GOVERNOR OF AKWA IBOM STATE & ORS v. BASSEY (2021)

GOVERNOR OF AKWA IBOM STATE & ORS v. BASSEY

(2021)LCN/15110(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, March 17, 2021

CA/C/370/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

THE GOVERNOR OF AKWA IBOM STATE 2. THE GOVERNMENT OF AKWA IBOM STATE 3. THE ATTORNEY GENERAL OF AKWA IBOM STATE 4. THE MINISTRY OF LANDS AND TOWN PLANNING AKWA IBOM STATE 5. MINISTRY OF WORKS, AKWA IBOM STATE APPELANT(S)

And

JOSEPH BENEDICT BASSEY RESPONDENT(S)

RATIO

POSITION OF THE LAW AGAINST SPECULATION OR CONJECTURE

Conjectures have no place in our Courts. Neither the parties nor the Courts are permitted or entitled to conjecture anything. See Ikenta Best (Nig) Ltd. v. A.G. Rivers State (2008) LPELR – 1426 SC 51. The Court below is not allowed to speculate or conjecture as it did as shown above. Courts decide issues on facts established and law. See Adekunle & Anor v. S. K. Ajayi (Nigeria) Ltd & Anor (2013), LPELR – 21959 CA. PER AMES SHEHU ABIRIYI, J.C.A.

DUTY OF THE COURT TO CALL FOR ORAL EVIDENCE WHEN CONFRONTED WITH CONFLICTING OR CONTRADICTORY EVIDENCE RELIED ON BY THE PARTIES ON A MATERIAL ISSUE

Where a matter is being tried on affidavit evidence and the Court is confronted with conflicting or contradictory evidence relied on by the parties on a material issue before the Court, the Court cannot resolve such conflict by evaluating the conflicting evidence in order to achieve the resolution of the conflict. See Arjay Limited & Ors. v. Airline Management Support Ltd (2003) LPELR – 555 SC. On the issue of whether or not the Appellants demolished the Respondent’s uncompleted building, the affidavit evidence was violently contradictory. While the Appellants denied even the existence of the uncompleted building let alone demolishing it, the Respondent asserted that the Appellants demolished his building. I agree with learned counsel for the Appellants that the conflicting evidence on the issue called for the hearing of oral evidence even if only for the purpose of visiting the locus of the alleged uncompleted building. The issue could not have been resolved on the conflicting evidence of the parties. Even the Respondent in his further affidavit realized that there was need to call for oral evidence. It is surprising that the Court below ignored the subtle request by the Respondent to adduce oral evidence. PER AMES SHEHU ABIRIYI, J.C.A.

PURPORT FOR AWARDING DAMAGES

AMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 8th January, 2019 in the High Court of Akwa Ibom State sitting at Etinan.

The Respondent was the Applicant in the High Court (the Court below) while the Appellants were the Respondents in a fundamental rights application.

The Respondent filed a motion on notice pursuant to Order I Rule 2, Order II Rules 1(2) and (3) of the Fundamental Rights (Enforcement Procedure) Rules 2009 for an order enforcing his right to acquire and own property, freedom from compulsory acquisition of property, fair hearing and dignity of his person.

The Respondent as Applicant sought for the following reliefs:
“1. A DECLARATION that the forceful demolition of the applicant’s house/building on the 7th of January, 2018 by the agents of the respondents is null and void as it violates the applicant’s Fundamental Rights as enshrined under Section 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria.
2. A DECLARATION that the invasion of the applicant’s house/building by the agents of the

Respondents at about 11:45am on the 7th of January, 2018 without cause and an order of Court is illegal, unlawful, oppressive, unconstitutional, null and void as it violates the applicant’s Fundamental Rights as enshrined under Section 34 and 36 of the 1999 Constitution of the Federal Republic of Nigeria.
3. A DECLARATION that the forceful demolition of the applicant’s house/building on 7th January, 2018 by the agents of the respondents without an order of Court is wrongful, illegal, unlawful, unconstitutional, null and void as it violates the applicant’s Fundamental Right as enshrined under S.43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria.
4. AN ORDER enforcing the Right of the Applicant to acquire and owned (sic) property and freedom from compulsory acquisition of property, Right to fair hearing and dignity of his person.
5. AN ORDER compelling the Respondents jointly and severally to pay the sum of N500,000,000.00 (Five Hundred Million Naira) to the applicant for the unlawful, wrongful invasion and demolition of the applicant’s house/building being general and exemplary damages.
6. AN ORDER

of perpetual injunction restraining the respondent jointly and severally their officers, agents, servants, privies or howsoever called and connected from further humiliating the applicant’s in any manner whatsoever on any fact connected with or related to the facts of this case.
7. COST OF ACTION assessed at N1,000,000.00 (One Million Naira) only.”

The grounds upon which the Respondent brought the application are as follows:
“1. The applicant is entitled to right to fair hearing, acquire and own property and freedom from compulsory acquisition and dignity of his person as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights.
2. The applicant’s fundamental right to acquire and owned (sic) property and freedom from compulsory acquisition has been violated by the Respondents.
3. The applicant’s (sic) fundamental right to dignity of his person has been violated.
4. The applicant’s (sic) is entitled to exemplary and general damages for the aforesaid violations of his fundamental rights.
5. The action of the

Respondents is in breached (sic) of the constitution.”
6. Mental and psychological torture are violations of fundamental human rights.”

The complaint of the Respondent in the Court below was that he constructed a five-bedroom house up to lintel level and a soak-away at Ikot Etobo in Nsit Ubium Local Government Area and the Respondents demolished it without an order of Court. He wrote letters Exhibits A – D to the Appellants. The Appellants ignored him. This is why he went to Court.

In their defence, the Appellants denied the claim of the Respondent that they demolished his property. According to the Appellants, the Respondent did not have such property anywhere. They also stated that they did not receive any letter from the Respondent.

The Court below considered the affidavit evidence before it which included affidavit in support of the application, a further affidavit to which was annexed a building plan and an irrevocable power of attorney, a counter affidavit and a further counter affidavit. The Court below also considered the written addresses of counsel for the parties. The Court below found that the right to fair

hearing of the Respondent was not breached. Also, that the Respondent did not suffer any inhuman and degrading treatment. The Court however found that the Respondent’s property was demolished and awarded Fifty Million Naira (N50,000,000.00) compensation to the Respondent to enable him acquire another land of the same size and to build another house of the same size up to the same level he had built the one that was demolished.

The Appellants immediately proceeded to this Court by a notice of appeal dated and filed on 18th April, 2019. On 20th January, 2021, the Appellants were granted leave to amend the notice of appeal and the amended notice of appeal filed on 6th May, 2020 was deemed duly filed and served on 20th January, 2021. The amended notice of appeal contains four grounds of appeal.

From the four grounds of appeal, the Appellants in their brief filed on 6th May, 2020 but deemed duly filed and served on 20th January, 2021 presented the following four issues for determination:
1. Whether the learned trial Judge was right to have assumed jurisdiction to entertain the suit given the circumstances and facts of the case. (Distilled from ground 1).

Having regard to the express provisions of Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, and the circumstances of this case whether the Appellants had in anyway breached the fundamental human right of the Respondent. (Distilled from ground 2).
3. Having regard to the conflicts in Affidavit of the parties, whether it was right for the conflicts to be resolved in favour of the Respondent without calling any oral evidence. (Distilled from ground 3).
4. Considering the facts and circumstances of the case, whether the lower Court was right in awarding the Respondent damages of such high amount of money or any amount at all. (Distilled from ground 4).

On his own part, the Respondent submitted the following three issues for determination in the Respondent’s brief filed on 16th November, 2020 but deemed duly filed and served on 20th January, 2021:
1. WHETHER IT WAS PROPER FOR THE RESPONDENT TO COMMENCE THIS SUIT UNDER THE FUNDAMENTAL RIGHT (SIC) ENFORCEMENT PROCEDURE RULES, 2009.
2. WHETHER FROM THE CIRCUMSTANCES OF THIS CASE, THE RESPONDENT IS ENTITLED TO AN AWARD OF EXEMPLARY

DAMAGES AS HELD BY THE TRIAL COURT.
3. WHETHER THE LOWER COURT HAD THE DISCRETION NOT TO CALL FOR ORAL EVIDENCE TO RESOLVE CONFLICT IN AFFIDAVIT EVIDENCE.”

Arguing issue 1, learned counsel for the Appellants submitted that when the main claim is not the enforcement of fundamental rights, the Court has no jurisdiction to entertain it under the Fundamental Rights (Enforcement Procedure) Rules. The Court was referred to Sea Truck (Nig.) Ltd v. Anigboro (2001) 2 NWLR (pt. 696) 159; University of Ilorin v. Oluwadare (2006) 14 NWLR (pt. 1000) 751; Gafar v. Government of Kwara State (2007) 4 NWLR (pt. 1024) 375 among several other cases.

The Court was referred to the reliefs sought by the Respondent in the Court below. From the reliefs, it was argued, the main claim is for declaration of title to land and compensation and not breach of fundamental right.

It was further submitted that the allegation of demolition of Respondent’s building is an act of trespass which is a civil wrong in Torts. It was submitted that an action in tort cannot be brought by way of fundamental right enforcement. The Court was referred to

Mrs. Ransome Kuti & Ors. v. A. G. of the Federation & Ors (1985) 2 NSCC 879, Abdullahi & Ors v. Nigerian Army & Ors (2019) LPELR and Emeka v. Okoroafor & Ors. (2017) LPELR-SC (2017) 11 NWLR (pt. 1577) 410.

From the facts of the case, it was submitted, it is clear that the action cannot be elevated to a breach of fundamental human right. It was submitted that it was a civil wrong that ought to have been commenced by a writ of summons.

On issue 2, it was submitted that the Court below erred when it held that the fundamental human rights of the Respondent under Sections 43 and 44 of the Constitution had been breached when the Respondent failed to discharge the onus of proof placed on him to determine how his fundamental right guaranteed under the Constitution had been breached.

It was submitted that Sections 43 and 44 of the Constitution reproduced in the brief were not breached.

Learned counsel for the Appellants pointed out that the Appellants denied the existence of the building allegedly demolished and that the Respondent merely produced a photocopy of a building plan. The building plan, it was submitted, is not proof of the existence of

the building. An approval of a building plan, it was submitted, does not translate into a physical building. The Respondent, it was contended, ought to have tendered receipts of materials he bought for the construction or tender a photograph of the building before and after the alleged demolition.

Learned counsel for the Appellants took a swipe at the judgment of the Court below. For example, he said that on the affidavit evidence no mention was made about construction of Etinan/Eket Road going on or that the property of the Respondent was along that road. Yet the Court below held that the Appellants did not deny that the road was under construction. Also, that the Appellants did not deny demolishing the property even though the Appellants did so in paragraphs 6 and 8 of their counter affidavit.

The approved plan annexed to the further Affidavit it was argued, is not authentic as it does not come from the Appellants or their agents. That there is no name of the person that signed the plan and this was contained in the further counter affidavit.

It was further argued that it was pure speculation on the part of the Court below to conclude that the

Appellants demolished the Respondent’s building to pave way for road construction in order to avoid paying compensation. This is because the Respondent in his affidavit did not state any fact regarding any dualised road.

Courts, it was submitted, decide issues on facts established before them and on law. The Court was referred to AGIP (NIG.) Ltd v. AGN PETROLI INT (2010) 5 NWLR (pt. 1187) 348 at 413 and Ikenta Best (Nig.) Ltd. v. AG. Rivers (2008) 6 NWLR (pt.1084) 612 at 649.

It was submitted that the Appellants having denied the demolition of the Respondent’s building, instead of proving that there was a demolition which was carried out by the Appellants, the Respondent tendered an approved building plan. This did not show that there was a building on the land and such building was demolished by the Appellants.

On issue 3, learned counsel for the Appellants submitted that it was wrong for the Court below to resolve conflicts in the affidavits of the parties without calling oral evidence. It was submitted that where there is conflict in affidavit evidence of parties, oral evidence must be called in order to resolve the conflicts.

The Court was referred to Falobi v. Falobi (1976) 9-10 SC 1 at 80; I. K. Martins (Nig.) Ltd. v. G.P.L (1992) 1 NWLR (pt. 217) 322; International Bank Ltd v. Imana Nig. Ltd (2000) 11 NWLR (pt. 679) 620; G.M.O.N & Co. Ltd. v. Akputa (2010) 9 NWLR (pt. 1200) 443 at 478 – 479. Where conflicts are not resolved as in the instant case, it was argued, it is wrong for the trial Court to make an order based on the conflicting affidavit.
The Court was referred to U.B.A. v. Ubokulo (2010) 13 NWLR (pt.1210) 67 at 80.

It was further submitted that where the trial Court reaches a decision based on unresolved conflicting affidavit evidence, an appellate Court would not allow such a decision to stand. The Court was referred to S.I.V. Ltd v. Afro Shetters Ltd (2010) 1 NWLR (pt. 1175) 209 at 241.

The parties’ evidence on whether or not the Appellants demolished Respondent’s building was resolved by the Court below without calling oral evidence or visiting the locus, it was submitted. The only way to have resolved the conflict was to call oral evidence. This the Court below did not do, it was submitted.

The Court was urged to hold that it was wrong

for the Court below to resolve the conflict in the affidavits of the parties in favour of the Respondent without calling oral evidence.

On issue 4, learned counsel for the Appellants submitted that the Respondent failed to prove any breach of his fundamental human rights to be entitled to any amount of money as damages. That the Respondent failed to prove that he built a house up to lintel level or any house at all at the said location after obtaining approval (if any) to build. That he also failed to show that the Appellants or any of their agents demolished his building.

It was submitted that the Court below was wrong in awarding a whooping sum of money to the Respondent without any cogent reason. Learned counsel for the Appellants pointed out that the consideration for the land was N250,000.00. There is no evidence the Appellant bought even a single bag of cement or bought any building materials and paid labourers. That the building plan is inadequate to substantiate the claims of the Respondent of building any house. The Court below, it was submitted, ought to have taken all these into consideration before making the award.

The Court was urged to set aside the damages awarded to the Respondent.

Learned counsel for the Respondent submitted on Respondent’s issue 1 that a dispassionate look at the reliefs sought by the Respondent will show that none of those reliefs is for declaration of title to land. That reliefs 1-5 were declaratory reliefs in respect of the fundamental rights of the Respondent while reliefs 5 – 7 were for damages, injunction and the omnibus relief. That there was no claim as to title to land.

It was submitted that for somebody to compulsorily acquire a person’s property contrary to Section 44 of the Constitution, this will be a breach contemplated by the drafters of the Constitution. That it is not a claim for title to land as contended by learned counsel for the Appellants.

On Respondent’s issue 2, it was submitted that the Court below having found that the Respondent established his case against the Appellants to entitle him to the reliefs sought considered that it was a proper case for the award of exemplary damages. It was further submitted that since the rules of Court nowhere say that exemplary damages must be specifically claimed

they can be granted if facts and evidence led justify the award. Having regard to the circumstances of this case, the award of exemplary damages was justified, it was submitted.

The Court was urged not to interfere with the award of damages instead the Court has inherent power to increase it.

On issue 3, learned counsel for the Respondent submitted that the Appellants should have raised a preliminary objection to the determination of the application on affidavit evidence as Order VI of the Fundamental Rights (Enforcement Procedure) Rules provided for preliminary objection. The Court was referred to Obiukwu & Anor v. Okwudire & Ors (2018) LPELR – 45066 and Order VIII Rules 1 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

It was submitted that even if the action was not supposed to have been prosecuted under the Fundamental Rights (Enforcement Procedure) Rules, the Appellants had waived their right to challenge the procedure as they had submitted to the procedure adopted by the Respondent. The Court was referred to State Independent Electoral Commission, Ekiti State v. National Conscience Party (2009) 13 WRN 108

and Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387 at 405.

It was submitted that with the material facts placed before the Court below, the Court below was right when it resolved the issue placed before it without calling oral evidence.

I will determine the appeal on the issues presented by the Appellants for determination.

The rights guaranteed by the Constitution are not mere rights but special rights the remedies of which are outside the purview of an ordinary action which is brought mainly to seek damages for a wrongful act or omission giving rise to a claim for compensation. And when one is out just to seek damages for a Tort allegedly committed by another, the ordinary common law is the answer. See Ransome-Kuti & Ors. v. AG. Federation & Ors (1985) LPELR – 2940SC, p.40. Although the Respondent dangled breach of a few rights namely right to fair hearing and right to dignity of his person, and right to acquire and own property, the Court below found that the right to fair hearing and right to dignity of his person were not breached. And rightly so.
In paragraphs 7, 9, 14, 17 and 19 of the affidavit in support of the

application for enforcement of his fundamental rights, the Respondent deposed as follows:
“7. That I am the owner of a five-bedroom flat that I built up to lintel level and soak-away that was demolished by the Respondents therefrom at Ikot Etobo, Itreto, in Nsit Ubium Local Government Area.
9. That on 7th January, 2018, my house/building was demolished with bulldozers by the agents of the respondent through the 5th respondent.
14. That the forceful demolition of the application (sic) house/building was carried out without a Court order.
17. That the forceful demolition of the applicant’s house/building by the respondents has violated the applicant’s Right to acquire and own property, freedom from compulsory acquisition without prompt compensation, fair hearing and dignity of his person.
19. That the forceful demolition of the applicant’s house/building by the respondents has deprived the applicant of his fundamental right to acquire and owned (sic) property, freedom from compulsory acquisition, fair hearing and dignity of his person.”
It is clear from the affidavit in support of the application

particularly the paragraphs reproduced above that the action of the Respondent was not in respect of title to land but grounded in tort. The claim is in respect of demolition of the Respondent’s building. That claim is in Tort simpliciter. The Respondent did not show that his rights guaranteed under Sections 43 and 44 of the Constitution had been breached. The Respondent did not show that his rights guaranteed under Sections 43 and 44 of the Constitution were threatened in anyway.
I therefore agree with learned counsel for the Appellants that the action was wrongly brought under the Fundamental Rights (Enforcement Procedure) Rules 2009.
Learned counsel for the Respondent contends that the Appellants did not raise a preliminary objection to the procedure adopted by the Respondent and that they have waived the right to do so. I do not agree. As I pointed out earlier, the Respondent initiated the proceeding by dangling a couple of other rights of his which he alleged were breached. This must have been the reason why the Appellants did not challenge the procedure. It was after the other complaints had been dismissed by the Court below, that the

Appellants now discovered that the only complaint still standing was that of the alleged demolition of his uncompleted building.

Issue 1 is resolved in favour of the Appellants and against the Respondent.

In the affidavit evidence before the Court below, the Respondent failed to establish that the building allegedly demolished ever existed. After the Appellants had denied that such a building ever existed, the Respondent in a further affidavit now annexed a photocopy of a building plan without more. A building plan without more cannot be evidence that the building ever existed. Surely, more evidence is required to prove that such a building ever existed in this digital age. There is not even a photograph to show that such a building ever existed. There is no photograph of the building either before or after the alleged demolition. There is no evidence from anybody who worked at the site and no receipt of purchase of any item for the building was tendered.
Although the Respondent failed to produce evidence to show that in fact such building ever existed, the Court below refused to believe the Appellants that the Respondent did not have such

property. The Court below did not only disbelieve the Appellants, it had this to say:
“Aside the said fact, the Respondents have not denied that the Etinan/Eket Road has been under construction ever since. The Applicant’s property in this suit situated along that road before the same was demolished. The Respondents have not told the Court if indeed they did not demolish the said property, whether the same was left to be on the said road and that the same is intact and can see on inspection. I have said so because the Court does not believe the Respondents that the Applicant did not even have the said property.”
The Respondent nowhere deposed in both affidavits that Etinan/Eket Road was under construction or that his property was situated along the said road. Road construction was never mentioned in any of the affidavits of the Respondent. The Court below unfortunately in the recess of its chambers manufactured evidence for the Respondent. This must be deprecated.
Unfortunately again even though the Appellants denied demolishing any building, the Court below claimed that they did not tell the Court if indeed they did not demolish

the said property. By this finding too, the Court below subtracted a vital piece of evidence from the evidence of the Appellants. Again this must be deprecated.
As rightly pointed out by learned counsel for the Appellants, the signature on the building plan has no name of the person who signed and although the Appellants pointed this out and that it did not come from the Appellants or any of their agents yet the Court below refused to believe the Appellants.
Not yet done, the Court below proceeded to conjecture that the Appellants demolished the Respondent’s building to pave way for road construction in order to avoid paying compensation. The Respondent nowhere stated in both the affidavit in support of the application and the further affidavit that there was a road dualization. The Respondent also did not refer to any issue of acquisition. See page 123 of the record containing the conjectures by the Court below:
“Be that as it may, it is the considered view of this Court that the reason why the Respondents did not do the right thing and properly acquired the said land and the Applicant’s said house/building for the purpose of

its demolition to pave way for the said dualised road may not be far to fetch. Under Section 44 of the Constitution, apart from the requirement that such acquisition of the land must be for purposes prescribed by law, such an acquiring authority also has an obligation to promptly pay adequate compensation for the development on such acquired land. See Section 44(1) (a) of the Constitution. And, of course, under Section 44(1) (b) thereof, the Applicant would, in that event, be entitled to access thereof for the purpose of determining the amount of compensation to be paid to him for the same and his interest therein in general. It was perhaps in their attempt to cheat the Applicant out of the deal so that they would not pay the Applicant his due compensation for his said house and other developments on the land that the Respondents resorted to self-help and apparent show of force in compulsorily taking over the said land and demolishing the said Applicant’s house/ building.”
Conjectures have no place in our Courts. Neither the parties nor the Courts are permitted or entitled to conjecture anything. See Ikenta Best (Nig) Ltd. v. A.G. Rivers State

(2008) LPELR – 1426 SC 51. The Court below is not allowed to speculate or conjecture as it did as shown above. Courts decide issues on facts established and law. See Adekunle & Anor v. S. K. Ajayi (Nigeria) Ltd & Anor (2013), LPELR – 21959 CA.

Issue 2 is resolved in favour of the Appellants and against the Respondent.

called for the hearing of oral evidence even if only for the purpose of visiting the locus of the alleged uncompleted building. The issue could not have been resolved on the conflicting evidence of the parties.
Even the Respondent in his further affidavit realized that there was need to call for oral evidence. It is surprising that the Court below ignored the subtle request by the Respondent to adduce oral evidence. The Respondent deposed in paragraphs 3, 5 and 6 of the further affidavit as follows:
“3. That paragraph 6 of the respondents’ counter affidavit is false. That the applicant owns a 5 bedroom flat at Ikot Etobo, Itreto in Nsit Ubium Local Government Area. Herein attached and marked as Exhibit E and F are the applicant’s approved building plan and purchase receipt for the acquisition of the said property for the building and that I am ready to give oral evidence in Court.
5. That paragraph 8 is false. The respondents’ demolished the said property on 7th January, 2018 and that I am ready to give oral evidence in Court.
6. That paragraph 9 is false. Exhibit A and Exhibit B are not false documents and that I am ready to give oral evidence in Court.”

Although the Respondent was not given the chance requested above to give oral evidence, the Court below still managed or maneuvered to enter judgment in his favour. The Court below as I pointed out above could not resolve the conflicting affidavits by merely evaluating same.

Issue 3 is also resolved in favour of the Appellants and against the Respondent.

Damages are awarded to compensate a plaintiff for loss or injury which he has suffered. Before damages can be recovered by a plaintiff, there must be a wrong committed by the defendant. See Union Bank of Nigeria Plc. v. Chimaeze (2014) LPELR – 22699 SC. In the instant case, the Respondent failed to prove that any of his fundamental rights was breached. He failed to establish that his property was demolished by the Appellants. Therefore, he failed to establish that he was entitled to any damages.

Issue 4 is resolved in favour of the Appellants and against the Respondent.

All four issues having been resolved in favour of the Appellants and against the Respondent, this appeal is allowed by me.

The judgment of the Court below is

set aside. Parties shall bear their respective costs of the appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, J.C.A.

I agree with the reasoning and conclusion reached in the judgment. I also allow the appeal.
I abide with the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, JAMES SHEHU ABIRIYI, J.C.A. I entirely agree that the action for the respondent at the trial Court was based squarely in tort and therefore the action was wrongly brought under the Fundamental (Right Enforcement & Procedure) Rules 2009.
Accordingly, the appeal is meritorious and it is hereby allowed.

Appearances:

Agnes M. Edem,Esq. For Appellant(s)

Samuel Okon,Esq. For Respondent(s)