OKAFOR & ORS v. EZEATU
CITATION: (2018) LPELR-44208(CA)
In the Court of AppealIn the Enugu Judicial Division
Holden at Enugu
ON TUESDAY, 13TH FEBRUARY, 2018Suit No: CA/E/165/2015
Before Their Lordships:
HUSSEIN MUKHTAR Justice, Court of AppealMUHAMMED LAWAL SHUAIBU Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal
Between1. MR. EMEKA OKAFOR2. MR. MOSES OKAFOR3. MR. IFEANYI OKAFOR4. MR. CELESTINE EZEKWONNA5. MR. CHUKWUEMEKA EZEKWONNA6. MR. JOHNSON EZEKWONNA7. MR. OLISA EZEATU8. MR. ARINZE EZEATU
- Appellant(s)
AndCHIEF HON. JOSEPH OSITA EZEATU - Respondent(s)
RATIO DECIDENDI
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1. PRACTICE AND PROCEDURE - PRELIMINARYOBJECTION: Whether an appellant can raise apreliminary objection against his own appeal"The Appellants incredibly raised a preliminaryobjection to their own appeal in the Appellants' Briefthus:* The originating process filed by the respondent isincompetent and that the Court lacks the jurisdictionto entertain the Appeal.* The Respondent shall, with the leave of the Court,contend that the originating process filed by theRespondent is incompetent and that the Court lacksjurisdiction to entertain this Appeal.The learned counsel for the Appellants made a verylengthy argument regarding the preliminaryobjection. With no much ado, the Court will not allowsuch an unthinkable somersault where an Appellantshoots himself by attacking his own appeal. For theavoidance of doubt Order 10 Rule 1 of the Court ofAppeal Rules 2016 provides thus:"A Respondent intending to rely upon a preliminaryobjection to the hearing of the appeal, shall give theappellant three clear days notice thereof before thehearing, setting out the grounds of the objection, andshall file such notice together with twenty copiesthereof with the registry within the same time."This provision does not envisage filing ofpreliminary objection by the Appellants. Be it as itmay, the Respondent has replied to Appellants'objection to which the Appellants did not file a replybrief.The Preliminary Objection apart from its awkwardnessis utterly lacking in substance. It is accordinglydismissed."Per MUKHTAR, J.C.A. (Pp. 8-9, Paras. A-A) -read in context
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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
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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, 000,000.00 (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, 2013.
(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
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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 2013.
After hearing the Respondent’s Preliminary Objection, the
learned trial judge delivered judgment in favour of the
Respondent on 30th July, 2014.
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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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, 2013.
3) 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
2009.
PARTICULARS OF ERROR
a. The relief sought by the Respondent did not come
within the purview of the
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Fundamental Rights Enforcement (Procedure) Rules
2009.
b. The Application of the Respondent did not disclose
any cause of action to the Fundamental Rights
Enforcement (Procedure) Rules, 2009.
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
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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 2002.
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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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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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
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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
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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 1999.
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
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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,
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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,
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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 ex-
communication 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
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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 wi l l be ex -
communicated."
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) 543 @ 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 93 @ 197.
From the total scenario in
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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
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… 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
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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
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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
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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
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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.
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Appearances:
Chief J.N. Okonkwo, Esq. with him, Lolo ChineloOkonkwo, Esq. For Appellant(s)
Emella Anyeretu, Esq. with him, Obinna Ojiofo,Esq. For Respondent(s)
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