J. U. Achebe Chief Medical Director, National Orthopaedic Hospital, Enugu & Anor V. Chief Dona Nwosu & Anor (2002)

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OLAGUNJU, J.C.A.

The consolidated appeals are from two decisions of Ajakaiye, J. of Enugu Judicial Division of the Federal High Court, delivered on 27/10/99 and 16/12/99 respectively. The first appeal by the two respondents/appellants, is in respect of an action for declaration over a piece of land and injunction. The second appeal is by the 2nd respondent/appellant against the decision of the learned trial Judge, on their application for restoration by the applicant/respondent of the wall fence of the 2nd respondent/applicant’s building, which he destroyed while the applications for a stay were pending before the trial court.

In the substantive action giving rise to the first decision, the applicant/respondent on an ex parte application brought under the Fundamental Rights (Enforcement Procedure) Rules, got leave from the court below to enforce against the 2 respondents/appellants his fundamental rights under sections 40 and 42 of the Constitution of the Federal Republic of Nigeria, 1979, in respect of a piece of land known as ‘Plot 5/4, Triangle Layout near Orthopaedic Hospital, Enugu’. In the application, the Federal Ministry of Health, the Federal Ministry of Works and Housing, and the Inspector-General of Police, were joined as the 3rd, 4th and 5th respondents, respectively.

In the statement supporting his motion on notice for the enforcement, the applicant/respondent sought the following reliefs:

“1. A declaration of court that the applicant is entitled to own property as enshrined in s. 40 of the 1979

Constitution of Nigeria as amended.

2. A declaration of court that the respondents cannot dismantle, demolish or otherwise tamper with the applicant’s pharmacy shop and other appurtenances thereto located at and called Plot 5/4, Triangle Layout, near Orthopaedic Hospital, Enugu, which is the lawful property of the applicant.
3. A declaration of court that the applicant is entitled to the full enjoyment of the ownership and possessory rights conferred on him by the statutory right of occupancy granted to him over the aforementioned plot, including his right of way and or access to the plot.
4. A mandatory order of court compelling the respondents to open up the wall erected on the access road to the applicant’s plot which has denied him access and or his right of way/entry to the property or alternatively allowing the applicant to open upon and or remove the portion of the wall inhibiting his right of way or access to the property.
5. An injunctive order of court restraining the respondents, their agents or privies from demolishing, dismantling, walling or inhibiting the applicant’s right of way or access to aforementioned property”

On 27/10/99, the learned trial Judge granted all the reliefs sought and in particular order that the two respondents/ appellants must within 7 days, open up the wall erected on the access road to the applicant/respondent’s plot, with liberty to the applicant/respondent to demolish the wall if the respondents/appellants failed to do so ‘within the specified time.’

Dissatisfied with the decision on the substantive action, the respondents/appellants gave separate notices of appeal, the 2nd appellant on 29/10/99 and 1st appellant applied on 1/11/99. On the day each notice was filed, each appellant applied to the court below for stay of execution of the judgment pending the determination of the appeal. In the meantime, on 4/11/99 the applicant/respondent demolished the access wall of the 2nd appellant, while the motions for stay of execution of the judgment by the appellants were pending before the trial court.

Reacting to the destruction of the 2nd respondent’s access wall the appellants jointly applied to the trial court on 8/11/99, for an order compelling the applicant/respondent to restore the wall he destroyed. The application was consolidated with the earlier applications for stay of execution and on 16/12/99, the learned trial Judge refused the application for restoration of the demolished access wall but granted the application for stay of execution.

That decision was followed by filing of two further appeals, the first appeal filed by the applicant/respondent on 28/1/2000, against the grant of stay of execution and the second by the 2nd appellant on 25/2/2000 against the refusal to order the applicant/respondent to restore the demolished wall. It seems that the appeal by the applicant/ respondent was abandoned as he filed only a respondent’s brief in answer to the joint appeal by the 2 appellants and to the appeal from refusal to order restoration of the access wall filed by 2nd appellant only.

However, the appellants filed separate briefs of argument by different learned Counsel raising substantially the same issues in the appeal against the decision of 27/10/99. But because of the comprehensive nature of the 2nd appellant’s brief combining arguments on the two appeals, I will opt for the five issues formulated by learned Counsel for the 2nd appellant from a total of 6 grounds of appeal in her 2 notices of appeal filed on 29/10/99 and 25/2/2000, respectively. The five issues read:

“Issue No.1

(Based on grounds 1 and 2 of the notice of appeal dated 29/10/1999) whether title to land is enforceable by way of Fundamental Rights (Enforcement Procedure) Rules, and whether in any case, the Federal High Court has jurisdiction to entertain the suit relating to claim of title by the applicant.

Issue No.2 (Based on ground 3 of notice of appeal dated 29/10/1999) whether the learned trial Judge was right to have decided the case on the basis of the affidavit evidence before him in the face of irreconcilable conflicts contained therein, without first resolving those conflicts.