Fredrick Nwokoleme V. Paulinus Ajaero & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the leading Judgment)

This appeal is against the judgment of Imo State High Court in Suit NO. HAM/25/2006, delivered by Hon. Justice Goddy I. Anunihu on 31/7/2007, whereof the trial judge struck out the fundamental rights application by the Appellant, saying the Suit could not be effectively and effectually adjudicated under Fundamental Rights Enforcement Procedure, Rules; that the Suit was based on trespass to land and remedy lied in the ordinary writ of summons.

At the lower Court, Appellants (two brothers) had sought the following reliefs, via fundamental rights enforcement procedure rules:

(1) “A declaration that the compulsory and forceful acquisition and confiscation of the Applicants land known as and called Ala Azuio Mugin? situtate at Umunama, Ezinihite Local Government, Imo State, Nigeria, and the gift or assignment of the personal need and purpose by the 2nd and 3rd Respondents on 5/12/05 is unconstitutional and unlawful.

(2) A declaration that Applicants have a right to acquire and own land anywhere in Nigeria, including Umunama in Ezinihite LG of Imo State,

Nigeria, unimpeded by anybody including the Respondents

(3) An Order for the Respondents to pay to the Applicants jointly and severally the sum of N5million (Five Million Naira) being damages or compensation for their violation of the Applicants right to acquire and own immovable property as enshrined under Sections 43 and 44 of the Constitution of FRN 1999 and Article 14 of the African Charter on Human and Peoples? Right (Ratification and Enforcement) Act, Cap 10 LFN, 1990.

(4) An Order for the Respondents to return to the Applicants forthwith the Applicants? land confiscated and compulsory acquired by the 2nd and 3rd Respondents and giving to the first Respondent for his personal use and purpose.

(5) An Order for the Respondents to render to the Applicants a public apology published in any of the national newspapers circulating within jurisdiction for their unlawful violation of the Applicants rights above stated.

(6) Perpetual injunction restraining the Respondents, howsoever, by themselves, their servants agents, workmen, and or privies from further compulsory acquisition of the

Applicants said land or violation of their Rights as stated herein above.

Appellant and his late brother were earlier granted leave, by an ex-parte motion on 18/5/06 to bring the action, under Fundamental Rights Enforcement Procedure Rules, before they filed the Motion on Notice. Of course, their motion ex-parte was accompanied by their statements, disclosing the above reliefs and particulars, the grounds for seeking the reliefs, and a verifying affidavit and exhibits. At the lower Court, Appellant also filed a 19 Paragraphed Further Affidavit, in reaction to the Respondents Counter Affidavit.

The core of Appellants complaint was that the 2nd and 3rd Respondents, in their capacity as the Vice Chairman and Chairman, respectively, of Ezinihite Local Government Council forcefully took a sizeable portion of their land and gave it to the 1st Respondent for construction of access road to the 1st Respondent?s premises. Appellant said, on the day the Respondents came to forcefully take his land, they came with a large crowd of heavily armed security personal such as Policemen, Members of Civil Defence Corps, Vigilante people, some

staff of Ezinihite Local Government, the Divisional Police Officer (DPO) of Itu Police Station (Mr. Ndieze); the Head of SSS Ezinihite, the Head of Vigilante (DSP Basil Ogu Rtd), the Council Secretary (Mr. Ochulor) etc. Appellant said before the forceful taking over of the land, all letters they wrote to him sounded peremptory, forceful, mandatory and threatening. He referred to pages 10 ? 12 of the Records and Exhibits ?TCN1? to ?TCN3?. He said the 2nd and 3rd Respondents did not deny taking the land and giving it to 1st Respondent to construct an access road to his house, but claimed that Appellant and the 1st Respondent reached an amicable settlement on the matters and that what they (2nd and 3rd Respondents) did was in consonance with their statutory duties.