Mr. Cheta Nnamani V. Mr. Afam Nnaji & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Federal High Court Enugu Division, coram D.V. Agishi J. delivered on the 27th day of July, 2010 in Suit No. FHC/EN/M/224/2009.Suits & Business Attire

The appellant herein as applicant on 16th October 2009 filed a Suit at the Federal High Court Enugu for the Enforcement of his Fundamental Rights by the Court. Applicant sought for the following reliefs:-

(a) A DECLARATION that the Applicant is entitled to his rights to life, dignity of person, personal liberty, right to privacy, freedom of movement and to owe and acquire immovable property as provided in Sections 33, 34, 35, 37, 41 and 43 of the Constitution of the Federal Republic of Nigeria 1999 and Articles 2, 4, 5, 6, 12 and 14 of the African Charter on Human and Peoples Rights.

(b) A DECLARATION that the 4th and 5th Respondents acting for and on behalf of the 6th Respondent need not first arrest/detain the Applicant before he could be investigated upon an allegation of having committed any criminal offence and that the said Applicant may be investigated without being arrested/detained but so however that if the investigation reveals any “Prima Facie” proof of evidence that he committed any crime he be charged to court forthwith.

(c) A DECLARATION that the 4th & 5th Respondents acting for and on behalf of the 6th Respondent need not first arrest/detain the Applicant’s two buses before they could be investigated upon an allegation of having possess some discrepancies in plate number with that on one of the glasses or any other problem(s) associated thereto as the said buses may be investigated without being arrested/detained but so however that if the investigation reveals any “prima facie” proof of evidence that the Applicant committed any crime in relation to the buses he be charged to court forthwith.

(d) AN INJUCTIVE ORDER restraining the 1st – 3rd Respondents whether acting for themselves or through any of their agents of functionaries from instigating the 4th & 5th Respondents acting for and on behalf of the 6th – 7th Respondents to arrest, detain, torture, search the Applicant’s residence and or threaten his life in respect of a purely community problem between the 1st Respondent and some member of Amugo Autonomous Community and Hon. Barrister Ray. A. Nnaji (an indigene of the same community) of which the Applicant as a member of Amugo Youth Forum became a victim but without prejudice to their arraigning him in a court of competent jurisdiction for trial if there be any prima facie proof that he committed any crime.

(e) AN ORDER directing the Respondents to render an unreserved apology to the Applicant either severally or jointly for the gross violation of the Applicant’s fundamental rights as guaranteed by the Constitution of the Federal Republic of Nigeria1999 and African Charter on Human and Peoples Rights.

(f) AN ORDER compelling the Respondents either severally or jointly within 21 days or such time as may be ordered by this Honourable Court to pay to the Applicant the sum of FIVE MILLION NAIRA (N5,000,000) or any such sum as monetary compensation or aggravated general, special and exemplary damages for the infringement of the fundamental rights of the Applicant.

(g) AN ORDER restraining the 1st – 3rd Respondents or any of their agents, servants or functionaries from further threat to the life of the Applicant or writing fictitious petition to the police for purposes of punishing the Applicant unjustly.

(h) AN ORDER restraining the 4th – 9th Respondents from acting on the false allegation of the 1st – 3rd Respondents in respect of this matter towards the violation of the Applicant’s fundamental rights.”

In compliance with the Fundamental Rights (Enforcement Procedure) Rules, 1979, the said application is supported by a statement as well as verifying affidavit. Annexed to the application are six (6) Exhibits:

Upon being served with the leave and motion on notice, the 1st – 3rd respondents filed a Notice of Preliminary Objection on the 15th day of January 2010, urging the lower court to dismiss the application on the following grounds:-

1. The parties in the present suit are exactly the same as the parties in Suit No. FHC/EN/CS/115/2009 which was earlier in time with a few other parties which does not alter the intrinsic nature of the suit.
2. The ground in support, the reliefs and the facts culminating to the reliefs are the same with those in Suit No. FHC/EN/CS/115/2009.
3. That the cause of action that gave rise to the two Applications are exactly the same and the substratum of the cases are exactly the same.
4. That this present case, being later in time is a gross abuse of the judicial process.Suits & Business Attire

The Notice of Preliminary Objection is supported by a 14 paragraph affidavit. Attached to the said affidavit is a certified true copy of Suit No. FHC/EN/CS/115/2005. The 1st – 3rd respondents equally filed a 28 paragraph counter affidavit to the substantive application on the 19th April, 2010.