(2018) LPELR-44409(CA)

Transcription

1 KANU & ORS v. UWAKWE & ANOR CITATION: In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON WEDNESDAY, 28TH MARCH, 2018 Suit No: CA/OW/2/2017 Before Their Lordships: MASSOUD ABDULRAHMAN OREDOLA ITA GEORGE MBABA TUNDE OYEBANJI AWOTOYE 1. CHIEF RAPHAEL EMEKA KANU 2. MR. UZO LUCIUS 3. MRS. AUGUSTINA OKEZIE 4. MRS. IFEOMA AMUGO 1. MR. CHILE UWAKWE 2. MRS. CHINYERE UWAKWE Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ACTION - NECESSARY PARTY(IES): Who is a necessary party "Who is a necessary party in a suit? Kekere-Ekun J.S.C. answered this question thus in FBN PLC v. OZOKWERE (2014) 3 NWLR PT p "The first issue that calls for consideration is who is a necessary party? This has been settled in a plethora of decisions of this Court including GREEN v. GREEN (1987) 7 SCNJ. 269; OYEDEJI AKANBI (MOGAJI) & ORS v. FABUNMI (1986) 2 S.C. 431; PEENOK INVESTMENTS LTD v. HOTEL PRESIDENTIAL (1982) 12 S. C. (Reprint) 1 at 11; UKU & ORS V. OKUMAGBA & ORS (1974) 3 S.C.(Reprint) 24 at 44. Some of the relevant considerations are (i) whether the Court can successfully adjudicate in the cause of action set up by the Plaintiff without the party being added as a Defendant (ii) whether the party would be bound by the outcome of the proceedings."per AWOTOYE, J.C.A. (Pp , Paras. C-A) - read in context

3 2. ACTION - REPRESENTATIVE ACTION: Effect of bringing a representative action "The apex Court in EKENNIA v. NKPAKARA (1997) 5 NWLR PT. 504 p. 152 had cause to explain the implication of bringing representative action thus: "It cannot be disputed that the term "parties" includes not only those named on the record of proceedings but also those represented and who had an opportunity to attend and protect their interest in the proceedings. See ESIAKU v. OBIASOGU 14 WACA 178; OFORIATA v. AGYEI & ANOR 14 WACA 149; MABEL v. RICHARD AKWEI 14 WACA 143. When therefore an action is instituted in a representative capacity and/or against persons is not only by or against the named parties; they are also by or against those who in the suit are not stated nominee. See OBI OKONJI & ORS v. GEORGE NJOKANMA (1989) 4 NWLR (PT. 114) 161." Per Iguh JSC." Per AWOTOYE, J.C.A. (Pp , Paras. D-A) - read in context

4 3. EVIDENCE - AFFIDAVIT EVIDENCE: How conflict on material facts in affidavit evidence are resolved "...It is very clear that the above affidavits are violently conflicting in material particulars and need to be resolved. It is trite law that when there are such conflicts the Court is expected to invite parties to call evidence to resolve them. See FALOBI v. FALOBI (1976) LPELR-1236 (S.C.); AKINSETE v. AKINDUTIRE (1966) 1 ANLR 137; EZE v. UNIJOS (2017) LPELR (S.C.)."Per AWOTOYE, J.C.A. (Pp , Paras. E-A) - read in context

5 4. EVIDENCE - STANDARD OF PROOF: Required standard of proof where there are criminal allegations in civil cases "The law is trite that criminal allegations even in civil cases are to be proved beyond reasonable doubt. See AGI v. PDP & ORS (2016) LPELR (S.C); AREBI v. GBABIJO (2008) 2 LRECN 467 at 489. The allegations of the Applicants at the lower Court particularly in paragraph 18 of their supporting affidavit are criminal and should be proved beyond reasonable doubt. See Section 135(1) of the Evidence Act This they failed to do."per AWOTOYE, J.C.A. (P. 34, Paras. E-F) - read in context

6 TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the Appellants against the decision of Abia State High Court in suit No: HU/60M/2015 delivered on 13/6/2016. The Respondents were the Applicants at the lower Court in an application brought under Fundamental Right Enforcement Rules, They prayed for the following orders: 1. A Declaration that the order issued by the Respondents through a verbal order made in the meetings warning, restricting and or banning the indigenes or Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State and the public from associating or having any form of communication with the Applicants thereby ostracizing the Applicants is an infringement of the Applicants Fundamental Rights to Freedom of Association as guaranteed by Section 40 of the 1999 Constitution of the Federal Republic of Nigeria. 2. The sum of one Million Naira (N1,000,000.00) being compensation and general damages for the said violation of the Applicants Fundamental Rights to 1

7 Freedom of Association, by the Respondents. 3. An Order of Court mandating the Respondents to withdraw forthwith the said order issued to the indigenes of Obizi Amakama Olokoro Autonomous Community Umuahia South Local Government Area of Abia State and the public directing them not to have any form of communication or buy and sale with the Applicants. 4. An order mandating the Respondents to render an apology to the Applicants through a National newspaper and two Radio Stations operating in Abia State." The grounds for bringing the application as contained in the Statement made pursuant to Order 11 Rule 3 of the Fundamental Right (Enforcement Procedure) Rule were: a. The Applicants are by virtue of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria and Article 10 and Article 11 of the African Charter on Human and People s rights (ratification and Enforcement) Act entitled to assemble and associate freely with other persons within the Community. b. The Order given by the 1st Respondent in his capacity as a Traditional Chief and Community Leader, the 2nd Respondent as the Chairman of Obizi 2

8 Amakama Olokoro; the 3rd Respondent as the Chairlady, Women Wing of Obizi Amakama Village Council and 4th Respondent as the Secretary of the Women Wing of Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State, directing and or warning indigenes of Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State and the public not to have any form of communication with the Applicants is an infringement of the Applicants Fundamental Right to assemble and associate freely with other persons as guaranteed by Section 40 of the 1999 Constitution of the Federal Republic of Nigeria and Article 10 and 11 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act. c. That since the said Order was issued to the indigenes of Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State, the Applicants have been ostracized, avoided, discriminated upon and insulted." The Respondent at the lower Court filed 27 paragraph counter-affidavits to oppose the application. 3

9 After hearing the parties, the learned trial Judge entered judgment in favour of the applicants inter alia thus: After a consideration of the evidence led, I hold that the Applicant has proved his case on the balance of probabilities. Judgment is entered for the Applicant and I hereby make the following declarations: (a) That the Order issued by the Respondents through a verbal order made in the meetings warning, restraining and or banning the indigenes of Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State and the public from associating or having any form of communication with the Applicants thereby ostracizing the Applicants is an infringement of the Applicanats Fundamental Rights to Freedom of Association as guaranteed by Section 40 of the 1999 Constitution of the Federal Republic of Nigeria. (b) The sum of Five Hundred Thousand Naira (N500,000.00) be paid to the Applicant as General Damages for the violation of the Applicant s Fundamental Right to freedom of association by the Respondents. (c) Court Order mandating the Respondents to withdraw forthwith the said order issued to the 4

10 indigenes of Obizi Amakama Olokoro Autonomous Community Umuahia South Local Government Area of Abia State and the public directing them not to have any form of communication or buy and sale with the applicants. (d) Court order mandating the Respondents to render an apology to the Applicants through a National News [paper and two Radio stations operating in Abia State. Dissatisfied with the above decision the Appellants filed Amended Notice of Appeal with leave of Court containing four grounds of appeal. The grounds of appeal read as follows: 1. GROUND 1 (ONE) The Learned Trial Judge erred in law when he failed to resolve the conflict in the affidavit evidence of the Appellants and Respondents. PARTICULARS OF ERROR 1. This is a suit for enforcement of fundamental human rights of the Respondents which was brought by way of motion on notice supported by an affidavit of 19 Paragraphs alongside statement made pursuant to the fundamental rights enforcement rules. 2. The Appellants filed a counter affidavit of 27 paragraphs deposed to by the 1st Appellant for himself and on behalf of other Appellants wherein both parties joined issues

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12 occasioning conflicts in the affidavit evidence of the both parties. 3. The Respondents in their affidavit in support at particularly paragraphs 3 and 4 stated that the 2nd Appellant and the 3rd Appellant are respectively the Chairman and Chairlady of Obizi Amakama Autonomous Community, which the Appellants in their counter, particularly at paragraphs 5 and 6 stated that they are not the Chairman and Chairlady as stated earlier by the Respondents. 4. The Respondents in their affidavit in support stated that in paragraphs 5 and 18 that the Appellants ostracized them, threatened their lives, molested them, striped them naked and dragged them round the village, which the Appellants in their counter affidavit particularly at paragraphs 8 and 23 countered the criminal allegation and no further evidence was adduced by the Respondent to prove their criminal allegation beyond reasonable doubt. 5. The Respondents in their affidavit in support stated in paragraph 4 that the 1st Appellant is the husband of the 3rd Appellant and the Appellants in their counter at paragraph 6 countered same and no further evidence was adduced by the Respondents to prove their assertion. 6

13 6. The conflicts are manifestly obvious, which shall be resolved by the learned trial judge by calling for oral evidence before determining the application as the parties were in regular attendance all through the proceedings. 7. The learned trial judge surprisingly failed to resolve the conflicts in the affidavit evidence and thereafter determine the application on a conflicted evidence of parties. 2. GROUND 2 (TWO) The Learned Trial Judge erred in law when he held that the Respondents have proved their case of criminal allegations of threat to life, molestation, ostracization, assault, battery and trial by ordeal on the balance of probabilities by holding that ' After a consideration of the evidence led, I hold that the applicant has proved his case on the balance of probations. PARTICULARS OF ERROR 1. The Respondents in their affidavit in support of the motion on notice, particularly at paragraphs 5 and 18 stated that the Appellants ostracized them, molested them, stripped them naked, threatened their lives and dragged them round the village. 7

14 2. The Appellants in their counter affidavit countered all the criminal allegations leveled against them, particularly at paragraph 8, 10, 13, 15, 16, 17, 19, 20, 22, and 23 of the counter affidavit. 3. The Respondents in their application made several criminal allegations of threat to life, molestation, assault, battery, trial by ordeal against the executives of Obizi Amakama Autonomous Community, Mr. Kachi Amugo, Mr. Ikechukwu Amugo, Mrs Ifenyinwa Ochulor, Mrs; Gloria Marcus and Mrs. Joy Njinkonye, and deliberately did not make them parties to their application as required by law. 4. And the Respondents in their litany of criminal allegations never adduced any cogent and compelling evidence by way of an annexure, corroboration or further affidavit evidence linking the Appellants to the criminal allegations stated earlier as a means of proving their case beyond reasonable doubt as required by law which shall be complied with for such an application to succeed. 5. The Appellants in their counter affidavit to, by the 1st Appellant for himself and on behalf of the other Appellants stated that they are not the Executives of Obizi Amakama Autonomous Community neither did the Respondents 8

15 mention any of their names on their individual capacity to have violated their fundamental rights all through their application for enforcement. 6. The Learned Trial Judge held that the respondents have proved all their conflicting evidence of criminal allegation against the Appellants on the balance of probability when such allegations by law requires a strict prove beyond reasonable doubt. 3. GROUND 3 (THREE) The learned trial judge erred in law when he approbated and reprobated in his judgment when he held ' Besides since the Respondents has denied they are not the executives of Obizi Amakama Autonomous Community, and also that they (Respondent) did not make any such order. The respondent will not be prejudice with the orders of the Court in this matter. Thereafter the learned trial Judge over ruled himself in the same judgment thereby approbating and reprobating at the same time. PARTICULARS OF ERROR 1. The Appellants in their counter affidavit stated that they are not the executives of Obizi Amakama Autonomous Community and did not make any order in any form ostracizing the Respondents neither did they molest, 9

16 threatened, assaulted, dragged round the village nor stripped the Respondents naked. 2. All the claims and allegations of crime in the application of the Respondents were all against the Executives of Obizi Amakama Autonomous Community, Mr. Kachi Amugo, Mr. Ikechukwu Amugo, Mrs Gloria Marcus, Mrs. Joy Njikeonye and Mrs. Ifenyinwa Ochulor and all this persons necessary for the invocation of the power of the Court were not made parties to this suit and as such not before the Court to be duty bound to carry out the orders of the Court. 3. The learned trial judge did properly weighed the evidence of both parties before him on the imaginary scale of justice, and rightly held that the Appellants will not be prejudice by the order of the Court in this matter since they are not the parties whose the order of the Court is aimed at, but surprisingly the Court at the end of the judgment made orders against the Appellants to pay a judgment sum of N500, render an apology to the Respondents and withdraw an alleged order the Respondents could not prove against the Appellants, who never made such an order and 10

17 application. 4. GROUND 4 (FOUR) Whether the Learned Trial Judge was right to determine this suit without the necessary parties before the court. PARTICULARS OF ERROR 1. The Respondents who are the Applicants in the lower court, filed the application against the Appellants, without linking the Appellants to the act alleged to have violated the fundamental rights of the Respondents. 2. Rather the Respondents, in their affidavit in support of their motion on notice complained against the Executives of Obizi Amakama Autonomous Community, Mr. Kachi Amugo, Mr. Ikechukwu Amugo, Mrs Gloria Marcus, Mrs. Joy Njikeonye and Mrs Ifenyinwa Ochulor as having violated their fundamental rights. 3. The trial court in it s judgment observed that Besides since the Respondents has denied they are not the executives of Obizi Amakama Autonomous Community and also that they (Respondents) did not make any such order. The respondent will not be prejudice with the orders of the Court in this matter. And still went ahead to make orders against the Appellants who are Respondents in the lower Court. 11

18 4. The trial Court besides his observations as stated above, went ahead and determine the suit without the joining of necessary parties complained against in the Affidavit in support of the motion filed by the Respondents in the lower Court. 5. The failure to bring the necessary parties before the Court, against whom the invocation of the judicial powers of the Court is targeted at is fatal to the entire proceeding as the Court cannot act in vain. After transmission of record of appeal parties filed and exchanged briefs of argument. APPELLANTS BRIEF OF ARGUMENT The Appellants brief of argument was filed on 22/2/2017. It was settled by their counsel K. C. KANU ESQ. Learned counsel to the Appellant formulated four issues for determination to wit: 1. Whether the learned trial Judge was right in admitting the unresolved conflicting evidence of parties before determining the matter before him. 2. Whether the learned trial Judge was right to have determined a suit without the necessary parties before the Court. 3. Whether the learned trial Judge was right when he held that the respondents have proved their case of criminal 12

19 allegations of threat to life molestation, ex-communication, assault, battery and trial by ordeal on the balance of probabilities. 4. Whether the learned trial Judge was right when he approbated and reprobated at the same time by holding besides since the Respondents has denied they are not the executives of Obizi Amakama Autonomous Community and also that they (Respondents) did not make any such order. The Respondent will not be prejudice with the orders of the Court in this matter ; thereafter overruled himself when he entered judgment against the Respondents. ISSUE ONE On issue one, learned counsel to the Appellants submitted that no valid decision can be reached by the Court without a look at the conflicts in the affidavit evidence and probably resolving same as a condition precedent. He relied on the rule in BABALA v. EZE (2011) 11 NWLR (PT 1257) 48. He also relied on the case of NWOSU v. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 21 NSCC (PT II) 180, (1990) 2 NWLR (PT 135) 688. He urged this Court to resolve this issue in the negative for failure to first resolve the conflict in the affidavit of parties as 13

20 a condition precedent is fatal to the decision of the honourable Court. ISSUE TWO On issue two, learned counsel to the Appellants submitted that the Court cannot grant a relief in favour or against person(s) who are not parties before the Court without hearing from them first on it is one of the main principles of natural justice (Audi Alteram Partern). He relied on the cases of A. G. FEDERATION v. A. G. ABIA STATE & ORS (2002) 6 NWLR (PT 763) 264; NNAEMEKA v. CHUKWUOGOR (NIG) LTD (2007) 5 NWLR (PT 1026) 60; GREEN v. GREEN (1987) 3 NWLR (PT 61) 480. Learned counsel to the Appellants further submitted that the Appellants never at any time, in any way ostracized the Respondents, neither are they the executives of the community complained against nor persons mentioned and complained against by the Respondent in their Application. Learned counsel to the Appellants contended that the exclusion of the exclusion of the Executive of Obizi Amakama Autonomous Community in Umuahia South Local Government Area of Abia State, Mr. Kachi Amugo, Mr. Ikechukwu Amugo, Mrs. Ifenyinwa Ochulor, Mrs. Gloria Marcus and Mrs. Joy Njinkonye, complained against in 14

21 the case as necessary parties occasioned a serious miscarriage of justice against the principles of natural justice as also held in the case of TAFIDA v. BAFARAWA (1999) 4 NWLR (PT 597) 70 at 75. He urged this Court to resolve issue two in favour of the Appellants. ISSUE THREE On issue three, learned counsel to the Appellants submitted that the Respondents in their affidavit in support of the motion on notice filed on the 10/12/2015 made criminal allegation against the Appellants and other persons not made parties to the suit. He further submitted that the Respondents could not prove the allegations strongly challenged by the Appellants, which occasioned conflicts in the evidence of both parties which was neither resolved in one way or the other before the learned trial Judge entered his final decision. Learned counsel to the Appellants submitted that by virtue of Section 135 (1) of the Evidence Act, 2011, the respondents are by law required to prove their case beyond reasonable doubt and failure to so prove is fatal to their claim and the learned trial Judge erred when he held that the Respondents 15

22 have proved their case on the balance of probabilities. He urged this Court to resolve issue three in favour of the Appellants. ISSUE FOUR Learned counsel to the Appellants contended that the Respondents in their application never complained against the Appellants, rather they complained about some persons whose names were stated in the affidavit in support of the Respondents application in the lower Court. Learned counsel submitted that the Court was by his findings and decision FUNCTUS OFFICIO and as such cannot sit on appeal in his decision nor overrule himself. He urged this Court to resolve this issue in favour of the Appellants. Learned counsel to the Appellants, in the light of the foregoing, urged this Court to set aside the judgment of the lower Court and uphold this appeal. RESPONDENTS BRIEF The Respondents Brief of Argument was filed on 12/4/2017. It was settled by their counsel G. N. ORIAKU ESQ. Learned counsel to the Respondents formulated four issues for determination, viz: 1. Whether the learned trial Judge was right in

23 admitting the unresolved conflicting evidence of parties before determining the matter before him. 16

24 2. Whether the learned trial Judge was right to have determined a suit without the necessary parties before the Court. 3. Whether the learned trial Judge was right when he held that the Respondents have proved their case of criminal Allegations of threat to life, molestation, excommunication, assault, battery and trial by ordeal on the balance of probabilities. 4. Whether the learned trial Judge was right when he approbated and reprobated at the same time by holding; besides since the Respondents have denied they are not the executives of Obizi Amakama Autonomous Community, and also that they (Respondents) did not make any such order. The Respondents will not be prejudiced with the orders of the Court in this matter." ISSUE ONE On issue one, learned counsel to the Respondents submitted that whether the Affidavit before the Court are conflicting or not, is a question that is exclusively reserved for the Court to answer. He relied on Section 121 (A) of the Evidence Act 2011 (as amended). He submitted in the light of Section 121 (A) of the Evidence Act, 2011 that the trial 17

25 Judge exercised judicially his discretion of deciding whether there was a conflict in the parties Affidavits. Learned counsel to the Respondents further submitted that the Appellants failed woefully to adduce any evidence in support of their denial of the fact that they are the Executive of Obizi Amakama Autonomous Community. He relied on the case of CALABAR CENTRAL CO- OPERATIVE, THRIFT AND CREDIT SOCIETY LIMITED v. BASSEY EBONG EKPO (2008) 33 NSCQR 1147 and REPTICO S. A. GENEVA v. AFRIBANK NIGERIA PLC (2013) 54 NSCQR 600. He urged this Court to resolve this issue in favour of the Respondents because the Appellants have not come to the court with clean hands. ISSUE TWO Learned counsel to the Respondents submitted Mr. Kachi Amugo, Mr. Ikechukwu Amugo, Mrs. Ifenyinwa Ochulor, Mrs. Gloria Marcus and Mrs. Joy Njinkonye were made the new Executives of Obizi Amakama Olokoro Autonomous Community for the purposes of this appeal. He relied on the case of A.D.C. v. BELLO (2017) 1 NWLR (PT. 1545) 112 at 119. Learned counsel to the Respondents maintained that the Appellants are the proper parties in the case before the honourable Court and urged this Court to hold same.

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27 ISSUE THREE Learned counsel to the Respondents submitted that the Respondents never alleged directly that the Appellants committed a crime, but only averred that the Appellants breached their fundamental human Rights as provided in Chapter iv of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He relied on Section 135 (1) of the Evidence Act 2011 (as amended). He urged this Court to disregard the unfounded arguments of the Appellants and hold that the Respondents proved their case on the balance of probability. ISSUE FOUR Learned counsel to the Respondents submitted that mere denial without more, cannot ground a good defence to such a serious breach of Freedom of Association as evidenced in paragraphs 5, 6, 8, 11, 12, 14, 15 and 16 of the Appellants Counter Affidavit. He relied on the case of REPTICO S. A. GENEVA v. AFRIBANK NIGERIA PLC (supra). Learned counsel to the Respondents further submitted that it is misleading to say that the Respondents in their application never complained against the Appellants and such should be disregarded. 19

28 He urged this Court to disregard the unfounded and unreasonable arguments of the Appellants and resolve this issue in favour of the Respondents. He concluded by urging this Court to uphold the judgment of the trial Court as the Respondents proved their case on the balance of probabilities. APPELLANTS REPLY BRIEF Appellants Reply Brief was filed on 24/4/2017. It was settled by their counsel K. C. KANU ESQ. Learned counsel to the Appellants contended that the 1st to 2nd respondents Brief was not filed within thirty (30) days, as stipulated by Order 19, Rule 4 (1) of the Court of Appeal Rules, He submitted in light of the above that the said 1st to 2nd Respondents brief is irregular, and proper step ought to be taken by the 1st and 2nd Respondents to regularize the same, failing which the same should be struck-out and the Honourable Court is humbly urged to do so. However, in reply to issue one of the Respondents Brief of Argument, learned counsel to the Appellants contended that the Respondents (who were the Applicants) did not discharge any burden placed on them by the law as can be seen in the cases of OLALEYE v. TRUSTEES OF ECWA 20

29 (2011) 2 NWLR (PT. 1230) 1 at 19 PARAS A-B and NSEFIK v. MUNA (2007) 10 NWLR (PT 1043) 502 at page 514 PARAS D-F. He submitted that the Respondents case is contrived, misleading and false hence their inability to prove any of the live issues in this case against the Appellants, rather they were relying on the Appellants to do their case for them by providing them with necessary parties. Learned counsel to the Appellants urged this Court to discountenance the misleading submission of the respondents on issue one. ON ISSUE TWO On this issue, learned counsel to the Appellants contended that the points made by the 1st to 2nd Respondents and their submissions in paragraphs 4.6, 4.7, 4.9, 4.10 and 4.11 of their Brief of Arguments to that regard, are totally emoneous and misconceived. He submitted that, by not joining the Executives of Obizi Amakama Community, Mrs. Gloria Marcus Mr. Kachi Amugo, Mr. Ikechukwu Amugo, Mrs. Ifenyinwa Ochulor, and Mrs. Joy Njinkonye, as necessary parties in this action robbed the trial Court of his jurisdiction to entertain this action. He relied on the case of AFRICAN DEMOCRATIC CONGRESS (ADC) v. YAHAYA BELLO (2017) 1 NWLR (PT 1545) PG 112 at

30 Learned counsel urged this Court to discountenance the submissions of the Respondents in issue two of their Brief of Argument and uphold this appeal. I have carefully considered the arguments canvassed by learned counsel on both sides as well as the contents of the record of appeal. I have also deeply considered the issues nominated by learned counsel in their respective briefs of argument. I am of the respectful view that issues (Nos. 1-3) as framed by the Appellants are apt and wide enough for the just determination of this appeal. I therefore adopt them. RESOLUTION OF ISSUES ISSUE NO 1 Whether the learned trial Judge was right in admitting the unresolved conflicting evidence of parties before determining the matter before him. In resolving this issue, I shall reproduce same pertinent paragraphs of the affidavits filed by the parties for clarity s sake. The Applicants at the lower Court swore to 19 paragraph affidavit in support of their application under the Fundamental Right (Enforcement Procedure) Rules, Paragraphs 3-16 and 18 of the said affidavit read thus:

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32 3. That the 2nd Respondent is the village chairman of Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State. 4. That the 3rd Respondent is the Chairlady of Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State and wife of the 1st Respondent, while the 4th Respondent is the Secretary of the Women Wing of Obizi Amakama Village Council. 5. That during and after the determination of suit No s: HU/14M/2013, US/16C/2013 and HU/63/2013. The Respondents in their individual meeting Ordered the entire Obizi Amakama indigenes from transacting or communicating with me and the 2nd Applicant. 6. That one Glory Marcus was sent by the 1st, 2nd and 3rd Respondents to inform the Applicants that the Obizi Amakama Village Council has ordered that they had ostracized the Applicants and that the Applicants have been barred from communicating with members of Obizi Village. 7. That during the burial of Madam Rebecca Omenazu the 2nd Applicant was ordered out of the burial venue in the presence of the 1st Respondent by the 3rd Respondent and chorusing approval of their supporters and alleys. 23

33 8. That on the day Mrs. Afonne Joel s daughter was celebrating her traditional marriage, the 1st, 2nd and 3rd Respondents whose attention were drawn to the presence and attendance of the Applicants, by one Mr. Kachi Amugo, the Applicants were ordered out of the venue of the Traditional Marriage with a statement made by the 1st Respondent that if the Applicants refuse or fail to leave, all the Obizi male and female will leave the place for them. 9. That this incident generated great argument and uproar between the Applicants, the Respondents and their hirelings and the Applicants were forced to leave. 10. That the celebrant s mother, Mrs. Afonne Joel was then fined two thousand Naira (N2,000.00) for inviting and allowing the Applicants whom they had ostracized, to the traditional marriage of her daughter. 11. That on Mr. Ikechukwu Amugo went to the Applicants to tell them that the Respondents warned him not to allow the Applicants to buy anything from his store, for if he does that they will fine him Five Thousand Naira (N5,000.00) only. He then warned the Applicants that since he does not want to fall foul of 24

34 the orders of the Respondents, that he does not want them to buy anything from his shop any longer or visit home for whatever purpose. 12. That the Respondents even banned the Obizi people from responding to the greeting or even greet the Applicants and if they do, the Respondents will fine such a fellow. 13. That the 3rd Respondent instructed one Mrs. Ifeoma Amugo, the Secretary to the Women Wing, to write a letter to Old Umuahin Community and other neighbouring village asking and seeking their support not to sale or buy anything from or with the Applicants. 14. That on 5th day of September, 2015, when the Applicants went to Afor-Ibeji Market (a neighbouring Village Market) to buy food stuff, Mrs. Ifenyinwa Ochulor and Mrs. Joy Njinkeonye who trade at Afor- Ibeji Market approached the Applicants and stopped them from being attended to on the ground that the Secretary Obizi women village meeting wrote a letter to them asking them not to allow the Applicants to buy or sale anything or articles of trade within the Afor-Ibeji Market Area. 15. That the 2nd Applicant wept uncontrollably in the full glare of those who were in the market that day. 25

35 Many people took pity on her and tried to console her and condemned the acts of the Obizi Women, of the Respondents. 16. That the Applicants had gone severally to these women of Old Umuahia to get a copy of the said letter but they said that they are under instructions not to give the letter to them by the authors of the letter. 17. That the Applicants have been variously molested, tortured, beaten, insulted, cajoled, disgraced, dehumanized, stripped naked and dragged through the streets and villages by these wicked and heartless fellows. In reaction, the Respondents swore to 27 paragraph counter-affidavit. Paragraphs 5-24 of the said counteraffidavit are very relevant. They read as follows: 5. That paragraph 3 of the affidavit in support of the motion is completely false. Mr. Uzo Lucius is not the Chairman of Obizi Amakama Olokoro Autonomous Copmmunty in Umuahia South Local Government Area of Abia State. 6. That paragraph 4 of the affidavit is false. The 3rd Respondent; Mrs. Augustina Okezie is not my wife. And the 3rd Respondent is not also the Chairlady of the Women s Wing of Obizi Amakama Olokoro 26

36 Autonomous Community in Umuahia South Local Government Area of Abia State. 7. That it is true that the 4th Respondent, Mrs. Ifeoma Amugo is the Secretary of the Women s Wing, Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State. 8. That paragraph 5 of the affidavit is false. The Respondents have never on any capacity, at any time, in any meeting gathering or where ever make any order either in written form or orally ostracizing or ex-communicating the Applicants, who are natives of the community. 9. That the Respondents except the 4th Respondent are not the executives of both Male and Female Wings meeting of Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State. 10. That by the virtue of paragraph 9 above, the Respondents does not have the power, right nor authority to ostracize or ex-communicate the Applicants, who are equally natives of Obizi Amakama Olokoro Autonomous Commounty in Umuahia South Local Government Area of Abia State. 11. That the Applicants in 2012 first file this application against the Respondents and the children of the 1st 27

37 Applicant from his 1st wife in sult No: HU/63M/2012. Praying for the same reliefs sought in this pending application. And on the 4th day of November, 2012, the Court in his wisdom dismissed the application for lacking merit. 12. That the Applicants are aware of the above stated judgment, but only came to this Court to mislead the Court into sitting on appeal over the judgment of his learned brother. 13. That paragraph 6 of the affidavit is false. There was never a time when the 1st to 3rd Respondents made any order ostracizing the Applicants neither did they send Mrs. Gloria Marcus to communicate an order of such magnitude to the Applicants. 14. That Mrs. Gloria Marcus never communicated such information to the Applicants, as she is not the Public Relation Officer Women s Wing of Obizi Amakama Olokoro Community meeting and does not have right to communicate such to the Applicants. 15. That paragraph 7 of the affidavit is false. During the burial of Madam Rebecca Omenazu Kanu, my mother in 2002, there was never a time when the 2nd Applicant was ordered out of the burial venue, as the 2nd Applicant was one of the women from the community assign to cook the food used for entertainment for the day. 28

38 16. That paragraphs 8, 9 and 10 are all false. The Applicants were never ordered out from the said marriage venue by the Respondents as the Applicant fully participated in the said marriage ceremonies in the community with all their full benefits given to them. And the said Mrs. Afonne Joel was never fine by the Respondents nor by the executives of the community. 17. That paragraphs 11 and 12 are all false. The Respondents does not have power to make such on order neither did the Respondents ordered Mr. Ikechukwu Amugo to disassociate with the Applicants. All the Respondents freely associate with the Applicants, who cohabit in the same neighbourhood. 18. That even some time in 2015, when the 1st Applicant s elder sister married in Ubakala died, it was the Respondents and other members of the community that accompanied the Applicants to the burial ceremony in Ubakala. 19. That paragraph 13 of the affidavit is completely false. The 3rd respondent is not the Chairlady of the Women Wing and cannot give instructions to the 4th Respondent to do or not to do an act. And there was 29

39 never a time when the 4th Respondent wrote a letter to Old Umuahia community and other neighbouring villages seeking for assistance and support to ostracize the Applicants. 20. That paragraphs 14 and 15 of the affidavit are false. There was never a time when Mrs. Ifenyinwa Ochulor and Mrs. Joy Njikeonye stopped the Applicants from buying anything from Afor-Ibeji market. And there was no such letter from Obizi Amakama Women s Wing to Old Umuahia Community to any other neighbouring community seeking supports as alleged. The 3rd Respondent, Mrs. Ifeoma Amugo have a mini-provision store and have always attended to the Applicants whenever they come to buy anything from her. 21. That paragraph 16 of the affidavit is false. The Applicants are only relying on such a flimsy excuse to mislead the Court into attaching value to their uncorroborated and unsubstantiated facts. 22. That paragraph 17 of the affidavit is not true. The Respondents and other members of the community does not know about the matter stated therein prior to this application. And the Applicants never minded to inform their kinsmen and as such the Respondents and 30

40 the community in general do not have anything to do with the matter as they are not parties. 23. That paragraph 18 of the affidavit is completely false, as there was never a time, the Applicants were subjected to that and no incident of such nature have been recorded in the community or by area police station in charge of the community. 24. That the Applicants brought this application in bad faith against the Respondents because at the last Community General Meeting held on the 8th day of December 2015, the Applicants were enjoined to ensures that peace returns in their family and to also ensure that all the children of the 1st Applicant from his 1st wife, whom, the applicants quitted from the family house returns home, in line with the advice given to the 1st Applicant by Hon. Justice S. A. NWAKAMA at the pendency of suit No. HU/63m/2012. It is very clear that the above affidavits are violently conflicting in material particulars and need to be resolved. It is trite law that when there are such conflicts the Court is expected to invite parties to call evidence to resolve them. See FALOBI v. FALOBI (1976) LPELR-1236 (S.C.); AKINSETE v. AKINDUTIRE (1966) 1 ANLR 137; EZE v. UNIJOS 31

41 (2017) LPELR (S.C.) The lower Court unfortunately failed to resolve the conflicts by calling on the parties to adduce oral evidence. This in my respectful view is tantamount to not hearing the parties at all. It is a denial of right to fair hearing to the parties. I therefore resolve this issue in favour of the Appellants. ISSUE TWO Whether the learned trial Judge was right to have determined a suit without the necessary parties before the Court. Who is a necessary party in a suit? Kekere-Ekun J.S.C. answered this question thus in FBN PLC v. OZOKWERE (2014) 3 NWLR PT p The first issue that calls for consideration is who is a necessary party? This has been settled in a plethora of decisions of this Court including GREEN v. GREEN (1987) 7 SCNJ. 269; OYEDEJI AKANBI (MOGAJI) & ORS v. FABUNMI (1986) 2 S.C. 431; PEENOK INVESTMENTS LTD v. HOTEL PRESIDENTIAL (1982) 12 S. C. (Reprint) 1 at 11; UKU & ORS V. OKUMAGBA & ORS (1974) 3 S.C.(Reprint) 24 at 44. Some of the relevant considerations are (i) whether the Court can successfully adjudicate in the cause of action set up by the Plaintiff without the 32

42 party being added as a Defendant (ii) whether the party would be bound by the outcome of the proceedings. I have carefully gone through the depositions in the affidavits. It seems clear to me that though the Respondents were sued in their individual capacities, the grouse of the Applicants was against the town council of Obizi Amakama Olokoro Autonomous Community in Umuahia South Local Government Area of Abia State. It should have been better and, more effective to sue the respondents in their representative capacity for and behalf of the village council. The apex Court in EKENNIA v. NKPAKARA (1997) 5 NWLR PT. 504 p. 152 had cause to explain the implication of bringing representative action thus: It cannot be disputed that the term parties includes not only those named on the record of proceedings but also those represented and who had an opportunity to attend and protect their interest in the proceedings. See ESIAKU v. OBIASOGU 14 WACA 178; OFORIATA v. AGYEI & ANOR 14 WACA 149; MABEL v. RICHARD AKWEI 14 WACA 143. When therefore an action is instituted in a representative capacity and/or against 33

43 persons is not only by or against the named parties; they are also by or against those who in the suit are not stated nominee. See OBI OKONJI & ORS v. GEORGE NJOKANMA (1989) 4 NWLR (PT. 114) 161. Per Iguh JSC. Without this, the village council will not be bound even though the Respondents as individual will be bound. I am convinced the necessary parties to this action have not be sued. I also resolve this issue in favour of the Appellants. ISSUE THREE Whether the learned trial Judge was right when he held that the Respondents have proved their case of criminal allegation of threat to life, molestation ex-communication assault, battery and trial by ordeal on the balance of probabilities. The law is trite that criminal allegations even in civil cases are to be proved beyond reasonable doubt. See AGI v. PDP & ORS (2016) LPELR (S.C); AREBI v. GBABIJO (2008) 2 LRECN 467 at 489. The allegations of the Applicants at the lower Court particularly in paragraph 18 of their supporting affidavit are criminal and should be proved beyond reasonable doubt. See Section 135(1) of the Evidence Act This they failed to do. 34

44 The allegation were denied strongly by the Respondents in their counter-affidavit. Oral evidence of witnesses needed to have been adduced to prove the allegations. This was not done. I resolve this issue in favour of the Appellants. On the whole, this appeal has merit. It is hereby allowed. The decision of Abia State High Court in suit No: HU/60M/2015 delivered on 13/6/2016 in CHILE UWAKWE & ANOR v. CHIEF RAPHAEL EMEKA KANU & ORS is hereby set aside. As necessary parties were not before the Court, I hereby order that suit No: HU/60M/2015 is struck out. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA. Indeed, I am in complete agreement with the reasoning and the conclusion arrived thereat, to the effect that the appeal is meritorious and deserves to succeed. Accordingly, I also allow the appeal and abide by the orders made in the said lead judgment of my learned brother, Tunde Oyebamiji Awotoye, JCA. 35

45 ITA GEORGE MBABA, J.C.A.: I had the privilege of read the draft of the lead judgment just delivered by my learned brother, T.O. AWOTOYE, JCA. I agree with his reasoning and conclusions, that the Appeal has merit. I too allow it and abide by the consequential orders in the lead judgment.

46 36

47 Appearances: K. C. Kanu, Esq. For Appellant(s) Barr. (Dr.) G. N. Oriaku, Esq. For Respondent(s)