Dr. Chamberline Nwele V. Mr. Sunday Oduh (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR J.C.A.: (Delivering the Leading Judgment)

This is an appeal brought pursuant to the Ruling/Judgment of High Court of Justice, Ebonyi State, sitting at Abakaliki delivered on the 3rd day of March, 2010 by Hon. Justice E. NGENE (hereinafter referred to as the Trial Judge).

The respondent in the instant appeal by a motion Ex-parte dated 13/10/2009 and filed on 14/10/2009 at the lower court seeking the leave of court for enforcement of his fundamental rights as provided by the Constitution of the Federal Republic of Nigeria 1999. The said application was granted on 16/10/2009.

In his statement pursuant to Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, the respondent as Applicant at the lower court sought for three reliefs to wit:

“2(a) A declaration that the degrading treatment, the locking up of the Applicant’s building consisting of eight rooms located at Iboko and the prevention of the Applicant from entry into the said Applicant’s building at Iboko Izzi Local Government Area of Ebonyi State for no just cause are unlawful and unconstitutional as they offend the Applicant’s right to dignity of human person, right to liberty, right to acquire and own immovable property and right to compulsory acquisition of property, the interest therein, as provided by Sections 34 (1), 35 (1), 43 (1) and 44 (1) of the Constitution of Federal Republic of Nigeria, 1999.

(b) Damages in the sum of One Million Naira (N1, 000,000.00) only being loss suffered by the Applicant from the acts of the respondent.

(c) A written apology from the Respondent to the Applicant.

The appellant who was the respondent at the lower court vehemently opposed the application by filing a 20 paragraph counter affidavit in opposition thereof and relied on the paragraphs of the said counter affidavit to challenge the competence of the suit and the jurisdiction of the court to entertain same. Learned counsel for the parties duly addressed the court and filed their respective written addresses to sustain their arguments.

The learned trial Judge in his considered Ruling/Judgment of 3rd March, 2010 granted only relief 2 (a) to the applicant and refused reliefs 2(b) and (c). The respondent (now appellant) being dissatisfied with the decision of the court filed a Notice of Appeal to this court. The said Notice of Appeal of three grounds is dated 14/4/2010 and filed on the same date.

In compliance with the rules of this court, learned counsel representing the parties in this appeal filed, exchanged and adopted their respective Brief of Argument in support of their contentions in the appeal.

The Appellant’s Brief of Argument dated 28th July, 2010 and filed on the same date was settled by Luke O. Nkwegu Esq. for the appellant. The respondent’s Brief of Argument dated 6th July, 2011 and filed on the same date was settled by Chief Jossy C. Eze for the respondent. The appeal was heard on the 25th March 2013.

The learned counsel for the appellant formulated two (2) Issues for the determination of this appeal. The Issues read thus:

“Issue 1:

Whether the trial court properly assumed jurisdiction to try the action under fundamental Rights Enforcement Procedure Rules, when the substance of the Applicant’s claim is, in the main, Declaration of title to land.