REV. IKENDI GEORGE & ORS v. APOSTLE CHIEF DANIEL C. ANUCHA (2016)

REV. IKENDI GEORGE & ORS v. APOSTLE CHIEF DANIEL C. ANUCHA

(2016)LCN/8513(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of April, 2016

CA/OW/180/2010

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHERE SHOULD ISSUES FOR DETERMINATION BE DERIVED FROM
It has been stated and restated over and over again that the issues raised for determination of an appeal must emanate or flow from the grounds of appeal filed. Where a matter argued in an issue is not covered by any ground of appeal such an issue and argument in respect thereof will be ignored and struck out. See:
(1) GOKE OLAOLU V. FRN (2016) 3 NWLR (PART 1498) 133 AT 157 B – C PER GALADIMA, JSC.
(2) OZURUMBA NSIRIM V. DR SAMUEL W. AMADI (2016) 5 NWLR (PART 1504) 42 AT 60 WHERE ONNOGHEN, JSC said:
It is settled that issues in the appeal can only validly arise from grounds of appeal or cross appeal and that where an issue or issues for determination does/do not arise from grounds of appeal such an issue(s) is/are incompetent and liable to be struck out.
On page 62 B of the report NGWUTA JSC also said:
It is the Appellant, the aggrieved party, who appeals the judgment against him. The ground of appeal is on the ratio decidendi of the judgment appealed against and the issues to be determined must flow from the grounds of appeal…..” PER PETER OLABISI IGE, J.C.A.
EVIDENCE: AFFIDAVIT EVIDENCE; SITUATION WHERE THE COURT WILL NOT USE ORAL EVIDENCE TO RESOLVE CONFLICT IN AFFIDAVIT EVIDENCE
It is true that where there is direct conflict in affidavits of parties on crucial and material facts before a trial Court it is expedient to hear oral evidence from the deponents or witnesses to resolve the conflicts. See FALOBI VS FALOBI (1976) 9 10 SC 1 at 13 14.
However where there are documents annexed or exhibited to one or more Affidavits evidence before the Court the Court is entitled to make use of such documents to resolve material conflicts in the Affidavits evidence before it instead of calling for oral evidence.
See B. V. MAGNUSSON VS K. KOIKI & ORS (1991) 4 NWLR (PART 183) 199 at 129 D-E per NIKI TOBI JSC who said: –
In this application, there are conflicting affidavits evidence which this Court and indeed any other Court for that matter is not competent to resolve suo motu. See PHARMACISTS BOARD VS ADEBESIN (1976) 55C 43, FALOBI VS FALOBI (1976) 9-10 SC 1, EBOH VS OKI (1974) 1 SC 179, UKU VS OKUMAGBA (1974) 3 SC. 35. I will not make any effort to resolve the conflicting affidavit evidence as that is a futile exercise. But all I should do is to use the documentary evidence outside the depositions in the Affidavit and come to a conclusion one way or the other as to the true position. The law does not require the calling of oral evidence to resolve conflicting affidavit evidence if there is sufficient documentary evidence to resolve the conflict.
In the case of LAFIA LOCAL GOVERNMENT VS THE EXECUTIVE GOV. NASARAWA STATE & ORS (2012) 17 NWLR (PART 1328) 94 at 129 F-G The Supreme Court per RHODES VIVOUR, JSC said: –
Even if there are conflicts in affidavit but there are authentic documentary evidence supporting one of the affidavits in conflict with the other the trial Court ought to examine it before applying it in coming to a fair decision. See NWOSU VS IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PART 1990) 2 NWLR (PART 135 p 688; CHAIRMAN NPC VS CHAIRMAN, IKERE LOCAL GOVERNMENT (2001) 13 NWLR (PT 370) p. 540.
Another corollary to that is that where the alleged conflicts in the Affidavit before the Court are not material to the case before the Court or are not germane to the real issue in contest before the Court the need to call oral evidence is thereby obviated or dispensed with.
See LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION VS ADOLD STAMM INTERNATIONAL NIGERIA LTD & ANOR (2005) 2. NWLR (PART 910) 603 AT 616 G-H to 617 A-F where Akintan, JSC held thus: –
The question to be resolved in the appellants first issues is whether there are conflicts in the affidavits filed by the parties. The two affidavits are already reproduced earlier above. The sum total of the appellants case as set out in the affidavit filed by it was that there was no need for a new interest to be determined outside the one awarded earlier by Desalu, J. on the other hand, the respondent sought the assistance of Afribank, a commercial bank, on the rate of interest payable on the judgment debt had the sum been placed in a fixed deposit in a commercial bank within the time specified in the request made to the bank. The reply from the bank was exhibited as an annexure to the affidavit filed by the respondent. The second document also produced by the respondent is another calculation made by a Chartered Accountant but based on the same principle adopted by the bank and it was aimed at covering the period not covered by the calculation made by the bank. This was the document later produced in Court. But it was also exhibited with the respondents motion as Exhibit 2. The question in this case therefore is whether one can say that the contents of the two affidavits filed by the parties can be said to be conflicting. In deciding whether or not the contents of the two documents are conflicting, one must look at the issue in controversy in the particular case before the Court. This is because where, for example, the conflicts in affidavits are not material to the case before the Court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the Court, the need to call oral evidence to resolve the conflicts would not arise. See Falobi Vs Falobi (1976) 9 – 10 sc 1; Okupe Vs F. B. I. R. (1974) All NLR 314 (Reprint); Garba Vs University of Maiduguri (1986) 1 NWLR (pt. 18) 550; and L.S.D.P.C. VS Adold/Stamm Int. Ltd. (1994) 7 NWLR (PT. 358) 545. As already shown above, while the facts set out in the respondents affidavit relate to the interest due on the judgment debt which was what the Supreme Court directed Ilori, J. should determine, the appellant on the other hand, did not controvert or challenge the accuracy or otherwise any of the figures put forward in the affidavit filed by the respondent. Instead, it was claiming that there was no need for the appellant to pay any other interest other than the one based on the judgment of Desalu, J. It is therefore correct to say that there was infact no conflict in the affidavit evidence placed before the trial Court since the allege conflict are infact not relevant to the case of before the Court. There is therefore no merit in the appeal as it relates to that issue. PER PETER OLABISI IGE, J.C.A.
APPEAL: ATTITUDE OF APPELLATE COURT IN RESPECT OF EVALUATION OF EVIDENCE OF THE TRIAL COURT
The trial Court properly evaluated the Affidavit evidence before him and came to the right conclusion in his judgment. An appellate Court will not interfere with evaluation of evidence before the trial Court where the judgment discloses that the trial Court has dutifully performed its function of assessment and evaluation of evidence before it even where the case is fought on Affidavit evidence.
See: MICHAEL AIYEOLA VS. RAMOTA YEKINI PEDRO (2014) 12 SCM 71 at 94 A – C per PETER ODILI JSC who said:
“The attitude of the Court of Appeal or the Supreme Court as the case may be, in respect of evaluation of evidence of a trial Court is that in deciding whether or not a trial Court properly evaluated the evidence, the essential focus should be on whether the trial Court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines this. Thus, so long as a trial Court does not arrive at his judgment merely by considering the case of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Ajibulu v. Ajayi (2004) 11 NWLR (Pt. 885) 458; Woluchem v. Gudi (1981) 5 SC 291. PER PETER OLABISI IGE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. REV. IKENDI GEORGE
2. ELDER DAVID IHEMANMA
3. CHIDI NWOHA
(For themselves and on behalf of the committee overseeing the affairs of Ocheala Mbutu Autuonomous Community by whatever name called)
4. UCHECHUKWU HERBERT
5. CHIOMAOBI ALISON
6. CHIMEZIE MADUFORO Appellant(s)

AND

APOSTLE CHIEF DANIEL C. ANUCHA Respondent(s)

PETER OLABISI IGE, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the judgment of Abia State High Court delivered by the Honourable Justice C. I. Jombo ? Ofo now (JCA) on the 11th day of February, 2010.

What culminated into this appeal is the Application for the enforcement of fundament rights initiated by the Respondent against the Appellants vide a motion ex?parte for leave to enforce his fundamental rights filed on 1st day of August 2007.

The reliefs sought in the said application as could be gathered from the statement accompanying the application for leave are listed as follows:
2. RELIEFS SOUGHT:
a. A declaration, that the purported exclusion of the applicant from the exercise of his fundamental right of freedom of association with fellow mankind, including his kiths and kin from Umuocheala Ocheala Mbutu Autonomous Community, on the purported allegation, that he was mentioned as a witch or wizard is unlawful, unconstitutional and therefore, null and void.
b. A declaration, that the purported banishment for twenty (20) years of the applicant from his Umuocheala, Ocheala

Mbutu Autonomous Community, Isiala Ngwa South Local Government Area, purportedly, on the unproved and unverifiable claim that he is a witch amounts to an infringement, and or violation of his fundamental right to freedom of Association, and is therefore unlawful, unconstitutional, null and void.
c. A declaration, that the purported banishment of the applicant, from his Umuocheala, Ocheala Mbutu Autonomous Community, on the purported claim, that he was mentioned by one Uchenna Enemanna Orji (?Aka UTU?) as a witch, without affording him the opportunity of confronting this accuser, (i.e) Utu, amounts to an infringement, violation of his fundamental rights to fair hearing guaranteed by the Constitution of the Federal Republic of Nigeria 1999, and is therefore, null and void.
d. A declaration that, spraying the entire body of the applicant with fluid from burning plastics, rendering the applicant completely naked, hanging, fresh and or tender palm fronds on the neck and waist of the applicant, and parading him through, Umuocheala village, to Owerinta, forcing him to drink a mixture of menstrual blood, urine and faeces, on the purported and

unverifiable claim that he is a witch, amounts to torture, inhuman and degrading treatment.
e. An order setting aside the purported banishment of the applicant.
f. Exemplary damages, against the Respondents, jointly and severally, assessed at one million (N1,000,000,000) for the unwarranted infringement and violation of the applicant?s fundamental rights.

The facts upon which the application is predicated are stated thus:
?(a) The applicant is entitled to the full enjoyment of all the fundamental rights guaranteed to him by the Constitution of the Federal Republic of Nigeria, 1999 except in so far as the Constitution itself provides for its derogation.
(b) The circumstances by and under which the applicant?s Fundamental Rights were derogated from were not cognizable, under the Constitution neither were such to be reasonably contemplated and are therefore null, void and of no effect whatsoever.?

The facts relied upon for the aforesaid reliefs were stated and contained in the Statement. A verifying affidavit was also filed in support.

On 25th day of October, 2007 the Respondent was granted leave by the

said Court to bring a formal application to enforce his Fundamental Rights allegedly infringed by the Appellants. The return date was fixed for 8th day of November, 2007

Pursuant to the said leave the Respondent filed a motion on Notice dated 1st day of November, 2007 on 8th day November, 2007 praying for the enforcement of Respondents Fundamental Rights in terms of the reliefs set out in paragraph 2 of the statutory statement annexed to the application by the Respondent. What the Respondent filed was a wholesome replication of the processes used for obtaining the leave to enforce the alleged fundamental rights that were breached by Appellants.

The Appellants were later served the Respondents Court processes via substituted means. Thereafter and precisely on 25th day of November, 2008 the Appellants filed counter affidavit against the Respondents application containing twenty seven (27) paragraphs.

The matter proceeded to hearing after the exchange of written addresses by the Learned Counsel to the parties. After the adoption of the said addresses the Learned Trial Judge delivered a considered judgment on the matter on the 11th day of February,

2010 wherein he held as follows: –
?I am of considered view that the applicant has established his case against the Respondents. It is in the light of this that the Court shall make the following declarations:
a. That the purported exclusion of the applicant from the exercise of this fundamental right of association with fellow citizens including his kith and kin from Umuocheala Ocheala Mbutu Autonomous Community on the purported allegation that he was mentioned as a witch or wizard is unlawful, unconstitutional and therefore null and void.
b. That the purported banishment for twenty (20) years of the applicant from his Umuocheala, Ocheala Mbutu Autonomous Community on the purported allegation that he is a witch amounts to a violation of his fundamental right to freedom of association and is therefore unlawful unconstitutional null and void.
c. The purported banishment of the applicant from his Umuocheala, Ocheala Mbutu Autonomous Community on the purported claim that he was mentioned by Uchenna Enemanna Orji (Aka UTU) as a witch, without affording him the opportunity of confronting his accuser, that is ?UTU? amounts to

an infringement of his Fundamental Right to fair hearing guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 and is therefore null and void.
d. That the spraying of the applicant?s entire body with incinerating plastics, rendering the applicant naked, hanging fresh palm fronds on the neck and waist of the applicant and parading him through Umuocheala village to Owerrinta and forcing him to drink a mixture of menstrual blood, urine and faeces on the purported claim that he is a witch, amounts to torture, inhuman and degrading treatment.
e. The purported banishment of the applicant from his Umuocheala, Ocheala Mbutu Autonomous Community is hereby set aside.
f. An award of N300,000 (three hundred thousand naira) is herein made against the respondents jointly and severally being exemplary damages for the unjustified infringement and or violation of the applicant?s fundamental rights.
Finally, regarding the consequential relief of perpetual injunction which the applicant had requested for in their written submission to the Court I shall refrain from making such a consequential order. It is therefore not granted.

Albeit the motion is granted as afore stated.
Counsel of applicant is asking for cost of N50,000 against the respondents. Cost of N10,000 awarded against the respondents jointly and severally.

Aggrieved by the above findings of the Court below the Appellants filed Notice and Grounds of Appeal dated 18th day of February, 2010 on 22nd day of February, 2010 against the judgment of the trial Court containing four (4) grounds of appeal which read thus:
?3. GROUNDS OF APPEAL
GROUND ONE
The judgment is against the weight of evidence
GROUND TWO
ERROR IN LAW
The Learned Trial Judge erred in law by denying the Appellants of a fair hearing which occasioned a miscarriage of justice against the Appellants.
PARTICULARS OF ERROR
1. The Appellants in their written address strenuously argued that the motion on notice for the enforcement of fundamental rights was incompetent.
2. The Learned Trial Judge failed to make pronouncement on the issue of the competence of the motion in the judgment.
GROUND 3
ERROR IN LAW
The Learned Trial Judge erred in law by entering judgment for the Application on the

strength of the facts presented by him despite the fact that the affidavit evidence of the parties to the case were in unresolved conflict which occasioned a miscarriage of justice against the Appellants.
PARTICULARS OF ERROR
1. The facts presented by the Applicant were denied by the Respondent in their counter affidavit.
2. The conflicts in the affidavit evidence presented before the trial court were not resolved in any way whatsoever.
3. Despite the conflict in affidavit evidence, the trial Court did not call oral evidence to resolve same.
4. The trial Court merely accepted the facts presented by the Applicant as verified ? his affidavit and gave him judgment which occasioned a miscarriage of justice against the Appellants.
GROUNDS FOUR
ERROR IN LAW
The trial Court erred in law by exercising jurisdiction to hear the motion that was incompetent when the Court was not competent to do so.
PARTICULARS OF ERROR
1. Leave to enforce the Applicants fundamental rights was granted on the 29th day of October, 2007.
2. The verifying affidavit used by the Applicant in support of the motion on notice was sworn

to on the 8th day of November, 2007, that is 10 (ten) days after leave was granted the Applicant.
3. The verifying affidavit that was used by the Applicant to obtain leave was never used to support or argue the motion on notice.
4. The verifying affidavit used by the Applicant to obtain leave was never served on the Appellants (Respondents at the) Lower Court.
5. It is the same verifying affidavit that is used to obtain leave that is also used to support and argue the motion on notice.
6. The foregoing fundament deficiencies were brought to the attention of the trial Court.
7. The foregoing facts notwithstanding the trial Court proceeded to assume jurisdiction to hear and determine the incompetent motion on notice.

The Appellants filed their Appellants? brief of Argument dated 7th day of May, 2012 on 8th day of May, 2012 and the Respondent?s Brief of Argument dated 23rd day of September, 2013 was filed on 3rd day of October, 2013 but deemed properly filed on 19th day of October 2015. The Appellants filed Appellants? Reply Brief dated 2nd day of November 2015 on the same date.

?The appeal was heard on the 28th

day of January, 2016 when the parties adopted their briefs of Arguments.

It is here pertinent to state that the Respondent to this appeal had by Notice of Preliminary Objection undated but filed on 24th September, 2013 pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2011 challenged the competence of the 1st, 3rd and 4th grounds of appeal of the Appellants as of mixed law and facts requiring the necessity to first seek and obtain the leave of the Court pursuant to Section 242 of the Constitution of the Federal Republic of Nigeria to render them valid. That no such leave was obtained by Appellants hence Respondent is countering that the said grounds of appeal ought to be struck out. The argument of the Respondent on his contention could be found in paragraphs 00.1 to 00.6 of the Respondents Brief.

This Court has always in line with settled principles of law taken into consideration and determine first Notice of Objection filed by a Respondent or any party to an appeal where the Notice aforesaid is capable of crippling or terminating in limine the life in the appeal. There is no doubt that this Court cannot entertain or adjudicate on

incompetent grounds of appeal. I will therefore take first the Notice of Preliminary objection in order to decipher whether it can dispose of the appeal. See (1) B.A.S.F NIGERIA LTD & ANR VS. FAITH ENTERPRISES LTD (2010) 1 SCM 4 AT 52 D ? E PER COOMASSIE JSC.
(2) OWELLE ROCHAS OKOROCHA VS. PDP & ORS (2014) 1 SCM 16 AT 185 PER OGUNBIYI, JSC AND
(3) CHIEF U. M. EFET VS. INEC & ORS (2011) 3 SCM 63 AT 76 ? 77A PER D. T. MUHAMMED. JSC 1.

The Respondent submitted that where ground of Appeal is centred on disputed facts, no matter how it is couched, it is a ground of mixed law and fact. That grounds 1 and 2 challenged the evidence adduced at the Court below by the parties while ground 3 is based on disputed facts. He placed reliance on the case of ATAGO VS. NWUCHE & ORS (2013) 19 WRN 27 AT 37, that ground 4 of the appeal also disputes verifying affidavit and the statement filed in support of the motion filed by the Respondent at the Lower Court. He relied on the cases of:
1. CALABAR CENTRAL COOPERATIVE, THRIFT AND CREDIT SOCIETY LTD & 2 ORS VS BASSEY EBONG EKPO (2008) 33 NSCQR (PT II) 1146 AT 1200 ? 1202.

2. DAIRO V. UBN PLC & ANOR (2007) 31 NSCQLR P. 475 AT 501 ? 502.
3. UGBOAJA VS. SOWEMIMO & 3 ORS (2008) 35 NSCQR 382 AT 398 ? 399.

Respondent urged the Court to strike out the grounds of appeal and dismiss the entire appeal.

The Appellants responded to the Preliminary Objection in their aforesaid Reply Brief wherein they submitted that there is no need to seek and obtain leave to appeal, where as in this case the record of appeal, pages 3 ? 46 thereof disclosed that the proceedings leading to this appeal were based on questions as to whether any provisions of chapter of the Constitution has been contravened in relation to the Respondent, that the Abia State High Court decision is a final decision of a Court of first instance. The Appellants relied on Section 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999. That the appeal herein does not fall within Section 242(1) of the aforesaid Constitution. The Appellants also placed reliance on the cases of:
1. INDEPENDENT NEWSPAPERS LTD V. IDIONG (2012) ALL FWLR (PART 647) 677 AT 688 ? 689 D ? A PER AKAAHS JCA NOW JSC.
2. OKOYEKWU V.

OKOYE (2009) 6 NWLR (PART 1137) 350 AT 386.

They urged the Court to dismiss the objection.

I am in full agreement with the Appellants that they do not require leave before they can appeal against the final judgment of the High Court of Abia State whether on ground of law or mixed law and facts. The reason is not farfetched. This is discernible from Section 241 (1) (d) of the Constitution of the Federal Republic of Nigeria 1999 as amended which provides:
?241(1) (d) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases ?
(a)
(b)
(c)
(d) decisions in any civil or criminal proceedings or questions as to whether any of the provisions of chapter IV of this

Constitution has been, is being or is likely to be, contravened in relation to any person;?

Thus the Preliminary Objection of the Respondent against the Appellant?s appeal is unfounded. The Appellants appeal is competent.

Now to the merit of the appeal.

The Appellants formulated two issues for the determination of the appeal herein viz:
1. Whether there was a competent motion on Notice for the enforcement of the Respondent?s fundamental rights before the Lower Court. (Ground 4 of the appeal).
2. Whether the Learned Trial Judge was right in entering judgment for the Respondent without resolving the conflicts in the affidavit evidence of the parties (Grounds 1 & 3).

The Respondent did not formulate contrary issues for the resolution of the appeal. The appeal will be decided on the issues formulated by the Appellants. The two issues will be taken together.
ISSUES 1 AND 2
1. Whether there was a competent motion on Notice for the enforcement of the Respondent?s fundamental rights before the Lower Court. (Ground 4).
2. Whether the Learned Trial Judge was right in entering judgment for the

Respondent without resolving the conflicts in the affidavit evidence of parties. (Grounds 1&3).

The Appellants learned Counsel A. I. Nwachukwu Esq. submitted under issue 1 that there was no competent motion on Notice for enforcement of the Respondent?s fundamental rights before the Lower Court. He submitted that the procedure for the enforcement of fundamental rights is a special one and as such an Application must strictly adhere to the provisions of Fundamental Rights (Enforcement Procedure) Rules 1979. He relied on the case of:
N.U.T VS. CONFERENCE OF SECONDARY SCHOOL TUTORS NIGERIA (2006) ALL FWLR (PART 295) 656 AT 673 A ? C and ORDER 1 RULE 2(3) AND ORDER 2 RULE 2(1) AND (2) Fundamental Rights Enforcement Procedure) Rules 1979.

That a joint reading of the said Rules makes it mandatory that the verifying affidavit to be used for the hearing of the motion on Notice must be sworn on the date the motion ex-parte is filed at Registry and must be the one for use in support of motion on Notice along with the statement used in obtaining leave ex parte. He relied on the cases of:
OGWUCHE V. MBA (1994) 4 NWLR (PT 336) 75 AT 85

? 86 H ? C PER OKEZIE JCA and
JOSEPH ALI & ORS V. DGP & ORS (2007) CHR 127 AT 145 C ? D.

That the Lower Court appreciated the position of the law on pages 90 ? 91 of the record but failed to apply the law. That this Court is in the same position as the Lower Court vide Section 15 of the Court of Appeal Act to apply the provisions of the law to the facts of this case.

That in this case on appeal the motion ex-parte for leave was filed along verifying affidavit on 1st day of August, 2007 but that the said verifying Affidavit was not attached to the motion on Notice filed on 8th day of November 2007 but instead the Respondent deposed to fresh verifying Affidavit on 8/11/2007 in violation of Order 1 Rule 2(3) and (4) and Order 2 Rule 2(1) and (2) of the Fundamental Right (Enforcement Procedure) Rules 1979. That the Respondent also failed to serve Appellants copy of the verifying Affidavit sworn to on 1/8/2007 upon which leave was granted to him to enforce his rights on 25/10/2007.

That where service of a Court process is not effected on the opposite party, it denies the Court of jurisdiction to hear the case. He

relied on the cases of:
(1) AGIP (NIG) LTD V. AGIP PETROLEUM INTERNATIONAL (2010) ALL FWLR (PT 520) 1198 AT 1227 ? 1228 F ? A PER ADEKEYE, JSC
(2) OLORUNYOLEMI VS. AKHAGBE (2010) ALL FLWR (PT 525) 246 AT 255 E ? G.

That the statement used to support the application for leave granted by Lower Court on 25/10/2007 is not the same statement attached to the motion on Notice filed on 8/11/2007. That the said statement containing the reliefs was not assessed and paid for in the motion ex-parte.

He therefore submitted that the Lower Court was neither competent to hear same nor had jurisdiction to entertain the motion on Notice relying on the case of MADUKOLU V. NKEMDILIM (1962) 1 ANLR 587 AT 595.

Under issue 2 Nwachukwu Esq. for the Appellant submitted that the Lower Court was wrong in entering judgment for the Respondent without resolving the conflicts in the Affidavit evidence of the parties. That the facts relied upon by Respondent could be found on pages 23 ? 28 of the record while the counter Affidavit of the Appellants challenging facts relied upon by Respondent could be found on pages 62 ? 64 of the

record. That the facts are in conflict and cannot be a basis for determining the merit of the case. He relied on the cases of:
1. FALOBI V. FALOBI (1976) 9 ? 10 SCNLR 389
2. FASHANU V. ADEKOYA (1974) 1 ALL NLR (PT. 1) 35.
3. GENERAL AND AVIATION SERVICES LTD V. THAHAL (2004) 10 NWLR (PT.880) 50 AT 90 B ? E.

Appellants urged the Court to resolve the issues in favour of Appellants and to allow the appeal.

Replying to the submissions by the Appellants under issue 1 the Learned Counsel to the Respondent C. O. Nwator Esq. stated that the issue 1 is no longer relevant for consideration of the appeal.

That judicial Notice must be taken that Fundamental Rights (Enforcement Procedure) Rules 2009 has abrogated the Fundamental Right (Enforcement Procedure) Rules 1979 from 1st day of December, 2009. That all the pending applications were deemed commenced under the 2009 rules relying under ORDER XV Rules 2, 3, and 4 hereof. That there is no provision for leave under 2009 Rules under which he said the judgment was delivered on 11th February, 2009.

That in matters of Fundament Rights the relevant rule is the one in operation at

the time of hearing the matter and not the one in force when the matter was instituted in Court. He relied on the case of NIGERIAN STORED PRODUCTS RESEARCH INSTITUTE & ANR VS. MATHIAS UGWU & ORS (2013) 15 WRN 49 AT 75.

That there is nothing in the Rules cited by Appellants making it mandatory that Affidavit in support of ex-parte motion for leave and verifying Affidavit in support of motion on Notice must be filed on the same date. He relied on the book written by FEMI FALANA ? Fundamental Rights Enforcement PG. 79 paragraph 3.90. That the submissions of Appellants bordered on technicality.
He relied on the cases of:
(1) NAU VS. CASMIR NWAFOR (1999) 1 NWLR (PT585) 116 AT 133.
(2) ADH LTD VS. AT LTD (2007) JMSC (PT28) 627 AT 635 ? 636
(3) ERODRIL NIG. LTD V. OFOTOKUN (2005) 16 WRN 83 AT 105 AND
(4) NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (2004) 20 WRN 94 AT 165.

That even if it is true that the statement and Affidavit in support of the application for leave are not filed on the same day the Court cannot nullify the motion on Notice unless the Appellants can show in what way they have been

disadvantaged or suffered any miscarriage of justice. Reliance was placed on ORDER IX RULE 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 according to him as any noncompliance is to be treated as a mere irregularity. That issue 1 is predicated on an interlocutory Ruling of the Lower Court pursuant to the two motions brought by the Appellants at the Lower Court namely:
(1) Motion dated 7/7/2008 filed on 8/7/2008 (pages 47 to 48) of the record.
(2) Motion dated 21/10/2008 filed on 23/10/2008 (pages 55 ? 56) of the record.

Learned Counsel to Respondent submitted that the Appellants have been shown on pages 83 of the record to have formally abandoned the said motions and the Lower Court struck them out on page 89 of the record. That the Appellants did not appeal against the order striking out the motions which he said are interlocutory applications and Rulings or decisions of the Lower Court. He urged the Court to discountenance paragraph 6.12 to 6.15 of Appellant?s Brief as those arguments cannot be accommodated under the ground of appeal to which issue 1 relates. That the argument on lack of service and fair hearing

have been abandoned by Appellants because ground two which complained of lack of service and fair hearing have been abandoned, that the arguments on them cannot come under ground one.

The Respondent also prayed that the arguments in paragraphs 6.18 to 6.22 in Appellant?s Brief be discountenanced as the Appellants did not raise any issue concerning assessment and payment of Court processes filed in the Court below. That the issue cannot be raised for the first time in this Court without the leave of Court.

On issue 2, C. O. Nwator Esq. for Respondent urged this Court to discountenance the argument of the Appellants on issue two. That the parties did not ask for the calling of evidence at the Court below as it is not the duty of the Court to conduct cases for the parties.

That this being enforcement of fundament rights application, it is a special procedure that does not accommodate normal rule of procedure. He relied on the case of AGBAKOBA VS. DIRECTOR SSS & ANOR 1 HRL ? RA P 252 AT 283 ? 284.

He submitted that by the state of Affidavit evidence before the trial Court, the Respondent?s affidavit was practically

unchallenged and substantially admitted by Appellants. He relied on the cases of GOVERNOR OF EKITI STATE & ANOR VS. CHIEF GEORGE FEMI OJO & ORS (2007) 16 WRN 56 AT 90 ? 99 and FBN PLC VS. T.S.A INDUSTRIES LTD (2007) 17 WRN 40 AT 5.8. He further submitted that even if there are conflicts in the Affidavit evidence it could be resolved by documentary evidence before the Court. He relied on the cases of:
1. NWOSU V. I.S.E.S.A (2004) 20 WRN 94 AT 130 ? 131.
2. BOB V. AKPAN & ORS (2010) ALL FWLR (PT. 500) 896 AT 947 ? 948 A ? A.

That there are authentic documentary evidence before the Lower Court. He relied on page 98 of the record of appeal.

That the findings of the trial Court show the Appellants never challenged Respondent?s deposition. He relied on page 63 of the record and paragraph 23 of the Appellant?s counter affidavit on page 63 of the record.

The Learned Counsel to the Respondents who he said stated that the onus is not on the Applicant to show that the violation of the Fundamental Right was not justifiable but on the Respondent?s who he said woefully failed to do so. That the

Lower Court was perfectly right to enter judgment in favour of the Respondent. He urges this Court to dismiss the appeal with heavy cost.

The Appellants filed Reply Brief and contended concerning argument of Respondent that it is 2009 Rules that is applicable to this case as incorrect. The Appellants insisted that the applicable Rules is 1979 Fundamental Rights Enforcement Procedure Rules. That the Lower Court heard the case on 14/10/2009 whereas 2009 Rules came into existence on 1st December, 2009. He relied on the cases of:
(1) ROSSEK V. A.C.B LTD (1993) 8 NWLR (PART 312) 382 AT 472 B C
(2) N.S.P.R.I. & ANR V. MATHIAS UGWU & ORS (2013) 15 WRN 49 AT 75
(3) NWORA VS. NWABUEZE (2013) ALL FWLR (PT 691) 1492 AT 1507 A C PER MOHAMMED JSC.

That the matter argued in issue one is a matter of jurisdiction that could be raised at any stage of the proceeding. That it arose from the judgment delivered and not from interlocutory Ruling. He relied on the cases of:
(1) ELUGBE V. OMOKHAFE (2004) 18 NWLR (PT 905) 319 AT 334 C AND 338 F G.
(2) TONY ANTHONY (NIG) LTD VS. NDIC (2011) 15 NWLR (PART 1269) 39 AT 62

C ? E to submit that issue of jurisdiction can be raised for the first time in this Court. He urged the Court to allow the appeal.

It has been stated and restated over and over again that the issues raised for determination of an appeal must emanate or flow from the grounds of appeal filed. Where a matter argued in an issue is not covered by any ground of appeal such an issue and argument in respect thereof will be ignored and struck out. See:
(1) GOKE OLAOLU V. FRN (2016) 3 NWLR (PART 1498) 133 AT 157 B ? C PER GALADIMA, JSC.
(2) OZURUMBA NSIRIM V. DR SAMUEL W. AMADI (2016) 5 NWLR (PART 1504) 42 AT 60 WHERE ONNOGHEN, JSC said:
?It is settled that issues in the appeal can only validly arise from grounds of appeal or cross appeal and that where an issue or issues for determination does/do not arise from grounds of appeal such an issue(s) is/are incompetent and liable to be struck out.?
On page 62 B of the report NGWUTA JSC also said:
?It is the Appellant, the aggrieved party, who appeals the judgment against him. The ground of appeal is on the ratio decidendi of the judgment appealed against and the

issues to be determined must flow from the grounds of appeal…..”

The complaints of the Appellants in paragraphs 6.12 6.15 of the Appellants Brief of Argument to the effect that the verifying affidavit sworn to by the Respondent on the 1st day of August, 2007 is a Court process that must be served upon the Appellants are not covered by the remaining grounds 1, 3 and 4 of the Notice of Appeal, ground 2 having been abandoned by the Appellants.

The same is true of the arguments of the Appellants to the effect that the statement in support of the application for leave made on the motion ex-parte was not assessed and paid for. I must say that the issue as to whether filing fees was paid or not on any of the processes filed by the Respondent at the Court below was/is not a subject or ground of appeal filed by the Appellants. The issue of nonpayment of filing fees is totally extraneous to grounds 1, 3 and 4 remaining on Appellants Notice and Grounds of Appeal. All arguments canvassed under paragraphs 6.18 to 6.22 of Appellants Brief go to no issue and are hereby discountenanced. As a matter of fact Appellant did not bother to contest

these extraneous matters in the Appellants Reply Brief.

The salient point in issue 1 as contended by the Appellants is that there was a breach of ORDER 1 RULE 2(3) , ORDER 1 RULE 2(4), ORDER 2 RULE 2(1) AND ORDER 2 RULE 2(2) of the Fundamental Rights (Enforcement Procedure) Rules 1979 which make it mandatory that the verifying Affidavit attached to motion ex-parte for leave to enforce fundamental rights of a citizen must be the one for use for the hearing of motion on Notice sworn to on the date the motion ex-parte was filed. The relevant submission of the Appellants reads:
6.05: A joint reading of the said Order Rule 2(3) and (4) and Order 2 Rule (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules 1979 makes it mandatory that:
1. The verifying affidavit to be used for the hearing of the motion on notice must be sworn on the date the motion ex-parte is filed at the registry.
2. The verifying affidavit used to obtain leave must be the one to be used in support of the motion on notice.
3. The statement in support of the Application ex-parte for leave must also be the one to be used for the motion on

Notice.
4. The said statement in support of the application ex-parte and the verifying affidavit sworn in support of the application for leave must be served on the Respondent.
5. Failure to do any of the above stated acts makes the motion on notice incompetent.

The Learned Trial Judge agreed with the position of the law as postulated by the Appellants. The Learned Trial Judge however stated and held that in this case there was an order of Court made on 9th January, 2008 directing that the motion on Notice and all other processes in the application be served on 1st Respondent (now 1st Appellant) by substituted means and that the Chief Bailiff of the Lower Court actually made a Return and filed affidavit of service deposed to on 26/3/2008 showing clearly that the order of Court and processes to be served on the Appellants by substituted means vide 1st Appellant were duly carried out. Therefore any complaint about lack of service by Appellants evaporates. What is more. The Learned Trial Judge found that the Appellants Learned Counsel A. I. Nwachukwu Esq. wrote to the Lower Court vide a letter dated 26/5/2008 that Appellant (as Respondents

at Lower Court) had briefed him. Furthermore the Learned Trial Judge found on page 95 of the record in his judgment thus:
?Therefore the presence of the Learned Counsel (A. I. Nwachukwu Esq.) in Court on behalf of all the Respondents is conclusive of the fact that aside from 1st Respondent that 2nd ? 6th Respondents were also seized of the pendency of the substantive motion against them. Be that as it may, they all chose to stay away from Court while their counsel appeared for them.?

There is no appeal against this heavily weighed findings against the Appellants by any of them. The findings remain binding on them. See BRITTANIA ? U NIGERIA LIMITED VS. SEPLAT PETROLEUM DEVELOPMENT COMPANY LTD & ORS (2016) 4 NWLR (PART 1503) 541 AT 591 D ? E PER NGWUTA, JSC who said:
?The Court of Appeal in its judgment found that it was wrong for counsel to reopen argument behind the 4th other party when the matter had been adjourned for judgment. The Appellant did not appeal against this finding of fact and is deemed to have conceded the point.?

The Appellants who claimed that the motion on notice was

incompetent found it convenient taking steps in the matter by filing their counter affidavit against the application of Respondent in this appeal seeking to enforce his fundament rights. The Appellants counter affidavit was filed on 25th day of November, 2008.

It is also pertinent to observe that the Appellants filed two applications at the Lower Court seeking to terminate the proceedings on the ground that the motion dated 1/11/2007 filed 8/11/2007 was incompetent. The first application dated 7/7/2008 was filed on 8/7/2008 wherein the Appellants wanted the motion of Respondent set aside for having been filed out of time allowed by Fundamental Right (Enforcement Procedure) Rules 1979. See pages 47 ? 50 of the record.

The second application by Appellants against the Respondent?s application at the Court below was dated 21/10/2008 but filed on 23rd day of October, 2008 wherein the Appellants prayed the Lower Court for (a) An order striking out the motion dated 1/11/2007 filed on 8/11/2007 for being incompetent.

The ground for the application was that verifying affidavit in support of the motion on notice is not the same as the one used

to obtain leave to enforce applicant?s alleged fundamental right on 25/10/2007.

When the matter came up on 14th day of October, 2009 for hearing before the Learned Trial Judge A ? I Nwachukwu for the Respondents (Now Appellants) applied to withdraw the two aforementioned motions filed by them stating they have addressed the issue in their Counter Affidavit. The conclusion or findings of the trial judge on the two applications can be found on page 89 of the record where the Trial Judge said:
?As earlier stated in this judgment, the Respondents filed two motions on notice wherein they had prayed the Court to strike out the substantive motion filed 8th November, 2007. Aside from filing the said motions on 8th July 2008 and 23rd October, 2008 respectively, the counsel of the said Respondents/Applicants did not make any submission on them. I can only conclude in the circumstance that the two motions have been abandoned in which case they ought to be struck out. Accordingly the two motions filed on 8th July, 2008 and 23rd October, 2008 by the Respondents (as applicants therein) are each struck out for want of prosecution.”

?The Trial

Judge is right; the Appellants did not appeal the findings. In any event it is glaring by the pieces of evidence from the record that the Appellants have since waived their rights to complain about the competence or otherwise of the Respondent?s motion filed to enforce his fundamental rights. The Respondent motion was competently filed in accordance with the provisions of Fundament Rights (Enforcement Procedure) Rules 1979 and the Learned Trial Judge was endowed with jurisdiction to adjudicate upon it.

In any event and contrary to the submission of the Appellants that the Fundamental Rights (Enforcement Procedure) Rules 2009 is not applicable to this proceeding on the ground that the Motion of Respondent was heard on 14th October, 2009, I am of the solemn view that, the Fundamental Rights (Enforcement Procedure) Rules 2009 is applicable because as at the time it came into operation on 1st December, 2009 the Motion to enforce Fundamental Rights by Respondent in this appeal was still pending. See ORDER XV Rules 1, 2, 3 and 4, which provide thus:
?1. The Fundamental Rights (Enforcement Procedure) Rules, 1979 are hereby abrogated.
2.

From the commencement of these rules, pending Human Rights applications commenced under the 1979, Rules shall not be defeated in whole or in part, or suffer any judicial censure, or be struck out or prejudiced, or be adjourned or dismissed, for failure to comply with these rules provided the applications are in substantial compliance with the rules.
3. Such pending Human Rights applications may continue to be heard and determined as though they have been brought under these Rules.
4. Where in the course of any Human Rights proceedings, any situation arises for which there is or appears to be no adequate provision in these rules, the Civil Procedure Rules of the Court for the time being in force shall apply.?

I am certain in my mind that since the 1979 Rules were abrogated by 2009 Rules before a decision was taken on the Respondent?s Motion for enforcement of Fundamental Rights at the Lower Court, the 1979 Rules ceased to be the applicable Rules for the determination if one construes liberally the import of Order XV Rules 3 of the 2009 Rules in particular.
See: BRITTANIA ? U NIGERIA LIMITED V. SEPLAT PETROLEUM DEVELOPMENT

COMPANY LIMITED & ORS. (2016) 4 NWLR 1503 (PART 1503) 541 at 594 E ? G per NGWUTA, JSC who had this to say:
?In construing the provisions reproduced above, there is no need to resort to external sources. The words used in them ought to be given their grammatical and ordinary meanings. In the Levy, ex parte, Walton (1881) 17 Ch. D 746 at 751 Jessel M. R. opined:
?The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.?
Any modification of the grammatical and ordinary sense of the words in the provisions reproduced above may lead to absurdity and inconsistency with the intention of the provisions.?

It is my view that:
?Such pending Human Rights Proceedings may continue to be heard and determined as though they have been brought under these Rules.?

?Means that all Human Rights Proceedings that were pending and in which

judgments have not been given or concluded shall be deemed to have commenced under the provisions of Fundamental Rights (Enforcement Procedure) Rules 2009.

In the said 2009 Rules there is no need for seeking leave of the appropriate Court before a citizen can enforce his rights as guaranteed under chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as amended or altered. See ORDER II Rule 2 of the 2009 Fundamental Rights Enforcement Procedure Rules 2009 which provides:
?An application for the enforcement of the Fundamental Rights may be made by any originating process adopted by the Court which shall, subject to the provisions of these Rules, lie without Leave of Court.?

The question of failure to use verifying Affidavit used to obtain Leave for Motion on Notice or Service of same does not apply and is no longer applicable since 1st December, 2009. In effect the Motion on Notice filed by Respondent is competent on all front.

Issue 1 is therefore resolved against the Appellants.

The Appellants grouse under Issue 2 is that the Affidavits evidence before the trial Court are in conflict and that the Learned

trial Judge failed to call for oral evidence to resolve the conflicts in the Affidavit in Support of Respondents Motion and that of the Appellants before proceeding to base his judgment on the unresolved conflicts in the Affidavits of the parties.

Now a special procedure has been put in place by the Chief Justice of Nigeria pursuant to Section 46(3) of the Constitution of the Federal Republic of Nigeria 1999 as amended or altered for the enforcement of Fundamental Rights. The application is heard on the Affidavit evidence filed in support and against the application for the enforcement of Fundamental Rights of the citizen or any person complaining against another for the infringement of this Fundamental Rights. No oral evidence is called as the affidavit evidence constitute the evidence in the suit or action. See: JACK V. UNIVERSITY OF AGRICULTURE (2004) 5 NWLR (PT 865) 208.

It is designed to make proceedings for the enforcement of Fundamental Rights less cumbersome and devoid of technicalities often associated with other class of actions or proceedings. See: ADE MIKE MUSA OGUGU & ORS. V. THE STATE (1994) 9 NWLR (PART 366) 1 at 26 per

BELLO C.J.N who said:
I am inclined to agree with Mr. Agbakoba that the provision of Section 42 of the Constitution for the enforcement of the Fundamental Rights enshrined in Chapter IV of the Constitution is only permissible and does not constitute a monopoly for the enforcement of those rights. The object of the Section is to provide a simple and effective judicial process for the enforcement of fundamental rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. The object has been achieve by the Fundamental Rights (Enforcement Procedure) Rules 1979. It must be emphasised that the Section does not exclude the application of the other means of their enforcement under the common law or statutes or rules of Courts. These are contained in the several Laws of our High Courts, for example Sections 18, 19 and 20 of the High Court of Lagos relating to mandamus, prohibition, certiorari, injunction and action for damages. A person whose fundamental right is being or likely to be contravened may resort to any of these remedies for redress.

It is

true that where there is direct conflict in affidavits of parties on crucial and material facts before a trial Court it is expedient to hear oral evidence from the deponents or witnesses to resolve the conflicts. See FALOBI VS FALOBI (1976) 9 10 SC 1 at 13 14.
However where there are documents annexed or exhibited to one or more Affidavits evidence before the Court the Court is entitled to make use of such documents to resolve material conflicts in the Affidavits evidence before it instead of calling for oral evidence.
See B. V. MAGNUSSON VS K. KOIKI & ORS (1991) 4 NWLR (PART 183) 199 at 129 D-E per NIKI TOBI JSC who said: –
In this application, there are conflicting affidavits evidence which this Court and indeed any other Court for that matter is not competent to resolve suo motu. See PHARMACISTS BOARD VS ADEBESIN (1976) 55C 43, FALOBI VS FALOBI (1976) 9-10 SC 1, EBOH VS OKI (1974) 1 SC 179, UKU VS OKUMAGBA (1974) 3 SC. 35. I will not make any effort to resolve the conflicting affidavit evidence as that is a futile exercise. But all I should do is to use the documentary evidence outside the depositions in the Affidavit and

come to a conclusion one way or the other as to the true position. The law does not require the calling of oral evidence to resolve conflicting affidavit evidence if there is sufficient documentary evidence to resolve the conflict.
In the case of LAFIA LOCAL GOVERNMENT VS THE EXECUTIVE GOV. NASARAWA STATE & ORS (2012) 17 NWLR (PART 1328) 94 at 129 F-G The Supreme Court per RHODES VIVOUR, JSC said: –
Even if there are conflicts in affidavit but there are authentic documentary evidence supporting one of the affidavits in conflict with the other the trial Court ought to examine it before applying it in coming to a fair decision. See NWOSU VS IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PART 1990) 2 NWLR (PART 135 p 688; CHAIRMAN NPC VS CHAIRMAN, IKERE LOCAL GOVERNMENT (2001) 13 NWLR (PT 370) p. 540.
Another corollary to that is that where the alleged conflicts in the Affidavit before the Court are not material to the case before the Court or are not germane to the real issue in contest before the Court the need to call oral evidence is thereby obviated or dispensed with.
See LAGOS STATE DEVELOPMENT AND

PROPERTY CORPORATION VS ADOLD STAMM INTERNATIONAL NIGERIA LTD & ANOR (2005) 2. NWLR (PART 910) 603 AT 616 G-H to 617 A-F where Akintan, JSC held thus: –
The question to be resolved in the appellants first issues is whether there are conflicts in the affidavits filed by the parties. The two affidavits are already reproduced earlier above. The sum total of the appellants case as set out in the affidavit filed by it was that there was no need for a new interest to be determined outside the one awarded earlier by Desalu, J. on the other hand, the respondent sought the assistance of Afribank, a commercial bank, on the rate of interest payable on the judgment debt had the sum been placed in a fixed deposit in a commercial bank within the time specified in the request made to the bank. The reply from the bank was exhibited as an annexure to the affidavit filed by the respondent. The second document also produced by the respondent is another calculation made by a Chartered Accountant but based on the same principle adopted by the bank and it was aimed at covering the period not covered by the calculation made by the bank. This was the

document later produced in Court. But it was also exhibited with the respondent?s motion as Exhibit 2. The question in this case therefore is whether one can say that the contents of the two affidavits filed by the parties can be said to be conflicting. In deciding whether or not the contents of the two documents are conflicting, one must look at the issue in controversy in the particular case before the Court. This is because where, for example, the conflicts in affidavits are not material to the case before the Court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the Court, the need to call oral evidence to resolve the conflicts would not arise. See Falobi Vs Falobi (1976) 9 ? 10 sc 1; Okupe Vs F. B. I. R. (1974) All NLR 314 (Reprint); Garba Vs University of Maiduguri (1986) 1 NWLR (pt. 18) 550; and L.S.D.P.C. VS Adold/Stamm Int. Ltd. (1994) 7 NWLR (PT. 358) 545. As already shown above, while the facts set out in the respondent?s affidavit relate to the interest due on the judgment debt which was what the Supreme Court directed Ilori, J. should determine, the appellant on the

other hand, did not controvert or challenge the accuracy or otherwise any of the figures put forward in the affidavit filed by the respondent. Instead, it was claiming that there was no need for the appellant to pay any other interest other than the one based on the judgment of Desalu, J. It is therefore correct to say that there was infact no conflict in the affidavit evidence placed before the trial Court since the allege conflict are infact not relevant to the case of before the Court. There is therefore no merit in the appeal as it relates to that issue.?

I have myself examined critically the affidavit evidence before the Court and I found no material conflicts in the Affidavits evidence before the trial Court requiring any oral evidence before the trial Court could take decision on the matter.

The Respondent exhibited to his verifying Affidavit his own picture showing how he was stripped off his clothes, tortured and inhumanly treated before he was purportedly banished from his community by the Appellants. The Respondent also exhibited the medical report given to him at OKPUALA NGWA General Hospital showing that the Respondent was treated

for multiple and generalized skin burns all over his body. All these were taken into account and evaluated in the judgment of the Lower Court. (See page 98 of the record).

The trial Court properly evaluated the Affidavit evidence before him and came to the right conclusion in his judgment. An appellate Court will not interfere with evaluation of evidence before the trial Court where the judgment discloses that the trial Court has dutifully performed its function of assessment and evaluation of evidence before it even where the case is fought on Affidavit evidence.
See: MICHAEL AIYEOLA VS. RAMOTA YEKINI PEDRO (2014) 12 SCM 71 at 94 A ? C per PETER ? ODILI JSC who said:
?The attitude of the Court of Appeal or the Supreme Court as the case may be, in respect of evaluation of evidence of a trial Court is that in deciding whether or not a trial Court properly evaluated the evidence, the essential focus should be on whether the trial Court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines this. Thus, so long as a trial Court does not arrive at

his judgment merely by considering the case of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Ajibulu v. Ajayi (2004) 11 NWLR (Pt. 885) 458; Woluchem v. Gudi (1981) 5 SC 291.?

I have gone through the whole gamut of the Affidavits evidence before the Lower Court and have calmly read the decision appeal against. I have no doubt in my mind that the learned trial Judge painstakingly evaluated them creditably well and his findings and conclusions are in consonance with the materials and evidence before him. There is no justifiable reasons to disturb the said findings.

Issue 2 is hereby resolved against the Appellants.

?The Appellants have exceeded their limits in purporting to banish or exclude the Respondent from his community. They have also breached and violated the Respondent?s rights as guaranteed under Sections 34(1), 35(1), 40, 41 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 and I am of the view that the Lower Court rightly found against the Appellants who

preferred to hide under the cloak of technicality rather than defend their actions and allegations against them. The judgment of the trial cannot be faulted. See again LAFIA LOCAL GOVERNMENT VS. THE EXECUTIVE GOVERNOR, NASARAWA STATE & ORS. 2012) 17 NWLR (PART 1328) 94 at 146 C ? G per ARIWOOLA JSC who said:
?By the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject; or be accorded either expressly by or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups,

places of origin, sex, religious or political opinions. And no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. See: Section 42 of the Constitution.
There is no doubt that by the pronouncement of the Nasarawa State Government on its policy of redeployment of staff of government from Lafia Local Government, the above constitutional provision has been breached and violated. With that breach and violation, the constitutionally guaranteed right of the 3rd ? 36th respondents was breached and they deserved to be protected.?

Consequently the appeal of the Appellants is quite unmeritorious. The Appellants appeal is hereby dismissed in toto.

The judgment of ABIA STATE HIGH COURT delivered by C. IFEOMA JOMBO ? OFO on 11th February, 2010 is hereby affirmed.

The Appellants shall pay to the Respondent costs assessed at N50,000.00 (Fifty Thousand Naira).

IGNATIUS IGWE AGUBE, J.C.A.:?I have read in draft the judgment just delivered by my learned brother, P. O. IGE, JCA, and I agree totally with his reasoning and conclusion that

this Appeal lacks merit and should be accordingly dismissed.

I also dismiss it and abide all the consequential orders.

FREDERICK OZIAPKONO?OHO, J.C.A.:I had the opportunity of reading the draft of the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in agreement with the reasoning and conclusions in dismissing the Appeal. I abide by the consequential orders made thereto.