GEORGE & ORS v. ANUCHA

CITATION: (2016) LPELR-40509(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON FRIDAY, 22ND APRIL, 2016Suit No: CA/OW/180/2010

Before Their Lordships:

IGNATIUS IGWE AGUBE Justice, Court of AppealPETER OLABISI IGE Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

Between1. REV. IKENDI GEORGE2. ELDER DAVID IHEMANMA3. CHIDI NWOHA(For themselves and on behalf of the committee overseeingthe affairs of Ocheala Mbutu Autuonomous Community bywhatever name called)4. UCHECHUKWU HERBERT5. CHIOMAOBI ALISON6. CHIMEZIE MADUFORO

- Appellant(s)

AndAPOSTLE CHIEF DANIEL C. ANUCHA - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - ISSUE(S) FOR DETERMINATION: Whether an issue for determination must arise from the groundsof appeal"It has been stated and restated over and over again that the issues raised for determination of an appeal mustemanate or flow from the grounds of appeal filed. Where a matter argued in an issue is not covered by anyground of appeal such an issue and argument in respect thereof will be ignored and struck out. See:(1) GOKE OLAOLU V. FRN (2016) 3 NWLR (PART 1498) 133 AT 157 B ?????? C PER GALADIMA, JSC.(2) OZURUMBA NSIRIM V. DR SAMUEL W. AMADI (2016) 5 NWLR (PART 1504) 42 AT 60 WHERE ONNOGHEN, JSCsaid:??????It is settled that issues in the appeal can only validly arise from grounds of appeal or cross appeal andthat where an issue or issues for determination does/do not arise from grounds of appeal such an issue(s)is/are incompetent and liable to be struck out.??????On page 62 B of the report NGWUTA JSC also said:??????It is the Appellant, the aggrieved party, who appeals the judgment against him. The ground of appeal ison the ratio decidendi of the judgment appealed against and theissues to be determined must flow from the grounds of appeal....."Per IGE, J.C.A. (Pp. 24-25, Paras. A-A) - read in context

2. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE: Attitude of Appellate Court to evaluation ofevidence by a trial court"The trial Court properly evaluated the Affidavit evidence before him and came to the right conclusion in hisjudgment. An appellate Court will not interfere with evaluation of evidence before the trial Court where thejudgment discloses that the trial Court has dutifully performed its function of assessment and evaluation ofevidence before it even where the case is fought on Affidavit evidence.See: MICHAEL AIYEOLA VS. RAMOTA YEKINI PEDRO (2014) 12 SCM 71 at 94 A ??? C per PETER ??? ODILI JSCwho said:???The attitude of the Court of Appeal or the Supreme Court as the case may be, in respect of evaluation ofevidence of a trial Court is that in deciding whether or not a trial Court properly evaluated the evidence, theessential focus should be on whether the trial Court made proper findings and reached the correct judgmentupon facts before it. It is not the method or approach that necessarily determines this. Thus, so long as a trialCourt does not arrive at his judgment merely by considering the case of one party before considering the caseof the other, its judgment if right will not be set aside simply on the method of assessment of the evidence orapproach to the entire case it may have adopted. Ajibulu v. Ajayi (2004) 11 NWLR (Pt. 885) 458; Woluchem v.Gudi (1981) 5 SC 291."Per IGE, J.C.A. (Pp. 42-43, Paras. A-B) - read in context

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3. EVIDENCE - AFFIDAVIT EVIDENCE: Circumstance where the court would need not call oral evidence toresolve conflict in affidavit evidence"It is true that where there is direct conflict in affidavits of parties on crucial and material facts before a trialCourt it is expedient to hear oral evidence from the deponents or witnesses to resolve the conflicts. See FALOBIVS FALOBI (1976) 9 10 SC 1 at 13 ???????????????????????? 14.However where there are documents annexed or exhibited to one or more Affidavits evidence before the Courtthe Court is entitled to make use of such documents to resolve material conflicts in the Affidavits evidencebefore it instead of calling for oral evidence.See B. V. MAGNUSSON VS K. KOIKI & ORS (1991) 4 NWLR (PART 183) 199 at 129 D-E per NIKI TOBI JSC whosaid: -????????????????????????In this application, there are conflicting affidavits evidence which this Court andindeed any other Court for that matter is not competent to resolve suo motu. See PHARMACISTS BOARD VSADEBESIN (1976) 55C 43, FALOBI VS FALOBI (1976) 9-10 SC 1, EBOH VS OKI (1974) 1 SC 179, UKU VSOKUMAGBA (1974) 3 SC. 35. I will not make any effort to resolve the conflicting affidavit evidence as that is afutile exercise. But all I should do is to use the documentary evidence outside the depositions in the Affidavitand come to a conclusion one way or the other as to the true position. The law does not require the calling oforal evidence to resolve conflicting affidavit evidence if there is sufficient documentary evidence to resolve theconflict.????????????In the case of LAFIA LOCAL GOVERNMENT VS THE EXECUTIVE GOV. NASARAWA STATE & ORS (2012) 17 NWLR(PART 1328) 94 at 129 F-G The Supreme Court per RHODES VIVOUR, JSC said: -????????????Even if there are conflicts in affidavit but there are authentic documentary evidence supportingone of the affidavits in conflict with the other the trial Court ought to examine it before applying it in coming toa fair decision. See NWOSU VS IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PART1990) 2 NWLR (PART 135 p 688; CHAIRMAN NPC VS CHAIRMAN, IKERE LOCAL GOVERNMENT (2001) 13 NWLR(PT 370) p. 540.????????????Another corollary to that is that where the alleged conflicts in the Affidavit before the Court are not material tothe case before the Court or are not germane to the real issue in contest before the Court the need to call oralevidence is thereby obviated or dispensed with.See LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION VS ADOLD STAMM INTERNATIONAL NIGERIALTD & ANOR (2005) 2. NWLR (PART 910) 603 AT 616 G-H to 617 A-F where Akintan, JSC held thus: -????????????The question to be resolved in the appellant????????????s first issues is whether there are conflictsin the affidavits filed by the parties. The two affidavits are already reproduced earlier above. The sum total ofthe appellant????????????s case as set out in the affidavit filed by it was that there was no need for a newinterest to be determined outside the one awarded earlier by Desalu, J. on the other hand, the respondentsought the assistance of Afribank, a commercial bank, on the rate of interest payable on the judgment debthad the sum been placed in a fixed deposit in a commercial bank within the time specified in the request madeto the bank. The reply from the bank was exhibited as an annexure to the affidavit filed by the respondent. Thesecond document also produced by the respondent is another calculation made by a Chartered Accountant butbased on the same principle adopted by the bank and it was aimed at covering the period not covered by thecalculation made by the bank. This was the document later produced in Court. But it was also exhibited withthe respondent??????s motion as Exhibit 2. The question in this case therefore is whether one can say that thecontents of the two affidavits filed by the parties can be said to be conflicting. In deciding whether or not thecontents of the two documents are conflicting, one must look at the issue in controversy in the particular casebefore the Court. This is because where, for example, the conflicts in affidavits are not material to the casebefore the Court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien tothe matter before the Court, the need to call oral evidence to resolve the conflicts would not arise. See FalobiVs Falobi (1976) 9 ?????? 10 sc 1; Okupe Vs F. B. I. R. (1974) All NLR 314 (Reprint); Garba Vs University ofMaiduguri (1986) 1 NWLR (pt. 18) 550; and L.S.D.P.C. VS Adold/Stamm Int. Ltd. (1994) 7 NWLR (PT. 358) 545.As already shown above, while the facts set out in the respondent??????s affidavit relate to the interest due onthe judgment debt which was what the Supreme Court directed Ilori, J. should determine, the appellant on theother hand, did not controvert or challenge the accuracy or otherwise any of the figures put forward in theaffidavit filed by the respondent. Instead, it was claiming that there was no need for the appellant to pay anyother interest other than the one based on the judgment of Desalu, J. It is therefore correct to say that therewas infact no conflict in the affidavit evidence placed before the trial Court since the allege conflict are infactnot relevant to the case of before the Court. There is therefore no merit in the appeal as it relates to thatissue."Per IGE, J.C.A. (Pp. 36-41, Paras. F-C) - read in context

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4. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Duty of court to consider preliminary objectionbefore venturing into the main or cross-appealThis Court has always in line with settled principles of law taken into consideration and determine first Notice ofObjection filed by a Respondent or any party to an appeal where the Notice aforesaid is capable of crippling orterminating in limine the life in the appeal. There is no doubt that this Court cannot entertain or adjudicate on

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incompetent grounds of appeal. I will therefore take first the Notice of Preliminary objection in order todecipher whether it can dispose of the appeal. See (1) B.A.S.F NIGERIA LTD & ANR VS. FAITH ENTERPRISES LTD(2010) 1 SCM 4 AT 52 D ?????? E PER COOMASSIE JSC.(2) OWELLE ROCHAS OKOROCHA VS. PDP & ORS (2014) 1 SCM 16 AT 185 PER OGUNBIYI, JSC AND(3) CHIEF U. M. EFET VS. INEC & ORS (2011) 3 SCM 63 AT 76 ?????? 77A PER D. T. MUHAMMED. JSC 1.Per IGE, J.C.A. (Pp. 10-11, Paras. E-B) - read in context

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PETER OLABISI IGE, J.C.A.(Delivering the LeadingJudgment):This is an appeal against the judgment of Abia State HighCourt delivered by the Honourable Justice C. I. Jombo �Ofo now (JCA) on the 11th day of February, 2010.

What culminated into this appeal is the Application for theenforcement of fundament rights initiated by theRespondent against the Appellants vide a motionex�parte for leave to enforce his fundamental rights filedon 1st day of August 2007.

The reliefs sought in the said application as could begathered from the statement accompanying the applicationfor leave are listed as follows:2. RELIEFS SOUGHT:a. A declaration, that the purported exclusion of theapplicant from the exercise of his fundamental rightof freedom of association with fellow mankind,including his kiths and kin from Umuocheala OchealaMbutu Autonomous Community, on the purportedallegation, that he was mentioned as a witch orwizard is unlawful, unconstitutional and therefore,null and void.b. A declaration, that the purported banishment fortwenty (20) years of the applicant from hisUmuocheala, Ocheala

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Mbutu Autonomous Community, Isiala Ngwa South

Local Government Area, purportedly, on the unproved

and unverifiable claim that he is a witch amounts to

an infringement, and or violation of his fundamental

right to freedom of Association, and is therefore

unlawful, unconstitutional, null and void.

c. A declaration, that the purported banishment of the

applicant, from his Umuocheala, Ocheala Mbutu

Autonomous Community, on the purported claim, that

he was mentioned by one Uchenna Enemanna Orji

(�Aka UTU�) as a witch, without affording him

the opportunity of confronting this accuser, (i.e) Utu,

amounts to an infringement, violation of his

fundamental rights to fair hearing guaranteed by the

Constitution of the Federal Republic of Nigeria 1999,

and is therefore, null and void.

d. A declaration that, spraying the entire body of the

applicant with fluid from burning plastics, rendering

the applicant completely naked, hanging, fresh and or

tender palm fronds on the neck and waist of the

applicant, and parading him through, Umuocheala

village, to Owerinta, forcing him to drink a mixture of

menstrual blood, urine and faeces, on the purported

and

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unverifiable claim that he is a witch, amounts to

torture, inhuman and degrading treatment.

e. An order setting aside the purported banishment of

the applicant.

f. Exemplary damages, against the Respondents,

jointly and severally, assessed at one million

(N1,000,000,000) for the unwarranted infringement

and violation of the applicant’s fundamental rights.

The facts upon which the application is predicated are

stated thus:

“(a) The applicant is entitled to the full enjoyment of

all the fundamental rights guaranteed to him by the

Constitution of the Federal Republic of Nigeria, 1999

except in so far as the Constitution itself provides for

its derogation.

(b) The circumstances by and under which the

applicant’s Fundamental Rights were derogated from

were not cognizable, under the Constitution neither

were such to be reasonably contemplated and are

therefore null, void and of no effect whatsoever.”

The facts relied upon for the aforesaid reliefs were stated

and contained in the Statement. A verifying affidavit was

also filed in support.

On 25th day of October, 2007 the Respondent was granted

leave by the

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said Court to bring a formal application to enforce his

Fundamental Rights allegedly infringed by the Appellants.

The return date was fixed for 8th day of November, 2007

Pursuant to the said leave the Respondent filed a motion on

Notice dated 1st day of November, 2007 on 8th day

November, 2007 praying for the enforcement of

Respondents Fundamental Rights in terms of the reliefs set

out in paragraph 2 of the statutory statement annexed to

the application by the Respondent. What the Respondent

filed was a wholesome replication of the processes used for

obtaining the leave to enforce the alleged fundamental

rights that were breached by Appellants.

The Appellants were later served the Respondents Court

processes via substituted means. Thereafter and precisely

on 25th day of November, 2008 the Appellants filed counter

affidavit against the Respondents application containing

twenty seven (27) paragraphs.

The matter proceeded to hearing after the exchange of

written addresses by the Learned Counsel to the parties.

After the adoption of the said addresses the Learned Trial

Judge delivered a considered judgment on the matter on

the 11th day of February,

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2010 wherein he held as follows: -

“I am of considered view that the applicant has

established his case against the Respondents. It is in

the light of this that the Court shall make the

following declarations:

a. That the purported exclusion of the applicant from

the exercise of this fundamental right of association

with fellow citizens including his kith and kin from

Umuocheala Ocheala Mbutu Autonomous Community

on the purported allegation that he was mentioned as

a witch or wizard is unlawful, unconstitutional and

therefore null and void.

b. That the purported banishment for twenty (20)

years of the applicant from his Umuocheala, Ocheala

Mbutu Autonomous Community on the purported

allegation that he is a witch amounts to a violation of

his fundamental right to freedom of association and

is therefore unlawful unconstitutional null and void.

c. The purported banishment of the applicant from

his Umuocheala, Ocheala Mbutu Autonomous

Community on the purported claim that he was

mentioned by Uchenna Enemanna Orji (Aka UTU) as a

witch, without affording him the opportunity of

confronting his accuser, that is “UTU” amounts to

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an infringement of his Fundamental Right to fair

hearing guaranteed by the Constitution of the Federal

Republic of Nigeria, 1999 and is therefore null and

void.

d. That the spraying of the applicant’s entire body

with incinerating plastics, rendering the applicant

naked, hanging fresh palm fronds on the neck and

waist of the applicant and parading him through

Umuocheala village to Owerrinta and forcing him to

drink a mixture of menstrual blood, urine and faeces

on the purported claim that he is a witch, amounts to

torture, inhuman and degrading treatment.

e. The purported banishment of the applicant from

his Umuocheala, Ocheala Mbutu Autonomous

Community is hereby set aside.

f. An award of N300,000 (three hundred thousand

naira) is herein made against the respondents jointly

and severally being exemplary damages for the

unjustified infringement and or violation of the

applicant’s fundamental rights.

Finally, regarding the consequential relief of

perpetual injunction which the applicant had

requested for in their written submission to the Court

I shall refrain from making such a consequential

order. It is therefore not granted.

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Albeit the motion is granted as afore stated.

Counsel of applicant is asking for cost of N50,000

against the respondents. Cost of N10,000 awarded

against the respondents jointly and severally.

Aggrieved by the above findings of the Court below the

Appellants filed Notice and Grounds of Appeal dated 18th

day of February, 2010 on 22nd day of February, 2010

against the judgment of the trial Court containing four (4)

grounds of appeal which read thus:

“3. GROUNDS OF APPEAL

GROUND ONE

The judgment is against the weight of evidence

GROUND TWO

ERROR IN LAW

The Learned Trial Judge erred in law by denying the

Appellants of a fair hearing which occasioned a miscarriage

of justice against the Appellants.

PARTICULARS OF ERROR

1. The Appellants in their written address strenuously

argued that the motion on notice for the enforcement of

fundamental rights was incompetent.

2. The Learned Trial Judge failed to make pronouncement

on the issue of the competence of the motion in the

judgment.

GROUND 3

ERROR IN LAW

The Learned Trial Judge erred in law by entering judgment

for the Application on the

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strength of the facts presented by him despite the fact that

the affidavit evidence of the parties to the case were in

unresolved conflict which occasioned a miscarriage of

justice against the Appellants.

PARTICULARS OF ERROR

1. The facts presented by the Applicant were denied by the

Respondent in their counter affidavit.

2. The conflicts in the affidavit evidence presented before

the trial court were not resolved in any way whatsoever.

3. Despite the conflict in affidavit evidence, the trial Court

did not call oral evidence to resolve same.

4. The trial Court merely accepted the facts presented by

the Applicant as verified – his affidavit and gave him

judgment which occasioned a miscarriage of justice against

the Appellants.

GROUNDS FOUR

ERROR IN LAW

The trial Court erred in law by exercising jurisdiction to

hear the motion that was incompetent when the Court was

not competent to do so.

PARTICULARS OF ERROR

1. Leave to enforce the Applicants fundamental rights was

granted on the 29th day of October, 2007.

2. The verifying affidavit used by the Applicant in support

of the motion on notice was sworn

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to on the 8th day of November, 2007, that is 10 (ten) days

after leave was granted the Applicant.

3. The verifying affidavit that was used by the Applicant to

obtain leave was never used to support or argue the motion

on notice.

4. The verifying affidavit used by the Applicant to obtain

leave was never served on the Appellants (Respondents at

the) Lower Court.

5. It is the same verifying affidavit that is used to obtain

leave that is also used to support and argue the motion on

notice.

6. The foregoing fundament deficiencies were brought to

the attention of the trial Court.

7. The foregoing facts notwithstanding the trial Court

proceeded to assume jurisdiction to hear and determine the

incompetent motion on notice.

The Appellants filed their Appellants’ brief of Argument

dated 7th day of May, 2012 on 8th day of May, 2012 and

the Respondent’s Brief of Argument dated 23rd day of

September, 2013 was filed on 3rd day of October, 2013 but

deemed properly filed on 19th day of October 2015. The

Appellants filed Appellants’ Reply Brief dated 2nd day of

November 2015 on the same date.

The appeal was heard on the 28th

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day of January, 2016 when the parties adopted their briefs

of Arguments.

It is here pertinent to state that the Respondent to this

appeal had by Notice of Preliminary Objection undated but

filed on 24th September, 2013 pursuant to Order 10 Rule

1 of the Court of Appeal Rules 2011 challenged the

competence of the 1st, 3rd and 4th grounds of appeal of the

Appellants as of mixed law and facts requiring the necessity

to first seek and obtain the leave of the Court pursuant to

Section 242 of the Constitution of the Federal

Republic of Nigeria to render them valid. That no such

leave was obtained by Appellants hence Respondent is

countering that the said grounds of appeal ought to be

struck out. The argument of the Respondent on his

contention could be found in paragraphs 00.1 to 00.6 of the

Respondent�s Brief.

This Court has always in line with settled principles of law

taken into consideration and determine first Notice of

Objection filed by a Respondent or any party to an appeal

where the Notice aforesaid is capable of crippling or

terminating in limine the life in the appeal. There is no

doubt that this Court cannot entertain or adjudicate on

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incompetent grounds of appeal. I will therefore take first

the Notice of Preliminary objection in order to decipher

whether it can dispose of the appeal. See (1) B.A.S.F

NIGERIA LTD & ANR VS. FAITH ENTERPRISES LTD

(2010) 1 SCM 4 AT 52 D � E PER COOMASSIE JSC.

(2) OWELLE ROCHAS OKOROCHA VS. PDP & ORS (2014)

1 SCM 16 AT 185 PER OGUNBIYI, JSC AND

(3) CHIEF U. M. EFET VS. INEC & ORS (2011) 3 SCM 63

AT 76 � 77A PER D. T. MUHAMMED. JSC 1.

The Respondent submitted that where ground of Appeal is

centred on disputed facts, no matter how it is couched, it is

a ground of mixed law and fact. That grounds 1 and 2

challenged the evidence adduced at the Court below by the

parties while ground 3 is based on disputed facts. He

placed reliance on the case of ATAGO VS. NWUCHE &

ORS (2013) 19 WRN 27 AT 37, that ground 4 of the

appeal also disputes verifying affidavit and the statement

filed in support of the motion filed by the Respondent at the

Lower Court. He relied on the cases of:

1. CALABAR CENTRAL COOPERATIVE, THRIFT AND

CREDIT SOCIETY LTD & 2 ORS VS BASSEY EBONG EKPO

(2008) 33 NSCQR (PT II) 1146 AT 1200 � 1202.

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2. DAIRO V. UBN PLC & ANOR (2007) 31 NSCQLR P.

475 AT 501 � 502.

3. UGBOAJA VS. SOWEMIMO & 3 ORS (2008) 35 NSCQR

382 AT 398 � 399.

Respondent urged the Court to strike out the grounds of

appeal and dismiss the entire appeal.

The Appellants responded to the Preliminary Objection in

their aforesaid Reply Brief wherein they submitted that

there is no need to seek and obtain leave to appeal, where

as in this case the record of appeal, pages 3 � 46 thereof

disclosed that the proceedings leading to this appeal were

based on questions as to whether any provisions of chapter

of the Constitution has been contravened in relation to the

Respondent, that the Abia State High Court decision is a

final decision of a Court of first instance. The Appellants

relied on Section 241 and 242 of the Constitution of

the Federal Republic of Nigeria 1999. That the appeal

herein does not fall within Section 242(1) of the aforesaid

Constitution. The Appellants also placed reliance on the

cases of:

1. INDEPENDENT NEWSPAPERS LTD V. IDIONG (2012)

ALL FWLR (PART 647) 677 AT 688 � 689 D � A

PER AKAAHS JCA NOW JSC.

2. OKOYEKWU V.

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OKOYE (2009) 6 NWLR (PART 1137) 350 AT 386.

They urged the Court to dismiss the objection.

I am in full agreement with the Appellants that they do not

require leave before they can appeal against the final

judgment of the High Court of Abia State whether on

ground of law or mixed law and facts. The reason is not

farfetched. This is discernible from Section 241 (1) (d) of

the Constitution of the Federal Republic of Nigeria

1999 as amended which provides:

“241(1) (d) An appeal shall lie from the decisions of

the Federal High Court or a High Court to the Court

of Appeal as of right in the following cases –

(a) …………………………………………

(b) …………………………………………

(c) …………………………………………

(d) decisions in any civil or criminal proceedings or

questions as to whether any of the provisions of

chapter IV of this

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Constitution has been, is being or is likely to be,

contravened in relation to any person;�

Thus the Preliminary Objection of the Respondent against

the Appellant�s appeal is unfounded. The Appellants

appeal is competent.

Now to the merit of the appeal.

The Appellants formulated two issues for the determination

of the appeal herein viz:

1. Whether there was a competent motion on Notice for the

enforcement of the Respondent�s fundamental rights

before the Lower Court. (Ground 4 of the appeal).

2. Whether the Learned Trial Judge was right in entering

judgment for the Respondent without resolving the

conflicts in the affidavit evidence of the parties (Grounds 1

& 3).

The Respondent did not formulate contrary issues for the

resolution of the appeal. The appeal will be decided on the

issues formulated by the Appellants. The two issues will be

taken together.

ISSUES 1 AND 2

1. Whether there was a competent motion on Notice

for the enforcement of the Respondent�s

fundamental rights before the Lower Court. (Ground

4).

2. Whether the Learned Trial Judge was right in

entering judgment for the

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Respondent without resolving the conflicts in the

affidavit evidence of parties. (Grounds 1&3).

The Appellants learned Counsel A. I. Nwachukwu Esq.

submitted under issue 1 that there was no competent

motion on Notice for enforcement of the Respondent�s

fundamental rights before the Lower Court. He submitted

that the procedure for the enforcement of fundamental

rights is a special one and as such an Application must

strictly adhere to the provisions of Fundamental Rights

(Enforcement Procedure) Rules 1979. He relied on the case

of:

N.U.T VS. CONFERENCE OF SECONDARY SCHOOL

TUTORS NIGERIA (2006) ALL FWLR (PART 295) 656

AT 673 A � C and ORDER 1 RULE 2(3) AND ORDER 2

RULE 2(1) AND (2) Fundamental Rights Enforcement

Procedure) Rules 1979.

That a joint reading of the said Rules makes it mandatory

that the verifying affidavit to be used for the hearing of the

motion on Notice must be sworn on the date the motion ex-

parte is filed at Registry and must be the one for use in

support of motion on Notice along with the statement used

in obtaining leave ex parte. He relied on the cases of:

OGWUCHE V. MBA (1994) 4 NWLR (PT 336) 75 AT 85

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� 86 H � C PER OKEZIE JCA and

JOSEPH ALI & ORS V. DGP & ORS (2007) CHR 127 AT

145 C � D.

That the Lower Court appreciated the position of the law on

pages 90 � 91 of the record but failed to apply the law.

That this Court is in the same position as the Lower Court

vide Section 15 of the Court of Appeal Act to apply the

provisions of the law to the facts of this case.

That in this case on appeal the motion ex-parte for leave

was filed along verifying affidavit on 1st day of August,

2007 but that the said verifying Affidavit was not attached

to the motion on Notice filed on 8th day of November 2007

but instead the Respondent deposed to fresh verifying

Affidavit on 8/11/2007 in violation of Order 1 Rule 2(3)

and (4) and Order 2 Rule 2(1) and (2) of the

Fundamental Right (Enforcement Procedure) Rules

1979. That the Respondent also failed to serve Appellants

copy of the verifying Affidavit sworn to on 1/8/2007 upon

which leave was granted to him to enforce his rights on

25/10/2007.

That where service of a Court process is not effected on the

opposite party, it denies the Court of jurisdiction to hear

the case. He

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relied on the cases of:

( 1 ) A G I P ( N I G ) L T D V . A G I P P E T R O L E U M

INTERNATIONAL (2010) ALL FWLR (PT 520) 1198 AT

1227 – 1228 F – A PER ADEKEYE, JSC

(2) OLORUNYOLEMI VS. AKHAGBE (2010) ALL FLWR

(PT 525) 246 AT 255 E – G.

That the statement used to support the application for

leave granted by Lower Court on 25/10/2007 is not the

same statement attached to the motion on Notice filed on

8/11/2007. That the said statement containing the reliefs

was not assessed and paid for in the motion ex-parte.

He therefore submitted that the Lower Court was neither

competent to hear same nor had jurisdiction to entertain

the motion on Notice relying on the case of MADUKOLU V.

NKEMDILIM (1962) 1 ANLR 587 AT 595.

Under issue 2 Nwachukwu Esq. for the Appellant submitted

that the Lower Court was wrong in entering judgment for

the Respondent without resolving the conflicts in the

Affidavit evidence of the parties. That the facts relied upon

by Respondent could be found on pages 23 – 28 of the

record while the counter Affidavit of the Appellants

challenging facts relied upon by Respondent could be found

on pages 62 – 64 of the

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record. That the facts are in conflict and cannot be a basis

for determining the merit of the case. He relied on the

cases of:

1. FALOBI V. FALOBI (1976) 9 � 10 SCNLR 389

2. FASHANU V. ADEKOYA (1974) 1 ALL NLR (PT. 1) 35.

3. GENERAL AND AVIATION SERVICES LTD V. THAHAL

(2004) 10 NWLR (PT.880) 50 AT 90 B � E.

Appellants urged the Court to resolve the issues in favour

of Appellants and to allow the appeal.

Replying to the submissions by the Appellants under issue

1 the Learned Counsel to the Respondent C. O. Nwator

Esq. stated that the issue 1 is no longer relevant for

consideration of the appeal.

That judicial Notice must be taken that Fundamental Rights

(Enforcement Procedure) Rules 2009 has abrogated the

Fundamental Right (Enforcement Procedure) Rules 1979

from 1st day of December, 2009. That all the pending

applications were deemed commenced under the 2009

rules relying under ORDER XV Rules 2, 3, and 4 hereof.

That there is no provision for leave under 2009 Rules under

which he said the judgment was delivered on 11th

February, 2009.

That in matters of Fundament Rights the relevant rule is

the one in operation at

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the time of hearing the matter and not the one in force

when the matter was instituted in Court. He relied on the

case of NIGERIAN STORED PRODUCTS RESEARCH

INSTITUTE & ANR VS. MATHIAS UGWU & ORS (2013)

15 WRN 49 AT 75.

That there is nothing in the Rules cited by Appellants

making it mandatory that Affidavit in support of ex-parte

motion for leave and verifying Affidavit in support of motion

on Notice must be filed on the same date. He relied on the

book written by FEMI FALANA – Fundamental Rights

Enforcement PG. 79 paragraph 3.90. That the submissions

of Appellants bordered on technicality.

He relied on the cases of:

(1) NAU VS. CASMIR NWAFOR (1999) 1 NWLR (PT585)

116 AT 133.

(2) ADH LTD VS. AT LTD (2007) JMSC (PT28) 627 AT

635 – 636

(3) ERODRIL NIG. LTD V. OFOTOKUN (2005) 16 WRN

83 AT 105 AND

(4) NWOSU V. IMO STATE ENVIRONMENTAL

SANITATION AUTHORITY (2004) 20 WRN 94 AT 165.

That even if it is true that the statement and Affidavit in

support of the application for leave are not filed on the

same day the Court cannot nullify the motion on Notice

unless the Appellants can show in what way they have been

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disadvantaged or suffered any miscarriage of justice.

Reliance was placed on ORDER IX RULE 1 of the

Fundamental Rights (Enforcement Procedure) Rules

2009 according to him as any noncompliance is to be

treated as a mere irregularity. That issue 1 is predicated on

an interlocutory Ruling of the Lower Court pursuant to the

two motions brought by the Appellants at the Lower Court

namely:

(1) Motion dated 7/7/2008 filed on 8/7/2008 (pages 47 to

48) of the record.

(2) Motion dated 21/10/2008 filed on 23/10/2008 (pages 55

� 56) of the record.

Learned Counsel to Respondent submitted that the

Appellants have been shown on pages 83 of the record to

have formally abandoned the said motions and the Lower

Court struck them out on page 89 of the record. That the

Appellants did not appeal against the order striking out the

motions which he said are interlocutory applications and

Rulings or decisions of the Lower Court. He urged the

Court to discountenance paragraph 6.12 to 6.15 of

Appellant�s Brief as those arguments cannot be

accommodated under the ground of appeal to which issue 1

relates. That the argument on lack of service and fair

hearing

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have been abandoned by Appellants because ground two

which complained of lack of service and fair hearing have

been abandoned, that the arguments on them cannot come

under ground one.

The Respondent also prayed that the arguments in

paragraphs 6.18 to 6.22 in Appellant�s Brief be

discountenanced as the Appellants did not raise any issue

concerning assessment and payment of Court processes

filed in the Court below. That the issue cannot be raised for

the first time in this Court without the leave of Court.

On issue 2, C. O. Nwator Esq. for Respondent urged this

Court to discountenance the argument of the Appellants on

issue two. That the parties did not ask for the calling of

evidence at the Court below as it is not the duty of the

Court to conduct cases for the parties.

That this being enforcement of fundament rights

application, it is a special procedure that does not

accommodate normal rule of procedure. He relied on the

case of AGBAKOBA VS. DIRECTOR SSS & ANOR 1 HRL

� RA P 252 AT 283 � 284.

He submitted that by the state of Affidavit evidence before

the trial Court, the Respondent�s affidavit was

practically

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unchallenged and substantially admitted by Appellants. He

relied on the cases of GOVERNOR OF EKITI STATE &

ANOR VS. CHIEF GEORGE FEMI OJO & ORS (2007) 16

WRN 56 AT 90 � 99 and FBN PLC VS. T.S.A

INDUSTRIES LTD (2007) 17 WRN 40 AT 5.8. He further

submitted that even if there are conflicts in the Affidavit

evidence it could be resolved by documentary evidence

before the Court. He relied on the cases of:

1. NWOSU V. I.S.E.S.A (2004) 20 WRN 94 AT 130 �

131.

2. BOB V. AKPAN & ORS (2010) ALL FWLR (PT. 500)

896 AT 947 � 948 A � A.

That there are authentic documentary evidence before the

Lower Court. He relied on page 98 of the record of appeal.

That the findings of the trial Court show the Appellants

never challenged Respondent�s deposition. He relied on

page 63 of the record and paragraph 23 of the

Appellant�s counter affidavit on page 63 of the record.

The Learned Counsel to the Respondents who he said

stated that the onus is not on the Applicant to show that the

violation of the Fundamental Right was not justifiable but

on the Respondent�s who he said woefully failed to do

so. That the

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Lower Court was perfectly right to enter judgment in

favour of the Respondent. He urges this Court to dismiss

the appeal with heavy cost.

The Appellants filed Reply Brief and contended concerning

argument of Respondent that it is 2009 Rules that is

applicable to this case as incorrect. The Appellants insisted

that the applicable Rules is 1979 Fundamental Rights

Enforcement Procedure Rules. That the Lower Court heard

the case on 14/10/2009 whereas 2009 Rules came into

existence on 1st December, 2009. He relied on the cases of:

(1) ROSSEK V. A.C.B LTD (1993) 8 NWLR (PART 312)

382 AT 472 B � C

(2) N.S.P.R.I. & ANR V. MATHIAS UGWU & ORS (2013)

15 WRN 49 AT 75

(3) NWORA VS. NWABUEZE (2013) ALL FWLR (PT 691)

1492 AT 1507 A � C PER MOHAMMED JSC.

That the matter argued in issue one is a matter of

jurisdiction that could be raised at any stage of the

proceeding. That it arose from the judgment delivered and

not from interlocutory Ruling. He relied on the cases of:

(1) ELUGBE V. OMOKHAFE (2004) 18 NWLR (PT 905)

319 AT 334 C AND 338 F � G.

(2) TONY ANTHONY (NIG) LTD VS. NDIC (2011) 15

NWLR (PART 1269) 39 AT 62

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C � E to submit that issue of jurisdiction can be raised

for the first time in this Court. He urged the Court to allow

the appeal.

It has been stated and restated over and over again that the

issues raised for determination of an appeal must emanate

or flow from the grounds of appeal filed. Where a matter

argued in an issue is not covered by any ground of appeal

such an issue and argument in respect thereof will be

ignored and struck out. See:

(1) GOKE OLAOLU V. FRN (2016) 3 NWLR (PART 1498)

133 AT 157 B � C PER GALADIMA, JSC.

(2) OZURUMBA NSIRIM V. DR SAMUEL W. AMADI

(2016) 5 NWLR (PART 1504) 42 AT 60 WHERE

ONNOGHEN, JSC said:

�It is settled that issues in the appeal can only

validly arise from grounds of appeal or cross appeal

and that where an issue or issues for determination

does/do not arise from grounds of appeal such an

issue(s) is/are incompetent and liable to be struck

out.�

On page 62 B of the report NGWUTA JSC also said:

�It is the Appellant, the aggrieved party, who

appeals the judgment against him. The ground of

appeal is on the ratio decidendi of the judgment

appealed against and the

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issues to be determined must flow from the grounds

of appeal....."

The complaints of the Appellants in paragraphs 6.12

�¢���� 6.15 of the Appellants Brief of Argument to

the effect that the verifying affidavit sworn to by the

Respondent on the 1st day of August, 2007 is a Court

process that must be served upon the Appellants are not

covered by the remaining grounds 1, 3 and 4 of the Notice

of Appeal, ground 2 having been abandoned by the

Appellants.

The same is true of the arguments of the Appellants to the

effect that the statement in support of the application for

leave made on the motion ex-parte was not assessed and

paid for. I must say that the issue as to whether filing fees

was paid or not on any of the processes filed by the

Respondent at the Court below was/is not a subject or

ground of appeal filed by the Appellants. The issue of

nonpayment of filing fees is totally extraneous to grounds 1,

3 and 4 remaining on Appellants Notice and Grounds of

Appeal. All arguments canvassed under paragraphs 6.18 to

6.22 of Appellants�¢���� Brief go to no issue and

are hereby discountenanced. As a matter of fact Appellant

did not bother to contest

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these extraneous matters in the Appellants� Reply

Brief.

The salient point in issue 1 as contended by the Appellants

is that there was a breach of ORDER 1 RULE 2(3) ,

ORDER 1 RULE 2(4), ORDER 2 RULE 2(1) AND

ORDER 2 RULE 2(2) of the Fundamental Rights

(Enforcement Procedure) Rules 1979 which make it

mandatory that the verifying Affidavit attached to motion

ex-parte for leave to enforce fundamental rights of a citizen

must be the one for use for the hearing of motion on Notice

sworn to on the date the motion ex-parte was filed. The

relevant submission of the Appellants reads:

�6.05: A joint reading of the said Order Rule 2(3)

and (4) and Order 2 Rule (3) and (4) of the Fundamental

Rights (Enforcement Procedure) Rules 1979 makes it

mandatory that:

�1. The verifying affidavit to be used for the

hearing of the motion on notice must be sworn on the

date the motion ex-parte is filed at the registry.

2. The verifying affidavit used to obtain leave must be

the one to be used in support of the motion on notice.

3. The statement in support of the Application ex-

parte for leave must also be the one to be used for the

motion on

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Notice.

4. The said statement in support of the application ex-

parte and the verifying affidavit sworn in support of

the application for leave must be served on the

Respondent.

5. Failure to do any of the above stated acts makes

the motion on notice incompetent.�

The Learned Trial Judge agreed with the position of the law

as postulated by the Appellants. The Learned Trial Judge

however stated and held that in this case there was an

order of Court made on 9th January, 2008 directing that

the motion on Notice and all other processes in the

application be served on 1st Respondent (now 1st

Appellant) by substituted means and that the Chief Bailiff

of the Lower Court actually made a Return and filed

affidavit of service deposed to on 26/3/2008 showing clearly

that the order of Court and processes to be served on the

Appellants by substituted means vide 1st Appellant were

duly carried out. Therefore any complaint about lack of

service by Appellants evaporates. What is more. The

Learned Trial Judge found that the Appellants Learned

Counsel A. I. Nwachukwu Esq. wrote to the Lower Court

vide a letter dated 26/5/2008 that Appellant (as

Respondents

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at Lower Court) had briefed him. Furthermore the Learned

Trial Judge found on page 95 of the record in his judgment

thus:

�Therefore the presence of the Learned Counsel (A.

I. Nwachukwu Esq.) in Court on behalf of all the

Respondents is conclusive of the fact that aside from

1st Respondent that 2nd � 6th Respondents were

also seized of the pendency of the substantive motion

against them. Be that as it may, they all chose to stay

away from Court while their counsel appeared for

them.�

There is no appeal against this heavily weighed findings

against the Appellants by any of them. The findings remain

binding on them. See BRITTANIA � U NIGERIA LIMITED

VS. SEPLAT PETROLEUM DEVELOPMENT COMPANY LTD

& ORS (2016) 4 NWLR (PART 1503) 541 AT 591 D �

E PER NGWUTA, JSC who said:

�The Court of Appeal in its judgment found that it

was wrong for counsel to reopen argument behind the

4th other party when the matter had been adjourned

for judgment. The Appellant did not appeal against

this finding of fact and is deemed to have conceded

the point.�

The Appellants who claimed that the motion on notice was

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incompetent found it convenient taking steps in the matter

by filing their counter affidavit against the application of

Respondent in this appeal seeking to enforce his fundament

rights. The Appellants counter affidavit was filed on 25th

day of November, 2008.

It is also pertinent to observe that the Appellants filed two

applications at the Lower Court seeking to terminate the

proceedings on the ground that the motion dated 1/11/2007

filed 8/11/2007 was incompetent. The first application

dated 7/7/2008 was filed on 8/7/2008 wherein the

Appellants wanted the motion of Respondent set aside for

having been filed out of time allowed by Fundamental Right

(Enforcement Procedure) Rules 1979. See pages 47 � 50

of the record.

The second application by Appellants against the

Respondent�s application at the Court below was dated

21/10/2008 but filed on 23rd day of October, 2008 wherein

the Appellants prayed the Lower Court for (a) An order

striking out the motion dated 1/11/2007 filed on 8/11/2007

for being incompetent.

The ground for the application was that verifying affidavit

in support of the motion on notice is not the same as the

one used

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to obtain leave to enforce applicant’s alleged fundamental

right on 25/10/2007.

When the matter came up on 14th day of October, 2009 for

hearing before the Learned Trial Judge A – I Nwachukwu

for the Respondents (Now Appellants) applied to withdraw

the two aforementioned motions filed by them stating they

have addressed the issue in their Counter Affidavit. The

conclusion or findings of the trial judge on the two

applications can be found on page 89 of the record where

the Trial Judge said:

“As earlier stated in this judgment, the Respondents

filed two motions on notice wherein they had prayed

the Court to strike out the substantive motion filed

8th November, 2007. Aside from filing the said

motions on 8th July 2008 and 23rd October, 2008

r e s p e c t i v e l y , t h e c o u n s e l o f t h e s a i d

Respondents/Applicants did not make any submission

on them. I can only conclude in the circumstance that

the two motions have been abandoned in which case

they ought to be struck out. Accordingly the two

motions filed on 8th July, 2008 and 23rd October,

2008 by the Respondents (as applicants therein) are

each struck out for want of prosecution."

The Trial

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Judge is right; the Appellants did not appeal the findings. In

any event it is glaring by the pieces of evidence from the

record that the Appellants have since waived their rights to

complain about the competence or otherwise of the

Respondent’s motion filed to enforce his fundamental

rights. The Respondent motion was competently filed in

accordance with the provisions of Fundament Rights

(Enforcement Procedure) Rules 1979 and the Learned Trial

Judge was endowed with jurisdiction to adjudicate upon it.

In any event and contrary to the submission of the

Appellants that the Fundamental Rights (Enforcement

Procedure) Rules 2009 is not applicable to this proceeding

on the ground that the Motion of Respondent was heard on

14th October, 2009, I am of the solemn view that, the

Fundamental Rights (Enforcement Procedure) Rules 2009

is applicable because as at the time it came into operation

on 1st December, 2009 the Motion to enforce Fundamental

Rights by Respondent in this appeal was still pending. See

ORDER XV Rules 1, 2, 3 and 4, which provide thus:

“1. The Fundamental Rights (Enforcement Procedure)

Rules, 1979 are hereby abrogated.

2.

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From the commencement of these rules, pending

Human Rights applications commenced under the

1979, Rules shall not be defeated in whole or in part,

or suffer any judicial censure, or be struck out or

prejudiced, or be adjourned or dismissed, for failure

to comply with these rules provided the applications

are in substantial compliance with the rules.

3. Such pending Human Rights applications may

continue to be heard and determined as though they

have been brought under these Rules.

4. Where in the course of any Human Rights

proceedings, any situation arises for which there is or

appears to be no adequate provision in these rules,

the Civil Procedure Rules of the Court for the time

being in force shall apply.�

I am certain in my mind that since the 1979 Rules were

abrogated by 2009 Rules before a decision was taken on

the Respondent�s Motion for enforcement of

Fundamental Rights at the Lower Court, the 1979 Rules

ceased to be the applicable Rules for the determination if

one construes liberally the import of Order XV Rules 3 of

the 2009 Rules in particular.

See: BRITTANIA � U NIGERIA LIMITED V. SEPLAT

PETROLEUM DEVELOPMENT

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COMPANY LIMITED & ORS. (2016) 4 NWLR 1503

(PART 1503) 541 at 594 E – G per NGWUTA, JSC who

had this to say:

“In construing the provisions reproduced above, there

is no need to resort to external sources. The words

used in them ought to be given their grammatical and

ordinary meanings. In the Levy, ex parte, Walton (1881)

17 Ch. D 746 at 751 Jessel M. R. opined:

“The grammatical and ordinary sense of the words is

to be adhered to unless that would lead to some

absurdity, or some repugnance or inconsistency with

the rest of the instrument, in which case the

grammatical or ordinary sense of the words may be

modified, so as to avoid that absurdity and

inconsistency, but no further.”

Any modification of the grammatical and ordinary

sense of the words in the provisions reproduced above

may lead to absurdity and inconsistency with the

intention of the provisions.”

It is my view that:

“Such pending Human Rights Proceedings may

continue to be heard and determined as though they

have been brought under these Rules.”

Means that all Human Rights Proceedings that were

pending and in which

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judgments have not been given or concluded shall be

deemed to have commenced under the provisions of

Fundamental Rights (Enforcement Procedure) Rules 2009.

In the said 2009 Rules there is no need for seeking leave of

the appropriate Court before a citizen can enforce his

rights as guaranteed under chapter IV of the 1999

Constitution of the Federal Republic of Nigeria as

amended or altered. See ORDER II Rule 2 of the 2009

Fundamental Rights Enforcement Procedure Rules

2009 which provides:

�An application for the enforcement of the

Fundamental Rights may be made by any originating

process adopted by the Court which shall, subject to

the provisions of these Rules, lie without Leave of

Court.�

The question of failure to use verifying Affidavit used to

obtain Leave for Motion on Notice or Service of same does

not apply and is no longer applicable since 1st December,

2009. In effect the Motion on Notice filed by Respondent is

competent on all front.

Issue 1 is therefore resolved against the Appellants.

The Appellants grouse under Issue 2 is that the Affidavits

evidence before the trial Court are in conflict and that the

Learned

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trial Judge failed to call for oral evidence to resolve the

c o n f l i c t s i n t h e A f f i d a v i t i n S u p p o r t o f

Respondent�¢����s Motion and that of the

Appellants before proceeding to base his judgment on the

unresolved conflicts in the Affidavits of the parties.

Now a special procedure has been put in place by the Chief

Justice of Nigeria pursuant to Section 46(3) of the

Constitution of the Federal Republic of Nigeria 1999

as amended or altered for the enforcement of

Fundamental Rights. The application is heard on the

Affidavit evidence filed in support and against the

application for the enforcement of Fundamental Rights of

the citizen or any person complaining against another for

the infringement of this Fundamental Rights. No oral

evidence is called as the affidavit evidence constitute the

evidence in the suit or action. See: JACK V. UNIVERSITY

OF AGRICULTURE (2004) 5 NWLR (PT 865) 208.

It is designed to make proceedings for the enforcement of

Fundamental Rights less cumbersome and devoid of

technicalities often associated with other class of actions or

proceedings. See: ADE MIKE MUSA OGUGU & ORS. V.

THE STATE (1994) 9 NWLR (PART 366) 1 at 26 per

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BELLO C.J.N who said:

�¢����I am inclined to agree with Mr.

Agbakoba that the provision of Section 42 of the

Constitution for the enforcement of the Fundamental

Rights enshrined in Chapter IV of the Constitution is

only permissible and does not constitute a monopoly

for the enforcement of those rights. The object of the

Section is to provide a simple and effective judicial

process for the enforcement of fundamental rights in

order to avoid the cumbersome procedure and

technicalities for their enforcement under the rules of

the common law or other statutory provisions. The

object has been achieve by the Fundamental Rights

(Enforcement Procedure) Rules 1979. It must be

emphasised that the Section does not exclude the

application of the other means of their enforcement

under the common law or statutes or rules of Courts.

These are contained in the several Laws of our High

Courts, for example Sections 18, 19 and 20 of the High

Court of Lagos relating to mandamus, prohibition,

certiorari, injunction and action for damages. A

person whose fundamental right is being or likely to

be contravened may resort to any of these remedies

for redress.�¢����

It is

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true that where there is direct conflict in affidavits of

parties on crucial and material facts before a trial Court it

is expedient to hear oral evidence from the deponents or

witnesses to resolve the conflicts. See FALOBI VS FALOBI

(1976) 9 10 SC 1 at 13 �¢���� 14.

However where there are documents annexed or exhibited

to one or more Affidavits evidence before the Court the

Court is entitled to make use of such documents to resolve

material conflicts in the Affidavits evidence before it

instead of calling for oral evidence.

See B. V. MAGNUSSON VS K. KOIKI & ORS (1991) 4

NWLR (PART 183) 199 at 129 D-E per NIKI TOBI JSC

who said: -

�¢����In this application, there are

conflicting affidavits evidence which this Court and

indeed any other Court for that matter is not

competent to resolve suo motu. See PHARMACISTS

BOARD VS ADEBESIN (1976) 55C 43, FALOBI VS

FALOBI (1976) 9-10 SC 1, EBOH VS OKI (1974) 1 SC

179, UKU VS OKUMAGBA (1974) 3 SC. 35. I will not

make any effort to resolve the conflicting affidavit

evidence as that is a futile exercise. But all I should

do is to use the documentary evidence outside the

depositions in the Affidavit and

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come to a conclusion one way or the other as to the

true position. The law does not require the calling of

oral evidence to resolve conflicting affidavit evidence

if there is sufficient documentary evidence to resolve

the conflict.�

In the case of LAFIA LOCAL GOVERNMENT VS THE

EXECUTIVE GOV. NASARAWA STATE & ORS (2012) 17

NWLR (PART 1328) 94 at 129 F-G The Supreme Court

per RHODES VIVOUR, JSC said: -

�Even if there are conflicts in affidavit but

there are authentic documentary evidence supporting

one of the affidavits in conflict with the other the trial

Court ought to examine it before applying it in

coming to a fair decision. See NWOSU VS IMO STATE

ENVIRONMENTAL SANITATION AUTHORITY (1990) 2

NWLR (PART 1990) 2 NWLR (PART 135 p 688;

CHAIRMAN NPC VS CHAIRMAN, IKERE LOCAL

GOVERNMENT (2001) 13 NWLR (PT 370) p.

540.�

Another corollary to that is that where the alleged conflicts

in the Affidavit before the Court are not material to the

case before the Court or are not germane to the real issue

in contest before the Court the need to call oral evidence is

thereby obviated or dispensed with.

See LAGOS STATE DEVELOPMENT AND

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PROPERTY CORPORATION VS ADOLD STAMM

INTERNATIONAL NIGERIA LTD & ANOR (2005) 2.

NWLR (PART 910) 603 AT 616 G-H to 617 A-F where

Akintan, JSC held thus: -

�The question to be resolved in the

appellant�s first issues is whether there are

conflicts in the affidavits filed by the parties. The two

affidavits are already reproduced earlier above. The

sum total of the appellant�s case as set out in

the affidavit filed by it was that there was no need for

a new interest to be determined outside the one

awarded earlier by Desalu, J. on the other hand, the

respondent sought the assistance of Afribank, a

commercial bank, on the rate of interest payable on

the judgment debt had the sum been placed in a fixed

deposit in a commercial bank within the time

specified in the request made to the bank. The reply

from the bank was exhibited as an annexure to the

affidavit filed by the respondent. The second

document also produced by the respondent is another

calculation made by a Chartered Accountant but

based on the same principle adopted by the bank and

it was aimed at covering the period not covered by the

calculation made by the bank. This was the

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document later produced in Court. But it was also

exhibited with the respondent�s motion as Exhibit

2. The question in this case therefore is whether one

can say that the contents of the two affidavits filed by

the parties can be said to be conflicting. In deciding

whether or not the contents of the two documents are

conflicting, one must look at the issue in controversy

in the particular case before the Court. This is

because where, for example, the conflicts in affidavits

are not material to the case before the Court or where

the facts are inadmissible, or are flimsy and are on an

issue irrelevant and alien to the matter before the

Court, the need to call oral evidence to resolve the

conflicts would not arise. See Falobi Vs Falobi (1976) 9

� 10 sc 1; Okupe Vs F. B. I. R. (1974) All NLR 314

(Reprint); Garba Vs University of Maiduguri (1986) 1

NWLR (pt. 18) 550; and L.S.D.P.C. VS Adold/Stamm Int.

Ltd. (1994) 7 NWLR (PT. 358) 545. As already shown

above, while the facts set out in the respondent�s

affidavit relate to the interest due on the judgment

debt which was what the Supreme Court directed

Ilori, J. should determine, the appellant on the

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other hand, did not controvert or challenge the

accuracy or otherwise any of the figures put forward

in the affidavit filed by the respondent. Instead, it was

claiming that there was no need for the appellant to

pay any other interest other than the one based on

the judgment of Desalu, J. It is therefore correct to

say that there was infact no conflict in the affidavit

evidence placed before the trial Court since the allege

conflict are infact not relevant to the case of before

the Court. There is therefore no merit in the appeal

as it relates to that issue.�

I have myself examined critically the affidavit evidence

before the Court and I found no material conflicts in the

Affidavits evidence before the trial Court requiring any oral

evidence before the trial Court could take decision on the

matter.

The Respondent exhibited to his verifying Affidavit his own

picture showing how he was stripped off his clothes,

tortured and inhumanly treated before he was purportedly

banished from his community by the Appellants. The

Respondent also exhibited the medical report given to him

at OKPUALA NGWA General Hospital showing that the

Respondent was treated

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for multiple and generalized skin burns all over his body.

All these were taken into account and evaluated in the

judgment of the Lower Court. (See page 98 of the record).

The trial Court properly evaluated the Affidavit evidence

before him and came to the right conclusion in his

judgment. An appellate Court will not interfere with

evaluation of evidence before the trial Court where the

judgment discloses that the trial Court has dutifully

performed its function of assessment and evaluation of

evidence before it even where the case is fought on

Affidavit evidence.

See: MICHAEL AIYEOLA VS. RAMOTA YEKINI PEDRO

(2014) 12 SCM 71 at 94 A – C per PETER – ODILI JSC

who said:

“The attitude of the Court of Appeal or the Supreme

Court as the case may be, in respect of evaluation of

evidence of a trial Court is that in deciding whether

or not a trial Court properly evaluated the evidence,

the essential focus should be on whether the trial

Court made proper findings and reached the correct

judgment upon facts before it. It is not the method or

approach that necessarily determines this. Thus, so

long as a trial Court does not arrive at

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his judgment merely by considering the case of one

party before considering the case of the other, its

judgment if right will not be set aside simply on the

method of assessment of the evidence or approach to

the entire case it may have adopted. Ajibulu v. Ajayi

(2004) 11 NWLR (Pt. 885) 458; Woluchem v. Gudi

(1981) 5 SC 291.”

I have gone through the whole gamut of the Affidavits

evidence before the Lower Court and have calmly read the

decision appeal against. I have no doubt in my mind that

the learned trial Judge painstakingly evaluated them

creditably well and his findings and conclusions are in

consonance with the materials and evidence before him.

There is no justifiable reasons to disturb the said findings.

Issue 2 is hereby resolved against the Appellants.

The Appellants have exceeded their limits in purporting to

banish or exclude the Respondent from his community.

They have also breached and violated the Respondent’s

rights as guaranteed under Sections 34(1), 35(1), 40, 41

and 42 of the Constitution of the Federal Republic of

Nigeria, 1999 and I am of the view that the Lower Court

rightly found against the Appellants who

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preferred to hide under the cloak of technicality rather

than defend their actions and allegations against them. The

judgment of the trial cannot be faulted. See again LAFIA

LOCAL GOVERNMENT VS. THE EXECUTIVE GOVERNOR,

NASARAWA STATE & ORS. 2012) 17 NWLR (PART

1328) 94 at 146 C – G per ARIWOOLA JSC who said:

“By the provisions of the Constitution of the Federal

Republic of Nigeria, 1999 (as amended) a citizen of

Nigeria of a particular community, ethnic group,

place of origin, sex, religion or political opinion shall

not, by reason only that he is such a person be

subjected either expressly by, or in the practical

application of, any law in force in Nigeria or any

executive or administrative action of the government,

to disabilities or restrictions to which citizens of

Nigeria of other communities, ethnic groups, places

of origin, sex, religion or political opinions are not

made subject; or be accorded either expressly by or in

the practical application of, any law in force in

Nigeria or any such executive or administrative

action, any privilege or advantage that is not

accorded to citizens of Nigeria of other communities,

ethnic groups,

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places of origin, sex, religious or political opinions.

And no citizen of Nigeria shall be subjected to any

disability or deprivation merely by reason of the

circumstances of his birth. See: Section 42 of the

Constitution.

There is no doubt that by the pronouncement of the

Nasarawa State Government on its policy of

redeployment of staff of government from Lafia Local

Government, the above constitutional provision has

been breached and violated. With that breach and

violation, the constitutionally guaranteed right of the

3rd � 36th respondents was breached and they

deserved to be protected.�

Consequently the appeal of the Appellants is quite

unmeritorious. The Appellants appeal is hereby dismissed

in toto.

The judgment of ABIA STATE HIGH COURT delivered by C.

IFEOMA JOMBO � OFO on 11th February, 2010 is

hereby affirmed.

The Appellants shall pay to the Respondent costs assessed

at N50,000.00 (Fifty Thousand Naira).

IGNATIUS IGWE AGUBE, J.C.A.: I have read in draft thejudgment just delivered by my learned brother, P. O. IGE,JCA, and I agree totally with his reasoning and conclusionthat

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this Appeal lacks merit and should be accordingly

dismissed.

I also dismiss it and abide all the consequential orders.

FREDERICK OZIAPKONO OHO, J.C.A.: I had theopportunity of reading the draft of the judgment justdelivered by my learned brother, PETER OLABISI IGE, JCAand I am in agreement with the reasoning and conclusionsin dismissing the Appeal. I abide by the consequentialorders made thereto.

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