Emmanuel Okonkwo & Anor V. Augustine Ekwebi & Ors (2016)

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HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This appeal is against the judgment of the Enugu State High Court delivered on 9/3/07. Notice of Appeal was filed on 31/5/07. The appellant?s brief was filed on 5/3/09 and it was deemed filed on 13/5/09. The 1st and 2nd respondents filed their joint brief on 21/8/13 and it was deemed filed on 23/9/14. On 28/1/16, an order of this Court had issued that the appeal be heard on the appellants? brief and the 1st and 2nd respondents? briefs alone, since the 3rd to 6th respondents on record had been unwilling or unable to file their respondents? briefs. The facts that led to this appeal are as follows:
The appellants and the respondents had a dispute over a piece of land both parties being from Ireh Village, Ojoto, in Idemili South L.G.A of Anambra State. The dispute was submitted to customary arbitration but it later degenerated into violence. The 1st and 2nd respondents claimed that on Wednesday 22nd November, 2002 the appellants forcibly entered their land and started to attack them and that there was altercation and thereafter the appellants

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reported the matter to the 3rd respondent who sent his men to hunt the 1st and 2nd respondents. On 2nd December, 2006 the appellants were alleged to have procured the service of the men of Special Anti Robber Squad (SARS) who were alleged to have invaded the 1st and 2nd respondents? house, broke the doors, ransacked their entire home and arrested the 2nd respondent who was also detained at Awka. The 1st respondent was also searched for by SARS with a view to detaining him.

?The 1st and 2nd respondents filed an action under Fundamental Rights Enforcement Rules and on 19th December, 2006 leave was granted to them to enforce their Fundamental Rights to freedom of movement and right of personal liberty. The matter was fixed for 2nd January, 2007 and on 21/12/2006, the 1st and 2nd respondents filed a motion on notice and got the Chief Bailiff of the Court to serve the processes on the appellants and the 3rd and 4th respondents. The appellants filed a counter affidavit. The 3rd to 6th respondents did not file any counter affidavit.

The case was tried on the affidavits of the parties and the learned trial judge having heard the arguments of counsel

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on behalf of the parties delivered judgment on 9th March, 2007 in favour of the 1st and 2nd respondents. The Court awarded N500, 000 for infringement of privacy and another N500, 000 for unlawful arrest of and detention of the 2nd respondent with N50,000 cost. The appellants being dissatisfied with the judgment appealed to the Court of appeal.

The appellants submitted the following issues for determination:
I. Whether the suit against the 3rd and 5th respondents non juristic persons has not affected the competency of the action.
II. Whether non compliance with Order 2 Rule1(4) of the Fundamental Rights Enforcement Procedure Rules is not incurably fatal to the enforcement of the 1st and 2nd respondents? rights.
III. Whether the appellants are liable for the independent act of the police.

Differently couched, the respondents submitted the same issues for determination thus:
I. Whether the fact of few non juristic persons sued together with juristic persons who are in majority renders the whole proceeding before the learned trial judge a nullity.
II. Whether the respondents complied with Or. 2 R. 1 (4) of the Fundamental

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Rights Enforcement Procedure Rules.
III. Whether the appellants are liable for the action of the special police SARS.

I will adopt the issues as couched by the appellant since they represent the complaints against the judgment for review.

ISSUE ONE
Whether the suit against the 3rd and 5th respondents non juristic persons has not affected the competence of the action.