HIGH CHIEF ROTIMI OLUSANYA v. MRS. ANIKE ABEGUNDE & ORS
(2019)LCN/12880(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/AK/188/2016
RATIO
CONSTITUTION: WHETHER A PARTY CAN EXPAND THE FRONTIERS OF HIS CONSTITUTIONAL RIGHT
“A Party cannot by operation of his own whims and caprices expand the frontiers constitutional rights beyond the anticipation of the constitution as no person can read into the constitution what is not there. In Peterside V. IMB (Nig,) Plc (supra) this Court found that Chapter IV of the Constitution does not give the Appellant the right to employment or to remain in the service of his employer in perpetuity or until the contractual age of retirement. Likewise, in this application, the Appellants cannot sustain a claim for claim of contract under Chapter IV of the Constitution.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCEDURE: WHERE A PARTY SEEKS REMEDY
“…The Court can only give the plaintiff Judgment if the facts deposed to in the affidavit vindicate the remedy sought. A mere conglomeration of facts, which do not vindicate or justify the remedy sought, will not give rise to a Judgment in favour of the plaintiff. See Niki Tobi, JSC in A.G Anambra State V. Attorney General, Federation of Nigeria & 22 Ors 22 NSQR (Pt. 2) 572 at PP 6 20 and 621.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCEDURE: WHERE THERE IS CONFLICT IN THE DEPOSITION OF CONTESTING PARTIES
“Relating to conflict in the deposition of contesting parties before the Court, the Court must resolve the conflict by calling oral evidence, either from the deponents or other witnesses. In Ezechukwu V. Onwuka (2016) 5 NWLR (Pt. 1506) 529 @ 548 aptly, referred to by the Appellant’s Counsel the Supreme Court stated thus; Now the counsel on both sides are one and correctly too that where there is irreconcilable conflict in the deposition of contesting parties before a Court the Court must resolve the conflict by calling oral evidence either from deponents or other witnesses.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JURISDICTION: WHERE A COURT IS SAID TO HAVE JURISDICTION
“Indeed, the trite position and path of the law, which has now been over flogged and over trod since the celebrated case of Madukolu V. Nkemdilim (1962) 2 SCNL 341; is that a Court is said to have requisite jurisdiction and competent to hear and determine a matter before it in the following instance
(a) Where it is properly constituted with respect to number and qualification of its membership.
(b) The subject matter of the action is within its jurisdiction;
(c) The action is initiated by due process of law; and
(d) Any condition precedent to the exercise of its jurisdiction has been fulfilled.
See also Attorney General, Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Ogunmokun V. Military Administrator, Osun State (1999) 3 NWLR (Pt. 599) 261; Attorney-General Federation V. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187, (2001) FWLR (Pt. 32) 87.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
LAND LAW: RIGHT OF A POSSESSORY TRESPASSER TO SUE OTHER TRESPASSERS
“it is appreciated that even a trespasser in possession or occupation is entitled in law to sue for trespass and to protect his possessory rights against all, but the true owner.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
HIGH CHIEF ROTIMI OLUSANYA Appellant(s)
AND
1. MRS. ANIKE ABEGUNDE
2. MR. LAWRENCE ADEKUNLE
3. MRS. OLUTI ADESIDA
4. MRS. TOYIN BELLO Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of Honourable Justice P. O. Ikujimi of the Ondo State High Court sitting at Akure delivered on 17th day of February 2016 in Suit No. AK/70M/2015.
The Respondents, herein had commenced an action at the Ondo State High Court of Justice under the Fundamental Rights (Enforcement Procedure) Rules 2009, and claimed against the Appellant herein as follows:
1. A declaration that the invasion, placing of an embargo to the entrance of the applicants’ shop lying and situate at Idiagba, Erekesan market, Akure with traditional charms and rituals by the Respondent on 11th December, 2015 till date is obnoxious, unconstitutional, illegal, null and void.
2. An order compelling the respondent to immediately remove and clean the said charms and traditional rituals illegally placed on the Applicants’ shop.
3. The sum of N50 Million against the respondent being damages for illegal invasion and placing of charms and traditional rituals on the Applicants’ said shop.
4. The Respondents herein supported their application with a 22 paragraph affidavit deposed to by the 3rd Respondent herein and attached two documents to it. The Appellant herein with the leave of the Court filed a 32 paragraph counter affidavit with the attachment of a document deposed to by the Appellant herein in reaction to the Respondents’ application.
5. After the consideration of the facts before the Court, the relief of the Respondents were granted with the sum of N100, 000.00 as general damages.
Dissatisfied with the Judgment the Appellant appealed to his Court upon 4 Grounds of Appeal filed on 14th March, 2016.
Upon the transmission of the record of Appeal on 7th February, by the order of this Court, the parties filed their respective Briefs of Argument.
The Appellant, in his Brief of Argument filed on 3 & 4 & 17 and deemed filed 22, 5 – 17 and which was adopted on the 24 & 1 & 19 at the hearing, a sole issue to wit; whether the trial Court rightly granted the reliefs of the Respondents herein, having considered the totality of the facts and evidence before it.
Arguing this Issue, the Appellant contended that the entirety of the complaint was one relating to a claim of ownership of the land wherein shops were built by the Applicants/Respondents.
The Affidavit in support of Application and the counter Affidavit were both reproduced and the submission made that the matter was not one that could be adjudicated based on Affidavit evidence; that the Court ought to have ordered for pleadings and for a full hearing upon oral evidence. Jev. V. Iyortyom (2014) NWLR (Pt. 1428) 575 @ 615 SC was relied upon to show that where the proceedings are hostile, evidence should be led and upon pleadings, except where the documents annexed to the Affidavit can be effectively used to resolve the seemingly conflicting averments.
The learned counsel argued that there was no document before the trial Court upon which it can resolve the issue bordering on ownership of the land as claimed and contested. That the Court was in error to have proceeded on Affidavit evidence solely.Eze-Chukwu V. Onwuka (2016) 5 NWLR (Pt. 1506) 548 SC relied upon.
It was submitted also that there were no facts before the trial Court to warrant the invocation of Sections 34, 35, 37 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and that it is not the duty of any one to expand the scope of fundamental rights. Oke-Chukwu V. EFCC (2015) 18 NWLR (Pt. 1490) 1 @ 25 ? 26.
The learned counsel further contended that the evidence before the Court only demonstrate a case of trespass which cannot sustain a breach of Sections 34, 35, 37 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are not sufficient to grant the reliefs as done by the trial Court.
That a relief rooted on tort cannot ground an action under the fundamental Rights Enforcement Procedure Rules. The cases of Abdulhamid V. Akar (2006) ALL FWLR (Pt. 321) 1191 at P.1205 (SC); WAEC V. ADEYANJU (2008) ALL FWLR (Pt. 428) 206 @ P. 225 SC relied upon to submit that the trial Court erred in granting the reliefs to the respondents, herein.
It was also contended that reliance on paragraphs 8, 9, 10, 15, 16 and 17 of the Affidavit in support of the Respondents’ application without striking out same was wrong. That the said paragraphs were inadmissible hearsay evidence and had occasioned a miscarriage of Justice.
That the reliance on the last Affidavit i.e. the amended Affidavit (i.e. further and Better Affidavit) of the Respondents as the correct and true position of the matter had occasioned a miscarriage of Justice Akpughunum v. Akpughunum (2007) ALL FWLR (Pt. 376) 746 at 757.
We have been urged to allow the appeal and to set aside the Judgment of the trial Court for being against all known principles of law.
In adopting the solo Issue formulated by the Appellant, Respondents by their Brief of Argument deemed filed on 22, 5, 17 and adopted on 24-1-19 contended that the Appellant’s Counsel was wrong in contending that the foundation of his clients? claim was ownership of land. To the contrary that it appertained the breach of their Fundamental Rights as enshrined in Chapter IV of the Constitution of Nigeria 1999.
The learned Counsel relies onAlhaji Dahiru Saude V. Alhaji Haliru Abdullahi (1989) 4 NWLR (Pt.116) 386 at 418 – 419 per Eso, JSC to contend that Fundamental Rights Actions may be brought by originating summons and the High Court has the jurisdiction to entertain same.
The Learned Counsel submitted that applications brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009 are different from normal proceedings and may under Order II Rule 2 of that Procedural Rules be made by Originating process supported by a statement setting out the name and description of the applicant, the reliefs as sought and supported by an affidavit setting out the facts upon which the application is made. Relies on EFCC V. Akingbola (2015) ALL FWLR (Pt. 794) 136 at 145 ? 146 in support of this contention.
The learned Counsel quoting and relying on Section 34 (a) of the Chapter 4 to the 1999 Constitution submitted that the Respondents were subjected to torture or to inhuman or degrading treatment and relies on paragraphs 8, 9, 10, 11 and 12 of the affidavit in support. That Section 37 of the Constitution relating to private and family life of the respondents was breached by the alleged lacing of their shop with charms and traditional rituals and thus preventing them from entering their shops.
That their right to acquire and own immovable property in Nigeria was also breached, citing Section 43 and 44 of the Constitution. Relies on paragraphs 18, 19 and 20 of Affidavit; LASTMA Vs Esezobo (2015) ALL FWLR (Pt. 810) 1086 at 1115 on right of fair hearing and ownership of property not to be violated, relied upon.
The learned counsel further contended that what determines the jurisdiction of a Court and whether a matter was justiciable or not was dependent on the claim before the Court and not the Defence of the Respondent AG Kwara State V. Adeyemo (2017) ALL FWLR (Pt. 868) 616 at 642; P. C.H.S Co. Ltd V. Migfo (Nig) Ltd (2012) ALL FWLR (Pt. 642) 1615.
That there was no dispute as to ownership between the parties as appellant did not say he owned the shops. That the Deji of Akure was not a party and was not sued nor was the Defendant/Appellant Defending on his behalf nor was he sued on behalf of the Deji.
That survey plans and building plans were even exhibited as Exhibits FBA 1 and FBA2. Page 47 and 48 of the record referred that the Exhibits had proved their title as per averments and that Jev V. Iyortyom Supra was in their favour.
That the Appellant had admitted the ownership of the shop by the Applicants when at paragraph 13 of his counter Affidavit he stated that the Applicants converted the building inherited by their mother to shops. page 20 of the record.
That the ownership of the shops was not an issue as it had been admitted by the Appellant. Relies on Pas Nigeria Ltd V. NNS Co. Limited (1990) 6 NWLR (Pt. 159) 764 at 772
It was contended that the depositions in paragraphs 8 – 17 were from personal knowledge and not in-admissible. That the reliance on the further and better affidavit was proper as it was one amended without opposition after the Judge had drawn the attention of the parties to the conflicting date in the date of event as deposed in 2 different affidavits.
That it is only where there was a departure from the Rules which permeates judicial proceedings such that miscarriage of justice has been occasioned that the decision would be held to be perverse. UKA V. IROLA (2002) 7 SCNJ 137 at 168; that it is only such a perverse decision that may be reversed by an appellate Court. Gbafe Vs Gbafe (1996) 6 NWLR (Pt. 455) 47 at 430; we have been urged, therefore, to dismiss this appeal as the decision was based upon a proper appraisal of the evidence (Affidavit) and documentary exhibits and that no miscarriage of justice had been occasioned.
RESOLUTION OF THE SOLE ISSUE
From the arguments of the respective counsel, it is obvious to me that the germane issue for the determination of this appeal is whether the suit commenced by the originating process under the Fundamental Rights Enforcement Procedure Rules was appropriate and if it were,
2. If the Court was right in granting the reliefs as it did.
The Respondents had claimed against the Defendants (Respondents/Appellants as follows:
I. A declaration that the invasion, placing embargo to the entrance of the applicant?s shop lying and situate at Idiagba, Erekesan Market, Akure with traditional charms and rituals by the respondent on 11th December, 2015 till date is obnoxious, unconstitutional, illegal null and void.
II. An order compelling the respondent to immediately remove and clean the said charms and traditional rituals illegally placed on the claimant?s shop.
III. The sum of N50 million against the respondents being damages for illegal invasion and placing of charms and traditional rituals on the applicants said shop.
The Grounds for the reliefs are set out thus;
i. By virtue of Section 43 and 44 of the 1999 Constitution of Nigeria every person is entitled to own property which cannot be deprived of without due process of law.
ii. By virtue of Section 34, 35, 37 and 41 of the 1999 Constitution of Nigeria, every person is entitled to right to privacy, personal liberty etc.
It is obvious from the reliefs and the Grounds thereof that the Respondents were indeed making a claim based upon the invasion of their proprietary right to their shop by the alleged act of the Appellant.
The Appellant who had not denied the Respondents? ownership of landed property inherited from their Mother upon which they built shops thereon, but had by his counter Affidavit dated 11th January, 2016 and sworn to on 14th January 2016, in Defence to the claim deposed that the land upon which the shop was built belonged to the Akure community as stool land and a committee had been set up by Deji of Akure sometime in November 2015 to look into the complaints, which included other matters; that the Appellant was the secretary of the said committee set up by the Deji of Akure. That whilst converting the building into shops, the Respondents built shops on the Erekesan stool land.
For ease of reference, the counter Affidavit is produced verbatim thus;
The above, being the case, it is obvious and crystal clear that upon the claim of a secretary to a committee set up by the Deji of Akure to perform an official cum traditional assignment or duty as Secretary of a committee, whatever infraction by the committee against any person?s title ought be seen as done by the committee unless shown otherwise.
The Respondents has not rebutted or countered this claim to official course of duty. It is deemed admitted, therefore. The Exhibit ‘A’- report of the committee to the Deji of Akure is annexed and pleaded on paragraph 16 of the Counter Affidavit.
The Appellant denies being the person that drove out the representatives of the Respondents on the 11th November, 2015. He averred that he was with his Co. Members (Colleagues) at the Customary Court, Grade C panel in Akure on the said date of 11/ 12/2015.
The trial Judge disbelieved him and believed the Respondents upon their further affidavit that one of them saw him on that date. Upon the criminal law principle of rejecting a defence of alibi, the learned trial Judge held that the defence failed as he had been fixed to the scene of crime. Was the Appellant on trial on criminal charges?
The Appellants deny the entirety of the claim.
At page 79 of the record of Appeal, the trial judge stated in his Judgment in part thus:
In law, there is no particular form required to rebut a defence of alibi. See Sowemimo & Ors v. The State (2001) FWLR (Pt. 79) 1269 at 1312. Also, sufficient evidence fixing accused within the scene of the crime would dislodge plea of alibi – Ahmed V. The State (2002) FWLR (Pt. 90) 1358 at 1386 SC. By paragraph 15 of the Applicant further and better affidavit dated 15 , 1, 16, the Respondent was seen at the scene/shops on 11 , 12 , 15 by the 3rd Applicant.
I hold, therefore, that the respondent was present at the scene on the day of the incident.?
In the face of the denial and assertion of performance of official duty which was apparently set up to justify any visit to the said property, I think that the claim was one that was vigorously contested as the averments in the Affidavit in support was vehemently opposed in every material particular. That the appellant alluded to the Respondent’s reliance on inherited property from their mother had not departed from the defence/claim that there was an intrusion into communal or stool land of Akure and that the Appellant was not on any frolic; that specifically he did not do any such act of fetishism on the shops as alleged.
Without going into the consideration of whether the trial Court was right to hold or believe in fetishism of charms as constituting a physical act of breaching a fundamental right and whether there was such legal proof of the act, I am content to hold that they are irreconcilable and in congruous.
The Judge had rightly stated the law when he said at page 79 of His Judgment thus:
I have carefully looked at the affidavit evidence adduced by either side in this application. I have also looked at the prayers sought by the applicants. I agree with the applicants that by virtue of Section 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria, as Amended, every person is entitled to own property which he cannot be deprived of without due process.
However, where have the Respondents claimed or proved the deprivation of their right to property. How has the Appellant violated such right?
Luckily, the learned trial Judge, proceeded thus:-
It is not enough for the plaintiff who seeks constitutional remedy or remedy under the constitution by merely parading before the Court the constitutional provisions. He must prove as in this case, by affidavit that he deserves the remedy sought. The Court can only give the plaintiff Judgment if the facts deposed to in the affidavit vindicate the remedy sought.
A mere conglomeration of facts, which do not vindicate or justify the remedy sought, will not give rise to a Judgment in favour of the plaintiff. See Niki Tobi, JSC in A.G Anambra State V. Attorney General, Federation of Nigeria & 22 Ors 22 NSQR (Pt. 2) 572 at PP 6 20 and 621.
Turning somersault against this apt re-statement of the law and the facts was a descent into perversity as a claimant is entitled only to his proven claim(s).
That the third Respondent averred that the Appellant was at the scene, had to be tested against the Appellant’s Defence that he was at the Customary Court panel ‘C’ sitting with fellow members on the said 11 / 12 / 2015.
This was not done!
The Appellant had no obligation to file a further Counter Affidavit or Reply to the Further and Better Affidavit which he had already countered in essence by his Counter Affidavit.
The Further Affidavit cannot be taken as uncontested in that regard, therefore. Relating to conflict in the deposition of contesting parties before the Court, the Court must resolve the conflict by calling oral evidence, either from the deponents or other witnesses. In Ezechukwu V. Onwuka (2016) 5 NWLR (Pt. 1506) 529 @ 548 aptly, referred to by the Appellant’s Counsel the Supreme Court stated thus;
Now the counsel on both sides are one and correctly too that where there is irreconcilable conflict in the deposition of contesting parties before a Court the Court must resolve the conflict by calling oral evidence either from deponents or other witnesses. The Court, in the face of such a persisting conflict, is not allowed to prefer one deposition to the other. The learned Respondent’s Counsel cannot be faulted in his further submission that the need to call oral evidence arise only where the conflict in the affidavits are significant and material.?
In this case, it is patent that the conflicts in the affidavit are significant and material.
The Respondents had argued and the trial Court had agreed that the Deji was not sued and was not the defendant nor was the Defendant defending in a representative capacity.
Is it not trite that any of the parties or even third party may apply for joinder where his interest will be or likely to be affected? Indeed where joinder is not so applied for, a Court of law suo motu may order a joinder of a third party with the consent of either party with a view to determining with finality and effectually all the contending Issues. Why did the trial Court not do this? Why did it not convert the suit to be heard upon pleadings and evidence?
Proceeding as it did under the Fundamental Rights Rules without pleadings and oral evidence was wrong in the circumstances.
If I must go on, or any discerning mind would ask was there truly a breach of the fundamental rights of the applicants/Respondents?
The alleged breach relates to (i) tampering with their right to property , i.e , the shops, which was contested as being on the land of the Akure Community, as stool land.
Secondly, it is appreciated that even a trespasser in possession or occupation is entitled in law to sue for trespass and to protect his possessory rights against all, but the true owner.
This later right, the Respondents surely and reasonably would be entitled to vindicate. This is why, they claimed a mandatory order against nuisance by asking for removal of offensive foreign objects feared to be fetish and potent from the walls of their shops, ascribed to the Appellant.
A declaratory order that the action of the Appellant was unconstitutional and damages of N50,000.00 (Fifty Million Naira) were sought as reliefs.
A declaratory order can only be granted upon evidence led establishing an entitlement; so also the specific claims for the sum of N50 million in my view, amounts to a claim of special damages. This is more so that the lis, over which Respondent sued and said they had been prevented from using and an embargo placed thereon, though ?they were not scared and would not apologise is a shop attracting income.
I take Judicial Notice of this course of common conduct and the purport of having shops on rental. However, this genre of claim can only be granted upon proof by evidence, oral and/or documentary. All these can only be after hearing on pleadings and evidence. I find most apposite the case of Okechukwu V. EFCC (2015) 18 NWLR (Pt. 1490) 1 @ 25 – 26, where-in the Supreme Court decided that, nothing should be read into the constitution, what is not so provided as a party cannot at his whims and caprices expand the frontiers of constitutional rights beyond the anticipation of the constitution.
For its aptness and fitting applicability to this appeal, I commend the Appellant’s Learned Counsel for the reference and I quote same verbatim thus: The set of facts presented by the Appellants as far as the 2nd Appellant is concerned, purportedly disclose a breach of contract by the 2nd and 3rd Respondents against the 2nd Appellant.
That is the only allegation that concerns the 2nd Appellant and this fact does not amount to a breach of the fundamental right of the 2nd Appellant. As this Court pointed out in the case of Peterside V. IMB (Nig.) Ltd (1993) 2 NWLR (Pt. 278) 712.
A Party cannot by operation of his own whims and caprices expand the frontiers constitutional rights beyond the anticipation of the constitution as no person can read into the constitution what is not there. In Peterside V. IMB (Nig,) Plc (supra) this Court found that Chapter IV of the Constitution does not give the Appellant the right to employment or to remain in the service of his employer in perpetuity or until the contractual age of retirement. Likewise, in this application, the Appellants cannot sustain a claim for claim of contract under Chapter IV of the Constitution.
The Appellant’s Counsel is on a firma terra, in my contrite view, when he submitted that the claim of the Respondents was one of tort of trespass and not covered by Sections 34, 35, 37 and 41 of the Constitution as claimed. Abdulhamid V. Akar (2006) All FWLR (Pt. 321) 1191 at 1205 SC and WAEC V. Adeyanju (2008) All FWLR (Pt. 428) 206 at 225 SC are applicable authorities in support and in point that a claim based on tort cannot be enforced under the Fundamental Rights enforcement Rules. Ultimately, it is therefore obvious to me, that the suit was instituted or initiated outside the due process of law.
The suit ought have been commenced by a writ of summons and pleadings filed and exchanged in the face of all that I had said above. That of course ignites a jurisdictional challenge to the suit; its competence and hence the jurisdiction of the trial Court to have entertained or proceeded to hear the matter in the first place. In FMCT V. Eze (2006) All FWLR 1705, it was held that in order to determine whether or not the Court has jurisdiction to entertain the case before it the Court refers to or looks into the Plaintiff?s claim. See alsoAdeyemi v. Opeyori (1976) 9 – 10 SC 31; Tukur V. Governor Gongola State (1989) 4 NWLR (Pt. 117; Mattaradona V. Ahu (1995) 5 NWLR (Pt. 412) 225.
I have looked at the claim, and it raises this question of jurisdiction which could be raised at anytime and even for the first time and even on appeal and suo motu by the Court, as I have, guided by the facts on the claim, affidavits filed and the law in this respect.
Indeed, the trite position and path of the law, which has now been over flogged and over trod since the celebrated case of Madukolu V. Nkemdilim (1962) 2 SCNL 341; is that a Court is said to have requisite jurisdiction and competent to hear and determine a matter before it in the following instance
(a) Where it is properly constituted with respect to number and qualification of its membership.
(b) The subject matter of the action is within its jurisdiction;
(c) The action is initiated by due process of law; and
(d) Any condition precedent to the exercise of its jurisdiction has been fulfilled.
See also Attorney General, Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Ogunmokun V. Military Administrator, Osun State (1999) 3 NWLR (Pt. 599) 261; Attorney-General Federation V. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187, (2001) FWLR (Pt. 32) 87.
Lest, I be misunderstood, there is no doubt that the trial Court like all other High Courts of the States and the Federal Capital Territory and the Federal High Court have concurrent and exclusive original jurisdiction to hear and determine actions founded on fundamental Rights violations and their Enforcement pursuant to the Fundamental Rights Enforcement Rules pursuant to Rules made there under.
The mere compliance with the procedural format of the Rules, as the Respondents did, and heavily anchored upon by their Learned Counsel without more, does not confer jurisdiction in a Court in respect of a breach of a fundamental right, except it is prima facie so disclosed as a cause of action.
In FMCT V. Eze (supra) this Court per Adamu, JCA in the lead stated in part, thus:-
Let me also here adopt the approach of the apex Court in Jack V. University of Agriculture, Makurdi (supra) by looking at the cause of action in present case in order to know whether or not it was appropriate for the Respondent to initiate his action under the Fundamental Rights Procedure as he did rather than bringing it i.e. (his action) in the ordinary civil manner under the common law.
With this fitting cap as the epitaph, of this appeal, the suit ought to have been struck out for lack of jurisdiction, for this is the order that ought to have been made by the trial Court. For instance, which personal liberty was violated? Were they detained? Were they prevented from exiting their property? Not the least proved!
Indeed, even if the action was properly constituted (which I do not concede), and before the Court by means of due process (also not conceded). I must agree with the Appellant?s Learned Counsel that the facts deposed in paragraphs 8, 9, 10, 15, 16 and 17 in support of the Respondent?s application are not within the personal knowledge of the deponent. Their sources of information and the circumstances and grounds for the belief must be stated. For instance, was the Deponent present in all the places that the Appellant was and heard the alleged communications and saw the acts amounting to chasing the Respondents? representatives?
Why were the ‘representatives’ not named or called? Who are they? What did the Deponent mean by ‘our representatives’; could they be people who were in the shop as tenants or people sent there to meet the committee members, as deposed to by the Appellant ‘Paragraph 10’ that Respondent performed some sacrifices with charms in the shop without lawful justification? is argumentative and conclusion of law. This is not allowed in deposing to Affidavits. See S. 115 Evidence Act, paragraphs 11 and 12 of the Affidavit disclose no cause of action; paragraph 13 deposing to the fact that pictures of the shop were taken showing the charms and traditional rituals placed on the shop by the Respondent and a copy exhibited as ‘A’ merely amounted to the dumping of document on the Court. The Exh. ‘A’ was an inadmissible piece of evidence, that needed to be testified on by the photographer as to where it was taken and the circumstances thereof. This was not done and relying on same as pleaded was wrong.
The letter Exhibit ‘B’ of 12th December 2015 to the Deji of Akure, as pleaded in paragraph 14 of the Affidavit in support, was not supported by a Reply, as the date of delivery and proof was not indicated. Why will the Court accept wholesale this inchoate act of letter writing per se in favour of the Respondents?
The paragraphs 15 16 and 17 are clearly hearsay, as the Chief Joseph Abegunde was not called to prove the threat and boast of dealing with the Respondents as allegedly communicated to him by the Appellant; and his purported response to the Appellant. These had been countered; it must be noted. Those paragraphs ought to have been struck out for offending Section 115 of the Evidence Act, 2011, therefore.
Not having struck them out, the trial Judge ought to have discountenanced same and not to rely on them. See Taraku Mills Ltd V. Sant Engineering Ltd (2008) All FWLR (Pt. 430) 798 at 805 and N.P.A.S.F V. FASEL Services Ltd (2002) FWLR (Pt. 97) 79 at 741 and Section 115 (2) (3) (4) Evidence Act, 2011.
The reliance on those paragraphs of the Affidavit as the golden truth inspite of the denial and without passing through the crucible of a hearing being embarked upon, has in my view, occasioned a perversion of justice; Justice has been miscarried and the decision based thereon, must be set aside and quashed. Even upon the above, I will allow the appeal.
Accordingly, on the merit, the decision is set aside and quashed.
However, for the view also held that there was no actionable cause of action disclosed and that the Court was without jurisdiction as the suit was incompetently instituted, I shall, and hereby enter an order;
(1) Striking out the Suit No. AK/70M/2015.
(2) I, consequently, set aside the Judgment delivered on 17/02/16 pursuant thereto the said suit.
(3) The general damages of one hundred thousand naira (N100, 000) in favour of the Respondents as Applicants and against the Respondent, now Appellant at the trial Court, if already paid, shall be refunded to him, accordingly.
Appeal allowed.
Parties to bear their respective costs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the privilege of reading in draft form; the judgment just delivered by my learned brother MOHAMMED AMBI-USI DANJUMA, JCA. And I agree with the reasoning contained therein and the conclusion arrived thereat. My Lord has exhaustively considered the Issue submitted for determination of the appeal. I adopt same as mine, this appeal shall be and it is hereby allowed. I equally, struck out suit No A/C/70/M/2015 for being incompetent.
I also abide by the consequential orders contained in the lead Judgment including the order as to cost.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read in draft the lead judgment by my learned brother, MOHAMMED A. DANJUMA, JCA.
This appeal bothers to a great extent on the justiciability of an action under the Fundamental Rights (Enforcement Procedure) Rules, 2009.
In finding the proper approach to determining the justiciability of an action under the Fundamental Rights (Enforcement Procedure) Rules, 1979, the Supreme Court per Ogundare JSC (as he then was) had this to say in the case of SEA TRUCKS NIG LTD V ANIGBORO (2001) 2 NWLR, PT 696, 159:-
“I think it is a wrong approach to the issue on hand to say that the power to determine the justiciability of a cause of action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 lies with the trial judge and that once he has given leave to bring in an application, justiability can no longer be questioned. I think the PROPER APPROACH IS TO EXAMINE THE RELIEFS SOUGHT BY THE APPLICANT, THE GROUNDS FOR SUCH RELIEFS AND THE FACTS RELIED UPON. IF THEY DISCLOSE THAT BREACH OF FUNDAMENTAL RIGHT IS THE MAIN PLANK, REDRESS MAY BE SOUGHT THROUGH THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 1979. BUT WHERE THE ALLEGED BREACH OF FUNDAMENTAL RIGHT IS INCIDENTAL OR ANCILLARY TO THE MAIN COMPLAINT, IT IS INCOMPETENT TO PROCEED UNDER THE RULES…”
This is also what this Court decided in the case of BASSEY & ANOR V AKPAN & ORS (2018) LPELR – 44341 (CA). It follows from these authorities that the correct approach in a matter for enforcement of fundamental rights is an examination of the process. Where as in the instant case the process filed is not strictly fundamental rights as dispensed by Chapter IV of the Constitution then the matter cannot competently be so brought.
I agree with my learned brother therefore that the issue of fundamental right in this appeal at best is only ancillary or incidental. This meant that the matter was not properly brought under the Enforcement Procedure Rules. This is more so as the enforcement of rights per se cannot resolve the substantive claim therein which bothers on trespass and possession or ownership.
For the fuller reasons given in the lead judgment I also allow this appeal. I abide with all the consequential orders made therein.
Appearances:
O. S. Adedeko, Esq.For Appellant(s)
L. K. Dare, Esq.For Respondent(s)
