Chief Ukata Sam Akpan & Ors V. Titi Peter Udo & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling delivered by His Lordship Charles U. Ikpe J., of the High Court of Justice, Ikono, Akwa Ibom State on 2nd June, 2009 wherein His Lordship dismissed a preliminary objection brought by the appellants to dismiss an application by the Respondents to enforce their fundamental rights alleged to have been infringed by the appellants. The appeal was filed on 12th July, 2009. Three grounds accompany the Notice of Appeal.

Learned Counsel formulated three issues for determination in the brief filed on 8th December, 2010. The Respondents did not file any brief though served the processes.

The appeal was set down for hearing on appellant’s brief alone. On 4tn December, 2012 when the appeal came up for hearing neither the appellants nor their learned Counsel appeared though served the processes. The appeal was deemed argued. See Order 18 rule 9(4) of the Court of Appeal Rules, 2011. I shall proceed to consider and determine this appeal on the appellants’ brief alone, but first the facts of the case presented before the lower Court.

On 16th day of February, 2009 the learned trial Judge granted the Respondents leave to apply for the enforcement of their fundamental rights as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 as altered. The enrolled order set down the substantive motion to 27th day of February, 2009 for argument. See page 3 lines 16-18 of the printed record.

The reliefs claimed by the Applicants/Respondents are set out in the motion on Notice supported by affidavit as follows:

“(1) A declaration that the arrest, detention, torture and degrading treatment of the Applicants on the various dates between 8th February, 2008 and 17th April, 2008 by the 1st to 16th Respondents at the instance, instigations, active assistance and directions of the 1st to 11 Respondents are violations of their fundamental rights to dignity, personal liberty and freedom of movement which are guaranteed under Sections 34(1)(a), 35(1) and 41(1) of the Constitution of the Federal Republic of Nigeria, 1999 and therefore illegal, unlawful and unconstitutional.

(2) An order directing the Respondents to pay jointly and severally to the Applicants the sum of N50,000,000.00 (Fifty Million Naira) being exemplary and aggravated damages for wrongful arrests, detention, torture and degrading treatment of the Applicants and the violent breach of their fundamental rights enshrined in Section 34(1)(a), 35(1) and 41(1) of the Constitution of the Federal Republic of Nigeria, 1999.

(3) An order of injunction restraining the Respondents, whether by themselves, their agents, servants or persons however called from further interfering in any manner whatsoever with the Applicants’ enjoyment of their fundamental rights to personal liberty, freedom of movement and respect for the dignity of their human persons.

(4) And such further order(s) as this Honourable Court may deem fit to make in the circumstances.”

The grounds for seeking relief are that there was a political upheaval which resulted in the ransacking and destruction of houses and properties in Ogu, Mkpu and other villages in Mbanuso Clan in Ini Local Government Area of Akwa Ibom State. The Respondents alleged that they were arrested, detained and tortured by police and soldiers. That the appellants master-minded their ordeal.

They did not commit these offences hence they sought leave to enforce their fundamental rights and to claim injunctive reliefs and damages.

On the 24th February, 2009 the appellants filed a Notice of preliminary objection attacking the jurisdiction of the learned trial Judge to entertain the application on grounds that as at the 27th day of February, 2009 when the Motion on Notice was set down for hearing not all the appellants had been served with the processes. Besides, the appellants were not given the 8 days mandatorily required by the Rules for them to respond to the application. There was no affidavit as to the parties who were served or not the substantive application. Learned Counsel referred to Orders 2 rules 1(1) and (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 in argument and decided authorities. The learned Counsel to the Respondents in the Court below submitted, and the learned trial Judge agreed, that the preliminary objection was pre-mature. The objection was dismissed with costs of N2,000.00 against the appellants hence this appeal.

Learned Counsel to the appellants formulated three issues for determination as follows: