Chief Francis Igwe & Ors V. Mr. Godoy Ezeanochie & Ors (2009)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE ARIWOOLA, J.C.A.

This appeal is against the judgment of Honourable Justice D.O.C. Amaechina of the Anambra State High Court sitting in Onitsha, delivered on Monday, the 18th day of July, 2005.

Pursuant to the leave granted to the Applicants, hereinafter referred to as the Appellants, on the 25th April, 2005, the Appellants on 29th April, 2005 filed their substantive application for the enforcement of their fundamental rights. In the application they had sought the following reliefs:-

“(i) A DECLARATION that the applicants are entitled to elect to belong or not to belong to the Federal Low Cost Housing Estate Residents Association, Onitsha.

(ii) A DECLARATION that the harassment, threats, intimidation, oppression, arrest and constant and persistent threat of arrest of the applicants by the respondents, their servants, agents and privies in the respondents’ bid to compel the applicants into membership of Federal Low Cost Housing Estate Residents Association is illegal, unlawful, Null and void.

(iii) A DECLARATION that the acts of the respondents violates (sic) applicants freedom of expression.

(iv) A DECLARATION that the respondents acts and conducts offends (sic) the applicants constitutional right to freedom of movement and dignity of their persons and right to liberty.

(v) AN ORDER OF Perpetual Injunction restraining the respondents, their servants, agents and privies from forcibly compelling the applicants into membership of Federal Low Cost Housing Estate Residents Association or by any other name so called.

(vi) AN ORDER of Injunction restraining the respondents, their servants, agents and privies from further harassment, intimidating, oppressing, arresting and detaining the applicants.”

The facts upon which the application was predicated are contained in the 55 paragraphs of the Statement in Support, Attached to the Statement are various documents marked Exhibits, A, B, C, D, D1, E, F, F1, G, H, H1. H2, and I respectively. Also in support is a verifying affidavit of 6 paragraphs and a further affidavit of 9 paragraphs both of which the 1st Appellant deposed to. Also attached to the further affidavit are four documents marked Exhibits 1, 11A, 11B, 11C.

The Respondents in opposing the application filed a counter affidavit of 61 paragraphs to which the 1st Respondent deposed.

Attached to the counter affidavit are various documents marked as Exhibits A, B, C, D. E, F, G, H, I, J, K, L, L1, M and N respectively.

The Respondents also filed a further counter affidavit of 5 paragraphs to which was attached a document marked again as Exhibit A In his considered reserved judgment, the learned trial judge found no merit in the application and accordingly dismissed it Dissatisfied with the decision of the trial court which dismissed their application, the appellants on 18/10/2005 filed a Notice of Appeal of seven (7) Grounds of Appeal. The said grounds of appeal without their particulars are as follows:-

Grounds of Appeal

1. The learned trial Judge erred in law when he held that application filed by the applicants is not a matter for enforcement of fundamental right.
2. The learned trial judge erred in law when he relied on facts not contained in the affidavit averments/statements of either the applicants or respondents and on which no oral evidence was given.
3. The learned trial judge erred in law when he failed or neglected to consider other reliefs sought by the applicants in their application and which neglect or failure occasioned a miscarriage of justice.
4. The learned trial judge erred in law when he held that the respondents are entitled to use the police or force to enforce the payment of security levy demanded by the members of the said association and to report non payment to the Police.
5. The learned trial judge erred in law when he held that S.45 of the Constitution of Nigeria, 1999 permits derogation from the said rights claimed by the applicants.
6. The learned trial judge erred in law when he held that exhibits “N” was made by a neutral party and heavily relied on same to come to the conclusion that the matter is not one for enforcement of fundamental right.
7. The learned trial judge erred in law when he held that S.29 of the Anambra State vigilante Law, 2004 approves payment of levy by the applicants to the respondents and criminalize non payment by providing penalty for obstructing security guards.

Upon being served with the Record of Appeal, parties exchanged their respective brief of argument. The Appellants brief of argument dated 30th September, 2008 was filed on 10th October, 2008, while the Respondents brief of argument dated 21st November, 2008 was filed on the same day. The Appellants sometime on the 6th day of February, 2009 filed their undated reply brief of argument.

Contained in the Appellants’ brief of argument are two Issues for determination. But astonishingly no reference is made whatsoever from which ground or grounds of appeal the two Issues were formulated or distilled. The said two Issues are as follows:-

Issues for Determination

1. Whether the application filed by the Applicants/Appellants raised a matter for the enforcement of the fundamental rights of the Applicants/Appellants.
2. Whether the trial judge was right in dismissing the Applicants/Appellants’ application for enforcement of their fundamental right when the trial Court only considered the issues joined on whether or not the acts of the respondents, infringed the Applicants/Appellants’ right to association while leaving the reliefs/issues raised by the Applicants/Appellants on the violation of freedom of movement, freedom of expression, dignity of their persons and right to personal liberty unattended.

As I stated earlier, before I proceed to the merit of the appeal I need to state that the learned counsel did not relate or state under which of the seven grounds of appeal he filed with the Appellants’ Notice of Appeal, each of the above two issues was formulated or distilled from. Ordinarily, it is trite that the consequence of failure of the Appellants to relate the Issues formulated in their brief of argument to the grounds of appeal renders the Issues incompetent and liable to be struck out. See; Chukwuma Vs. Ifeloye (2008) 12 SCM (pt 2) 425 at 446, Adelusola & Ors. Vs. Akinde & Ors. (2004) 5 SCM 1 at 9, Alli & Ors. Vs. Chief Alesinloye & Ors. (2000) 6 NWLR (Pt 660) 177.

In Adelusola & Ors. Vs. Akinde & Ors. (supra) the Supreme Court opined as follows’-

“It is no doubt a correct statement of law that an Issue for determination in an appeal which is not related to or derived from any of the grounds of appeal challenging the judgment appealed against is incompetent and must be discountenanced together with the argument advanced thereunder in the consideration of the appeal.”

See; also Okpala Vs. Ibeme (1989) 2 NWLR (pt 102) 208, Ehot Vs. The State (1993) 4 NWLR (PT 290) 644, Madumere Vs. Okafor (1996) 4 NWLR (pt 445) 637.

Rather unfortunately, the Respondents’ Counsel also did not relate the issues to any of the Grounds of Appeal. Indeed, not withstanding that he neither filed a cross appeal nor Respondents’ Notice, he attempted to formulate his own issues and yet did not relate them to the grounds of appeal filed in this appeal by the Appellants.

The issues for determination as contained in the Respondents’ brief of argument are as follows:-

1. Whether in the circumstances of the facts of this case the principal claim is a case of enforcement of fundamental rights or dispute concerning which neighbourhood the Appellants shall pay their security levy.
2. By insisting that the Appellants shall pay their security levy in the neighbourhood where they reside whether it tantamounts to violation of the Appellants’ freedom of association, freedom of movement, freedom of expression, dignity of their persons and right to personal liberty.

These Issues too were not tied or related to any of the grounds of Appeal filed on the case as that of the Appellants were not related.

However, in Alimi Akanbi Dada Vs. Chief Jonathan Dosunmu (2006) 12 SCM (pt 2) 108, (2006) 50 WRN 1, the Supreme Court stated thus:-

“… though it is very necessary and desirable for the learned counsel for the appellant to always relate or tie the Issues formulated for determination in the appellants’ brief to the grounds of appeal from which the said issues are distilled, failure to do so may not necessarily result in the Issues being struck out for being incompetent particularly where in the opinion of the Court, the Issues can validly be distilled from the grounds of appeal and in such a situation the Court can on its own take a close look at the grounds of appeal and the issues as formulated and in order to do substantial justice between the parties, which is the preoccupation of the Court, consider the said issues in its judgment…”

It is trite law that every issue for determination must be formulated from one or more grounds of appeal, and where the issue formulated do not arise or is not distillable from the grounds of appeal filed, such issue is irrelevant, incompetent and liable to be discountenanced. See: Osinupebi Vs. Saibu (1982) 7 SC 104 at 110-113, Government of Gongola State Vs. Tukur (No.2) (1987) 2 NWLR (Pt. 56) 308, Western Steel Works Ltd. Vs. Iron & Steel Workers Union (No.21 (2004) 7 WRN 58 (1987) 1 NWLR (Pt. 49) 284, (1987) 2 SCNJ 1..

It is no longer in doubt, that a Court can formulate or reformulate issues for determination of an appeal. This is to narrow down the issue or issues in controversy in the interest of accuracy, clarity and brevity. So long as the issues(s) so formulated by the Court is or are anchored on the grounds of appeal, the opposite party cannot complain. See; Unity Bank Plc. & Anar. Vs. Bouari (2008) 2 SCM 193 at 210, Emeka Nwana Vs. FCDDA & Drs. (2004) 7 SCM 25.

Similarly, in certain appropriate cases, the courts can and in fact do formulate their own issues for determination from the grounds of appeal. In particular, where the issues formulated by learned Counsel for the Appellant are found to be either in adequate or grossly or fundamentally defective. See; Dada Vs. Dosunmu (supra) at page 69 of WRN.

In the instant case, even though the point was not raised by the Respondents’ Counsel in his brief of argument, and he could not have raised it again, as he himself fell into the same error or omission, the court is duty bound to carefully examine the two Issues formulated by the Appellant and see what can be done to marry them, if possible, with the grounds of appeal in order to do the required substantial justice to the case.

My Lords, from the Grounds of Appeal filed and earlier referred, Issue No.1 is distillable from Grounds 1, 3 and 5 of the Grounds of Appeal. The second Issue formulated in my view, is not only clumsy but cannot be related to or distilled from any of the grounds of appeal filed by the Appellants.

An issue or issues not related to the grounds of appeal is or are incompetent. Similarly, the law is that issues for determination must arise from grounds of appeal filed, otherwise same will be incompetent. See; Emespo Vs. Corona Shifah-Rtsgesellaft & Ors. (2006) 8.9 SCM 149, Akinlagun & Ors. Vs. Oshoboja & Anor. (2006) 7 SCM 49. In the circumstance, the second Issue formulated in the Appellants brief not being related or distillable from any of the grounds of appeal is therefore liable to be discountenanced and struck out. Accordingly it is struck out.

As can be clearly seen, no issue has been formulated from Grounds 2, 4, 6 and 7 of the Grounds of Appeal. The law is that grounds of appeal on which no issue is formulated is deemed abandoned and liable to be struck out. See; Enawakponmwhem Aiabobahi & Drs. Vs. Chief Edokpayi Aifuwa & Ors, (2006) 2 SCM 123 at 130.

My Lords, in the same vein, I am of the view that grounds 2, 4, 6 and 7 of the Grounds of Appeal in this case are rather vague and cannot be of any assistance in resolving the alleged complaint against the judgment.

Order 6 rule 3, Court of Appeal Rules, 2007 states thus:-

“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and grounds of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondents”

I am of the view, that those grounds of appeal offend against the above Rule of this Court, therefore they are liable to be struck out.

Accordingly, grounds 2, 4, 6, and 7 of the grounds of appeal are struck out. See; Ogundare Osasona Vs. Oba Adetoyinbo Ajayi & Ors. (2004) 5 SCM 130 at 138.139.

In arguing the appeal, the learned Counsel to the Appellants submitted that a look at the reliefs sought by the Appellants will show that the substantial reliefs sought are for the enforcement of the fundamental rights of association, freedom of movement, freedom of expression and right to dignity of the persons of the Appellants. He contended that the application was for the enforcement of fundamental rights but not dispute over security levy. He referred to Exhibits C, D, and G, annexed to the application as letters of dissociation of membership of the Applicants to the Respondents Association. He referred to the reliefs sought by the Applicants and contended that the determining factor is whether the main or principal claim is the action for enforcement of fundamental right and not the ancillary or subsidiary issues in the matter. If the main or principal claim is for enforcement of fundamental right, then it is an appropriate case to be tried under the Fundamental Rights (Enforcement procedure) Rules. But where it is subsidiary, ancillary or incidental to the main claim, the action must be instituted by Writ of Summons.

Learned Counsel submitted that the reliefs or claims sought by the Appellants are for enforcement of fundamental right. While the security levy details were made incidental or ancillary to the main or principal claim.

Learned Counsel contended that the use of the Police, Vigilante men and hired armed men to harass, threaten, intimidate or terrorize the Appellants and to compel them into membership of the Respondents Association is unconstitutional, illegal, null and void.

He contended further that assuming without conceding that it was the security levy payable to the Respondents’ Association by their members that was the issue, employing the police and armed agents to enforce it still makes it illegal and unconstitutional. He cited, Agbai Vs. Okogbue (1991) 7 NWLR (Pt.391), Nkpa Vs. Nkume (2001) 6 NWLR (Pt. 710) 543 at 561.

Learned Appellants’ Counsel contended that both the Federal Trans-Nkisi Residents Association to which the Appellants belong, and the Federal Low Cost Residents Association of the Respondents are voluntary associations to which the parties concerned each decided or elected to belong, He contended further that both parties were initially members of the same Federal Trans-Nkisi Residents Association which was formed in 1998 and they were all paying their security levies to the said Association until year 2001 when some broke away to form another association called Federal Low Cost Residents Association. The Appellants stated that some of them were approached by the Respondents to be members but they declined interest and said they were comfortable with their membership of the old Association.

Learned Appellants’ Counsel referred to Section 40 of the 1999 Constitution and submitted that the Appellants, like every other Nigerian is entitled to freedom of association. He cited B.P.E. Vs.N.U.E.E. (2003) 12 NWLR (Pt 237) 382 at 407-408 and 410.

Learned Counsel submitted that compelling the Appellants to belong to the Respondents’ Association by threats, intimidation, harassment, oppression and terrorizing of the Appellants offends the Constitutional rights of the Appellants to freedom of association, Learned counsel contended that the Appellants were restrained from moving about in the locality, They were ran out of their homes and only creeps back home when solace comes their way. He submitted that this is an infringement on the Appellants’ right to freedom of movement. He referred to Section 41 of the 1999 Constitution; and Article 12 of the OAU Charter on human and Peoples right. He cited; Williams Vs. Majekatunmi (1962) 1 NLR 413, Federal Ministry of Internal Affairs Vs. Shugaba (1982) 3 NLR 915 (1981) 2 NCLR 459, Director, SSS & Anor. Vs. Olisa Agbakoba (1993) 3 NWLR (Pt 599) 314.

Learned Counsel referred to paragraphs 31 and 34 of the Statement accompanying the application on how the Appellants were sternly warned by the Police to refrain from openly declaring that they belong to Federal Trans-Nkissi residents Association and asked to submit to membership of the Respondents’ Association or face the consequences. He submitted that this was a violation of the Appellants’ right to freedom of expression guaranteed in S. 39(1) of the 1999 Constitution.

Learned Counsel urged the Court to hold that the Appellants’ application was properly brought for the enforcement of their fundamental rights. He finally urged the Court to allow the appeal and set aside the judgment of the trial Court.

In arguing the appeal, the Respondents thought differently.

The learned Counsel to the Respondents contended that the dispute between the parties was where the Appellants should pay their security levy. While the Respondents insist the security levy should be paid by the Appellants into the cover of the Federal Low Cost Residents Association, the Appellants are claiming they will continue to pay into the cover of Federal Trans-Nkissi Resident Association.

Learned Counsel submitted that the above controversy cannot be a subject of enforcement of fundamental rights but an ordinary Writ of Summons.

Learned Counsel referred to the Appellants reliefs or claims as listed in their Statement and conceded that the law is trite that it is the Applicants’ claim together with the facts and affidavit in support that determine the nature of the suit and consequently its competence.

He however contended that in the instant case, the nature of the suit disclosed on the Respondents’ Motion on Notice as well as the facts and affidavit in support failed to show a right known to the constitution, let alone showing a breach of their fundamental rights. He submitted that an action does not lie under the fundamental right enforcement procedure simply because the Applicant so couched it.

The Court has a duty to dig into the facts to ascertain whether in fact it is a case of breach of fundamental right. He cited, Sokoto Local Government Vs. Alhaji Amale (2005) 8 NWLR (Pt 714) 324 at 340, University of Calabar Vs. Ugochukwu No.2 (2007) 17 NWLR (Pt 1063) 225 at 246.

Learned Counsel submitted that when an application is brought under the fundamental right (Enforcement Procedure) Rules, a condition precedent to the exercise of the Court’s jurisdiction is that the facts in support and not just the claim or relief sought should be the main claim and not the accessory claim. He contended as done earlier that the main claim in the instant case is where the Appellants will pay their security levy, and this cannot properly activate the jurisdiction of the Court, he concluded citing, Tukur Vs. Government of Taraba State (1997) 6 NWLR (Pt 510) 549 at 576.

He submitted further that the court is enjoined to examine the case brought under Chapter IV of the Constitution critically to ascertain whether or not it has competence to entertain the relief or claim sought. He cited; Peterside Vs. LM.B. Ltd (1993) 2 NWLR (Pt 278) 2 NWLR (Pt 909) 123. He urged the Court to hold that this case has nothing to do with violation or threatened violation of fundamental right. Learned Counsel finally urged the Court to dismiss the appeal and affirm the judgment of the trial Court. My Lords, as I am permitted to do whenever the need arises, I desire now to reformulate from the subsisting grounds of appeal, the Issues for determination of this appeal. They are:

Issues for Determination.

(1) Whether the Appellants complaint was properly brought under Fundamental Rights (Enforcement Procedure) Rules and thereby entitled to the Reliefs sought. (Grounds 1 and 5 of the Grounds of Appeal)

(2) Whether the Appellants complaint was about where to make payment of security levy rather than breach of their fundamental rights. (Ground 3 of the Grounds of Appeal)

As it can be clearly seen from the Issues, they are interrelated and therefore will be taken together.

As shown on the heading of the statement made accompanying the substantive application, the application was brought pursuant to Order 1 Rule 2(3) of the Fundamental Rights (Enforcement Procedure) rules, 1999.

Order 1 rule 2(1) of the Fundamental Rights (Enforcement procedure) Rules, 1979 provides thus:-

“Any person who alleges that any of the fundamental rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may apply to the Court in the state where the infringement occurs or is likely to occur for redress.”

Section 46(1) and (2) of Chapter IV of the 1999 Constitution provides as follows:-

“46(1) Any person who alleges that any of the provisions of this Chapter 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.

(2) Subject to the provisions of this Constitution a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such orders, issue such Writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.”

Whenever the Court is confronted with an application brought under the Fundamental Right (Enforcement Procedure) Rules, it is imperative that the Court should critically examine the reliefs sought by the Applicant, the grounds for seeking the reliefs and the facts contained in the Statement accompanying the application and relied on for the reliefs sought. Where the facts relied on disclose infringement of the fundamental right of the applicant as the main or basis of the claim, then it is a clear case for the enforcement of such rights through the Fundamental Right (Enforcement Procedure) Rules. In Tukur Vs. Government of Taraba State (1997) 6 NWLR (Pt.510) 549 at 574-575 the Supreme Court held as follows:-

“When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental rights or the security of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental right or securing the enforcement therefore, should from the applicant’s claim as presented, be the principal or fundamental claim as presented, and not accessory claim.”

See also; The Federal Minister of Internal Affairs & Ors, Vs. Shugaba Abdulrahaman Darman (1982) 2 NCL 915 in which the principal or main claim was a declaration that the Order was ultra vires and that the same constituted a violation of the applicant’s fundamental rights to personal liberty, privacy and freedom to move freely throughout Nigeria.

However, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly invoked or exercised as the Court will be incompetent to do so, See; University of Ilorin & 1 Or. Vs. Idowu Oluwadare (2006) 12 SCM (Pt 2) 517 at 525, (2006) 45 WRN 145, Sea trucks (Nig) Ltd. Vs. Anigboro (2001) 10 WRN 78, (2001) FNLR (Pt 37) 1000, (2001) 2 NWLR (pt 696) 159, Jack Vs. University of Agriculture, Makurdi (2004) 14 WRN 91, (2004) 5 NWLR (pt 865) 208, (2004) 1 SC (Pt.11) 100 at 111.

It is trite law that in determining the competence of an action vis-a-vis the jurisdiction of the Court, it is the Plaintiffs or Applicant’s claim or relief sought that has to be looked into and thoroughly examined by the Court In otherwords, in an action commenced by Writ of Summons or Motions, the processes to be considered are the Summons or Motions and the affidavit in support or statement accompanying the application which will contain the facts relied upon by the Applicant See; Izenkwe Vs. Nnadozie (1953) 14 WACA 361, Tukur Vs. Government of Gongola State (1989) 4 NWLR (pt 117), Okunlola Vs. Awosanya (2000) 2 NWLR (pt 646) 530, Capital Bancorp Ltd. Vs. Shetter Savings & Loans Ltd. & 1 Or. (2007) 2 SCM 1 at 17, Osun State Government Vs. Dalami Nig. Ltd. (2007) 6 SCM 145, Attorney Gen. Anambra State Vs. Att. Gen. of Federation (2007) 12 SCM (Pt 1) 1, Nwaigwe & Ors Vs. Okere (2008) 8 SCM 128, First Bank of Nigeria Plc. Vs. Kayode Abrahim (2008) 12 SCM (Pt 2) 524 at 535.

In otherwords, in the consideration or determination of the jurisdiction of the Court to entertain a matter brought before it, the statement of defence or Counter affidavit of the defendant or Respondent has no relevance and should never be considered.

In the instant case, the processes to be examined are contained on pages 29, 36, 54 and 108 of the record of appeal.

These processes are, the Motion on Notice, Statement in Support containing the Reliefs sought and the Facts relied upon, Verifying Affidavit and Further Affidavit.

As earlier stated, the application was brought at the trial court for the enforcement of the Applicants fundamental rights pursuant to the Fundamental Rights (Enforcement Procedure) Rules.

The Appellants had claimed to be residents of Federal Trans- Nkissi Federal Housing Estate and are in particular members of Federal Trans-Nkissi Residents Association, Trans- Nkisi, Onitsha. The Appellants had sought the following reliefs from the trial Court.

“(i) A DECLARATION that the applicants are entitled to elect to belong or not to belong to the Federal Low Cost Housing Estate Residents Association, Onitsha.

(iii) A DECLARATION that the harassment, threats, intimidation, oppression, arrest and constant and persistent threat of arrest of the applicants by the respondents, their servants, agents and privies in the respondents’ bid to compel the applicants into membership of Federal Low Cost Housing Estate Residents Association is illegal, unlawful, Null and void.

(iii) A DECLARATION that the acts of the respondents violates applicants freedom of expression.

(iv) A DECLARATION that the respondents acts and conducts offends (sic) the applicants constitutional right to freedom of movement and dignity of their persons and right to liberty.

(v) AN ORDER OF Perpetual Injunction restraining the respondents, their servants, agents and privies from forcibly compelling the applicants into membership of Federal Low Cost Housing Estate Residents Association or by any other name so called.

(vi) AN ORDER of Injunction restraining the respondents, their servants, agents and privies from further harassment, intimidating, oppressing, arresting and detaining the applicants.”

As I stated earlier, the facts relied upon by the Appellants for their above reliefs sought are contained in 55 paragraphs of the Statement accompanying the application. But for the purpose of better understanding of the position of the Appellants, I intend to refer to only the following relevant 26 paragraphs. That is paragraphs 3, 4, 5, 14, 17, 18, 21, 22, 23, 24, 25, 26, 28, 29, 32, 33, 34, 35, 40, 41, 42, 43, 51, 52, 53 and 45. These facts are to be found at pages 32- 36 of the Record of Appeal.

“3. That the respondents are residents and members of the Federal Low Cost Housing Estate Residents Association Trans – Nkissi Onitsha.

4. That the respondents on record are variously the chairman, secretary, member, financial secretary, P.R.O. and member respectively of the Federal Low Cost Residents Association.
5. That the respondents seek to compel the applicants into membership of the Federal Low Cost Housing Residents Association, Onitsha.
6. The Federal Trans – Nkissi Residents Association was formed in the year 1998.
7. That sometime in the year 2001 some members of the Federal Trans – Nkissi Residents Association with

the respondents on record, set in motion a process for the formation of a new or rival association in the area covered by the Federal Trans – Nkissi Area Onitsha,

18. Some of the applicants including 1st applicant were approached by the respondents to join them in the formation of the new body, which the applicants declined.
19. That the applicants refused to be pressurized or persuaded to join either in the formation or membership of the respondents association, the respondents resorted to harassment, oppression, intimidation, brutality, arrest and detention of the applicants.
20. That on the 25th day of September, 2004, the respondents in company of armed mobile policemen, with some eagle eye youngmen armed with gun whom the respondents called their security men attacked the applicants, menaced and terrorized them to join as members and pay up membership dues, security levies and road maintenance dues, demanded by the new respondents association.
21. The menaces from the swagger guns pointed the applicants terrorized the applicants particularly with the swagger men threatening to deal with the applicants once and for all if they dare not join as members.
22. The respondents have equally used the men of Nteje Police station, Oyi Local Government Area of Anambra Slate to incessantly harass, threaten, frighten, intimidate the applicants into membership of Federal Low Cost Housing Estate Residents Association Onitsha.
23. On the 30th day of October, 2004, the respondents acting in concert with their security men, their agents and some policemen raided the residents of the applicants causing so much commotion and threatening to deal with the applicants if they fail to register as members of the new association and pay membership dues, security levies, road maintenance dues and development levies as graduated by the respondents.
24. The respondents demands N10,000.00 for duplex N5,000.00 for bungalow and N3, 000.00 for smaller accommodation popularly known as Shagari house as payment for what they called security material levy. They also demand a monthly security levy of N1,000.00 for duplex, N500.00 for bungalow and flats respectively, N400 00, N200.00 and N300.00 for stores/shades of permanent structure, stores/shades of makeshift (non permanent) structure and Shagari house respectively.
25. The respondents make rules and regulations governing their association and seeks to compel their applicants to obey such rules as if they are their members notwithstanding that the applicants have made it clear that they do not belong and have no desire to belong to the respondents association.
26. The applicants who are members of Federal Trans Nkissi Residents Association Onitsha pay their security levies, membership dues, development levies up to date. They equally contribute in the setting up and/or sustenance of a highly equipped security outfit which covers the entire area including the area where the respondents now claim they cover.
27. The respondents have inconcert with their security men, agents and their police threaten (sic) to deal with the applicants for declaring openly that they are not interested in being their members and warn (sic) the applicant severally to be silent or be made silent.
28. The Nteje policemen and in particular the D.P.O. who had invited some of the applicants to the Nteje police station have sternly warned applicants that their continuing insistence on membership of Federal Trans – Nkissi Residents Association as opposed to Federal Low Cost Housing Residents Association Onitsha is an act of security sabotage.
29. The respondents have warned the applicants that their continuing declaration of their membership of Federal Trans – Nkissi Residents Association as opposed to Federal Low Cost Housing Estate Residents Association Onitsha is illegal and unacceptable and such statements/ open declarations should be stopped forthwith.
30. The respondents have again perfected arrangements to use the police, their armed agents and allies to terrorize, intimidate and harass the applicants with a view to compel them into membership of the respondents association.
31. The applicants have severally been ran out of their several times by the rampaging respondents with their agents, servants and privies and creeps back whenever relief comes their way.
32. The applicants have suffered losses and the respondents are still persistent with their actions despite the applicant’s appeals, persuasions, entreaties and representations made to the respondents that they do not want to belong to the respondents association.

42 In the respondents bid to compel, harass and embarrass the applicants into membership of their association, some of the applicants’ children and servants were arrested and detained at Oyi Police Station, Nteje and the Police Post at 33 Onitsha for one full day and released on payment of ransom demanded by the police.

43. That the applicants have been severally warned by the Oyi Police, the respondents and their rampaging armed civilians that they have no option than to register and belong to the respondents association.
44. The respondents has perfected plans to carry out further raids, assaults, intimidation and harassment of the applicants. Copy of the respondents notice for enforcement of membership and payments is hereby exhibited as exhibit “F”
45. The respondents have equally threatened to prevent the applicants from moving into their various residence or places of business and from moving about in the area under their coverage.
46. That the respondents act amount to infringement of applicants’ freedom of association, expression, dignity of persons, freedom of movement and right to liberty.
47. The respondents’ actions are aimed at arm – twisting the applicants into submitting to membership of respondents association.”

From the above copious facts, I am not in doubt as to what the main relief of the applicants was. There is certainly more to it than meets the eyes.

The trial court after having made certain analysis resolved that the issue in this matter was very narrow. The learned trial judge stated as follows:-

“It is simply a question whether the applicants have made out a case for alleged infringement of their fundamental rights to freedom of association principally. It would be cumbersome for me to set down the affidavits and counter affidavits and exhibits (i.e. documents) of both parties. I have gone through all of them carefully and found that both the police and the respondents conceded to the applicants their right not to belong to the Respondents’ Association. For that alone, in my view, the applicants have no cause of complaints against the Respondents on the Issue of right to freedom of association.”

Learned trial judge went further to state that:

“it means that even if I grant the above reliefs claimed by the Applicants in this case it would still not address or resolve the dispute between the parties, which is the question of whether the applicants are bound under the law to pay security levy for the maintenance of a Vigilante Group or Security Guard under the control of the Respondents.”

From the above findings of the trial judge, it is clear that the lower Court indeed appreciated the fact that the Applicants have Constitutional right to freedom of association. In other words, they are entitled to choose which of the Residents Associations they wish to belong. But because this right had been conceded to the Applicants by the Respondents and the police, the learned trial judge felt the Applicants no longer had any “cause of complaint against the Respondents.” This, to say the least, and with respect is a misconception.

What is a fundamental right? It is a right derived from natural or fundamental, or Constitutional law. See; Blacks Law Dictionary, 8th Edition, page 692.

In this country, the fundamental rights of the citizens though acquired naturally, are constitutionally guaranteed. Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria clearly provides for the Fundamental Rights. See; Chief (Dr) O. Fajemirokun Vs. Commercial Bank Nig. Ltd. Anor. (2009) 2 SCM 55 at 71, (2009) 37 NSCQR 1 at 27, (2009) 5 NWLR (pt 1132) 588 at 611.

A close look and proper examination of the facts relied upon and presented by the Appellants in support of their claims to the above reliefs show that the principal complaint of the Applicants against the Respondents is the way they were being compelled to be part of the Respondents own Residents Association despite the Appellants insistence to remain with the old Residents Association they had always been part of. By the averments in paragraphs 5, 21, 22, 23, 24, 25, 26, 28, 32, 34, 35, 40, 41, 42, 43, 51 and 52 of the Statement in support of the application, the Applicants have shown that their complaint is not on payment of security levy but the insistence and persistence of the Respondents in seeking to compel them to join and be financial members of their Association. The learned trial judge was therefore with respect and to say the least, in error, in coming to the conclusion that the principal complaint of the Respondents is their refusal to pay security levy to the Respondents Association.

There is no doubt that what the Respondents want more from the Applicants is the payment of their levy for the security of their area. But they must go about it in the most legally approved and civilized way not to infringe or trample on the rights of others. As the saying goes, where someone’s right ends, there the right of another begins. If the respondents had felt strongly against the refusal or failure to pay security levy by any or all of the Applicants, there is definitely an approved way to recover or make defaulters of such levy to pay, rather than threatening, harassing and or intimidating as alleged by the Appellants. The Police are not and should not in any community of civilized people be used as debt or levy collectors. The Courts have in strong terms condemned the use of Policemen and Soldiers in the resolution or settlement of disputes amongst people, as such use of policemen often lead to infringement on the fundamental rights of others. See: Agbai Vs. Okogbue (1991) 7 NWLR (Pt 391), Nkpa Vs. Nkume (2001) 6 NWLR (Pt.710) 543 at 561.

It is clear in the Counter affidavit filed by the Respondents to oppose the application by the Appellants for the enforcement of their fundamental rights, that the Respondents denied that they ever infringed or threatened to infringe on the fundamental rights of the Appellants. Indeed, the Respondents emphasized the fact that the Issue at stake between the parties was more of payment of security levy for the maintenance of their vigilante men rather than membership of any Residents Association. In my view, the learned trial judge seemed to have formulated a case in form of a Counter claim for the Respondents. Otherwise, in the consideration of the Appellants case brought before the Court, there was no need and indeed it was rather unnecessary to deal with and apply the Anambra State Group Vigilante Law, 2004 to the Appellants’ case by the lower Court. Even then, the Supreme Court was perfectly right when it held that “a fundamental right is certainly a right which stands above the ordinary laws of the land” See; Badejo Vs. Federal Ministry of Education (1996) 43 LRCN 2100, per Kutigi, JSC (as he then was).

The copious facts deposed to in the counter affidavit by which the Respondents gave the reasons why the Appellants are required to pay security levy and denying any breach of the Appellants’ fundamental rights will not in the slightest rob the Appellants of their entitlement to be protected from infringement on or threat to their Constitutionally guaranteed fundamental rights.

In my view, the trial court ought to have restricted itself to the claim of the Appellants and consider the defence of the Respondents principally based on denial of any infringement on the fundamental rights of the Appellants.

In Overseas Construction Ltd. Vs. Creek Enterprises Ltd. (1985) 3 NWLR (Pt 13) 407 at 419, the Supreme Court, per Oputa, JSC stated thus:-

“The duty of a trial court is limited, strictly limited, and confined to trying the issue arising from the pleadings. A trial court is not to go on a wild goose chase, to embark on an academic exercise in which all sorts of questions are discussed at will without reference to the pleadings, to the issues and to the admissible evidence.”

Notwithstanding the Respondents denial story contained in their Counter affidavit, I am strongly inclined to believe the Appellants allegation of Respondents infringement on their fundamental rights.

From the affidavits, counter affidavits and various documents attached as Exhibits, the Appellants story is reasonably more probable and reliable in the circumstance than the Respondents denial. No wonder, the trial judge found that the Respondents had conceded that the Appellants are entitled to their fundamental rights to belong to association of their choice. I make bold to say that it is the duty of the court to grant redress to any person who has successfully proved that any of his fundamental rights has been, is being, or is likely to be contravened or infringed. The Applicants through their affidavits and Exhibits proved the infringement against the Respondents.

There is no doubt that the Respondents may have good intention in providing security for the community they live in and thereby levy residents, to secure fund to finance the project. Yet, this must not be done to affect adversely the rights of others, even members of the same community. In Agbai Vs. Okogbue (supra) the Supreme Court opined as follows:-

“Much as one would welcome development projects in the community, there must be caution to ensure that the fundamental rights of citizens are not trampled upon by popular enthusiasm. These rights have been enshrined in the Constitution which enjoys superiority over customs.”

I cannot agree less in a way with the submission of the learned Counsel to the Appellants, that compelling the Appellants to belong to the Respondents Association by threats, intimidation, harassment, oppression and terrorizing of the Appellants by letting loose bloody eye vigilante men armed with guns, the police and agents of the Respondents offend the constitutional rights of the Appellants to freedom of association. And it is also of the same weight and effect that the Appellants were being compelled to carry out acts such as payment of security levy to the Respondents’ Residents Association which ordinarily is the responsibility of only members of an association.

It is indeed the duty of court to protect the constitutionally guaranteed rights of citizens. See; Federal Republic of Nigeria Vs. Ifegwu (2003)13 NWLR (Pt 237) 382 at 409. My Lords, in the light of the above, I am of the firm view that the Appellants’ complaint was properly brought under the Fundamental Rights (Enforcement Procedure) Rules and are hereby entitled to the reliefs sought being that their complaint was about the infringement of their fundamental rights by the Respondents rather than about where to make payment of security levy.

In the final analysis, this appeal is considered meritorious and it deserves to succeed. In the circumstance the judgment of the trial court delivered on the 18th day of July, 2005 by Amaechina, J. is hereby set aside. Accordingly, the reliefs sought by the Appellants against the Respondents are granted as follows:-

(i) Declaration that the Applicants are entitled to elect to belong or not to belong to the Federal Cost Housing Estate Residents Association, Onitsha.

(ii) Declaration that the harassment, threats, intimidation, oppression, arrest and constant arrest of the Applicants by the Respondents, their servants, agents and privies in the respondents’ bid to compel the Applicants into membership of Federal Low Cost Housing Estate Residents Association are illegal, unlawful, null and void.

(iii) Declaration that the Respondents’ acts and conducts offend the Applicants’ Constitutional rights to freedom of movement and dignity of their persons and right to liberty.

(iv) An order of injunction is hereby made restraining the Respondents, their servants, agents and privies from forcibly compelling the Applicants into membership of Federal Low Cost Housing Estate Residents Association, or by any other name so called.

(v) An order of injunction is made restraining the Respondents, their servants, agents, and privies from further harassing, intimidating, oppressing, arresting and detaining the Applicants.

In view of the peculiarity of this case, parties are to bear their respective costs.

---

Other Citations: (2009)LCN/3321(CA)