Mrs. Ngozi Chile Oparaocha & Anor V. Barr. Emeka A Obichere & Ors (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

FREDERICK O. OHO, J.C.A.

This is an appeal against the Judgment of the High Court of Imo State Holden at Mgbidi and delivered on 25th day of February, 2013 by K. A. ORJIAKO, J in which the 1st Respondent as Applicant commenced the action via a Motion on Notice dated the 8th day of December, 2012 for the Enforcement of his Fundamental Human Rights to personal liberty, Freedom of movement and dignity of human person as guaranteed under sections 34, 35 and 41 of the 1991 Constitution of the Federal Republic Nigeria (As amended).

The Application had in its support an affidavit of 30 paragraphs together with Exhibits thereto and the Written Address of Counsel seen at pages 1 to 27 of the Records of Appeal. The 1st and 2nd Appellants then as 1st and 2nd Respondents in reaction to the affidavit of the 1st Respondent filed their Counter Affidavit of 24 paragraphs with Exhibits thereto and a Written Address of Counsel filed on 17th December, 2012 seen at pages 40 to 57 of the Records. The 1st Respondent in reaction to the Appellant€™s Counter Affidavit filed a further affidavit of another 30 paragraphs with Exhibits thereto together with another Written Address filed on 8th day of January, 2013, seen at pages 60 to 70 of the Records. In reaction to the fresh issues raised by the 1st Respondent, the Appellants filed a further counter affidavit of 18 paragraphs together with another Written Address filed on 15th January, 2013 and seen at pages 73 to 79 of the Records.

On 16th day of January, 2013, the 1st Respondent appeared in person and he and learned Counsel to the Appellants adopted their Written Addresses which resulted in the judgment herein appealed against. The 1ST Respondent as Applicant also accompanied his Application with Statement filed pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, stating his names, address and other descriptions in addition to the Reliefs sought which are hereby reproduced here as follows;

1. A Declaration that the arrest and detention of the Applicant by the 3rd to 6th Respondents and in particular at the orders of the 6th Respondent and at the instigation of the 1st to 2nd Respondents for no justifiable reason or any offence known to law is illegal, unconstitutional and a gross infraction/violation of Applicant€™s Fundamental Rights to personal liberty and freedom of movement as respectively guaranteed under Sections 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
2. That the extortions, harassments, embarrassments, threats and/or torture of the Applicant by the 3rd to 6th Respondents and in particular the 6th Respondent who at the instigations of the 1st to 2nd Respondents detained the Appellant in his night dress at Owerri Urban Police Station from 8am to 4pm for no justifiable offences known to law is an infraction of Appellant€™s Fundamental Rights to dignity of his person and freedom of movement as respectively guaranteed under Sections 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
3. Fifty (50) Million Naira only jointly and severally against the Respondents being compensations for the inexcusable/unjustifiable violations of Applicants Rights as dully guaranteed.
4. An Order of injunction restraining the Respondents and in particular the 3rd to 6th Respondents by themselves, their agents, servants, privies, workman from further arresting, detaining, embarrassing and conducting any other proceedings in respect of the ground or related grounds that lead to the breaches complained against.

On the 16-2-2013, the Lower Court gave judgment in favour of the Applicant who is 1st Respondent herein and awarded the sum of N3,000,000.00 in his favour. The judgment is seen at pages 81 to 96 of the printed records. It is against that judgment that this Appeal has been instituted vide a Notice of Appeal dated the 26-2-2013 and filed on the 27-2-2013. There are Four Grounds of Appeal filed, which without their particulars are reproduced as follows;

GROUNDS OF APPEAL;

1. The learned trial judge erred in law when he assumed jurisdiction to hear the Respondent€™s suit predicated on alleged breach of Fundamental rights.
2. The learned trial judge misdirected himself in law when he discountenanced a further counter affidavit filed on 1st January, 2013 by the Appellants on the ground that same was filed without leave of Court which misdirection occasioned a miscarriage of justice.
3. The learned trial judge erred in law when he entered judgment for the 1st Respondent for alleged breach of his Fundamental Rights.
4. The learned trial judge erred in law when he awarded a whooping sum of Three Million (N3,000,000.00) Naira in favour of the 1st Respondent for alleged threat of his Fundamental Rights.

There are four (4) issues nominated for determination by the Appellants as follows;

1. Whether the trial Court properly assumed jurisdiction to hear this suit.
2. Whether the trial Court was right to have discountenanced the further Counter Affidavit filed by the Appellants in the case.
3. Whether the Appellants breached any of the Fundamental Rights of the 1st Respondent.
4. Whether the damages awarded by the trial Court in favour of the 1st Respondent is not excessive in the circumstance.

Learned 1st Respondent€™s Counsel had no difficulties adopting the issues nominated by learned Appellant€™s Counsel and upon which both sides addressed Court extensively, citing a plethora of decided cases. Appellants€™ brief of Argument was settled by L. M. ALOZIE ESQ., while that of the 1st Respondent was settled by S. C. IMO ESQ. On the 3-3-2016, at the hearing of the Appeal, learned Counsel for the parties adopted the Briefs of arguments and urged the Court to resolve the Appeal in favour of their clients. It may however, be proper and just before doing that to give a brief resume of the facts of this case as follows;

Trouble began between the parties sometime in July, 2012, when the Appellants took on rent the 1st Respondent€™s duplex apartment, which was on a rent of N750,000 a year. By the way, the 1st Respondent is a Legal Practitioner. As owner of the duplex apartment, it was agreed between the parties that the Appellants would pay two (2) years rents amounting to N1.5 Million and an additional sum of N100,000 lawyer€™s agreement fee making it the sum of N1.6 Million. The 1st Appellant however, pleaded to be allowed to pay N1 Million part payment and the balance of N600,000.00 on or before 30th October, 2012. As things eventually turned out, the Appellants failed to pay and asked for more time to the 2/11/2012 and later to the 4/11/2012; but never paid until 6/12/2012, when 1st Respondent received an alert for the sum of N300,000.00 paid into his account by the 2nd Appellant and husband of 1st Appellant. The 1st Respondent was infuriated by this and he called the 2nd Appellant on phone and told him he would issue him a cheque returning the N300,000.00 and thereafter they would review their state of account so that 1st Respondent would refund the Appellants the balance of rent already paid to enable them pack out.

Still enraged, 1st Respondent went to the Appellants€™ house but met only their 10 year old daughter at home. The 1st Respondent was said to have threatened the 10 year old girl that he would deal with the Appellants with thugs such that the 10 year old girl became scared and informed the 1st Appellant about the threats made by the 1st Respondent. The 1st Appellant in turn informed the 2nd Appellant about the threats and he advised her to incident a report with the police. The 1st Respondent thereafter informed the 2nd Appellant that he would come to the Appellants€™ house the next day being 7/12/2012 for settlement of accounts but the 2nd Appellant asked him to wait till weekend when he would be around since he lived in Port Harcourt and then his wife 1st Appellant who is a Banker would not go to work and so also be available for discussions. However, despite the reasons given by the 2nd Appellant to the 1st Respondent, 1st Respondent still on the said 7/12/2012, came to the house of the Appellants around 6:30am with three other persons and knocked on the door in such a manner that the 1st Appellant was convinced that he came to keep his threats and so called the 5th Respondent who sent his men to the house. Upon the arrival of the police, the other three persons were said to have taken to their heels and the police went to the 1st Respondent to inquire about the situation but he was said to have ignored them and also refused to talk with the 5th Respondent their D.P.O who called on phone.

This made the D.P.O to call for re-enforcement; this second set of policemen came and asked the 1st Respondent to follow them to their station since he did not want to speak with their D.P.O. but he resisted and called his wife on phone and asked the police if they knew who he is and that his wife is a magistrate. The 1st Respondent€™s wife arrived soon thereafter and solicited with the police to allow 1st Respondent get properly dressed. The police obliged her and followed the 1st Respondent to his house, after he got properly dressed he was taken to the Station where he was asked to write his statement and after the statement he was said to have left same day.

The 1st Respondent brought the Suit at the Court below for the Enforcement of his Fundamental Rights. The Appellants responded by the filing of their Counter Affidavit in opposition of same. In reaction, the 1st Respondent filed a further affidavit raising fresh facts which the new Counsel for the Appellants felt was necessary to react to and so filed a further Counter Affidavit. However, the Court in delivering its judgment discountenanced the said further Counter Affidavit on ground that the Fundamental Rights Rules does not permit a further Counter Affidavit and that even if such would be considered by the Court in the interest of justice, leave of Court must 1st be sought but that in this case, the Appellants did not seek his leave. The Court then granted the reliefs of the 1st Respondent and awarded him N3 Million damages jointly and severally against the Appellants and the other Respondents. The Appellants being dissatisfied therefore appealed to this Court.

ARGUMENTS BY LEARNED APPELLANTS€™ COUNSEL;

ISSUE ONE;