Udoji Nwadiogbu & Ors V. Anambra /imo River Basin Development Authority & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE

On the 20/8/2002, the Appellants herein by a motion Exparte obtained the leave of the Federal High court, holden at Enugu to apply for the enforcement of their Fundamental rights to personal liberty and freedom of movement pursuant to the leave granted. The Appellants filed a motion on Notice in which they claimed against the Respondents as follows:-

“a. A DECLARATION that the arrest and the continued detention of the appellants by the Respondents and their servants, agents and privies at the Zone 9 the Headquarters cell Umuahia of the Nigeria police Force since 5.pm of Wednesday 24th July, 2002 till now is illegal, unlawful and unconstitutional, oppressive, intimidatory, persecutory, null and void and a gross violation of the Appellants Fundamental Rights to personal liberty and freedom of movement.

b. A DECLARATION that the Respondents’ refusal to grant the Applicants bail over the trumped charge of conduct likely to cause the breach of peace is illegal, unlawful, intimidatory, unconstitutional and a violation of Appellants, fundamental Rights to personal liberty and freedom of movement.

c. A DECLARATION that the respondent’s threat to continue detaining the Appellants in the crowded and dehumanising police cells at zone 9 police Headquarters, Umuahia until they withdraw the Suit No. FHC/EN/CS/28/02 against the 1st and 2nd respondents pending at the Federal High Court Enugu is unlawful, illegal, unconstitutional, intimidatory, contemptuous of the court, abuse of power and a gross violation of the applicants’ fundamental Rights to personal liberty and freedom of movement.

d. A DECLARATION that the appellants have not done any acts that amounts to conduct likely to cause a breach of peace warranting their arrest and detention by the Respondents.

e. AN ORDER releasing the Applicants forth with from the unlawful detention.

f. AN ORDER restraining the Respondents by themselves, servants, agents and privies from further arrest and detention of the Applicants or in any way whatsoever interfering with the applicants’ Fundamental rights as enshrined in the Constitution of Federal Republic of Nigeria.

g. AN ORDER compelling the Respondents jointly and severally to pay to each of the applicants the sum of N500,000.00 (Five Hundred Thousand Naira) only as general and exemplary damages for the violation of the applicants’ fundamental rights to personal liberty and freedom of movement”.

The Respondents were served with this motion on Notice, the 1st and 2nd Respondents filed a counter-Affidavit dated 2/9/2002. The Applicants filed a further Affidavit in support of the motion dated 20/9/2002.

On the 26/9/2002, the trial court ruled that this Applicants’ further Affidavit and counter-Affidavit of the 1st and 2nd Respondents be served on 3rd, 4th and 5th Respondents, and adjourned the case to 27/11/2002 for hearing. On the 27/11/2002, it was shown that the further Affidavit had been served on all the respondents, and has also been served on the 3rd and 4th respondents, except the 5th respondent. The court then adjourned the matter to 3/2/2003 for hearing.

On the 3/2/2003, the Appellants/Applicants’ counsel moved the motion on Notice. In the course of moving the said motion the trial court stopped the learned counsel to the Applicants to confirm the service of the processes on all the respondents. All the Respondents were confirmed to have been served with all the Court’s processes. While the 1st and 2nd respondents filed counter-Affidavit to the motion on Notice, they did not file any reply to the further affidavit. But the 3rd, 4th and 5th Respondents did not respond to any of the processes and neither have they been represented in all the court’s proceedings. The court then allowed the appellants Applicants’ counsel to proceed with his submissions. He then referred to the averments in the further Affidavit as uncontroverted. At this point the learned trial Judge asked the counsel to the 1st and 2nd respondents to comment on the submission of the learned counsel to the Appellants/Applicants on the further Affidavit. This is what the learned counsel to the respondents said: –

Amene: “It is our understanding of the law that we are not bound to reply to every averments in the further affidavit which only seeks to controvert what was in our counter-Affidavit. I did not see anything new in the further affidavit filed by the applicants.

Based on this comment the learned trial Judge asked the learned counsel to the appellants/Applicants to proceed with his submission. The said counsel, concluded his submissions and urged the trial court to grant his prayers. The court then called on the respondents’ counsel to reply, and this is what happened in the proceedings: –