any of the national newspapers circulating within jurisdiction for their unlawful violation of the Applicants rights above stated.
(6) Perpetual injunction restraining the Respondents, howsoever, by themselves, their servants agents, workmen, and or privies from further compulsory acquisition of the
Applicants said land or violation of their Rights as stated herein above.
Appellant and his late brother were earlier granted leave, by an ex-parte motion on 18/5/06 to bring the action, under Fundamental Rights Enforcement Procedure Rules, before they filed the Motion on Notice. Of course, their motion ex-parte was accompanied by their statements, disclosing the above reliefs and particulars, the grounds for seeking the reliefs, and a verifying affidavit and exhibits. At the lower Court, Appellant also filed a 19 Paragraphed Further Affidavit, in reaction to the Respondents Counter Affidavit.
The core of Appellants complaint was that the 2nd and 3rd Respondents, in their capacity as the Vice Chairman and Chairman, respectively, of Ezinihite Local Government Council forcefully took a sizeable portion of their land and gave it to the 1st Respondent for construction of access road to the 1st Respondent?s premises. Appellant said, on the day the Respondents came to forcefully take his land, they came with a large crowd of heavily armed security personal such as Policemen, Members of Civil Defence Corps, Vigilante people, some
staff of Ezinihite Local Government, the Divisional Police Officer (DPO) of Itu Police Station (Mr. Ndieze); the Head of SSS Ezinihite, the Head of Vigilante (DSP Basil Ogu Rtd), the Council Secretary (Mr. Ochulor) etc. Appellant said before the forceful taking over of the land, all letters they wrote to him sounded peremptory, forceful, mandatory and threatening. He referred to pages 10 ? 12 of the Records and Exhibits ?TCN1? to ?TCN3?. He said the 2nd and 3rd Respondents did not deny taking the land and giving it to 1st Respondent to construct an access road to his house, but claimed that Appellant and the 1st Respondent reached an amicable settlement on the matters and that what they (2nd and 3rd Respondents) did was in consonance with their statutory duties.
Appellant filed the Notice of Appeal on 23/8/07, as per pages 122 to 126 of the Records of Appeal, raising 3 grounds of Appeal. He filed his brief of arguments on 15/12/2008 and distilled a lone issue for the determination of the appeal from grounds 1 and 3, and abandoned ground 2.
The issue for determination:
?Whether the learned trial judge was
right in law when he held that the principal relief in this suit is based on trespass to land and that remedy of the applicants lies in an ordinary writ of summons and not an application for the enforcement of their fundamental rights.?
The Respondents filed no brief and Appellant was granted leave on 16/1/14 for the appeal to be heard on his brief alone, and when the appeal was heard on 20/10/15, Appellant?s Counsel urged us accordingly.
Arguing the appeal, Appellant?s Counsel, Chief T.C. Nwachi, said that parties were at idem, at the trial, that the land, the subject matter of the Suit belonged to the Appellant?s family, hence title to the land was not in issue, nor did the Appellant claim damages for trespass to the land. Rather, he said, Appellant sought the enforcement of their fundamental rights as guaranteed by Sections 43 and 44 of the 1999 Constitution of Nigeria and Article 14 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap 10, Laws of the Federation 1990, Pursuant to the Fundamental Rights (Enforcement Procedure) Rules, 1979. He relied on the Affidavit and Exhibits
attached to the affidavits/statements, namely Exhibits ?TCN1, TCN3, EZCC ?A?.?
Counsel submitted that it is the claim or reliefs sought by a Plaintiff or Applicant as per the writ of summons and statement of claim or other originating process that determines the jurisdiction of the Court to hear the Suit. He relied on Anason Ibeto International Ltd V. Vimex Import-Exports (2001) 10 NWLR (pt.720) 224 at 231; Thomas V. Olufosoye (1986) 1 NWLR (pt.18) 669; Adeyemi V. Opeyori (1976) 9 ? 10 SC 31 at 51; Tukur V. Govt. of Gongola State (1989) 4 NWLR (pt.117) 517; Ibafon Co. Ltd V. Nigerian Ports Plc (2000) 8 NWLR (pt.667) 86 at 100; F.G.N. V. Oshiomhole (2004) 3 NWLR (pt.860) 305 at 321 and madiebo V. Nwankwo (2000) 29 WRN 137 at 141.
Counsel submitted that in this case, a cursory reading of Appellant?s claim or reliefs sought as contained in his statement of particulars or his motion on Notice filed on 25/5/06, shows that Appellant had approached the Court for enforcement of his fundamental rights to acquire and own immovable property and against the compulsory acquisition of the property. He relied on Sections 43 and
44 of the 1999 Constitution and Article 14 of the African Charter on Human and Peoples Rights. He referred us to pages 5 ? 6 and 27 ? 28 of the Records of Appeal, on the claims/reliefs sought by the Appellant, saying that relief 1 to 4 were the principal claims and 5 ? 6 were the ancillary claims; he said that although the subject matter of the Suit had to do with Appellant?s land, none of the reliefs claimed damages for trespass or for declaration of title to the land; that title was not in issue as the Respondents had admitted the affidavit evidence before the Court that the land in question belonged to the Appellant?s family. He said that all that was required of the trial Judge was to decide the matter before him, namely, the propriety, lawfulness or constitutionality or otherwise of the conduct of the 2nd and 3rd Respondents in taking a sizeable portion of Appellant?s land, forcefully, and without his consent or authority or compliance with the law, and giving it to the 1st Respondent for his private use and purpose, considering the Land Use Act and the Provisions of the Constitution 1999. Counsel added that the parties
had joined issues on the lawfulness or otherwise of the conduct of the 2nd and 3rd Respondents and not on issue of trespass, and the Respondents did not deny the said conduct complained of by Appellant.
Counsel said it was surprising that the trial Court, instead of resolving the central issues raised about the lawfulness or otherwise of the 2nd and 3rd Respondents conduct, rather raised the issue of trespass as the basis or principal claim of the Appellant, and sought evidence on title to land and quantum of damages!
He urged us to hold that the trial Court was wrong and to enter judgment for Appellant based on the evidence already before the trial Court. He asserted that the action of the Respondents had infringed Appellants constitutional rights as guaranteed by Sections 43 and 44 of the Constitution and Section 14 of the African Charter; that it amounted to an act of self-help, brute and brazen display of executive lawlessness, and benefit of due process.
RESOLUTION OF THE ISSUES
I had earlier reproduced the claims of the Appellant as per the 6 Reliefs sought at the High Court of Imo State in this Suit. There is no doubt that the
entire case was founded on Fundamental Rights (Enforcement Procedure) Rules, 1979 (applicable at the time) and that parties were ad idem that, all the processes filed, including Counter ? affidavits by the Respondents, clearly portrayed a fundamental rights enforcement action, pursuant to applicable laws, including 1999 Constitution of the Federal Republic of Nigeria and African Charter on Human and Peoples Rights (Ratification Enforcement) Act.
As per the Reliefs by the Appellant (particularly reliefs 1 to 4) the main contention of the Appellant centered on what he called ?Compulsory and forceful acquisition and confiscation of Appellant?s land? and gift or assignment of the land to 1st Respondent, for his personal need and purpose by 2nd and 3rd Respondents on 5/12/05.?; that that violated Appellant?s right to acquire and own immovable property and right against compulsory acquisition of his property pursuant to Sections 43 and 44 of the 1999 Constitution, as well as Article 14 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap 10, Law of the Federation of Nigeria, 1990. He
prayed for return of the confiscated and compulsorily acquired land and for payment of compensation for the violation and for injunction.
I have, painstakingly, considered each of the 6 reliefs by the Appellants in this case and can affirm that the Suit and the claims therein were, purely, fundamental rights claims, for which the learned trial Court had earlier granted leave, on 18/5/06, for Applicants to file motion on Notice thereof. I am at a loss to know or comprehend why and how the learned trial Judge, suddenly, somersaulted at the end of his judgment to hold ?that the principal relief in this Suit is based on trespass to land and remedy of the applicants lies in an ordinary writ of summons and not an application for the enforcement of fundamental rights.?
I think that was a strange conclusion, when no case of trespass to land was raised and or argued before the Court, and after the same Court had granted leave on 18/5/2006, for the Suit to be fought as fundamental rights matter. Was the trial Judge sitting on appeal to over ? rule its earlier ruling and order placing the Suit as fundamental rights matter? Of course, he
(trial Judge) could not have done so.
The essence of seeking the leave of Court, by motion ex-parte, to bring an action on the Fundamental Rights (Enforcement Procedure) Rules, is to afford the Court the opportunity to study and appraise the claim of the Applicant and satisfy itself that it is one to be heard as Fundamental Rights matter. After the Court had so satisfied itself and proceeded to hear the case as a fundamental rights case, it is completely, unacceptable, in my view, for the same trial Court to shy away from pronouncing on the rights of the parties or on the merits of the case, and rather go back to the starting block, to say that the matter is not one to be heard by way of Fundamental Right Enforcement Procedure, the very procedure the Judge caused the parties to initiate and pursue the case!
Of course, it is clear that in fundamental rights enforcement matter, the complaint must centre on fundamental rights breach(es) as per the chapter 4 of the 1999 Constitution, such that the main grievance or complaint is the breach of fundamental right(s) and the breach is not brought as ancillary claim(s). See Egbonu V. Borno Radio Television
Corp. (1997) 12 NWLR (pt.531) 29; Tukur V. Govt. of Taraba State (1997) 6 NWLR (pt.510) 459; Unachukwu V. Ajuzie (2009) 4 NWLR (pt1131) 336.
See also Agbaso V. Iwunze (2015) 11 NWLR (pt.1471) 527 at 571, where it was held:
?Chapter IV of the 1999 Constitution (Sections 33 to 44), as amended, carry the bill of rights that qualifies as fundamental rights? It is true that where one is removed from office, on account of wrong doing, without being given a hearing or fair hearing on the alleged wrong doing, the issue of denial of fair hearing can be raised in a suit taken out to contest the wrongful removal from office. Of course, such a case of wrongful removal from office, cannot be sustained, primarily, as a fundamental rights action
Thus, where the fundamental rights claims is only accessory or ancillary to the man complaint of the Applicant, the case cannot be one for enforcement of fundamental rights, and the trial Court is expected to detect this at the point of application for leave to bring the action under Fundamental Rights Enforcement Procedure Rules. See Tukur V. Govt. of Taraba State (supra)
Appellant?s claim was founded on breach of his fundamental rights to acquire and own immovable property and protection of the same against compulsory or forceful acquisition by the Respondents; he relied on Sections 43 and 44 of the 1999 Constitution. The sections stipulate, as follows:
?(43) Subject to the Provisions of this Constitution, every Nigerian citizen shall have the right to acquire and own immovable property anywhere in Nigeria.
(44) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over 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, among other things ?
(a) requires the prompt payment of compensation therefor;? etc
And one of such few exceptions, provided by law, is found in Subsection 2 (m) of the 44 of the Constitution, which says:
?(m) subject to prompt payment of compensation for damages to buildings, economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect
poles, cables, wires, pipes or other conductors or structures on any land, in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.”
I think it was therefore wrong for the trial Court to abandon the substance of the claims of the Appellant and wander to import the idea of trespass as the primary or principal claim of the Appellant, obviously, misled by the Counsel for 2nd and 3rd Respondents, who had alleged the Court lacked jurisdiction to hear the case and that the claim was about title to land, acquisition thereof or trespass, and that the Court could not determine the case without oral evidence to establish title, trespass and quantum of damages; that all other reliefs sought were ancillary to that main claim relating to title and trespass! (See page 116 of the Records).
It should be noted that the trial Court had rightly summarized the case of the Appellant on page 117 of the Records, when it said:
“The summary of the Applicant?s case is that the 1st Respondent used the 2nd and 3rd Respondents to create an access
road on their (Appellants) land for the benefit of the 1st Respondent who built a house within the area. The applicants see the act as an act of forcible and compulsory acquisition of their said land to create access road for the 1st Respondent. This they considered an infringement of their fundamental rights which is enforceable under the Fundamental Rights Enforcement Procedure Rules as provided by Section 46 of the Constitution of Federal Republic of Nigeria 1999. On their part, there is no denial of the fact that there was creation of an access road on the land of the Applicants by the Respondents. The Respondents, however, contend that the act was carried out by the Town Planning Department of Ezinihitte Local Government, whose duty includes creation of access roads for the use of people within the area.”
I think after making such perfect summary and findings that the Respondents did not deny that the access road was created on the land of the Applicants, the trial Court erred, when it later created the impression that it would “be difficult to determine the rights of the applicants in this matter without hearing evidence on the title to
the land and the quantum of damages.” See page 120 of the Records. Obviously, title to the land was not an issue and it was not a case of ownership of land, since it was clearly admitted that the access road was created on Appellant?s land.
I therefore resolve the issue for the Appellant that the trial Court was wrong to hold that the principal relief in the case was based on trespass to land and that the remedy of Appellant laid in ordinary writ of summons, and not application for enforcement of fundamental rights.
Having resolved the issue for Appellant, does that translate to success of the application at the lower Court?
The Relief sought by the Appellant in the Notice of Appeal was for us to “allow this appeal, set aside the decision of the lower Court and remit the application to the High Court of Imo State for hearing and determination on the merits.” See page 125 of the Records.
But in this brief of arguments, Appellant said:
“?May I urge my Lords very humbly to allow this appeal, set aside the judgment of the Court below and enter judgment for Appellant? The Appellant also seeks leave of this
Honorable Court to amend Paragraph 4 of his Notice of Appeal on the ?Relief sought from the Court of Appeal? to read as stated herein.? See Paragraph 5.6 of the Appellant’s Brief.
Counsel for Appellant knows, or should know, the process(es) of amending a Court process, like Notice of Appeal, that is not accomplished by mere address of Counsel. If Appellant saw the need to amend the notice of appeal, to seek another relief, instead of the prayer for retrial, he should have filed a motion for that purpose, giving the adverse party notice thereof and opportunity to contest that application. As it is, there is no relief for us to grant the application sought at the lower Court.
Of course, by Section 15 of the Court of Appeal Act, 2004, this Court has power to grant such relief or remedy which the lower Court ought to have granted, after hearing the case in full, as the justice of the case requires. See Ikoku & Anor. V. Onuyereri & Ors (2015) LPELR ? 25699 (CA); Afribank Plc V. Yelwa (2011) 12 NWLR (pt.1261) 286; (2011) ALLFWLR (pt.586).
The flaws in the trial Court’s conclusions as to jurisdiction to
hear the case, notwithstanding, the trial Court had actually heard the case and made some useful findings, on page 120 of the Records of Appeal, as follows:
“The Applicants Counsel in his argument has also made it clear that the formality for compulsory acquisition of land by the government was not followed in this case. He has also argued that the said land was not taken for public purpose or overriding public interest but for the personal use of the 1st Respondent. The survey plan of the land is exhibited as exhibit 6 and there is no evidence that the applicants were disposed of the entire land or part thereof. The fact that a road traverses a piece of land is not a proof that the part of the land forming the road has been taken away from the owner or that any person who uses the said part as access has become the owner of same by virtue of using the road. Access road is not restricted to the use of the person or persons to whose residence or house the roads lead”
On page 117 of the Records, the trial Court had also made findings to the effect that “the access road was created by the Town Planning Department of
Ezinihitte Local Government, whose duty includes creation of access roads for use of people within the area.?
The 1st Respondent had deposed in his Counter affidavit that he applied to the Local Government Council for access road to his house and the Local Government obliged and granted him right of way over a small portion of Appellant?s land, measuring not more than four feet six inches wide and that 2nd and 3rd Respondents did not act in their personal capacities but on behalf of the Ezinihitte Local Government Council. See Paragraph 8 to 13 of the Counter affidavit on page 71 of the Records.
1st Respondents letter to the Secretary, Town Planning Authority, Ezinihitte Local Government was exhibited ? Exhibit E2CC A ? which was copied to Chairman of the Local Government, the DPO, the Officer in charge of SS etc and in it, 1st Respondent pleaded to be given right of way to his house and recounted the various appeals, pleas and offer to buy the space to gain access to his building from the Applicants but they refused. In Paragraphs 4, 5, 6 and 7 of the letter, he said:
?On September, 2nd 2000 I went with one of my
brothers, Mr. Victor Nwaneri, carrying one jar of palm wine, one carton of beer, one Igbo hen, a bottle of hot drink and four native kola nut to plead for free passage of the road. Unfortunately Mr. Sylvester Njoku (late) rejected the offer and refused to grant our request.
Again, when the 1st step failed I decided to continue with pleading with Mr. Sylvester Njoku (late) hoping that pleading would solve the matter but all proved abortive.
Also at the failure of the 2nd step, I resorted to consulting the church with hope that since we are of the same Church, faith and belief, the matter would be solved but all were to no avail. Upon the interference of some priests; Rev. Fr. Christ (sic) Anyanwu (Parish Priest), Rev. Fr. Ben Chima and others, yet he refused.
However, it was after the above steps have been taken and all failed that I decided to consult the Local Government with hope that by its powers and authorities confined (sic) on her, the matter will be amicably solved.? See page 65 of the Records.
Exhibits TCN1 to TCN3 (pages 17 to 19) are copies of letters by the Local Government to the Appellant for meeting on the request of
the 1st Respondent for right of way, which were not honored by the Appellant. The Local Government Council used it powers to give the 1st Respondent right of way which Appellant blocked. On 3/3/2006, the 1st Respondent wrote to inform the Local Government ?the access way leading to my house from the main road which the Authorities of the Local Government created after due process at Umunma, have been blocked with ridges and mounts. This has made it very difficult for me and my house hold to have access to the main road See page 69 of the Records.
Appellant appears to have admitted the above entreaties and effort of the Respondents to amicably resolve the dispute. In his further affidavit he said, in Paragraph 9 and 10 thus:
?9? Respondents invited us for discussion over the matter and parties exchanged letters, but discussion did not take place nor did we consent eventually to the forcible seizure and acquisition of our land. The action of Respondents lacked due process and was calculated to humiliate us and deprive us of our legitimate inheritance.
(10)?. The land in question, the only land we have now
for our residence and the access road has devalued it for no just cause. The 1st Respondent approached us to sell the land to him and we told him that it is reserved for our residence, hence he used the 3rd Respondent, who is his brother to take our land from us forcefully.? See page 76 of the Records.
I do not think Appellant can be heard to complain in the circumstances of this case against the 2nd and 3rd Respondents, who were performing their official functions to create right of way for the 1st Respondent, after all the entreaties and offer to buy the strip of land of the Appellant forming the access road by the Respondents, failed. The finding of the trial Court was that the act ?was carried out by the Town Planning Department of Ezinihitte Local Government whose duty includes creation of access roads for the use of the people within the area.?
I believe that the Provisions of Section 44(2)(m) of the 1999 Constitution would permit the act of the Local Government to create access roads in the interest of proper Town Planning and for the use of the public, and as the trial Court said, such access roads does not make the
portion of Appellant?s land, forming part of the road to belong to anybody, or to cease to remain part of Appellant?s land (forming the access road). That should give him mental satisfaction, as Appellant remained the owner of the portion and he too will walk on the road or use it! He cannot block it. Though he may not use that portion for something else, in the circumstances, it remains his property, turned to access road. There is also evidence that the access road was created on the boundary fringe of Appellant?s land and so did not eat into the value of the remaining portion of his land. See Paragraph 21 of the Counter affidavit (page 72 of the Records):
?That the access or right of way granted to me was created from one end of the said land so as not to damage the same as the balance of the applicant?s land is located only on one side of the said access road.?
Appellant was however entitled to compensation over the said portion, but he appeared to have forfeited it, when he refused the offer for the same and the entreaties from the local government for amicable settlement of the same. I do not think an
individual should hold the government development plans to ransom.
Though, this appeal succeeds on the Issue that the trial Court was wrong to strike out the Suit claiming it was not properly originated by way of fundamental rights action, and is allowed, that victory is only Pyrrhic victory. On the merits of the case at lower Court, I hold that Appellant failed to establish breach of his fundamental rights, in the circumstances of this case and the Suit is dismissed.
Parties are to bear their respective costs.
IGNATUIS IGWE AGUBE, J.C.A.: I have read in advance the lead judgment just rendered by my Learned brother I.G. Mbaba, JCA; and am in total agreement with his reasoning and conclusion that although the Appeal succeeds only to the extent that the Learned Trial Judge dismissed same on the basis that the cause of action was unfounded on the fundamental; Human Rights Enforcement Procedure but rather on trespass such that the Appellant ought to have initiated the proceeding via Writ of summons, the Appellant whose right to his property was reportedly violated by the compulsory acquisition of his
portion of land for purposes of construction of access road to 1st Respondent’s house, failed to prove such violation since by the Provision of Section 44 (2) (M), the 2nd and 3rd Respondents by virtue of their offices/Authority had by all entreaties offered to pay compensation which were rebuffed by the Appellant.
Accordingly, he cannot, with all honesty, complain that his Right was violated. I shall also dismiss the Appeal for want of merit and abide by the orders as to cost.
FREDERICK O. OHO, J.C.A.:?I had the opportunity of reading in advance the judgment just delivered by my learned brother. Ita George Mbaba, JCA. He has adequately dealt with the issues raised such that I am in complete agreement with his reasoning and conclusions in dismissing the Appellant’s Suit in the long run even though some of the issues raised on Appeal succeeded. I abide by the consequential orders made thereto.
Appearances
CHIEF T.C. NWACHIFor Appellant
AND
NO REPRESENTATIONFor Respondent
