HON. CHISOM HENRY NWANMUO v. PASTOR BEN CHRIS KELECHI & ORS
(2018)LCN/11848(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/OW/166/2016
RATIO
FUNDAMENTAL RIGHT: ENFORCEMENT OF FUNDAMENTAL RIGHT
“The law is settled on the ambit of an application for enforcement of fundamental right under the Fundamental Right (Enforcement Procedure) Rules of 2009.
In F.R.N. & AMOR v. IFEGWU (2003) 15 NWLR PT. 842 p. 113, Uwaifo JSC explained the position of the law thus: ”for a claim to qualify as falling under Fundamental Rights it must be clear that the principal relief is for the enforcement of a fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of a fundamental right. In other words where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as are for the enforcement of a fundamental right. See TUKUR V GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT. 510) 549, SEA TRUCKS (NIG.) LTD V ANIGBORO (2001) 2 NWLR (PT. 696) 159 (2001) 1 S.C. (PT. 1) 45.”” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
HON. CHISOM HENRY NWANMUO Appellant(s)
AND
1. PASTOR BEN CHRIS KELECHI
2. THE A. I. G. ZONE 9 UMUAHIA
3. ASP EMMANUEL NWAMBU
4. INSPECTOR ASURWO OKO
5. THE COMMISSIONER OF POLICE ABIA STATE
6. THE INSPECTOR GENERAL OF POLICE Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):
This is the Judgment in respect of the appeal filed by the appellant who was the 1st respondent at the lower Court against the decision of Abia State High Court sitting at Osisioma.
It is in respect of an application for an order for enforcement of Fundamental Right under Section 46 (1) & (2) of the Constitution of the Federal Republic of Nigeria (as amended and Order II Rules 1- 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009.
The applicant prayed at the lower Court as follows:
”For an order for the enforcement of Applicant praying this Honourable Court for an order for the enforcement of his Fundamental Rights to dignity of his human person, personal liberty, freedom of movement, thought, freedom of Assembly and association, and right to acquire and own property as guaranteed under Sections 34,35,38,40,41 and 44 of the Constitution of the Federal Republic of Nigeria and under Articles 4-12 respectively of the African Charter on Human and Peoples Right Act CAP 49 (LFN) in terms of the reliefs sought in the statement in support of this application and the supporting affidavit.”
On being served with necessary Court processes the 1st Respondent reacted by swearing to counter-affidavits to oppose the application.
After hearing the parties, the Court gave judgment inter alia as follows:
”The only issue that calls for consideration is the retention of the ACURA MDX JEEP by the police. The 1st respondent claims it is the applicant who abandoned it at the police and the police intend to use it for the Magistrate Court case against the applicant.
The applicant has relied on Section 44 of the 1999 Constitution. That Section deals with compulsory acquisition of a person?s property. That is not the case here.
Moreover Section 44 (2) (K) permits the temporary taking of possession of property for the purpose of any examination, investigation or enquiry. That appears to be the case here.
However, I am aware that as the applicant stated, the Vehicle is capable of deterioration in the Police Station. I shall invoke Preamble 3 (c) to the Fundamental Rights (Enforcement Procedure) Rules 2009 to save the situation.
The said Provision reads:
(c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedom, the Court may make consequential orders as may be just and expedient.
Consequently it is hereby ordered that the ACURA MDX JEEP with Chasis No.2 HNYD186254537259 and Registration No. KKE 232 AA be released to the applicant forthwith.
Dissatisfied with the above decision the appellant challenged it via his Notice of Appeal containing two grounds of appeal which read thus:
GROUNDS OF APPEAL 1
The learned trial Judge erred in law and misdirected himself when he held that even though the ACURA MDX JEEP was not an issue before him, he can make consequential orders over it.
PARTICULARS OF ERROR
There was no evidence before the Court to show that the ACCURA MDX JEEP ordered to be released by the Court is in dispute warranting the Court to make a consequential order as what is before the Court is a fundamental right application dealing on an alleged infringement of the 1st Respondents rights.
GROUND OF APPEAL 2
The learned trial judge erred in law when he refused to hold that an action for recovery of vehicle allegedly sized by the police or held as an Exhibit in a criminal charge before the magistrate Court cannot be recovered through an action under the fundamental right enforcement procedure 2009 as argued by the Appellant.
PARTICULARS OF ERROR
The Appellant argued in his counter Affidavit and written submission before the Court of first instance that the said ACCURA MDX JEEP which was never the subject matter of the Applicants Application is an exhibit before the Chief Magistrate Court 1 Osisioma in Abia State and assuming without conceding it is sized by the 2nd to 6th Respondent, cannot only be recovered through an action in detinue and not fundamental right.
After transmission of record of appeal the appellant through his counsel filed Appellants brief of argument on 21/7/2016. The Respondents failed to file their respective briefs of argument despite having been served with relevant court processes.
APPELLANTS BRIEF OF ARGUMENT
Appellant’s Brief of Argument was filed on 21/07/2016. It was settled by his Counsel K. C. OKORO Esq.
Learned Counsel to the appellant donated two (2) issues for determination, to wit:
(1) Whether the trial Court was right when it held that it can make a consequential order over a subject matter it admitted was never an issue before the Court.
(2) Whether the trial Court was right when it held that an action for recovery of a vehicle allegedly seized by the police can be recovered through an action under the Fundamental Right Enforcement procedure Rules and not detinue.
ISSSUE NO: ONE
Whether the trial Court was right when it held and it can make a consequential order over a subject matter it admitted was never an issue before the Court.
Learned Counsel to the appellant submitted that a consequential order or orders of the Court became a nullity when the trial Court had admitted that the arm of law under which the applicants application was brought could not stand and that the law was trite that one could not place something on nothing and expected it to stand; it would definitely fail (see pages 76-82 of the record of appeal).
He submitted that a consequential order was an order which gave effect to a judgment or order to which it was consequential and the order must flow from the judgment of the Court which was never the case in this appeal and that the trial Court did not have the legal basis or framework for the said order made having established so by itself. In fact, it had been proved and shown that the subject matter upon which the ACCURA MDX JEEP with Chassis No. 2HNYD186254537259 and Registration No. KKE 232 AA was already an Exhibit before the Chief Magistrate Court against the 1st Respondent in the appeal, same having been converted fraudulently by him in his personal name and ownership.
Learned Counsel to the appellant submitted that a consequential order of the trial Court could not stand when it was established that the application of the 1st Respondent was dismissed in its entirety and that the law was settled that where the Court refused the primary or principal order sought, then an incidental order made could not stand because there would be no principal order which such incidental order could lean on. He relied on the case of ATOYEBI V BELLO SUIT NO. CA/L/270/91 also cited in (1997) 11 NWLR (PT. 528) AT 274 AKAPO V HAKEEM-HABEEB (1992) 6 NWLR (PT. 247) AT 266 (see 76-82 of the record).
He further submitted that when the claim of the claimant failed, the consequential orders made by the trial Court would amount to the trial Court approbating and reprobating at the same time since the trial Court admitted that the right contained under Section 44 of the 1999 Constitution as amended the basis for the applicants application argued by them at the trial Court could not stand as it related to the vehicle (ACCRA MDX JEEP). He relied on the case of AWONIYI V ROSICRUCIAN ORDER (2000) 2 NWLR (pt 676), (2000) 6 S.C. (pt. 1) @ 116.
Learned counsel to the appellant submitted that what was placed before the trial Court was a case of an infringement of the fundamental rights of the applicant now 1st respondent as it related his alleged arrest/detention and harassment which the Court had dismissed and nothing more and the ACCURA MDX JEEP was a vehicle the appellant bought for his former Church the Jerusalem All Nations Church where the 1st Respondent in this appeal was pastoring before he left with the instruction that the 1st respondent should go and take delivery of the vehicle and register same in the name of the Church for which it was bought and nothing more.
He contended that the 1st respondent in this appeal converted the vehicle to his personal use after he took delivery of the car and registered same on his personal name instead of the church, that there could never be two owners to a vehicle and the fraudulent conversion of the vehicle necessitated a criminal charge against the applicant (the 1st respondent in this appeal) (see pages 28-34 of the record of the appeal).
Learned Counsel to the appellant submitted that the consequential order of the trial Court releasing the vehicle should not stand as there were serious competing interest on it and that when the Exhibit was released to the 1st respondent the Chief Magistrate Court where he was standing trial for fraudulent conviction of the appellant property in the ACCRA MDX JEEP, the Court at the Magistrate Court level would be left with nothing to adjudicate on in respect of the charge before it and against the 1st Respondent. He relied on the cases of BOYO V AG. WESTERN STATE (1971) 1 ALL NLR 342, OBAYAGBONA V OBAZEE (1972) 5 S.C. 247.
Learned Counsel to the appellant submitted that assuming the trial Court considered the vandalization of the said vehicle at the police station the proper order would have been to order that the vehicle be moved and placed in a custody of the Chief Magistrate Court Abayi for safe keeping and not otherwise. That the preamble 3 (c) to the Fundamental Right (Enforcement Procedure) invoked by the Court in making his consequential order was only but an introduction to the Fundamental Right Enforcement Procedure Rules and not part of the Rules and as such did not apply on the circumstance.
Learned Counsel to the appellant urged this Court to resolve this issue in favour of the appellant.
ISSUE NO. TWO (2)
Whether the trial Court was right when it held that an action for recovery of a vehicle allegedly seized by the police can be recovered through an action under the Fundamental Right Enforcement Procedure order and not detinue.
Learned Counsel to the appellant submitted that the action was not commenced or initiated at the trial Court by due process of law as such not competent in law in that the right to property under Section 44 of the 1999 Constitution as amended was not obtainable in an application for the enforcement of Fundamental Right but through an action in detinue which was in tort and should have been initiated by a writ of summons. He relied on the case of ADAKU EKENULO (MISS) & ANOR V INSPECTOR GENERAL OF POLICE & 2 ORS. SUIT NO FHC/OW/CS/124/06 UNREPORTED.
He contended that detinue was a claim for the specific return, delivery or surrender of a chattel to the plaintiff who was entitled to it, that to successfully, sue in detinue a plaintiff must have possession before the detention or have the right to immediate possession of the property, which was not the case in the present case and that a tort of detinue on the wrongful detention of the chattel/property of another person, the immediate possession of which the person was entitled to. He relied on the case of NZE BENARD CHIGBU V TONIMAS NIG. LTD. & ANOR S.C. 129/202 DELIVERED ON THE 13/5/2011.
Learned Counsel to the appellant submitted that, assuming the ACCURA MDX JEEP which seized by police, and a formal request has been made and the police referred to release same being an Exhibit, the proper action would have been one properly commenced with a writ of summons in tort on detinue and not under Section 44 of the Constitution of the Federal Republic of Nigeria as amended and includes the Fundamental Right enforcement procedure. He relied on the case of KOSILE V FOLARIN (1989) 3 NWLR PT. 107, 1 S.C; IHEANACHO V UZOCHUKWU (1997) 2 NWLR PT. 487 pg, 257 (see also Order 3 Rule 1 of the Abia State High Court (Civil Procedure) Rules 2014.
Learned Counsel to the appellant submitted that jurisdiction of the Court was determined by the reliefs sought by the claimant or applicant. He relied on the cases of AG. ANAMBRA STATE V AG. FEDERATION (1993) 6 NWLR PT 302 PG. 692; OLISA AGBAKOBA V DIRECTOR OF S.S.S. (1994) 6 NWLR (PT. 351) 474.
He further submitted that from the application of the 1st respondent and his supporting Affidavit, he alleged a total detention or seizure of his vehicle amongst other things necessitating his action in Court and that the police had refused to release the vehicle which was not a case of a breach of his Fundamental Right under Section 44 of the 1999 Constitution as amended. He relied on the cases of ADAKU EKENULO (MISS) & ANOR V INSPECTOR GENERAL OF POLICE & ORS. (SUPRA); STEPHEN NWEZE V CHIMEZIE EZEKEKE & 4 ORS IN SUIT NO. FHC/OW/34/2012 UNREPORTED DELIVERED ON THE 14TH DAY OF MARCH, 2014; WEST AFRICA EXAMINATION COUNCIL V KOROYE (1977) 2 S.C. 45, AJIKAWO V ANSALDO NIG. LTD (1991) 2 NWLR PT 173 PG 359 CA, KALU V MBUKO (1988) 3 NWLR PT 80 PG 88, to D.E.N.R. LTD V TRANS INTEL BANK LTD (2008) 18 NWLR PT 1119 388.
Learned Counsel to the appellant finally submitted on this issue that the Suit at the Trial Court was void ab initio and should not have been entertained by the Court as canvassed by the 1st Respondent, the appellant in this appeal at the trial Court.
Learned Counsel to the appellant urged this Court to resolve this issue in favour of the appellant against the respondent and accordingly allow this appeal as being meritonous.
RESOLUTION OF ISSUES
Learned appellants counsel donated two issues for determination to wit:
1) Whether the trial Court was right when it held that it can make a consequential order over a subject matter it admitted was never an issue before the Court.
2) Whether the trial Court was right when it held that an action for recovery of a vehicle allegedly sized by the Police can be recovered through an action under the fundamental Right Enforcement Procedure Rules and not detinue.
I shall reframe the two issues and merge them into one sole wider issue for the determination of this appeal.
The sole issue is:
Whether the trial Court was right to have made any consequential order in the circumstances of this case.
The law is settled on the ambit of an application for enforcement of fundamental right under the Fundamental Right (Enforcement Procedure) Rules of 2009.
In F.R.N. & AMOR v. IFEGWU (2003) 15 NWLR PT. 842 p. 113, Uwaifo JSC explained the position of the law thus: ”for a claim to qualify as falling under Fundamental Rights it must be clear that the principal relief is for the enforcement of a fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of a fundamental right. In other words where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as are for the enforcement of a fundamental right. See TUKUR V GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT. 510) 549, SEA TRUCKS (NIG.) LTD V ANIGBORO (2001) 2 NWLR (PT. 696) 159 (2001) 1 S.C. (PT. 1) 45.”
In a later case, AKINTAN J.S.C in W.A.E.C. V ADEYANJU (2008) 9 NWLR (PT. 1092) 270, put the position of the law this way:
”The position of the law is that the procedure for instituting an action based on the infringement of a fundamental right, under the Constitution is prescribed by the Fundamental Rights (Enforcement Procedure) Rules 1979. Only a breach of any of the Fundamental Rights guaranteed in the Constitution can be enforced under the procedure. Thus an action for wrongful dismissal from employment cannot be brought under the Rules since it belongs to a different class of action from action on contravention or threatened contravention of a Fundamental Right. See EGBUONU V B.R.T.C. (1997) 12 NWLR (PT. 531) 29; TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 and TUKUR V GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT. 510) 549, Where therefore an application is brought under the rules a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of Fundamental Right or the securing of the enforcement thereof should be the main claim and not an accessory claim. See TUKUR V GOVERNMENT OF TARABA STATE (Supra) and B.R.T.C. V EGBUONU (Supra).”
Again, TABAI JSC in W.A.E.C. V AKINKUNMI (2008) 9 NWLR (PT. 1091) 151 had this to say: ”The settled principle is that in ascertaining the justice ability or competence of a suit commenced by way of an application under the Fundamental Rights (Enforcement Procedure) Rules 1979 the Court must ensure that the enforcement of the Fundamental Rights is the main claim and not the ancillary claim. Where the main or principal claim is not the enforcement of a fundamental right the jurisdiction of the Court cannot be said to be properly invoked and the action will be liable to struck out for incompetence.”
I shall view and resolve this issue in the light of the above. The main claim of the applicant is for the release of Accura Jeep by the police. The jeep is in the custody of police in connection with a criminal case at the magistrate’s Court. Application for the release of items in police custody are normally brought under the provision of the Police Act and Criminal Procedure Act. The main claim is the subject-matter of a criminal matter in a Magistrates Court. It is not even that straight forward. The ownership of the vehicle in question is also being disputed by the appellant and 1st Respondent (See the various affidavit sworn to by the parties at the lower Court).
Paragraphs 20-24 of applicants affidavit reads:
20. That despite all these explanations made by me and the elders of the Church who came to the police station, the 1st and 4th respondents insisted that I must bring my vehicle to the police station as a condition for my release on police bail.
21. That I promptly went with the 1st and 4th respondents to my house and they took the said car to the Area Command Aba under the custody of the 4th Respondent, with the 1st respondent insisting that the said car must not be released to me until I am ready to obey him.
22. That it took the intervention of my counsel before I was released on bail while the 1st and 4th respondents refused to release my said car which they impounded on that 17th day of August 2015 and has now taken the same car to Zone 9 Umuahia without just cause.
23. That the respondents have refused and/or neglected to release the said vehicle despite being aware that I have not committed any offence and that my said car has nothing to do with the frivolous petition written against me by the 1st respondent.
24. That when I went to the police station on the 19th day of August 2015 to collect the said car as the police directed I was told by the 4th respondent that he cannot release the said car to me as the 1st respondent has written another petition on the same matter to the office of the 2nd respondent at Zone 9 Umuahia.
Paragraphs 6-10 of the Counter – Affidavit of the 1st Respondent (now appellant) reads:
6. That sometime in the month of August 2014. I gave the sum of 3.6 million Naira to the applicant in this application (A pastor) Mr. Ben-Chris Kelechi to buy a plot of land and a jeep for my proposed Christian Ministry called Restoration of Christ Gospel Ministry.
7. That the ACCURA MDX JEEP I bought for the CHURCH (JERUSALEM ALL NATIONS CHURCH) which the applicant was pastoring before he came into Restoration of Christ Gospel Ministry which I built single handedly for ministry purposes.
8. That before releasing the aforementioned money to the Applicant we had and understanding/agreement that all the money I am sending to him for the acquisition of both the church landed property, the car, and other properties of the church must be used for that specific purpose and those properties registered in the church name and not a personal name while he manages the church as my overseer.
9. That because of the trust I have on the Applicant as a man of God, I did not boarder to follow him and ensure that our understanding is followed as agreed.
10. That I only found out to my surprise on the 9th day of August 2015 that the Applicant had converted the money by using it to buy land for himself and a jeep and registered all in his personal name and not that of the Church. A photocopy of the statement to the police of MR. IGONI SAMUEL, a manager of NUA NIGERIA LIMITED, the company that sold the ACCURA MDX JEEP to me is hereto attached and marked EXHIBIT A.
Clearly in my respectfully view, the main claim in the action is not on enforcement of fundamental right. It is therefore not within the jurisdiction of the lower court to make the consequential order it made in a suit that was not properly before it. See WAEC V AKINKUNMI (Supra). The action at the lower Court should have been struck out.
I therefore resolve the sole issue as formulated by me in favour of the appellant.
This appeal has merit. It is hereby allowed. I hereby set aside the judgment and consequential orders made by the lower court in suit No. HOS/17M/2015 between Pastor Ben-Chris Kelechi V Hon. Chisom Nwanmuo Henry and Ors. delivered on 6/4/2016. In its place, I hereby order the striking out of the application of the applicant at the lower court.
Parties are to bear their respective costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, T.O. Awotoye, JCA, in the lead Judgment, just delivered, that the Appeal is meritorious.
I too, allow it and abide by the consequential orders in the lead judgment.
Appearances:
K. C. OKORO, ESQ.For Appellant(s)
For Respondent(s)
