Romanus Ihejiobi & Ors V. Mrs. Grace Chinyere Ihejiobi & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the leading Judgment)

This appeal is against the judgment of the High Court Owerri in Imo State delivered on the 17th day of July 2002 per Chioma Nwosu Iheme J. The Applicants/Respondents on the 25th day of March 2002 filed a motion ex parte in the lower court praying for leave to enforce their fundamental rights against the Respondents/Appellants.

Leave was however granted on the 27th day of March 2002 and the Respondents filed a motion on notice seeking various reliefs against the Appellants for alleged breaches of their fundamental rights. See pgs. 64 – 67 of the record).

On the 13th day of May 2002, the Applicants/Respondents moved their motion for the enforcement of their fundamental rights and the lower court finally delivered judgment on the 7th day of July, 2002 in favour of the Respondents herein. (see pgs. 118 – 129 of the record). The Appellants feeling aggrieved appealed against the said judgment filed a notice of Appeal containing 6 grounds of appeal (see pgs. 132-138 of the record).

The facts of this case are thus:

The 1st Respondent was the widow of Mr. Desmond Onyebule Ihejiobi (deceased) while the 2nd Respondent is their allegedly adopted son. The 1st 2nd and 5th Appellants are the younger brothers and sister respectively of the said Mr. Desmond Onyegbule Ihejiobi (deceased), while the 3rd and 4th Appellants are the children of the deceased. The 1st and 2nd Respondents herein in their application for enforcement of their fundamental right contended that the Appellants and their relations on the 2nd day of September 2001 forcibly sent them out of their matrimonial/family home and also denied them access to their property.

The Respondents also contended in their affidavit that the Appellants and their relations beat them up mercilessly. The 1st Respondent was married to Mr. Desmond Onyegbule Ihejiobi on the 26th day of December 1993 and in November 1997 the said Desmond Ihejiobi died. Records show that both 1st Respondent and Mr. Desmond Ihejiobi had before the death of the deceased adopted the 2nd Respondent from the HOLY FAMILY SISTERS OF THE NEEDY, Nekede, Owerri in July 1997.

The Respondents further contended that soon after the death of her husband, the appellants in collaboration with other family members drove them out of their family house, depriving them of the right to harvest any of the economic trees planted by their late husband and father and finally aligned with other family members to falsely accuse them of plans to kill the appellants with the aid of a native doctor.

The Appellants herein on their part denied all the allegations in their counter affidavit. They categorically stated that the late Desmond Ihejiobi lost his first wife in 1988 from whom he begat 6 children. The Appellants further alleged that after the death of his first wife, the said Desmond Ihejiobi married the 1st Respondent principally to aid in the bringing up of his six children. That during the four turbulent years of the marriage the 1st Respondent resorted to plans to eliminate the children of her husband.

The Appellants further alleged that the deceased died in suspicious circumstances and thereafter the 1st Respondent turned her venom on the family of the deceased husband which resulted in some being remanded in police custody, D.I.D, Owerri for over two weeks. That a number of persons intervened, trying to make peace between the waring parties including the 1st respondent’s younger brother, HON. JUSTICE OHAKWE but to no avail. The Appellants also alleged that the 1st Respondent was so “heartless” that she refused to participate in the burial rites of her husband and that consequently the village elders imposed a fine on her of one goat, one fowl and some Ugba (African oil been).

They further alleged that her incessant invitations of the native doctor so angered the family members that they got the village women to invoke their village custom by sending her packing out of her matrimonial home and back to her own family home and village. The appellants however deny that the 2nd respondent was even adopted by the late Desmond Ihejiobi but that he was merely taken in as a foster child and not as an adopted son.

The Appellants have in the course of this appeal raised two issues for determination to wit:

“1. Whether the applicants’ motion for the enforcement of their fundamental rights was competent enough to clothe the High Court with jurisdiction to hear it, and deliver the judgment appealed from especially in view of the non-compliance with the provisions of the Fundamental Rights (Enforcement procedure) rules applicable under the 1999 constitution of Nigeria, the nature of the reliefs claimed and the mis-joinder of causes and parties as well as the fundamentally conflicting interests of the applicants bordering on a breach of the fiduciary duty of the 1st Applicant/Respondent to the 2nd Applicant/respondent.

2. Whether from the facts and evidence respectively stated by both parties in this case, including the status of the 2nd Applicant/Respondent, the lower court can be said to have rightly come to a decision that the Applicants sufficiently established on the acceptable legal standard that their fundamental rights were breached by the Respondents/Applicants.”

The Respondents on their part have also raised the following issues for determination: