Cross River State Forestry Commission & Anor V. Muri Effiong Archibong Anwan & Ors (2012)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
UZO I. NDUKWE-ANYANWU, JCA (delivering the Leading Judgment)
This is an appeal against the judgment of the Federal High Court sitting in Calabar said to have been delivered on 8th October, 2007 but dated 5th October, 2007.
The 1st – 4th Respondent as plaintiffs filed a motion ex parte for leave to enforce their fundamental rights as enshrined in Section 44(1) of the 1999 Constitution.
The 1st-4th Respondents filed their statutory statement together with a verifying affidavit with Exhibits A-D and D1-D9 annexed. Leave was thereafter granted the 1st-4th Respondents on 1st March, 2007, following which they filed their motion and relied on the verifying affidavits together with the exhibits.
It was the case of the 1st to 4th Respondents that a group of persons suspected to be area boys stormed the Efut community, in Calabar south Local Government Area, and seized 10 sawing machines, 11 chains, 11 bars and 100 litres of fuel from the Respondents. The area boys came in 3 canoes. They were also armed with pistols and matchets. These area boys also beat the 1st Respondent’s Workmen operating in the forest.
When the 1st-4th Respondents went to retrieve the items seized from the police they were informed that 1st Appellant claimed that the 1st-4th Respondents had no permit to enter the land to fell and harvest trees. The 1st-4th Respondents argued that the land in question belonged to Efut Community and they were not given notice of the said Cross River State Government acquisition of the land. The Respondents had re-iterated that they had, by several letters, invited the Cross River State Government to pay compensation of N45m and take over the forest.
The 1st-4th Respondents argued that the items seized were fast deteriorating and claimed N200,000.00 in damages.
The learned trial Judge delivered his Ruling on 8th October, 2007 though dated 5th October, 2007. The Court in its considered ruling granted the reliefs of the 1st – 4th Respondents to the effect that the continuous detention of their items of trade is illegal null and void.
The trial Judge made an order releasing the said items to the Respondents. The court also awarded the Respondents N400,000.00 as compensation for depriving them of their tools of trade.
On 21st December, 2007, the 1st-4th Respondents filed an ex parte motion for leave to issue an order against the garnishee for the payment of N400,000.00. That application was struck out for lack of diligent prosecution. Thereafter, another ex parte motion was filed on 25th June, 2008. On 1st July, 2008 a garnishee order nisi was issued in favour of the 1st -4th Respondents attaching the funds of the 1st Appellant with Zenith Bank, the 5th Respondent.
Being dissatisfied, the Appellants filed a notice and 7 grounds of appeal. Time was, however, extended by this Court to file the Appellant’ brief.
The Appellants filed their Appellants’ brief on 20th July, 2009. The appellants distilled 6 issues for determination. They are as follows:
“1. Whether the learned trial Judge was correct when he refused to rely on the provisions of Section 44(2)(k) of the 1999 Constitution, the Forest Law of Cross River State, and the Forest Commission Law of Cross River, and then held that the appellants have infringed fundamental rights of the Respondents.
- Whether the learned trial Judge was correct when he held that it is unfair, illegal and unconstitutional for government to acquire the Respondents’ land and refused to pay compensation to them.
- Whether the learned trial Judge was correct when he ordered that the Respondents should not be rearrested on their own land and also awarded N400,000.00 to the Respondents as against the N200,000,00 claimed by the Respondents.
- Whether the learned trial Judge had jurisdiction under Section 251 of the 1999 Constitution of Nigeria to consider and make pronouncement on whether or not compensation has been paid on the land constituted as forest reserves by the Cross River State Government.
- Whether the learned trial Judge had jurisdiction to entertain the garnishee proceedings and made the order nisi absolute having been intimated of the non-service of the order nisi on the Appellants as stipulated by Section 83(2) of the Sheriffs and Civil process Act, 2004.
- Whether the learned trial Judge was correct when he proceeded to make the garnishee order absolute without first considering and pronouncing on his jurisdiction to further entertain the garnishee proceedings, based on non-service of the order nisi raised and argued by the appellants in their written address.”
The Appellants upon receipt of the Respondents’ brief filed a reply on 8th February, 2012 and deemed properly filed and served on 22nd February, 2012.
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