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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