The Commissioner Of Police, Abia State & Ors V. Uzomba Okara & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment)

This appeal raises the question concerning actions or Suit that can be commenced or brought pursuant to the FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 made by the Chief Justice of Nigeria under Section 46 (3) of the Constitution of Nigeria, 1999 in matters dealing with breaches of Fundamental Rights provisions in Chapter IV of the said Constitution.

The proceedings in this action was initiated vide a Motion on Notice by the Respondents who were the APPLICANTS at the lower Court, dated 12th day of November, 2010 filed on 15th November, 2010 wherein they sought for the following reliefs:-

1. A DECLARATION that the applicants are constitutionally entitled to own and enjoy immovable property, to wit; all that piece and or parcel of land traditionally called INYAM measuring about 10 hectares lying and situate at Ndagbo-Eluama Uzuakoli, Abia State.
2. A DECLARATION that the appropriation of the applicants, said land by the respondents without due regard to the constitutional provisions is illegal, unlawful, unconstitutional, and hence null and void.
3. A DECLARATION that the sale of part of the said land by the Respondents especially the 1st and 2nd Respondents to private individuals, is illegal, unlawful, unconstitutional, and hence null and void.
4. AN ORDER restraining the Respondent by themselves and or through anybody howsoever described in further carrying on the said sale and or infringing on the Applicants’ fundamental right to their said property.
5. GENERAL and Exemplary damages in the sum of N100,000,000.00 for the infraction of the Applicants’ fundamental right to their said property.

The said relief were predicated upon the following grounds namely:-

“GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT

1. By virtue of Ss. 43 and 44 CFRN ’99 as well as Art 14 of the African Charter on Human and Peoples right, applicants have the fundamental right to own/acquire immoveable property.
2. By virtue of S. 44 (1) CFRN ’99 and S. 28 Land Use Act, payment of prompt compensation is a pre condition for acquisition of any private land.
3. The land Use Act did not destroy existing rights over land.
4. In clear violation of Nos. 1-3 above, the Respondents forcibly and with impunity appropriated and sold part of the Applicants’ said land without compensating the Applicants.”

The application was accompanied with Statement and Affidavit of 24 paragraphs which are as follows:

“AFFIDAVIT OF UZOMBA OKARA SETTING OUT FACTS UPON WHICH THE APPLICATION IS MADE

I, UZOMBA OKAM adult male, Christian, NIGERIAN, FARMER OF Ndagbo Efuoma Uzuakoli, Abia State do make oath and state as follows:

1. That I am one of the applicants in this application by virtue of which I am conversant with the facts of this case.
2. That I have the consent and authority of my co-applicants as described in paragraph 1(2) & (3) of the Statement made in support of this application as well as the entire Ndagbo Eluama Uzuakoli People to depose to this affidavit.
3. That the Applicants are the undisputed Communal/Indigenous owners of that entire piece or parcel of land situate on both sides of Uzuakoli/Ozuitem Road, off Arochukwu/Uzuakoli/Umuahia Federal Road traditionally called INYAM and situate at Ndagbo-Eluama Uzuakoli.
4. That the Applicants equally are the undisputed communal/indigenous owners of the vast piece or parcel of land housing the Nigeria Railway Corporation, Uzuakoli as well as the Uzuakoli General Market.
5. That the applicants use the entire Ndagbo land communally till date.
6. That the 1st Respondent is the officer in charge of Police formation and control in Abia State; the 2nd Respondent is in charge of police formation throughout Nigeria, including Abia state, the 3rd Respondent is a creation of the Nigerian Constitution and is the Government in charge of the whole Abia state while 4th Respondent is the chief Law officer of Abia State.
7. That in breach of the applicants’ constitutionally guaranteed right to property, Respondents forcibly invaded into part of the said land and appropriated for themselves an area of land measuring approximately 10 hectares of land without any notice to the applicants and or paying any compensation to them.
8. That the land the respondents forcibly entered in breach of Applicants’ fundamental right to property is bounded as follows: standing on the main Arochukwu/Uzuakoli/Umuahia Road and facing the land, the front is bounded by the land of the people of Amuhi-Eluama Uzuakoli, at the right hand side is bounded by the Uzuakoli/Ozuitem Road; at the left hand side is a road leading to the Methodist church Manse, Uzuakoli while at the back is the Uzuakoli main market.
9. That the Respondents know the land very well.
10. That the applicants had been orally complaining to the Respondents before now about their presence on their Communal land with no responses to their complaints.
11. That I know as a fact that part of the applicants’ said land which the Respondents forcibly appropriated now houses the divisional Police Headquarters of the Nigeria Police, Uzuakoli Police Division, its residential quartzes as well as the High Court Building, Uzuakoli Judicial Division.
12. That as if the Respondents are not contented with the forcible appropriation and erection of the afore-stated buildings thereon, the respondents lately in September, 2010 embarked on the sale of portions of the said land to individuals at the rate of N150,000.00 per 10 square metres by 10 square metres and keeping the proceeds to themselves.
13. That about that same September, 2010 members of the applicants’ community went to the Divisional Police Officer in charge of the Uzuakoli police division as well as the Abia State Commissioner of Police to complain of the illegal, unlawful, unconstitutional rand forcible appropriation and sale of portions of the applicants, land.
14. That instead of being reasonable with the applicants, the said commissioner of Police ordered that the Applicants and the representatives of the Ndagbo Eluama people be locked up in the police cell built on Applicants’ portion of land illegally and forcibly appropriated by the Respondents on breach of applicants’ fundamental right to property.
15. That it was only on the intervention of a retired assistant superintendent of Police (ASP Igwe) that saved the applicants community the added degradation of being locked up for questioning the infringement of their Fundamental Right to property.
16. That I was informed by our solicitor Okorie, N.A Esq and I verily believed him as follows:

1) That the Applicants have the fundamental right to own immovable property anywhere within Nigeria.

2) That there are conditions provided in the constitution under which the said applicants’ fundamental right to property may be tampered with.

3) That conditions for appropriation of applicants’ constitutionally entrenched right to property include, interalia:

i. Revocation of the applicants’ right for overriding public purposes.

ii. Publication of the said revocation and the specific public purpose.

iii. Giving Notices of revocation personally to the applicants.