(2018) LPELR-44208(CA)

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1 OKAFOR & ORS v. EZEATU CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Enugu Judicial Division Holden at Enugu ON TUESDAY, 13TH FEBRUARY, 2018 Suit No: CA/E/165/2015 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO Before Their Lordships: Between 1. MR. EMEKA OKAFOR 2. MR. MOSES OKAFOR 3. MR. IFEANYI OKAFOR 4. MR. CELESTINE EZEKWONNA 5. MR. CHUKWUEMEKA EZEKWONNA 6. MR. JOHNSON EZEKWONNA 7. MR. OLISA EZEATU 8. MR. ARINZE EZEATU Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal And CHIEF HON. JOSEPH OSITA EZEATU RATIO DECIDENDI - Appellant(s) - Respondent(s)

2 1. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Whether an appellant can raise a preliminary objection against his own appeal "The Appellants incredibly raised a preliminary objection to their own appeal in the Appellants' Brief thus: * The originating process filed by the respondent is incompetent and that the Court lacks the jurisdiction to entertain the Appeal. * The Respondent shall, with the leave of the Court, contend that the originating process filed by the Respondent is incompetent and that the Court lacks jurisdiction to entertain this Appeal. The learned counsel for the Appellants made a very lengthy argument regarding the preliminary objection. With no much ado, the Court will not allow such an unthinkable somersault where an Appellant shoots himself by attacking his own appeal. For the avoidance of doubt Order 10 Rule 1 of the Court of Appeal Rules 2016 provides thus: "A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection, and shall file such notice together with twenty copies thereof with the registry within the same time." This provision does not envisage filing of preliminary objection by the Appellants. Be it as it may, the Respondent has replied to Appellants' objection to which the Appellants did not file a reply brief. The Preliminary Objection apart from its awkwardness is utterly lacking in substance. It is accordingly dismissed."per MUKHTAR, J.C.A. (Pp. 8-9, Paras. A-A) - read in context

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4 HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the High Court of Anambra State delivered by Hon. Justice Chukwudi C. Okaa on 30th June, 2014 allowing the Appellants Preliminary Objection and striking out the Respondent s Originating Application. The Respondent commenced the proceedings under the Fundamental Rights Enforcement (Procedure) Rules. He filed a statement, affidavit and written address for the enforcement of his fundamental Human Right against the Appellants as Respondents at the High Court of Justice Idemili judicial Division Ogidi seeking for the following reliefs: 1. A declaration of the Court that the writing of a letter, signed by the Respondents Ex Communicating the Applicant without lawful justification is null, void and a contravention of S. 34 and S. 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). 2. A declaration of the Court that publication of the purported letter of Ex Communication of the Applicant by the Respondents to the General public by the reading of the said letter at the Umuihuorna kindred 1

5 meeting is a contravention of S.34 and S.40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). 3. An order restraining the Respondents, their agents or privies or howsoever called from further publication of the letter and/or Ex Communication of the Applicant in respect of this subject matter. 4. An order directing the Respondents to deliver an Apology in writing to the Applicant for unlawful interference with his Fundamental right. 5. N20, 000, (twenty million naira) only damages against the Respondents both jointly and severally for the unlawful infraction of the Applicants Fundamental Right. The Appellants filed a counter Affidavit with a written Address in opposition to the application on 19th July, (See pages 18 to 31 of the record of Appeal) and on 30th July, 2013, further filed a notice of Preliminary Objection against the Fundamental Right enforcement application as follows: 1. That the originating Application dated 2nd day of July, 2013 and filed on the 3rd day of July, 2013 by the Applicant through his counsel is incompetent. 2. That the Honourable Court lacks the jurisdiction to 2

6 entertain this Application. Take further notice that the 1st to 8th Respondents shall at the hearing of the notice of preliminary objection urge the Honourable Court for the following orders: a. An order of the Honourable Court declining jurisdiction to entertain this Application for being incompetent. b. An order of the Honourable Court striking out this Application for lack of Jurisdiction. The Respondent filed a counter Affidavit in opposition to the notice of preliminary objection and a written address and on 11th November, 2013 filed a further affidavit in response to the counter Affidavit of the Appellants. The Appellants also filed a reply to the Respondents further affidavit on 18th November After hearing the Respondent s Preliminary Objection, the learned trial judge delivered judgment in favour of the Respondent on 30th July, The Appellants were dissatisfied with that decision and proceeded to challenge it by filing a Notice of Appeal upon the following five grounds: GROUND ONE: The learned trial judge erred in law when he failed to deliver a definite ruling separately on the

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8 preliminary objection filed by the Appellant delivering judgment on the substantive suit. PARTICULARS OF ERROR 1) The Appellants filed a Notice of Preliminary objection dated the 30th day of July, 2013 and filed same day. 2) The Respondent also filed a counter Affidavit to the Notice of preliminary objection filed on the 11th day of November, ) That the trial Court did not deliver any ruling on the Notice of the preliminary objection filed by the Appellant before delivering Judgment on the substantive suit and thereby denying the Appellants fair hearing. 4) The Notice of preliminary objective filed by the Appellants is a separate application which the Court ought to rule on one way or the other and if the ruling of the Court is not in favour or the Appellants, the Appellants will have the opportunity to Appeal against the said ruling. GROUND TWO: The learned trial judge erred in law when he held that the reliefs sought by the Respondent come under Fundamental Right Enforcement (Procedure) Rules PARTICULARS OF ERROR a. The relief sought by the Respondent did not come within the purview of the

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10 Fundamental Rights Enforcement (Procedure) Rules b. The Application of the Respondent did not disclose any cause of action to the Fundamental Rights Enforcement (Procedure) Rules, c. The Originating Application of the Respondent is incompetent. d. The cause of the action of the Respondent, if any, lies in tort. GROUND THREE: The learned trial judge erred on facts when he stated that "The Appellant admitted in writing the letter Exhibit "A 1" but stated that they did so as the Applicant has dissociated himself from the family. PARTICULARS OF ERROR i. The Appellants did not admit writing Exhibit Al in paragraph 3 of their Counter Affidavits. ii. The Appellants in paragraph 9 of their Counter Affidavit to the Originating Application of the Respondent stated as follows: "That I deny paragraph 10 of the affidavit of the Applicant and state that the Respondents did not excommunicate the Applicant. It was the Umueze- Okafor family that excommunicated the Applicant based on the public statement the Applicant made disassociating himself from the Umueze-Okafor family and that the Applicant had earlier on signed 5

11 a document dated the 22/4/1987 ex-communicating one Mr. Simon Ezekwonna". GROUND FOUR: The Learned trial Judge misdirected himself and occasioned a miscarriage of Justice when he held that: "the opposition filed a Counter Affidavit deposed to by the 1st Respondent admitting that the Applicant is his half brother and a member of family until he, the Applicant, made a public statement on March, 2012 disassociating himself from the entire members of Umueze-okafor family. PARTICULARS i. The 1st Appellant did not depose to the affidavit. ii. It was the 7th Appellant that deposed to the Counter Affidavit. iii. The 1st Appellant did not admit the letter dated 3/1/2013 to the Umuiruorna Kindred applying to them to prevail on the Respondent to share their father's property and that the Respondent refused to share their father's property since he died in iv. No letter dated 3/1 /2013 was written by any of the Appellants. v. The 7th Appellant and his brother Arinze Ezeatu on the 24th December, 2011 wrote a letter to the Urnuiruorna Kindred. GROUND 5; The learned trial Judge misdirected himself when

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13 he disbelieved the Affidavit evidence of the Appellants and preferred that of the Respondent without calling any evidence to resolve the conflict in the Affidavit evidence. PARTICULARS 1. The Appellants deposed to the fact that they did not excommunicate the Respondent and that it was the Emueze-okafor family that excommunicated the Respondent. 2. Non of the Appellants is the chairman or the secretary of Umueze-okafor family nor did any of the Appellants sign the purported the excommunication letter. 3. The Affidavit evidence of the Gabriel Ezeatu and persons who are not parties in the application were considered by the trial Court. 4. The Judge did not call oral evidence to resolve the conflict. The Appellants raised the following twin issues for determination from the five grounds of appeal: 1. Whether the Appellants breached any of the Fundamental rights of the Respondent as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). 2. Whether the trial Court was right not to call oral evidence to resolve the conflicts in the affidavit evidence of the parties.

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15 The Appellants incredibly raised a preliminary objection to their own appeal in the Appellants Brief thus: * The originating process filed by the respondent is incompetent and that the Court lacks the jurisdiction to entertain the Appeal. * The Respondent shall, with the leave of the Court, contend that the originating process filed by the Respondent is incompetent and that the Court lacks jurisdiction to entertain this Appeal. The learned counsel for the Appellants made a very lengthy argument regarding the preliminary objection. With no much ado, the Court will not allow such an unthinkable somersault where an Appellant shoots himself by attacking his own appeal. For the avoidance of doubt Order 10 Rule 1 of the Court of Appeal Rules 2016 provides thus: A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection, and shall file such notice together with twenty copies thereof with the registry within the same time. This provision does not envisage filing of 8

16 preliminary objection by the Appellants. Be it as it may, the Respondent has replied to Appellants objection to which the Appellants did not file a reply brief. The Preliminary Objection apart from its awkwardness is utterly lacking in substance. It is accordingly dismissed. Issue One: The first issue for determination is whether the Appellants breached any of the Fundamental rights of the Respondent as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Learned Counsel for the Appellants referred to Section 34(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), under which this Application was brought, which provides as follows: Every individual is entitled to respect for the dignity of his person accordingly; a. No person shall be subjected to torture or to inhuman or degrading treatment. b. No person shall be held in slavery or servitude, and c. No person shall be required to perform forced or compulsory labour. The Appellants counsel submitted that the Respondent s affidavit evidence supporting the initiating 9

17 application shows that the Appellants breached the Respondent s fundamental right under the provision of Section 34 (1) of the Constitution of the Federal Republic of Nigeria It was submitted for the Appellant that the finding of the trial judge did not reflect the issues involved in this application as the Appellants did not breach any of the fundamental rights of the Respondents. The whole kindred of whom the respondent is part of could not have been said to have breached the fundamental rights of the Respondent. The sanction said to have been imposed by the kindred against the Respondent was done collectively as per the documentary evidence placed before the Court. The Appellants are not the authors of the said letter written by the kindred to the Respondent. The 7th and 8th Appellants merely reported the respondent to the kindred that the respondent refused to share their father's property and asked the kindred to interfere and implore the respondent to share their father s property according to the native law and custom of their community. The report of the 7th and 8th Appellants to their kindred was to explore the legitimate 10

18 local arbitration in order to resolve the issues between them and the respondent. The respondent, instead of responding to the invitation of the kindred, resorted to disassociating himself from the kindred by calling the kindred the "so called Umuezeokafor kindred". The Respondent merely exercised his right by disassociating himself from Umuezeokafor kindred and vice versa. The Appellants did not stop the Respondent from forming his own kindred if he is not prepared to abide by the rules and regulations of Urnuezeokafor kindred. It was submitted that the Appellants did not breach the fundamental right of the Respondent going through the affidavit evidence relied upon at the trial. The Appellants were not shown to have individually or collectively breached the fundamental right of the Respondent. The said breach of the fundamental right of the respondent was said to have been done by the Umuezeokafor kindred collectively. It is difficult to see how the Appellants could be liable for whatever the Umuezeokafor kindred did. The learned counsel for the Appellants also cited Order II of the Fundamental Rights Enforcement (Procedures) Rules 2009, 11

19 which provides as follows: "Any person who alleges that any of the fundamental rights provided for in this Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed may apply to the High Court in the State where the infringement occurs or is likely to occur for redress." This provision of the Fundamental Rights Enforcement (Procedures) Rules 2009 is very clear as to what gives rise to a cause of action under the rules. The collective action by the Umuezeokafor kindred by way of sanction against the respondent tor disrespecting the family does not amount to a breach of the fundamental rights of the respondent. The documentary evidence shows that it is the entire Umuezeokafor family, Umuihuoma kindred Ogweni Ociha Village, Adazi-Enu that wrote the letter of excommunication against the respondent and not the Appellants in this matter. The Respondent was said to have been told that he will redeem himself by paying Five Hundred Naira (N500) to the kindred and not to the Appellant. The Umuezeokafor family, 12

20 Umuihuorna, in the said letter, expressly stated that they are prepared to welcome the Respondent back into the kindred if the Respondent meets their conditions. It is now the responsibility of the Respondent to exercise his fundamental right to accept the conditions set by the kindred or to do otherwise. The is sanction on the Respondent whichever way he chooses to exercise his fundamental right. The learned trial judge in his finding observed as follows: "The respondents admitted writing the letter Exhibit A1 (see paragraph 3 of the counter affidavit), but stated that they did so as the applicant had disassociated himself from the family." The Respondent, however, denied paragraph 7 of the further affidavit and further averred as follows: "That I deny paragraph 7 of the further affidavit of the Applicant and state that we did not hatch any excommunication plan against the Applicant, that it is the Applicant who on his own disassociated himself from the Umueieokafor family meeting and that Mr. Gabriel Ezeatu is an ally of the Applicant because the applicant sold our family land to the said Mr. Gabriel Ezeatu without our consent and 13

21 we reported them to the Umuihuoma kindred and that Umuihuoma kindred through their chairman Mr. Romanus Elorie and their secretary Mr. Ifeanyi Okafor wrote to our family directing everybody to steer clear of our late father's property until the dispute concerning the sharing of our late father's property is resolved. In the said letter, the Uniuihuonta kindred specifically stated that anybody who violates the said directive will pay five hundred thousand Naira or the person will be excommunicated." The affidavit evidence of the Appellant clearly shows that they did not admit writing the said ex-communication letter contrary to the findings of the trial Court. The material question is whether the Appellants had violated the respondent s fundamental right as alleged or at all by the letter Exhibit 'AI'. A right thinking member of the concerned families and in that society would rather think in the negative. See the case of ANKPA Vs NKUME (2001) 6 NWLR (pt. 710) 560 para F - H; AJAO Vs ASHIRU (1973) 8 NSCC 535; A. G. FEDERATION & ORS Vs ALHAJI ATIKU ABUBAKAR & ORS (2008) 7 S C N J 197. From the total scenario in 14

22 this matter, it is difficult to see what really the Appellants did that violated any of the Respondent s fundamental rights as set out under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Issue one has to be and is resolved in favour of the Appellants against the Respondent. On the second and final issue, the learned counsel for the Appellants argued that Courts are enjoined to call oral evidence to resolve conflicts in affidavit evidence. See the case of FALOBI VS FALOBI (2002) 30 WRN PAGE 133 (1976) 9-10 SC p. 1. See also the case of DANTATA VS CONSOLIDATED RESOURCES LTD (2006) 17 WRN p. 59. It was submitted for the Appellants that the trial judge did not take any reasonable step to resolve the conflict in the affidavit evidence by calling oral evidence as in the case of FALOBI VS FALOBI (2002) 30 WRN PAGE 133 (1976) 9-10 SC page 1. The learned trial judge held as follows; "I have read the letter and I have not seen where the applicant disassociated himself as a member of Umuezeokafor family. The respondent also stated that by writing to Umuihuoma kindred rather than Umuezeokafor family 15

23 the applicant through the letter written by his counsel has disassociated himself from the Umuezeokafor family." (See page 87 of the record of appeal) It was submitted for the Appellants that the finding of the trial Court clearly shows that there are conflicts in the affidavit and documentary evidence of the parties that required the calling of oral evidence to resolve same. The Appellants and the Respondent are all members of Umuezeokafor family before the Respondent disassociated himself from Umuezeokafor family. The learned trial judge also in his judgment, at pg 87 of the record of appeal, held as follows: it has always been settled that much as voluntary Associations such as family meetings or Associations are desirable in the community and are to be encouraged, there must be caution to ensure that the fundamental rights of citizen are not trampled upon by popular enthusiasm. This is because these rights have been enshrined in the Constitution which enjoys superiority over local custom." It was further submitted for the Appellant that the finding of the trial Court shows that the conflict that resulted to this suit 16

24 originated from the decision taken against the Respondent by the family jointly and not by the Appellants individually. The Appellants are mere members of Umuezeokafor family and none of the Appellants are members of the executive of Umuezeokafor family. The only reason the Respondent sued the 7th and 8th Appellants who are his half brothers was because they reported to the kindred the Respondent s failure to share their late father's property with them. The 7th and 8th Appellants merely used acceptable local means of conflict resolution by reporting the Respondent to the kindred so that the kindred will call the Respondent to order. The actions taken by the kindred, in view of the report lodged to the kindred by the 7th and 8th Respondents was not attributable to any of the Appellants. It has not been proved by preponderance of evidence that the letter Exhibit "A1," was written by the Appellants. The Appellants, in paragraph 8 of the counter affidavit, stated as follows:- "That I admit paragraphs 7, 8 and 9 of the affidavit of the Application to the extent that the Applicant wrote a letter to the Umuihuoma kindred and laid certain complaint 17

25 against Umuezeokafor family based on the fact that Umuezeofafor family has excommunicated him based on the fact that the Applicant has previously made a public statement dissociating himself from Umuezeokafor family. The Applicant also through his counsel wrote a letter to Umuihuoma kindred instead of the Umuezeokafor family whom the Applicant alleged excommunicated him. This clearly shows that the Applicant has completely dissociated himself from Umuezeokafor family in keeping to his earlier public statement he made dissociating himself from Umuezeokafor family." The Appellants submissions as to the conflict they referred, which the trial judge failed to resolve from the affidavit evidence of both the Respondent and the Appellants is a mere assertion as the learned trial judge had consciously observed thus: "I have read the letter and I have not seen where the applicant dissociated himself as a member of Umueze-Okafor family The learned trial judge therefore found no conflict in the affidavit. The learned trial Judge, in his judgment specifically held as follows: "The Respondents have no authority to take the 18

26 law into their own hands by attempting to excommunicate the Appellants and his family from the family meeting or imposing fine." It is respectively observed that Exhibit AI is clearly incongruous with the finding of the Court below. That letter was written by Umuezeokafor family, only as to excomminucate to the Respondent the views of the Umuezeokafor family regarding the Respondent s dissociation with the family and not that the Respondent had already been excommunicated. The Respondent was given an option to leave or remain with the family. The Respondent is undeniably a member of Umuezeokafor family by birth and so he is bound by the rules and regulations of Umuezeokafor family as required by custom. There was therefore no affidavit conflict, which the Court below failed to resolve. I therefore resolve issue 2 in favour of the Appellant s and against the Respondent. The resolution of the two issues in favour of the Appellants has glaringly displayed the merit of this appeal. The appeal succeeds and is hereby allowed. The decision of the Court below delivered on the 30th day of June, 2014 is hereby 19

27 set aside. The Appellants are entitled to costs against the Respondent assessed at Fifty Thousand Naira Only (#50,000.00) MUHAMMED LAWAL SHUAIBU, J.C.A.: I have the privilege of reading in draft the judgment of my learned brother, Hussein Mukhtar, JCA. I entirely agree with the eloquent reasoning and conclusion in allowing the appeal for being meritorious. I also abide by the consequential order including the order as to costs. FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother HUSSEIN MUKHTAR, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal. Consequently the judgment of the Court below delivered on the 30th day of June, 2014 is hereby set aside. There shall be cost of Fifty Thousand (#50,000.00) Naira against the Respondent and in favour of the Appellants. 20

28 Appearances: Chief J.N. Okonkwo, Esq. with him, Lolo Chinelo Okonkwo, Esq. For Appellant(s) Emella Anyeretu, Esq. with him, Obinna Ojiofo, Esq. For Respondent(s)

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