DEACON FESTUS DIKE & ORS v. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE ANAMBRA
(2019)LCN/13855(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/E/341/2014
RATIO
FUNDAMENTAL RIGHTS: FOR A MATTER TO FALL UNDER FUNDAMENTAL RIGHTS JURISDICTION
“The position of the law is that for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief sought is for the enforcement or for securing 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 for the enforcement of fundamental right. Thus, 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 will be incompetent to constitute the claim as one for the enforcement of a fundamental right: See Federal Republic of Nigeria & Anor v. Ifegwu (2003) 15 NWLR (Pt. 842) 113, at 180. Tukur v. Government of Taraba State (1997) 6 NWLR (Pt.510) 549; and Sea Trucks (Nig) Ltd. v. Anigboro (2001) 2 NWLR (Pt.696) 159.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
EVIDENCE MUST BE LED TO ESTABLISH A CLAIM IN FUNDAMENTAL RIGHT MATTERS
Evidence must be led to establish the claim. See HON. JAMES ABIODUN FALEKE V I.N.E.C. & ANOR (2016) 18 NWLR (PT. 1543) 61 @149. In the case of OKOYE & ORS V NWANKWO (2014) LPELR-23172 (SC) the SC observed Per NGWUTA, J.S.C as follows:
“This Court has held, in plethora of decided cases, that a declaration of title or right cannot legally be based on admission in the statement of defence. See Umesie & Ors v. Onuaguluchi & Ors (1995) LPELR-3368 SC. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. DEACON FESTUS DIKE
2. JOHN MUONEKE
3. CHIEF ELDER CHRIS U. DIKE
(OBI OF URUEZIKEOKWE)
(For themselves and on behalf of Other members of Uruezikeokwe Family, Akabo Edoji, Uruagu, Nnewi) Appellant(s)
AND
1. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE ANAMBRA STATE
2. NNEWI NORTH LOCAL GOVERNMENT
3. CHIEF PATRICK UBAKA (TRANSITION COMMITTEE CHAIRMAN NNEWI NORTH LOCAL GOVERNMENT)
4. H.R.H. IGWE K.O.N. ORIZU 111 (IGWE NNEWI)
5. OBI NNAMDI A.C. OBI (OGIDI) (OBI URUAGU)
6. OBI BENNETH OKAFOR (OBI UMUDIM)
7. OBI GEORGE ONYEKABA (OBI NNEWICHI)
8. CHIEF CHARLES ONYEKA (IKEORAH NNEWI) CHAIRMAN NZUKORA NNEWI
9. EUGENE NWAIZUGBE
10. MR. MOSES OBI (CHAIRMAN NNEWI YOUTHS)
11. MR. FRANCIS OKOLOEDO OKEKE
12. MR. JOHN OKOLOEDO OKEKE
13. MR. AMOBI OKOLOEDO OKEKE Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State, Nnewi Judicial Division in suit no. HN/MISC.94/2012 delivered on 25/2/2014 Coram Otti J.
The Appellants as Applicants filed this suit in the lower Court under the Fundamental Rights Enforcement Procedure Rules claiming the following reliefs:
1. A declaration that the Applicants are entitled to an order of this Honourable Court for the enforcement of their fundamental rights to the payment of compensation by the Anambra State Government and the 2nd Respondent for 75% of their immovable property, that is to say, their large pieces or parcels of land compulsorily acquired, taken over and appropriated by the Anambra State Government and the 2nd Respondent traditionally known as and called ‘Ukoloedo land and its environs, the said environs of Ukoloedo land of which consist of New Motor Spare parts, food stuffs, provisions, clothing, shoes, costumes, abattoir, meat sellers sections, timber sheds, Carpenters and building materials section of the market built and erected on the said compulsorily acquired parcels or pieces of land of the Applicants being lying and situate at Agbo Edo in Okpuno, Uruagu, Nnewi in Nnewi North Local Government Area of Anambra State as confirmed by Exhibit ?E? and verged red in Exhibit ?F? hereinafter referred to as the “PROPERTY” entrenched and guaranteed under Sections 43 and 44 (1) (a) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended in 2011.
2. A declaration that the Applicants are entitled to compensation and claims to same with respect to all the proceeds from, ownership and proprietary right over 75% of the property, that is to say Ukoloedo land and its environs afore said in terms of the clear provisions and stipulations in Exhibit ?E? attached hereto and also in terms of the delineations of the area of Ukoloedo land and its environs verged red in the survey plan to be used in this Suit entrenched and guaranteed under Sections 43 and 44 (1) (a) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended in 2011.
3. A declaration that the failure and refusal of the Anambra State Government and the 2nd Respondent to pay compensation due to the Appellants and also allow them to exercise their ownership and proprietary rights over 75% of their said property known as and called Ukoloedo land and its environs as clearly stipulated and verified by Exhibit ‘E’ attached hereto and clearly delineated and verged red on survey plan to be used in this suit on the malicious instigation and in collaboration with the 3rd to 13th Respondents are oppressive, arbitrary, illegal, unconstitutional and tantamount to unwarranted outrageous infringement of their fundamental rights entrenched in and guaranteed under Sections 43 and 44 (1) (a) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended in 2011.
4. A declaration that the 3rd to 10th Respondents and their privies are not entitled to make claims, collect or receive any payments for compensation due to the Applicants and are also not entitled to appropriate, make or lay claims to the proprietary and ownership rights of the Applicants in respect of 75% of the property known as and called Ukoloedo and environs aforesaid in any guise, way and manner whatsoever in collaboration with the 11th to 13th Respondents in outright breach of the fundamental rights of the Applicants guaranteed under Sections 43 and 44 (1) (a) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended in 2011.
5. An order of this Honourable Court enforcing the Fundamental Rights of the Applicants aforesaid guaranteed under Sections 43 and 44 (1) (a) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended in 2011, unlawfully invaded and infringed upon by the Respondents.
6. An order of injunction restraining the Respondents, their servants, agents and or privies from further infringements of the fundamental Rights of the Applicants aforesaid entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as amended in 2011 in any way or manner whatsoever.
7. N20,875,000,000.00 (Twenty billion, eight hundred and seventy-five million naira) being special, general and aggravated or exemplary damages claimed from the Respondents jointly and severally by the Applicants.
The Application was supported by a fifty-five paragraph affidavit with five annexure, a seven paragraph further affidavit with one annexure, a further affidavit of 10 paragraphs, a further and better affidavit and a written address. The 9th Respondent who was not represented by counsel filed a counter affidavit of 31 paragraphs in support of all the processes filed by the Applicants and all the averments/depositions in all their affidavits and a written address.
In opposition to the application, learned counsel to the 11th to 13th Respondents filed a counter affidavit of 13 paragraphs and a written address dated 22/11/12 and filed 4/12/12. He was granted leave by the Court to make use of a counter affidavit filed on 30/09/13 in which they annexed exhibits they inadvertently left out. The Court discountenanced the amendment by counsel for the Applicants dated 20/6/13 as no proper application was made to regularize same. The Applicants on the other hand claimed the motion for amendment was duly moved and granted in terms by the trial Court on 24/6/13.
The 1st to 8th and the 10th Respondents did not file any process and did not participate in the hearing. After the Applicants and the 11th to 13th Respondents had adopted their written addresses, the learned trial judge on 24/2/14 delivered his judgment dismissing the application on the ground that the suit was incompetent, lacking in merit and ought not to have been brought under the Fundamental Right Rules.
Dissatisfied with the judgment, the Appellants appealed by a Notice of Appeal containing 7 grounds of appeal in the original grounds of appeal and three other additional grounds of appeal at pages 342 – 346 of the Records out of which they formulated the following 7 issues for determination:
i. Whether it was competent for the lower Court after earlier granting the appellants’ application for leave to amend their suit and to deem the amended suit as having been duly filed and served the necessary fees having been paid to turn round in its judgment of 25/2/2014 to decide that the appellants did not make any proper application to regularize the amendment to their said suit and discountenanced same. (relates to ground 1 of the original ground of appeal of 18/3/14).
ii. Whether the lower Court?s discountenance and refusal to consider the applicants’ amended suit for the enforcement of their fundamental rights to entitlement to compensation for their immovable property compulsorily acquired by the 1st and 2nd respondents and dismissal of the suit in its judgment of 25/2/2014 tantamount to gross violation and breach of the applicants? fundamental rights violation and breach of the applicants’ fundamental right to fair hearing, occasioning a substantial miscarriage of justice against the applicants, rendering the said judgment a nullity and necessitating a review/redress by the Hon. Appeal Court (relates to ground 6 of the original ground of appeal filed on 18/3/14).
iii. Whether the lower Court was right and competent to have placed reliance on contradictory purported counter affidavit, further counter affidavit of the 11th to 13th Respondents and a purported counter claim of the 11th to 13th Respondents which never existed and other extraneous irrelevant factors to determine and conclude that the Appellants’ suit was incompetent and dismissed it (relates to grounds 3,
