SIR VINCENT OGU & ORS v. UNION BANK OF NIGERIA PLC & ORS
(2018)LCN/12206(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2018
CA/OW/219/2015
RATIO
FUNDAMENTAL RIGHT: WHERE FUNDAMENTAL RIGHT IS BREACHED
“Therefore, it is my view that the alleged breach of Order VI Rules 2, 3 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009 is of no moment. The facts placed before the Court below was sufficient for it to have granted the application. As at that stage, what was important was whether the Fundamental Rights of the Applicants was breached.” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. SIR VINCENT OGU
2. MISS FAVOUR ONJINYECHI ORJI
3. JAMESAK NIGERIA LTD Appellant(s)
AND
1. UNION BANK OF NIGERIA PLC.
2. COMMISSIONER OF POLICE ABIA STATE
3. INSPECTOR GENERAL OF POLICE Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Abia State High Court sitting in Aba, delivered on the 20th day of December, 2012.
SYNOPSIS OF FACTS
Pursuant to an originating Motion for the enforcement of the fundamental human rights of the Appellant, the Court below dismissed the action of the Appellants for failure to prove their claim.
The Appellants have sought the following declaration in the Court below:-
(a) A declaration that the invasion of the office of the Appellants at No 148 Aba-Owerri Road, Aba in a command – like manner and fully armed on 9th October 2009 as well as on 8th February, 2010 over a loan facility granted to JAMESAK NIGERIA LTD in respect of which the 1st and 2nd Appellants are employees of the company by the 1st Respondent and officer and men of the 2nd and 3rd Respondents and their hirelings, acting at the behest of the 1st Respondent is illegal, unconstitutional and a gross violation of due process of law and amounts to an infringement of the fundamental rights of the Applicants enshrined in Section 37 of the Constitution of the Federal Republic of Nigeria 1999.
(b) A declaration that the public beating in savagery Manner of the 1st and 2nd Applicants on 9th October 2009, by the 1st, 2nd and 3rd Respondents and their hirelings, acting at the behest of the 1st Respondent on account of the contractual loan facility advance to JAMESAK NIGERIA LTD aforesaid, is unconstitutional, illegal, a gross violation of due process of law subjection to inhuman and degrading treatment and amounts to an infringement of the fundamental right of the Applicants as enshrined in Section 34 of the Constitution of the Federal Republic of Nigeria, 1999, as well as articles of the African Charter on Human and People?s Right (Enforcement and Ratification) Act, Cap A9, LFN 2004.
(c) An order restraining the Respondents, their agents, servants or privies jointly and severally from using the machinery of the Nigeria Police to pursue a civil matter or at all, the subject matter of this application and/or to infringe on the Applicants? fundamental rights.
(d) The sum of N50,000,000.00 (Fifty Million Naira) jointly and severally against the Respondents on the footing of exemplary damages for the unwarranted and unconstitutional infringement of the Applicants’ fundamental rights.
(e) An injunction restraining the Respondents jointly and severally from harassing, arresting inviting, detaining or otherwise intimidating the Applicants on account of the subject matter of this application.
Pages 1-2 of the Record of Appeal.
At the Court below, the location of the alleged breach and identity of the officers and officials of the Respondents who allegedly infringed on the Rights of the Appellants formed the basis of the Court’s decision. This is because, in the opinion of the Court below, the non disclosure of the place where the alleged infringement took place and non-disclosure of the actual identities of the Respondents were fatal to the Appellants case. The Court therefore dismissed the application.
Irked by the decision of the Court below, the Appellants, pursuant to the practice Direction of this Honourable Court filed a Notice of Appeal on the 20th of March 2013, pages 74-76 of the Record of Appeal.
The Appellants amended their Notice of Appeal which was filed on the 3rd of November 2017, and which encapsulated four (4) grounds of Appeal.
The Appellants filed their brief of argument on the 3rd of November 2017.
It is settled by OCHE S. AWA ESQ.
The 1st Respondent filed his brief of argument on the 16th of May 2018, but same was deemed filed on the 17th of May 2018. It is settled by N. N. IKEOCHA ESQ.
The Appellants filed a reply brief on the 22nd of May 2018.
In his brief of argument, the Appellants proffered just one issue for determination viz:
“WHETHER THE APPELLANTS PLACED SUFFICIENT MATERIALS BEFORE THE COURT TO ENTITLE THEM TO JUDGMENT, CONTRARY TO THE DECISION OF THE TRIAL COURT. (GROUNDS 1, 2, 3 AND 4).”
On his part, the 1st Respondent proffered two (2) issues for determination viz:
1. WHETHER THE APPELLANTS BY THEIR AFFIDAVIT EVIDENCE PLACED VITAL AND SUFFICIENT FACTS BEFORE THE TRIAL COURT TO BE ENTITLED TO THE RELIEFS SOUGHT AS SET OUT IN THE STATEMENT (GROUNDS 1, 2 AND 4)?
2. WHETHER APPELLANTS FURTHER AFFIDAVIT BEING IN BREACH OF ORDER VI RULES 2, 3 AND 5 OF FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009, WAS COMPETENT. (GROUND 3)?
The 2nd and 3rd Respondents filed no briefs of argument.
On the 29th of October, 2018, the Appellant and 1st Respondent adopted their respective briefs of argument.
In determining this appeal, I shall consider the sole issue for determination of the Appellants as well as issue No. 2 of the 1st Respondent in his brief of argument.
ISSUE ONE:
The Appellants submit that they had placed sufficient material before the Court to entitle them to judgment.
Referring to the further affidavit deposed to by the 1st Appellant filed on the 16th of November, 2011, he submits that it contains details of the place where the violation of his person took place.
That the Court below ignored that fact in arriving at a wrong conclusion in its judgment.
They submit that the Court below failed to consider fully the evidence before it, and in particular, the documentary evidence tendered without objection.
They submit that they were intimated beaten up and threatened with violence by the Respondents.
The Appellants, while referring to several letters written to them by the Appellants, submit that they are an admission of the acts carried out by them on the Appellants.
That the 1st Respondent did not deny the allegation of infringement of the Appellants fundamental human rights.
Urges Court to hold that the 1st Respondent admitted the allegation of fundamental human rights infringement.
Submits that the fundamental human right action is decided based on affidavit evidence. Such affidavit evidence invariably has exhibit and documents attached. They submit that a Court of law is bound to consider the content of affidavits before it.
Citing NEC v. WODI (1989) 2 NWLR (PT. 104) 444 at 455, they submit that an affidavit and all its exhibits or attachments must be considered as a whole. S. E. S. NEWSPAPPER CORPORATION v. ANWARA (1975) NSCC 388, OLUHUNKUN v. TENIOLA (1991) 5 NWLR (PT. 192) 501.
Thus, where a Court fails to consider the contents of a further affidavit and documents attached to it, it cannot be said to have evaluated the evidence as required by law.
Urges this Court to make a proper finding, based on the affidavit evidence and documentary evidence.
Further urges this Honourable Court to set aside the judgment of the Court below, after evaluating the evidence before the Court below and the documents attached to the affidavit filed. ? SAGAY v. SAJERE (2000) 4 SCNJ 383.
They submit that there is evidence that the 1st Respondent led a team of policemen and other persons who invaded the business premises of 1st Appellant and assaulted the 1st and 2nd Appellants. That there is evidence of correspondence between the 3rd Appellant and the 1st Respondents, whereby the 1st Respondent admitted leading policemen to violate the fundamental human rights of the Appellants. That this piece of evidence show that on a preponderance of evidence the Appellants have discharged the burden placed on them.
ISSUES 1 AND 2 IN THE 1ST RESPONDENT?S BRIEF
In paragraph 5.01 of the 1st Respondents brief, he had sought to argue issues 1 to 2 in his brief together but I shall only consider issue No. 2 as in my view his issue No. 1 is an adoption of the Appellants sole issue for determination.
The provisions of Order VI Rules 2, 3 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009 can be safely reproduced verbatim;
RULE 2 “The Court may on the hearing of the application allow the statement to be amended and may allow further affidavit to be used if they deal with new matters arising from the counter affidavit of any party to the application.”
RULE 3 “The application for amendment shall be supported by an affidavit of the proposed application to be amended and may be allowed by the Court upon such term or otherwise as may be just.”
RULE 5 “Where the applicant intends to ask to be allowed to amend his statement to use further affidavit, he must put the other party or parties on notice of his intention to amend.”
The 1st Respondent submits that there is nothing to show that the Court below ignored the further affidavit of the Appellants. That the further affidavit was in fact filed in breach of the mandatory provisions of Order VI Rules 2, 3 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009.
The 1st Respondent submits that in the application at the Court below there was no application by the Appellant under the relevant Rules, to amend. That the Appellant introduced new evidence of the address or location where the alleged breach occurred.
Submits that the Appellants did not serve any notice on the Respondent of their intention to amend their statement or use any further affidavit. He further submits, that the essence of compliance with the provisions of Order VI Rules 3-5 is to ensure fair hearing.
He argues that the Court below was therefore right to have ignored the further affidavit as it did, therefore they submit, the Appellants failed to present sufficient facts to prove their allegations.
RESOLUTION OF ISSUES
I shall consider issues 1 and 2 of the Respondents brief of argument first.
ISSUE NO 1 to 2
At pages 4 – 5 of the Record of Appeal under the heading RELIEFS SOUGHT in the statement it states that it is for a declaration that the invasion of the office of the applicants at 148, Aba – Owerri Road, Aba.
This shows the address at which the alleged invasion and assault was meted on the Appellants.
In relief B it says inter alia:
“A declaration that the public beating in savagery manner of the 1st and 2nd applicants on 9th October 2009 by the 1st, 2nd and 3rd Respondents and their hirelings, acting at the behest of the 1st Respondent on account of the contractual loan facility addressed to JAMESAK NIGERIA LTD aforesaid is unconstitutional, illegal…”
It is instructive to note that the place of the alleged savagery beating of the 1st and 2nd Appellants on 9th October, 2009 by the Respondents and their hirelings was not stated in this Relief (b).
In paragraph 9 of the affidavit setting out the facts upon which the application is made under Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 the Applicant (Appellant) deposed thus:
“That surprisingly, the next day, 9th October 2009, the 1st Respondent in company of fully armed officer of the 2nd and 3rd Respondents and in a commando ? like manner invaded the premises of the 3rd Applicant and without provocation beat up myself and the 2nd Applicant? ? page 8 of the Record of Appeal.”
It seems apparent to me, that the Applicant had amply stated in his reliefs sought and affidavit setting out the facts upon which the Application is made filed on the 12th of April 2010, where the alleged infringement of his human rights took place viz 148 Aba-Owerri Road Aba, which is the office premises of the 3rd Applicant/Appellant, beating up the 1st and 2nd Applicants/Appellants.
In the judgment of the Court below, he observed thus at page 72 of the Record of Appeal;
“I agree that it was not necessary to show the residence of the 3rd Applicant where the Respondents invaded.”
With respect, it was the company premise of the 3rd Appellant and NOT residence that the Respondents went to. The 3rd Applicants residence was not invaded.
When the Court below observed that, the Court cannot assume location of the place of incident for the Applicants, it was wrong and was in error.
It is my view that the Court below was carried away by sentiments. It did not read the statement of the Applicants painstakingly; neither did it read the reliefs sought and the verifying facts.
The Appellants did not need to state further facts in their further affidavit regarding the issue of the address where the alleged infringement of the Fundamental Right of the Appellants took place. Its statement and the Reliefs Sought supplied sufficient information and details of where the alleged breach took place and on whom attack was meted.
Therefore, it is my view that the alleged breach of Order VI Rules 2, 3 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009 is of no moment.
The facts placed before the Court below was sufficient for it to have granted the application. As at that stage, what was important was whether the Fundamental Rights of the Applicants was breached.
The answer to the 1st Respondent issue No. 2 is therefore in the negative, but was not necessary in the circumstances of the case. The issue is resolved in favour of the Appellant and against the 1st Respondent.
SOLE ISSUE OF APPELLANT
As a follow up to the resolution of the 1st Respondents second issue, it is my view that this answers to the sole issue of the Appellant.
The Court below was in error when it held that the Applicants failed to establish their claim, because there was no evidence to substantiate their claim in view of their affidavit, counter affidavit and further affidavit.
Indeed, a painstaking perusal of the facts deposed to in the affidavit setting out the facts upon which the application is made, and the annexure show details of what transpired between the Appellants and the Respondents. Referring to paragraphs 1 – 27 of the affidavit filed on the 12th of April 2017, pages 89 of the Record of Appeal.
There is also the affidavit of the 1st Applicant/Appellant – Sir Vincent Ogu. Pages 25-26 of the Record of Appeal.
The Respondents denied visiting the Appellants office nor their homes. They deny the allegation of the infringement.
I must say here that the issue of the indebtedness of the Respondents is not in the main viz a viz this application, but the allegation of a breach of the Appellants Fundamental Rights.
It is my view that the Court below did not consider the affidavit evidence before it before arriving at its conclusion, and if it did, he did not appreciate or understand its contents, in arriving at its decision.
This sole issue is resolved in favour of the Appellant and against the Respondent.
The appeal succeeds and same is hereby allowed by me.
The judgment of the High Court of Justice Aba in suit No A/M/72/2010 delivered on the 20th of November, 2012 is hereby set aside.
Pursuant to Order 4 Rule 3 of the Court of Appeal Rules 2016, I hereby make the following order:-
1.That the invasion of the office of the Appellants at No 148 Aba-Owerri Road, Aba in a command ? like manner on the 9th October 2009 as well as on 8th February 2010 over a loan facility granted to JAMESAK NIGERIA LTD in respect of which the 1st and 2nd Appellants are employees of the company by the 1st Respondent and officer and men of the 2nd and 3rd Respondents and their hirelings, acting at the behest of the 1st Respondent is illegal, unconstitutional and a dross violation of due process of law and amounts to an infringement of the fundamental rights of the Applicants enshrined in Section 37 of the Constitution of the Federal Republic of Nigeria 1999.
2. That the public beating in savagery Manner of the 1st and 2nd Applicants on 9th October, 2009, by the 1st, 2nd and 3rd Respondents and their hirelings, acting at the behest of the 1st Respondent on account of the contractual loan facility advance to JAMESAK NIGERIA LTD aforesaid, is unconstitutional, illegal, a gross violation of due process of law subjection to inhuman and degrading treatment and amounts to an infringement of the fundamental right of the Applicants.
3. The Respondents, their agents, servants or privies jointly and severally I hereby restrain from using of the machinery of Nigeria Police to pursue a civil matter or at all, the subject matter of this application, and/or to infringe on the Applicants? fundamental rights.
4. The Respondents are hereby jointly and severally restrain from harassing, arresting inviting, detaining or otherwise intimidating the Applicants on account of the subject matter of this application before the Court below.
5. I award the sum of N20,000,000.00 (Twenty Million Naira) jointly and severally against the Respondents as exemplary damages for the unwarranted and unconstitutional infringement of the Applicants Fundamental Rights.
N50,000.00 costs in favour of the Appellants.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, PEMU, JCA. This is to state that I am in agreement with the manner in which the issues considered in the appeal have been resolved and that I have nothing useful to add to the said judgment by way of contribution.
Accordingly, I too find the appeal to be meritorious and allow same. I also abide by the orders made in the leading judgment including that in relation to costs.
Appearances:
Uche S. Awa, Esq.For Appellant(s)
N. N. Ikeocha, Esq.For Respondent(s)
