Nigeria Deposit Insurance Corporation V. O’silvawax International Limited & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
This is an appeal against the ruling of the Federal High Court, Enugu Division delivered on the 4th of May, 2001. The brief facts of the case are that the 2nd respondent Sylvanus Ifediegwu is the Managing Director of the 1st respondent O’Silvawax International Limited.
The 2nd respondent as a customer of the Co-operative and Commerce Bank (Nigeria) Plc. Niger Bridge Head Branch maintained a current account through which a loan of N1,800,000 (One million eight hundred thousand Naira) was approved for him on the 18th of May 1993. As collateral for the loan, the 2nd respondent deposited the customary right of occupancy in respect of his building at Odekpo.
The deed of mortgage executed for the building could not be registered as the 2nd respondent failed to obtain the consent of the chairman of the Ogbaru Local Government in respect of his building and also omitted to submit his tax clearance certificate. The 2nd respondent failed to refund his loan and as at the 24th of May 1994, the loan together with the interest stood at N2,241,834.41 (Two million, two hundred and forty-one thousand eight hundred and thirty-four Naira, forty-one kobo). Co-operative and Commerce Bank Plc. became distressed which caused the bank to involve itself in a drive to recover all the outstanding loans granted to its customers.
During the process, the officials of the bank took three cars the property of the 2nd respondent in distress in view of his outstanding loan, a Peugeot 505, a Mercedes Benz car and a Pathfinder Jeep. The 2nd respondent brought an action under the Fundamental Rights Enforcement Procedure Rules on the 8th of November, 1996. In granting the motion ex-parte for leave, the Federal High Court ordered the release of the Respondent cars. The bank filed a notice of preliminary objection on the 20th of November, 1996 on the ground that the court lacked jurisdiction to entertain the application, it also opposed the substantive motion on notice by filing a counter-affidavit. The Co-operative and Commerce Bank went into liquidation before the preliminary objection was heard, and the order for its winding up was made on 12/3/98. The name of Co-operative and Commerce Bank was struck out in the Suit on 26/4/99. The Nigeria Deposit Insurance Corporation thereupon became the applicant in the motion for preliminary objection challenging the jurisdiction of the Federal High Court in the application brought pursuant to the Fundamental Rights Enforcement Procedure Rules.
The court heard the parties on the objection on the 8th of May, 2001.
In his considered ruling delivered on the 4th of May, 2001, the learned Judge over-ruled the said preliminary objection and held that the court has abundant jurisdiction to hear and determine the case on merit.
Being aggrieved by the ruling, the Nigeria Deposit Insurance Corporation filed its notice of appeal to this court on the 18th of May, 2001. This court also granted the appellant’s application for departure from the rules and ordered that the bundle of documents compiled and marked exh. A by the appellant be used as the record of appeal. Parties thereafter filed and exchanged briefs. When this appeal was heard on the 30th of November, 2005, the appellant adopted and relied on the appellant’s brief filed 14/6/2005. The respondent adopted and relied on the respondents’ amended brief filed on 27/5/2005.
In the appellant’s brief, four issues were distilled for the determination of this court as follows:
“(a) Whether the Federal High court has jurisdiction to hear and determine this suit in view of the fact that it was filed sixteen months after the happening of the event contrary to Order 1 rule 3 of the Fundamental Rights Enforcement Procedure Rules, Cap. 62 Laws of the Federation of Nigeria, 1990.
(b) Whether the Federal High court has Jurisdiction to hear and determine this suit, which is a dispute between an individual customer and his bank in respect of transactions between individual customer and the bank.
(c) Whether the Federal High Court was right in law when he failed to rule on issues, which were properly raised before it.
(d) Whether a dispute arising from a simple contract between an individual customer and his bank can be upgraded to a Fundamental Rights Enforcement Procedure Action.”
The respondents in their brief adopted the four issues formulated in the appellant’s brief as their own. The respondents incorporated in their brief, a preliminary issue that this appeal CA/E/126/2001 is incompetent, as it is connected with the same issue raised in suit No. CA/E/109M/97, which this same Court of Appeal determined on 29/3/99 and made the order that the appeal sought to be facilitated by CCB (Nig.) Plc. is incompetent. Cooperative and Commerce Bank Plc. was then dismissed as a dead person and as such cannot maintain any suit in court. The Federal High Court made an order winding up CCB (Nig.) Plc. on 12/3/98, and with that order, it has seized to have legal personality and thus incapable of maintaining a suit or prosecuting an appeal. Any order made against a non-existing party is ipso facto null and void. It is against this null order in FHC/EN/M129/96, that the appellant is appealing. The appeal is consequently incompetent.
The appellant in the reply brief referred to page 112 of the record of appeal. It is the proceedings of the court on the 8th of May, 2000, which reflected the parties and appearance. The parties were Nigeria Deposit Insurance Corporation as applicant and O’Silvawax International as respondent. The name of CCB Nig. Plc. was struck out from the suit, all facts relating to the loan granted to the 2nd respondent by CCB still subsisted, and the respondents did not apply to withdraw them. The applicant Nigeria Deposit Insurance Corporation is the liquidator of and former Managing Agent of CCB.
It has connection with this suit by way of recovery of the loan granted by CCB to the 2nd respondent, hence, it has to be joined as a party in the suit. The lower court did not make an order against a non-existing party in effect, CCB which is now dead following the courts Order of 12/3/98. This appeal is therefore competent.
I do not need to belabour this issue. As has been rightly pointed out in the appellant’s reply brief, the parties to the application for preliminary objection to the issue of the jurisdiction of the lower court are as shown at page 112 of the record. They are Nigeria Deposit Insurance Corporation as applicant and O’Silvawax International as respondent. The name of CCB was struck out from this case through an application and by consent of counsel for the parties on 26/4/99. It cannot therefore be resuscitated as a party on the 4th of May, 2000 by the same court. The order of the lower court being appealed against is a valid and subsisting order of that court, which makes this appeal equally competent. The objection raised by the respondents to the competence of this appeal is thereby over-ruled. The issues for determination as settled by the appellants shall be considered by this court for the purpose of this appeal. I shall however compress them into three as follows:
“(1) Whether Federal High Court has jurisdiction in this matter which according to the Fundamental Rights Enforcement Procedure Rules is statute barred?
(2) Whether a matter of breach of simple contract between a bank and its customer can now be altered to a Fundamental Rights action or an action to be heard exclusively by the Federal High Court?
(3) Whether the learned trial Judge was not in error to have omitted to rule on all the issues properly raised before him”
The applicant/appellant in the first issue for determination, which is whether the Federal High Court has jurisdiction in the matter which according to the Fundamental Rights Enforcement Procedure Rules is statute-barred, submitted and referred to Order 1 rule 3(1) of the Fundamental Rights Enforcement Procedure Rules, Cap. 62 Laws of the Federation of Nigeria, 1990, which stipulated that leave shall not be granted unless application is made within twelve months from the date of the happening of the event, matter or act complained of, or such period as may be prescribed by any enactment.
The cars of the respondent, subject-matter of the application for enforcement of fundamental rights were impounded on 24th July, 1995, while motion ex-parte for leave was filed on 8/11/96. From the 24th of July, 1995 to 8th November, 1996 is a period of sixteen months which is outside the twelve months prescribed by Order 1 rule 3 of the Fundamental Rights Enforcement Procedure Rules. Throughout the motion papers, statement and affidavit, no where was the delay accounted for and the court was not urged to excuse the said delay of four months.
This suit was therefore statute-barred. The applicant/appellant cited the cases of Omotayo v. Nigerian Railway Corporation (1992) 7 NWLR (Pt.254) 471 at 483-484, Anigboro v. Sea Trucks (Nig.) Limited (1995) 6 NWLR (Pt.399) 35 at 58-59, Egbe v. Adefarasin (1987) 1 NWLR (Pt.47)1 at 20. Vide pages 4-29 and 32-61 of the record. The respondent however replied that the twelve months limitation period according to Order 1 rule 3(1) of the Fundamental Rights Enforcement Procedure Rules, is not applicable where the wrong is a continuous wrong. An action can be brought outside the twelve months period at any time during the continuation of the wrong. The act complained of by the respondents was continuous in nature, an action can be brought under the 12 months period and at anytime during the continuation of the wrong. The respondent referred to the case of Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt.200)708 at 759.
The second issue for determination is whether a matter of breach of contract between a bank and its customer can now be upgraded to a Fundamental Rights action, or an action to be heard exclusively by the Federal High Court? The applicant/appellant argued and submitted that the issue involved in this matter is that of a simple contract between a bank and its customer whereupon the customer failed to repay the loan granted to them by the bank, same cannot be upgraded to a fundamental rights enforcement procedure action. The claims of the respondents are proprietary in nature. Section 99(1) (b) of the Torts Laws of Anambra State, 1986, Cap. 135 allows a bank to invoke a right of distress where a customer refused to liquidate a loan.
The appellant referred to the cases of – CCB (Nig.) Plc. v. Ozobu (1998) 3 NWLR (Pt.541) 290 at 307-309; Peterside v. I.M.B (Nig.) Ltd. (1993) 2 NWLR (Pt.278) 712 at 731; Sea Trucks (Nig.) Ltd. v. Pyne (1999) 6 NWLR (Pt.607) 514; Oamen v. Owenan (1993) 8 NWLR (Pt.311) 358 at 368; Holec Projects (Nig.) Ltd. v. Dafeson International Ltd. (1999) 6 NWLR (Pt.607) 490 at 499; Sokoto Local Govt. v. Amale (2001) 8 NWLR (Pt. 714) 224 at 240 D-F.
The respondents adopted the wrong procedure by invoking the Fundamental Rights Enforcement Procedure Rules rather than seeking remedy by filing an ordinary writ of summons in the High Court of Enugu State. The appellant cited the case of Kokoro-Owo v. Lagos State Government (1995) 6 NWLR (Pt.404) 760 at 765.
The appellant also submitted that a limited liability company cannot commence an action for infringement or contravention of fundamental rights under the Constitution or the Enforcement Procedure Rules, which covers only “every individual, every citizen, and a citizen” A limited liability company is not a human being. The appellant buttressed the submission with the case of Okechukwu v. Etukokwu (1998) 8 NWLR (Pt.562) 513 at 532.
The relationship between the respondents and the Co-operative and Commerce Bank of (Nig.) Plc., now in liquidation and being represented by the Nigeria Deposit Insurance Corporation is that between an individual customer and his bank, as the respondents maintained an account in CCB (Nig.) Plc. 2nd respondent was granted a loan by the bank and the cause of the dispute was the refusal of the 2nd respondent to refund the said loan granted to him by CCB.
In view of this relationship between the respondents and CCB as banker and customer relationship, the Federal High Court lacks jurisdiction to hear and determine the suit, as this has been ousted by the proviso to paragraph (d) of section 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993, which is in pari materia with section 251 (1) (d) of the 1999 Constitution. The appellant made reference to these cases – Union Bank of Nigeria Plc. v. Integrated Timber and Plywood Producers Ltd. (2000) 12 NWLR (pt.680) 99; Bi Zee Bee Hotels Ltd. v. Allied Bank (Nig.) Ltd. (1996) 8 NWLR (Pt.465) 176 at 185; Nigerian Industrial Development Bank Ltd. v. Fembol (Nig.) Ltd. (1997) 2 NWLR (Pt.489) 543 at 564; F.B.N Plc. v. Jimiko Farms Ltd. (1997) 5 NWLR (Pt.503) 81.
The respondent replied that in this application, the acts of CCB and NDIC are in issue. By virtue of sections 13(2), 22 and other sections of the NDIC Act, Cap. 301 Laws of the Federation, 1990, the NDIC is clearly an agent of the Federal Government of Nigeria, the Federal High Court and no other court has jurisdiction in the suit. The respondent referred to the case of Onyenucheya v. Mil. Adm., Imo State (1997) 1 NWLR (Pt.482) 429 at 449.
The respondents disagree with the submission that the subject-matter of the dispute is that of simple contract. It is a case of violation of the respondents’ fundamental right to enjoy his movable property as enshrined in section 40 of the 1979 Constitution. The appellant cannot seek a defence under the law of distress to justify the unconstitutional seizure of the respondents’ property or on the guise of a simple contract. There is an equitable mortgage between the parties, which did not cover or envisage the seizure of the property of the respondents in the event of default of payment of the loan by the respondents. The right of distress in the appellant by seizure of the property can only amount to defence of the respondents’ claim and not an issue that will ground the questioning of the courts jurisdiction. The issue of the loan transaction between the respondent and CCB cannot be relied upon by the appellant as a defence. The appellant was not a party to the loan transaction and has no privity therein, and cannot rely on forceful seizure of the defendants’ property as a defence. The appellant has no legal right to project right of distress by CCB which is now dead, as a defence. On the submission that the 1st respondent being a limited liability company is not capable of bringing an action under fundamental rights procedure, the respondents submitted that the operative words in section 42(1) of the 1979 Constitution and section 46(1) of the 1999 Constitution is any person. The combined reading of section 42(1) of 1979 Constitution, section 46(1) of the 1999 Constitution and section 38(1) of the Company and Allied Matters Act, Cap. 59 Laws of the Federation of Nigeria, the 1st respondent can enforce fundamental right claims under the 1979 or 1999 Constitution, as every company shall have all the powers of a natural person of full capacity. The relief claimed by the respondent is within the ambit and the contemplation of section 40(1) of the 1979 and section 44 of the 1999 Constitution.
Issue No.3 is whether the learned trial Judge was not in error to have omitted to rule on all the issues properly raised before him.
The appellant recounted all the issues raised before the learned trial Judge in arguing the preliminary objection as follows:
“(1) The issue that the motion for leave to enforce fundamental rights was brought more than twelve months from the date of the happening of the event.
(2) The issue that in view of the proviso to section 230 (1)(d) of the 1979 Constitution as amended by Decree No. 107 of the 1993, the Federal High Court has no jurisdiction to adjudicate on the dispute.
(3) The issue that the subject-matter of the dispute was a simple contract between the parties and same cannot be elevated to a fundamental rights action in view of the right of distress permitted under Section 99 of theTorts Law of Anambra State.”
The learned trial Judge recorded two of the foregoing submissions but he failed to consider them in the ruling. It is the submission of the appellant that a court of law is bound to consider all issues submitted before it, failure to do so amounts to a miscarriage of justice. The appellant cited cases: Uka v. Irolo (1996) 4 NWLR (Pt.441) 218 at 236; Adebayo v. FCDA (1998) 6 NWLR (Pt.552) 118 at 130-131.
The respondent replied that it is not every error on appeal that would result in setting aside a judgment but such error must be shown to be substantial and must have occasioned a miscarriage of justice which is not the position here hence the decision of the learned trial Judge should not be tampered with. The respondent referred to the case of Alli v. Adesinloye (2000) 7 CRCN; (2000) 6 NWLR (Pt.660) 177.
I have painstakingly considered the issues, the argument and submission of the parties in this appeal. The first issue for determination is for this court to consider whether the application of the respondents for the enforcement of their fundamental rights was statute barred. Their moveable properties – three cars, a Peugeot 504, a Mercedes car and a Pathfinder jeep of the respondents were seized by officials of the defunct Co-operative and Commerce Bank (Nig.) Plc. in their demand for the repayment of a loan granted by the bank to 2nd respondent as a customer. This action was claimed not to be in contemplation of the agreement between the parties when the loan was granted. The deed of mortgage in respect of the loan could not be registered as the 2nd respondent failed to obtain the consent of the Chairman of his local government in respect of the collateral of the mortgage, he also failed to submit his tax clearance certificate.
Order 1 rule 3 of the Fundamental Rights Enforcement Procedure Rules, Cap. 62 Laws of the Federation 1990 stipulates that:
“Leave shall not be granted to apply for an order under these rules unless the application is made within twelve months from the date of the happening of the event, matter or act complained of, or such other period as may be prescribed by any enactment or except where a period is so prescribed the delay is accounted for to the satisfaction of the court or Judge to whom the application for leave is made”
The contents of the foregoing statute are clear, straight forward, and unambiguous. In interpreting same, this court has to adopt its literal or grammatical meaning. There is no reason or cause to import any other meaning into the statute so as to bring out the intention of the drafts man.
Any application or suit in contemplation of the fundamental rights enforcement procedure must be brought within a period of twelve months from the date of the happening of the event, matter or act complained of
or
(a) Such other period as may be prescribed by any enactment e.g. the limitation law of a state
Except where a period is so prescribed, the delay is accounted for to the satisfaction of the court or Judge to whom the application is made.
The applicants before the Federal High Court on the 8th of November, 1999 filed a motion ex-parte under Order 1 rule 3 of the Fundamental Rights Enforcement Procedure Rules, 1979, praying the honourable court for leave to institute proceedings against the respondents to enforce the applicants right to property guaranteed by chapter 4 S.40 of the 1979 Constitution as amended, and also for the court to compel the respondents to release forthwith his cars Peugeot 505, Mercedes Benz and Pathfinder to the applicant/respondent.
In the grounds for the application, the applicant/respondent stated that on the 24th of July, 1995, the respondents without an enabling court order impounded the applicant’s cars from his house and premises. In the affidavit verifying the facts in support of the application in paragraph 8 the 2nd applicant/respondent stated:
“That the respondent without sufficient notice that my loan was over due for payment, forcefully invaded my premises on the 24th July, 1995 and impounded my three cars Peugeot 505, Mercedes Benz car and pathfinder all parked at Onitsha”
The application was specific on the issue of the date of the happening of the event, or the act complained of by them, simply put at the 24th of July, 1995. Between the date of the happening of the event or act complained of, the 24th of July, 1995 and the filing of the ex-parte on the 8th of November, 1996 is sixteen months, which is four months outside the twelve months prescribed by Order 1 rule 3 of Fundamental Rights Enforcement Procedure Rules.
It is worthy of note that –
(a) There is no other enactment prescribing the period for bringing this application,
Or
(b) Throughout the motion papers, in the statement and affidavit verifying facts relied upon in the application, this delay of four months was not explained to court.
(c) There was no order made by court extending the limitation period beyond the twelve months stipulated in the rules. Vide pages 4, 6, 7, 8, 30-31 of the record.
In the respondents’ brief, the explanation to the four months is that the act complained of was a continuous wrong, and by the authority of Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt.200) 708 at 759 an action can be brought outside the twelve months. I have to emphasize and explain that the event, matter or act complained of as specified in Order 1 rule 3 of the Enforcement Procedure Rules in this case is not the loan or default in repayment of the loan, but the impounding or seizure of the cars of the 2nd respondent from his premises and consequently paralyzing his activities. This event took place on the 24th of July, 1995 and not on any subsequent dates. The vehicles were not seized by the Bank and its officials at any other dates. A continuous act is applicable to a case of a nuisance, which will be continuous until abated. The cause of action shall continue to accrue at any date until the nuisance stops, which is not the position here. A cause of action accrues on a date when a breach or any event would warrant a person who is adversely affected by the act of another to seek redress in court. A legal right to enforce an action is not a perpetual right but a right generally limited by statute. A cause of action will be statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law or Act has elapsed. If the date on the writ is beyond the period allowed by the limitation law then the action is statute barred. Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; Anigboro v. Sea Trucks Nigeria Ltd. (1995) 6 NWLR (Pt.399) 35; Obiefuna v. Okoye (1961) 1 All NLR 357; Kolo v. F.B.N. Plc. (2003) 3 NWLR (Pt.806) at 216; Akinbode v. Chief Registrar, High Court of Oyo State & 3 Ors. (2003) 3 NWLR (Pt.808) 585.
In this appeal, the time between the date the cause of action accrued and when the action was filed going by the writ, falls outside the limitation period allowed by the Fundamental Rights Enforcement Procedure Rules thereby making this action invalid and incompetent. Where the cause of action of the plaintiff is statute-barred, it affects the legal competence or jurisdiction of the court. Julius Berger (Nig.) Plc. v. Omogui (2001) 15 NWLR (Pt.736) 401.
The trial court consequently had no jurisdiction to exercise in the matter which was then statute-barred. The first issue is resolved in favour of the appellant.
The second issue for determination is whether a matter of breach of simple contract between a bank and its customer can now be altered to a fundamental rights action or an action to be heard exclusively by the Federal High Court.
Section 230(1)(d) of the 1979 Constitution as amended by Decree No. 107 of 1993 is the law applicable at the time of the occurrence between the parties. In this appeal, section 251(1) (d) of the 1999 Constitution is in pari materia with section 230(1) (d) of 1979 Constitution.
Section 230(1)(d) of 1979 Constitution stipulates as follows:
”The Federal High Court shall exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from
(d) banking, banks, other financial Institutions.
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.
The interpretation of this proviso is that once it is ascertained that the plaintiff is an individual customer of the bank, the Federal High Court will not have jurisdiction to adjudicate in the dispute between that plaintiff and his bank.
A proviso in a provision of a law is a clause of exception or qualification. It speaks the last intention of a legislature in a statute. A section of an Act that contains a proviso must be construed as a whole, each part throwing light on the rest. NIPOST v. Adepoju (2003) 5 NWLR (Pt. 813)224.
I have examined the applicant’s prayers before the court, while the affidavit verifying the facts in support indicate that there is a bank and individual customer relationship between the parties. The 2nd applicant was in default in the repayment of the loan granted to him by the bank. The bank impounded his three vehicles so as to force him to repay the loan.
Although section 230(1) of the 1979 Constitution amended by Decree No. 107 of 1993, now in pari materia with section 251 (1) of the 1999 Constitution confers exclusive jurisdiction on the Federal High Court to adjudicate on matters connected with banks and banking thereby reducing the hitherto unlimited jurisdiction of the High Court of various states, the High Court of a state still has jurisdiction to entertain claims connected with banks and banking except such claims are connected with fiscal measures or revenue of the Federal Government. That the ordinary banker-customer relationship is outside the purview of paragraph (d) of Section 230(1) of 1979 or 251 (1) of the 1999 Constitution is supported by Supreme Court judicial authorities. Ordinary cases involving banker-customer relationship such as dispute in respect of overdraft, negligent payment of forged cheque or negligent dishonouring of customer’s cheques and all banking transactions having nothing to do with the Federal Revenue fall within the jurisdiction of the State High Court. As this appeal emanated from a dispute in respect of overdraft between a bank and its customer, it falls within the jurisdiction of a State High Court. The submission of the respondent that NDIC is a Federal Government Agency and therefore the matter should he heard by the Federal High Court is irrelevant and inapplicable. Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Jammal Steel Structures Ltd. v. A.C.B. (1973) 1 All NLR; (Pt.2) 208; Owena Bank (Nig.) Plc. v. Punjab National Bank (2000) 5 NWLR (Pt.658) 635; De Lluch v. Societe Bancaire (Nig.) Ltd. (2003) 15 NWLR (Pt.842) 1 Union Bank of (Nig.) Plc. v. Intergrated Timber and Plywood Producers Limited (2000) 12 NWLR (Pt.680) 99.
Under this issue, this court has to consider whether breach of a simple contract that is a failure to liquidate a loan between a bank and its customer can now be converted to a Fundamental Right Enforcement Procedure action.
The relevant provision of the Constitution relied upon is section 44(1) of the 1999 Constitution and chapter 4 of the 1979 Constitution, section 40(1) which reads as follows:
“Section 40(1) – No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in a manner and for the purposes prescribed by a law.
(2) Nothing in subsection (1) of this section shall be construed as affecting any general law.
a …
b …
c. Relating to leases, tenancies, mortgages, charges, bill of sale or any other rights or obligations arising out of contract.”
This section of the fundamental rights as regards compulsory acquisition of any property shall not affect any general law affecting the matters and transactions mentioned in subsection (2) of the section. In effect, the Torts Law of Anambra State, 1986 shall be applicable regardless of the law in respect of compulsory acquisition.
Section 99(1)(b) of the Torts Law, Cap. 135 Laws of Anambra State, 1986 – offers a defence to the appellant to take property by way of distress to recover a loan as in this case and on the other hand, it offers the respondents as plaintiffs before a trial court remedy of damages following a trespass to his goods or property or for an action in detinue. Vide Anambra State Torts Law, 1986.
Section 42 of the 1979 Constitution and 46 of the 1999 states that: –
“Any person who alleges that any of the provisions of this chapters has been is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.”
The issue of distress in section 99 (1) (b) of the Torts Law of Anambra State, 1986 was given recognition in the case of C.C.B. (Nig.) Plc. v. Ozubu (1998) 3 NWLR (pt. 541)290 where distress is reckoned as essentially a common law remedy whereby a person is empowered to enforce a legal right or obtain a redress for a civil wrong in a summary manner by seizing movable goods and keeping them as a pledge until satisfaction is obtained. It is not open to a party to complain that he is wronged by an act, the doing of which the law permitted. Nothing lawful could be held illegal or unconstitutional. The seizure of the cars of the respondent is recognized under the Torts Law of Anambra State 1986, an action for breach of their fundamental rights cannot avail the respondents in the circumstance of this case. They have to seek remedy for their wrong in the High Court of Anambra State under the State Laws. Sekete Local Govt. v. Amale (2001) 8 NWLR (Pt.714) 224.
Moreover, section 44(1) of the 1999 Constitution and section 40 of the 1979 Constitution envisages a situation where a property movable or immovable is required for acquisition for the good of the public as the property will be converted into public use. The owners of the property are entitled and are eligible to collect adequate compensation for the property under the law. The seizure of the cars of the 2nd respondent is not for the purpose of public good neither is the 2nd respondent entitled to any compensation thereafter. The second issue is hereby resolved in favour of the appellant.
The third issue is whether the Judge was not in error when he omitted to consider all the issues raised before him. In the preliminary objection before the lower court, the counsel raised three issues, but the learned trial Judge considered in details the issue of jurisdiction of the Federal High Court based on section 40 (1) of the 1979 Constitution, and the infringement of the property rights of the respondents. The learned trial Judge failed to consider all the other issues, which queried his jurisdiction to hear the application brought under the Fundamental Rights Enforcement Procedure and the jurisdiction of the Federal High Court in the matter. Vide pages 112-113, 117-118, 120-123 of the record. It is recognized that a Judge as an arbiter may have his or her unique style of judgment writing. It is also not expected that a Judge would write a judgment in which no mistake or fault can be found when appealed against. It is the duty and role of a Judge, that the judgment or order of every court must demonstrate in full a dispassionate consideration of all the issues properly raised and heard by the court. Where it failed to do so and a miscarriage of justice is occasioned such judgment or order would be set aside by an appellate court. In the application before the lower court, it is obvious that the learned trial Judge hurriedly jumped into the conclusion when he said that:
“This court has abundant jurisdiction to hear and decide the case on its merit.”
It is obvious that he failed to give proper consideration to the legal implications in the application before the court, which the preliminary objection tried to highlight. It is the duty of an appellate court to wade into the matter and set aside the order made by the trial court in the circumstance of the case so as to correct any miscarriage of justice this ruling had caused.
In the final analysis, I hold that there is substance in this appeal, and the appeal is thereby allowed. The ruling of the Federal High court is set aside and the action brought under the Fundamental Rights Enforcement Procedure Rules, Cap. 62 Laws of the Federation, 1990 is hereby struck out. Costs of N2,500 is awarded in favour of the appellant.
Other Citations: (2006)LCN/1875(CA)
