Fundamental Right Enforcement

SUIT NO: HOW/653 /2022 HON. JOHN NWAIGBO VS 1. MR. NORBERT OGONNA 2.MR. MARCEL NWOSU & 12Ors- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THURSDAY, THE 9TH DAY OF FEBRUARY 2023- in appropriate circumstances, rights can be enforced against private individuals. This principle is supported by various legal precedents, including the case of AKWA SAVINGS AND LOANS LTD. V. UDOUMANA & ORS, which established that the provisions in Chapter IV of the Constitution are enforceable not only against the State but also against artificial persons, such as private companies – citizens have a legal duty to report crimes they witness and to assist the police in investigations. This duty is imposed by law and is not subject to personal discretion. Failure to report a crime is considered an offense- the age-long rule and custom of Umuezealaopi Progressive Union, which requires members to seek the union’s resolution before involving the police or taking a matter to court – while such a rule may be acceptable in civil matters, it contradicts the law when it comes to criminal matters- Reporting a crime to the police is a civic duty, and any action taken against an individual for reporting a crime is considered illegal- right to freedom of association works both ways, meaning that individuals have the right to associate freely with others, but this does not obligate others to associate with them.- it is not the court’s role to interfere with the rules and regulations of voluntary associations, except when they violate the law or principles of natural justice.

Admin Editor

IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

ON THURSDAY, THE 9TH DAY OF FEBRUARY 2023

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

SUIT NO: HOW/653 /2022

IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS BY HON. JOHN NWAIGBO

BETWEEN

HON. JOHN NWAIGBO            –       –             APPLICANT

AND

  1. NORBERT OGONNA
  2. MARCEL NWOSU
  3. IFEANYI NNANNA
  4. DAMIAN ONUEGBU
  5. CHIBUZO NWOHA
  6. AMOBI ANOCHIRI
  7. EPHRAIM NWANERI
  8. HYGINUS UKAGA                   RESPONDENTS
  9. LINUS UMELO
  10. CHRISTOPHER IWUALA
  11. CHIMUANYA MGBUDEM
  12. BENJAMIN DURU
  13. CHIMEZIE OSUALA
  14. FELIX ADIMEGWU

JUDGMENT

By Motion on Notice dated 15th day of June, 2022 and filed same day, said to be brought pursuant to S.34 (I) (A) 35 (4), 36,37, and 46 (1) of the Constitution of the Federal Republic Of Nigeria, 1999 (As Amended) Order 11 Rules 1, 2 & 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009. And under the Inherent Jurisdiction of the Honourable Court (as preserved by S.6 (6) of CFRN 1999 (As Amended), the Applicant prays:

  1. DECLARATION of the Honourable Court that the imposition of the fine of N50, 000.00k on the Applicant by the Respondents is illegal, unlawful and unconstitutional.
  2. DECLARATION of the Honourable Court that the continuous threat to ex-communicate and ostracize the Applicant for refusing to pay the said fine of (N50,000.00k) Fifty thousand Naira imposed on him by the Respondents is null and void and of no effect.
  3. AN ORDER of this Honourable Court restraining the Respondents either by themselves, their agents, privies, workmen or officers from interfering with the Applicants fundamental rights to personal liberty, freedom of association and life in any manner whatsoever pending the determination of this application.
  4. AN ORDER of this Honourable Court serving the Respondents the Originating Motion through Substituted Service and deeming same to be proper and effective service of the processes on them.
  5. The sum of (N50,000,000.00) Fifty Million Naira damages against the Respondents jointly and severally for their unlawful and unwarranted infringement Applicant’s right aforesaid without lawful justification as enshrined in the constitution of the Federal Republic of Nigeria 1999 as amended.
  6. WRITTEN APOLOGY to the Applicant by the Respondents to be published in at least one national daily of the Applicant choice and a copy served on the Applicant.
  7. Perpetual injunction restraining the Respondents either by themselves and or through their privies, servants or whosoever claiming from them from violating the Applicant fundamental rights with respect to the fact herein.

GROUNDS FOR THE RELIEFS SOUGHT

  1. Every person according to the 1999 constitution and African Charter Act are entitled to his personal liberty and no person shall be deprived of such liberty without due process of law, every person is entitled to freedom of movement and no person shall be so deprived of same without due process of law.
  2. Every person is entitled to freedom of movement and no person shall be so deprived of same without due process of law.
  3. Every person whose fundamental right have been, is being or most likely to be violated is entitled to compensation and written apology.
  4. The Court is empowered upon proof of the violation of a fundamental right of a citizen to make such orders as appropriate for enforcing and securing the enforcement of the fundamental right.
  5. The Applicant is a law abiding citizens of Nigeria and have not committed any offence known to law to warrant the Respondents imposing a penalty/fine of N50.000.00k on him and threatening to ostracize and ex-communicate him if he did not pay the said sum imposed, hence this application.

Applicant’s Affidavit in Support of the application for the enforcement of fundamental right, is deposed to by HON. JOHN NWAIGBO, the Applicant. He deposed: I am a native of Umuezealaopi Amaigbo in Nwangele Local Government Area of Imo State. The Respondents are also natives of Umuezealaopi Amaigbo in Nwangele Local Area of Imo State. The 1st Respondent is the Chairman of Umuezealaopi Progressive Union, Amaigbo in Nwangele L.G.A, Imo State. The 2nd, 3rd and 4th Respondents are the Vice Chairman, the Secretary and Assistant Secretary of Umuezealaopi progressive Union, respectively. The 5th, 7th and 8th Respondents are the Assistant Financial Secretary, Treasurer, Financial Secretary and Auditor of Umuezealaopi Progressive Union, respectively. The 9th and 10th Respondents are the Patrons of the Umuezealaopi Progressive Union, respectively while the u” Respondent is the P.R.O. of the Union. The 12th, 13th and 14th Respondents are the Provost, Chief Provost and Provost of the Union, respectively. Sometime on the 5th day of January, 2018, one Basil Onwuzurike now (deceased) and his son Chidiebere Nnadi, who are envious of the Applicant’s achievements and who have for years conspired among themselves to kill him without just cause, gave him matchet cut in his face and head with the aim of killing him. .

While the Applicant was lying helpless on the ground, and in the pool of his own blood, the suspects who are heartless violently assaulted him, slapping and given him fixed blow all over his body, consequent upon which he sustained grievous bodily harm and was rescued and rushed to the hospital by a good Samaritan. While the Applicant was been(being) rushed to the hospital, he was unconscious and his breathing stopped consequent upon which the  people of Umuezealaopi began to rumour that he was dead as he was for about two(2) hours unable to breath and talk, but fortunately God restored him to life.

It was the Police on patrol who saw and heard about the violent crime that went and arrested the suspects, who were about running away, fearing that the Applicant will not survive the attack. The suspects having been brought to book, the matter was investigated and the suspects found guilty for the crime and they were subsequently charged to Court, but instead of charging them for Attempted murder and remanding them in the prison, the 1st Respondent who is a sworn enemy of the Applicant and who claimed to be a lawyer went to the Police and influenced the charge to the extent that it was reduced to a mere Assault occasioning harm which ought not be the charge. The photocopy of the charge sheet is hereby annex as Exhibit “A”. While the charge is still pending, the suspects continued (to) threatening the life of the Applicant vowing that they will kill him. Their continuous threat resulted to the Police arresting and charging them the second time to Court on the 23rd day of November, 2018. The charge sheet is hereby annex as Exhibit “B”.

While the 1st charge is still pending in the Court, the 1st Respondent, who is a sworn enemy of the Applicant and a’ man without conscience, wrote to the Applicant, mandating him to withdrawn the charge pending in the Court. The said letter dated the 1st day of July, 2018 which is forged the signatories of the Secretary and the Assistant Secretary is hereby annexed as Exhibit “C”.

As our Client was insisting that he would not withdrawn the case against the instructions and wish of the 1st Respondent, an acclaimed lawyer, who assert much influence on the Umuezealaopi Progressive Union, influenced the other Respondents that in their meetings of July, 2020, the imposed a fine of (N50, 000.00k) Naira Fifty Thousand, on the Applicant for refusing to withdraw the criminal charge for the 1st Respondent to sit as a Judge and give verdict on it.  The 1st Respondent who is a bully threatened that if the Applicant refused to pay the fine of (N50, 000.00k) imposed on him, that at his death, his family will pay the money before they will attend his burial. This imposition of fine of N50, 000.00k and the later decision of the Respondents did not go down well with the Applicant who instructed his lawyer to write to the Respondents urging them to rescind their decision. The said letter dated 29/10/2020 is hereby annexed as Exhibit “D”.

Since after the letter, the Respondents still maintain their position insisting that they would double the penalty. The 1st Respondent, an acclaimed lawyer and a bully without conscience is threatening to ostracize and ex­ communicate the Applicant for refusing to pay the said sum of (N50.000.00k) illegally and unlawfully imposed on him. Unless restrained by this Honourable Court, the Respondents will go ahead imposed the penalty and if not paid will ostracize and ex-communicate the Applicant. .

It is in the interest of Justice that this Application is granted as prayed as it will meet the Justice of this case. The Respondents have no defence to this case and will not in any way be prejudice by the grant of this Application.

The Applicant pray that the said imposition of N50, 000.00k) fine is declared null and void and of no effect as same is illegal and unconstitutional.

The application is accompanied by the counsel’s written address wherein he formulated issues for determination as:

  1. Whatever the Applicant as a citizen of Nigeria is entitled to his personal liberty.
  2. Whether the Applicant is entitled to compensation and apology for the breach of his fundamental rights
  3. Whether the Applicant is entitled to injunction against the Respondents.

On issue 1, it is submitted that any threat on the liberty of a citizen as in the instant case violates his fundamental rights as guaranteed under the Sections 35, 36, 1, 2a and 40 of the 1999 Constitution. Accordingly we urge the Honourable Court to resolve issue one in favour of the Applicants. See the case of AYO VS AG ONDO STATE (1989) 2 NWLR PART 203 AT 119. The Fundamental nature of Fundamental Rights under the 1999 Constitution of Nigeria guaranteed Fundamental Rights in the realm of domestic law and are fundamental because they have been guaranteed by the Fundamental Law of the Country that is by the Constitution. See UZOUKWU V. EZEONU II & ORS (1991) 6 NWLR (PT. 200) 708 AT 76. In the instant case, it is the right of the Applicant to prosecute the said law breakers mentioned in Exhibit “A” and “B” respectively who attempted to murder him and any attempt to stop him by any individual or local bye law altravires the Constitution; see UZOUKWU V. EZEONU (SUPRA).

Also, by virtue of the provisions of Section 35(1) and 36(5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every citizen of Nigeria is entitled to his personal liberty and no person shall be deprived of his liberty except as stipulated by the Constitution and statute: see ONYIRIOCHA V IGP (2009) 3 NWLR (PT.1128) 342 AT 347. Thus, it is the duty of the Court of Law to safeguard the rights and liberties that are guaranteed by the Constitution and to protect persons living within the confines.

According to the counsel, it is also settled law that an applicant who set out to enforce his Fundamental Rights has a duty to put before the Court all material evidence to enable the Court determine all the issues in controversy one way or the other, See OYEWOLE SUNDA Y V. ADAMU SHEHU (1995) 8 NWLR (pt. 414) 484; (pt. 717) 132. This is what the Applicant has done in the instant Application in his depositions and Exhibit “A”, “B” and “C” speaks volume of those material evidence required by law. Further, it is trite law that where malice is proved in an application for the enforcement of Fundamental Rights as in the instant case, where the 1st Respondent who is a sworn enemy of the Applicant moved the other Respondents to Impose a (N50,000.00k) fine for the Applicant refusal to withdraw a criminal charge field in the Court as contained in Exhibit “A” and “B” respectively, an exemplary damages can be awarded against him and the other Respondents who supported the unlawful act or action; see SHUGABA V MINISTER OF INTERNAL AFFAIRS (1981) 2 NCLR AT 560, PARA 4; MIYEE V A-G FEDERATION & ORS (2003) CHR 463 AT 474.

It is submitted that it is also a breach of the Fundamental Rights of a citizen where a Constitution, bye-law or custom of a people forbids him from going to the Police to report criminal activities of a person against him. Such custom is barbaric and repugnant to natural justice, equity and good conscience and should be abolished. See ANEKWE V NWEKE (2004) ALL FWLR (PT. 739) 1154 SC; NZEKWU V NZEKWU (1989) 2 NWLR (PT. 104) 373, LEWIS V BANKOLE (1908) OR (1962) 2 SCNLR 215.

From the foregoing, the court is urged to grant the relief sought in this application.

On issue 2, the counsel cited Section 35 OF THE 1999 CONSTITUTION which states that “every person shall be entitled to his personal liberty and no person shall be deprived of such liberty unless in accordance with the law/ (underlining and italics mine).” He repeated and adopted his submissions on issues 1 and submitted that where the answers of the Honourable Court thereto is in affirmative, the Applicant is entitled to monetary compensation from the Respondents and an apology for the violation of his Fundamental Right to personal liberty as guaranteed under Sections 35 and 40 of the 1999 constitution.

According to the counsel, it is the case of the Applicant that beside the cases of threats to ostracize and ex-communicate him, the Court or Judex is empowered to make any order that may be considered just or appropriate once a violation of Fundamental Right has been proved in relation to any person. See the case of OSEMENAM V FEDERAL UNIVERSITY OF TECHNOLOGY AKURE (UNREPORTED) SUIT NO. FHC/ AK/CS/86/1998, DELIVERED ON 18/2/2019.

There is no gainsaying that the 1st to 4th Respondents are persons in authority by their position, so also are the millionaires 5th to 11th Respondents are persons in authority by virtue of their positions and wealth. It is submitted that the Respondents are appropriate persons in authority for the purpose of which any order of the Honourable Court would be made where it finds that the applicant’s fundamental rights aforesaid stated have been violated. What is more, as clearly set out in paragraphs of supporting affidavit, that the Applicant have suffered, are suffering and will continue to suffer untoward, untold, dehumanizing, degrading and deprecating psychological, physical and emotional pains if this application is not granted. Accordingly the court is urged to resolve the issues 1 & 2 in favour of the applicants.

On issue 3, the counsel repeated and adopted his submissions on issues above and submitted that the Applicant is entitled to an injunction perpetually restraining the Respondents from further or other acts in violation of their fundamental rights in respect of the subject matter of this application. Section 46(2) of the 1999 Constitution empowers the Court in applications of such nature as the instant case to hear and determine same and make such orders, issues and give such directions as it may deem appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the applicants are entitled under the constitution. See also, ORDER XI OF THE FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES 2009.

It is submitted that finally in the spirit of the equitable maxim of UBI JUS IBI REMEDIUM which postulates that where there a right/wrong, there is a remedy, that where the court finds that the rights of the Applicant was breached unlawfully then consequential action to take is to restrain them from further breach of the said rights in securing the enforcement of same.

The court is urged to resolve issue three and all the issues above in favour of the applicants.

Counter Affidavit of the Respondents is deposed to by Marcel Nwosu, the 2nd Respondent. He deposed: I have the consent and permission of the other Respondents in this suit to make this counter-affidavit for myself and on behalf of the Respondents in this suit. I have seen and read the affidavit of the Applicant in support of his suit for enforcement of his fundamental rights which the Respondents became aware of on Monday, 15/8/2022. Paragraphs 1, 2, and 3 of the Applicant’s affidavit are true and correct. Paragraphs 4, 5, 6, 7 and 8 of the Applicant’s affidavit were true and correct but the Respondents ceased to occupy the various positions mentioned by the Applicant on the 2nd day of July, 2022 when election was held and new executive officers were elected for Umuezealaopi Progressive Union (UPU).

Paragraphs 9, 10, 11 and 12 are not true and correct. Although the Applicant and his brothers who were also members of UPU had a misunderstanding which led to the Applicant inviting the police to arrest and detain his brothers, there was no severe assault as painted by the Applicant. Paragraphs 13,14,15,16,17,18,19,20,21,22,23,24 and 25 are not true and correct.

It is the age-long rule and custom of Umuezealaopi Progressive Union (UPU) which all the parties including the Applicant are full members of, that a member will not invite the police against a fellow member or take a member to court without first informing the union for the purpose of seeing if there could be a peaceful resolution of the matter before inviting the police or taking the matter to court. Where a member breaches the rule, he will be required to deposit a sum of money as security to the union so that after looking into the matter by the union and if there is justification for not giving prior information to the union by the member, the deposit will be refunded to the member, but if there is no justification, the member will forfeit the money to the union. Sometimes in January, 2018, the Applicant, in breach of the rule and custom of UPU as stated in paragraph 7(a) above, invited police who arrested and subsequently charged his (Applicant) brothers who were also members of UPU to court.

The union, during their meeting in July 2018, unanimously decided that the Applicant will deposit the sum of N50, 000 as security to enable the union look into the matter as required by the rules and custom of UPU as stated in paragraph 7(a) above. On the alternative, the union advised and requested the Applicant to facilitate the withdrawal of the case against his brothers from court for peaceful resolution of same out of court but the Applicant refused and remained adamant. The union or the Respondents have never attempted to ostracize, ex-communicate or breach any fundamental rights of the Applicant in any way whatsoever and will not do so. In fact, the Applicant has been freely participating in the affairs of the union since 2018. The Applicant freely voted and was nominated for a position of Vice Chairman of UPU (but he rejected same) in the last election of the union held on 2nd July, 2022. The Applicant was only angry because he was always reminded by the union to comply with the rules and custom of UPU hence this suit to silence all the members of the union.

Counsel filed written address and formulated issue for determination as:

  1. Whether the Applicant has proved that any of his fundamental rights were breached or likely to be breached by the Respondents.
  2. Assuming but without conceding that the Applicant is likely to be ostracized or ex-communicated by the Respondents, whether same will amount to breach of the Applicant’s fundamental rights.

On issue 1, it is submitted that it is trite law of evidence in Nigeria jurisprudence that he who asserts proves. The Applicant has not mentioned any of his fundamental rights that was breached or likely to be breached and how it was breached or likely to be breached by the Respondents. The affidavit evidence of the Applicant is empty and has not shown any material allegation against the Respondents as regards breach of any fundamental rights of the Applicant provided in the Constitution of Nigeria or any other law. It is further submitted that the Applicant has not placed any evidence before this court to show that his fundamental rights were breached or likely to be breached by the Respondents. The court is urged to resolve issue No. 1 in favour of the Respondents.

On issue 2, it is submitted that as regards the issue of ostracizing a member of a community union or association, the Court of Appeal in BISHOP JOHN AIREHODION & ORS V. MR. DAVID EHIKPEHALE (2019) LPELR-48267 (CA) per Helen Moronkeji Ogunwumiju, JCA held thus:

“If a person within the community refused to obey the rules of common decency within the community, each individual member of the community has a right to refuse to associate with him. I have earlier mentioned the same view in Okafor & Ors v. Ntoka & Ors (2017) LPELR-42794 (CA) at pg. 29, para. C-F where I rendered my humble opinion as follows: ‘The Appellants averred in paragraphs 17, 18, 20 and 21 of the Affidavit that the Respondents ostracized them via an announcement made to the entire community. The right to peaceful assembly and association entitles every person to associate with any others. If the members of the community decided to boycott whatever function that was organized by the Appellants, their rights to freedom of association has not been violated in any manner. The Appellants right to peaceful assembly would have been violated if the Respondents had prevented the Appellants from associating with members of the community in any way.

According to the counsel, the principles and facts of the above cited case are very relevant to the instant suit. In fact, one of the issues in the above cited case which was equally a fundamental rights suit was whether the learned trial judge was right to find the Appellants (as representatives of the community) liable in damages for asserting their rights not to associate with the Respondent. The court allowed the appeal and set aside the decision of the trial judge.

According to the counsel, the point is simple. The Applicant’s right to freedom of association is not absolute but limited by Section 45 of the Constitution and also, cannot override the Respondents’ own rights to freedom of association and peaceful assembly provided in the Section 38 of the Constitution of Nigeria. The Applicant’s fear, as seen in his paragraph 17 of his supporting affidavit, is that if he (Applicant) dies the Respondents may not attend his burial for not paying the alleged fine of N50,000. The Respondents have the rights individually and collectively to choose to attend or not to attend any burial. The applicant has no right and cannot, by this suit, compel the respondents to attend any such burial against their wish. The court is urged to resolve issue No. 2 in favour of the Respondents.

Applicant’s Further Affidavit in response to the Respondents joint Counter Affidavit is deposed to by HON. JOHN NWAIGBO. He deposed: I am the Applicant on record by virtue I am very conversant with the issues and facts of this case. I have been served with the Respondents Counter Affidavit in response to this Application which is not only false but misleading. Paragraph 2 is a fact within the knowledge of the Respondents.

Paragraph 5 of the Counter Affidavit is perfectly correct as admitted by the Respondents who committed the offence when they were executive members of Umuezealaopi Progressive Union between June, 2018 to 1st day of July, 2022. Paragraph 6 of the Counter Affidavit is true. The Applicant was indeed assaulted and inflicted with matchet cut in his head which caused him grievous body harm as evidenced in the charge sheet and Police investigation report. This is after the Respondents’ who were truly against the Applicant and in support of the said Mr. Basil Onwuzurike now deceased and his son Chidiebere Nnadi and went to the Police to reduced the charge to assault occasioning harm instead of attempted murder. The Respondents were unmindful of the brutality and several assaults committed against the Applicant as evidenced in Exhibit “A” and “B” respectively.

Paragraph 7(a)(b)(c) and (d) of the Respondents’ Counter Affidavit are false, but instead established the innocence of the Applicant who was brutalized, humiliated and suffered mental agony and torture as a result of the actions and activities of the Respondents which necessitated this Application. Even if the Respondents purportedly acted based on their local bye laws, the said age-long rule and custom of Umuezealaopi Progressive Union (UPU) does not supersede the Constitution of Federal Republic of Nigeria, 1999. The said age-long rule and custom of Umuezealaopi Progressive Union to say the least, if any, is full of and characterized with ungodly, unholy, wickedness, unreasonable, barbaric, anticultural, contrary to public policy, equity and good conscience, unlawful and unconstitutional. The admissions of the Respondents in paragraph 7(a)(b)(c) and (d) shows that they are muderance(sic) inhuman and highly irresponsible human beings, full of bias and centimates(sic) as the 1st Respondents who was the Chairman of the Union when the offence was committed is a Legal Practitioner based in Lagos State, who ought to have cautioned the other Respondents, who may be ignorant of the law. The alleged bye law or constitution of Umuezealaopi progressive Union if any, cannot challenge the criminal law of Nigeria, the Evidence Act and the 1999 Constitution of Nigeria, which made provisions for punishment of offenders as evidenced in Exhibit “A” and “B” annexed in the originating Motion.

The actions of the Respondents in imposing a fine of N50, 000.00k on the Applicant for reporting the attempt on his life to the Police shows that they are unreasonable and irresponsible people having sold their conscience and refused to critically and positively examine the merits and demerits of the offence committee before embarking on their harmful actions. Paragraph 7(a) (b)(c) and (d) of the Counter Affidavit of the Respondents established the fact that the Applicant was fined and or imposed the sum of N50,000.00k for reporting or going to the Police to make a complaint and also for going to the court to prove the alleged assault and or attempted murder of his life. The Applicant went to the Police to save his life as established by both the Applicant and the Respondents and the primary duty of the Police is to save, protect lives and property, as the Applicant did not commit any offence as he acted within the confined of the law and the conduct of the Respondents in imposing a penalty of N50, 000.00k is an infringement on his fundamental Right to life, under chapter IV of the 1999 Constitution of the federal Republic of Nigeria. The Respondents in paragraph 7(c) clearly admitted that they imposed a fine of N50,000.00 on the Applicant for reporting to the Police and going to the Court to obtain justice, equity and fairness and therefore did not commit any offence for doing that, as he was not given any fair hearing.

Under the Constitution also, the Applicant is entitled to his personality liberty and reporting to the Police and going to the Court is enforcement of those rights. The Respondents Counter Affidavit totally established the case of the Applicant as true, and we urge the Court to grant all the reliefs of the Applicant sought in this Application.

It is accompanied with address where in the counsel stated that the sole issue for determination in this application is “Whether the Respondents’ truly breached and infringed on the liberty and fundamental rights of the Applicant and if he is entitled to damages

It is submitted that the Respondents in paragraph 6 of their Counter Affidavit admitted that the Applicant had issues with his some people in his Umuezealaopi Village as evidenced in Exhibit “A” and “B” respectively. The Respondents in paragraph 7, particularly 7(c) and (d) admitted that they unilaterally imposed a fine of N50,000.00k against the Applicant for reporting a criminal matter i.e assault and attempted murder on his life, which the Respondents persuaded the Police to reduce the charge of murder to a mere assault occasioning harm, instead of attempted murder and further threatened to ostracized and Ex-communicate the Applicant if he fails or refused to comply with their decision.

It is submitted that liberty of the citizen of Nigeria is enshrined in our Federal Constitution and it is the duty of our Courts to see that the personal liberty of the subject is not restrained unless under the circumstances as provided in Section 35 of the 1999 Constitution and under the due process of law. See OKECHUKWU V ANIGBOGU (1973) 3 ECSLR (PT. 1)159 AT 163.

It is also submitted that the actions of the Respondents constitute inhumane treatment on the Applicant when he was forced, coerced and imposed a penalty of N50,000.00k for reporting a case of assault, trespass to person and attempted murder to the c Police and later to the Court. See UZOUKWU & ORS V IGWE’ EZEONU II (1991) 6 NWLR (PT. 200) 708 AT 778. The case of BISHOP JOHN AIREHODION & ORS V MR. DAVID EHIKPEHALE (2019) LPELR 48267 CA cited by the learned Respondents Counsel is totally against them and does not apply in the circumstance.

From the foregoing, the court is urged to grant all the relief sought in this application and enter judgment for the Applicant who has proved his case on the preponderance of evidence or balance of probabilities

RESOLUTION OF MATTER:

It is no longer in contention that in appropriate circumstances rights can be enforced against private persons. In AKWA SAVINGS AND LOANS LTD. V. UDOUMANA & ORS (2009) LPELR-8861(CA), it is stated:

“I do agree with the learned Counsel for the 1st Respondent that it is now a settled position of our law that the provisions in Chapter IV of the Constitution are enforceable not only against the State and its apparatus but also artificial persons as the Appellant in the instant case. In Chief Omu Uzuokwu and 5 Others vs. Igwe Chukwudebelu Ezike Ezeonu II and 8 Others (1991) 6 NWLR (Pt. 200) 708 at 764, Mamman Nasir P.C.A who read the leading judgment of the court had this to say: “Fundamental Rights have always been seen as a prevention of dictatorship and despotism Board of Education vs. Barnette (1943) 319 U.S. 624 and the earlier case of Citizens Savings and Loan Association vs. Topeka (1874) 20, Wall 655 at 672. In both the Indian Constitution and our own Constitution certain Fundamental Rights provisions have been so worded as to be a guarantee against both the state and all its agencies and against actions by individual person … This has been held to be a protection both against the state action and the action of an individual person. Bailey vs. Alabama (1911) 219 U.S. 207. In view of the wording of our Constitution which states that “every individual is entitled to respect for the dignity of his person.” I am of the strong view that this right is given to any individual whether a Nigerian citizen or an alien and this right extends to the actions of not only the State but also the actions of all government agencies and private individuals.” On this view, Niki Tobi JCA (as he then was) was more emphatic in the case of Kelvin Peterside vs. International Merchant Bank (Nigeria) limited (1993) 2 NWLR (Pt. 278) 712 at 729 – 730, first at page 728, he said: “And what is more the generic wording of Section 42 of the Constitution lends credence to the position taken that the rights could be enforced against a private individual, depending upon what right is involved and in what circumstance or situation. Section 42(1) (now Section 46) merely empowers or enjoins any aggrieved person to seek redress in the High Court of a State. The subsection does not say that the action can only be brought or instituted against government. In other words, the subsection is silent as to the Defendant of the action commenced by the aggrieved party.” And at page 730: “I have taken the trouble to examine this issue in some restricted detail because of the unfortunate notion that Chapter IV cannot be enforced against private individuals. Frankly, I do not know what has given rise to this kite which flied over the horizon of an otherwise clear position of the law …” Truly, and as was pointed out by Niki Tobi JCA (as he then was) in the Peterside vs. IMB case (supra), not all the provisions under Chapter IV of the Constitution could be logically applicable as against private individuals. There is however no doubt that an action would lie against a private individual or as in the instant case an artificial entity a private limited liability company for the breach of the provisions of the Right to personal liberty in Section 35 of the 1999 Constitution.” Per OWOADE, J.C.A. (Pp.13-15, Paras.A-B)

See the cases of Theresa Nwafor Onwo v. Oko & ORS (1996) 6 NWLR (Pt.456) 584; BASSEY & ANOR v. AKPAN & ORS (2018) LPELR-44341(CA); RAPU v. IKUEGBOWO & ORS (2018) LPELR-45253(CA)

A citizen is obliged by law to report and even assist the police in investigations to solve a crime he or she witnessed. A citizen should also be willing to testify in court to help convict the guilty or acquit the innocent. To report a crime is a duty imposed by law on every citizen. In ENANUGA & ORS V. SAMPSON (2012) LPELR-8487(CA), it is stated:

“The law imposes a duty on the appellants to report the commission of a crime witnessed or experienced by them and a person or persons who report such commission of crime to police and leave the police to investigate such report within their exclusive discretion cannot thereby incur any liability. See Fajemirokun vs. C. B. (Nig) Ltd. (2009) 5 NWLR (Pt. 1135) 588, (2009) All FWLR (Pt. 457) 1; (cited by counsel) Gbajor vs. Ogunburegui (1961) All NLR (1) 882; Bassey vs. Alfa (2010) All FWLR (Pr. 531) 1477.” Per AKEJU, J.C.A. (P. 18, paras. A-C)

In RITE FOODS LTD & ANOR V. ADEDEJI & ORS (2019)LCN/13475(CA), it is stated:

“It is settled law that it is the civic obligation of citizens to report the suspected commission of an offence to law enforcement agencies who have the duty of investigating such a report to ascertain if an offence had indeed been committed and take the necessary action: GBAJOR vs. OGUNBUREGUI (supra) and FAJEMIROKUN vs. C. B. NIG LTD (supra).The emphasis is that it is suspicion of commission of crime.” Per OGAKWU, J.C.A. (P. 52, Paras. A-C)

In GUSAU & ORS V. UMEZURIKE & ANOR (2012) LPELR-8000(CA) it is stated:

“For in the case of Fajemirokun V. Commercial Bank (Credit Lyonnais) Nigeria Limited and Another (2009) 5 NWLR (Pt. 1135) 558 at 600, 505 – 606, involving the criminal offence of the issuance of a dud cheque, as in this case, the Supreme Court held inter-alia that: “Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their duty unless it is shown that it is done mala fide, (Page 600 of the Law Report).”PER IKYEGH, J.C.A (Pp. 20-21, Paras. F-A)

It is in line with above cited cases and principle of law that we will consider the stance of the Respondents as regards the age-long rule and custom of Umuezealaopi Progressive Union (UPU) which all the parties including the Applicant are full members of, that a member will not invite the police against a fellow member or take a member to court without first informing the union for the purpose of seeing if there could be a peaceful resolution of the matter before inviting the police or taking the matter to court.

Now, a crime is an unlawful act punishable by a State. It is an illegal act for which someone can be punished by the government. Compounding crime is an offence. Forgiveness of an offender by a victim does not waive the powers of government to prosecute an offender. It is a crime to conceal, cover or frustrate an investigation or prosecution of an offence. Also, it is an offence to damage, destroy or change any item that would be used as an evidence/exhibit in any investigation or prosecution. It is the duty of all persons to report any offences to law enforcement agencies.

As far as it relates to crime, it does appear that the age long rule and custom of Umuezealaopi Progressive Union is contrary to the law of the land. When it is civil, there is nothing wrong with this age long rule. It should rather be promoted and encouraged.

Any action taken against the Applicant on the ground that he reported alleged assault on his person is illegal. That rule as it relates to criminal matter cannot stand the test of time. Police do wield tremendous investigatory powers, and the decision of whether or not to officially charge a person with a crime lies with the police sometimes acting on behalf of the State. What the court frowns at is the use of the investigatory and prosecuting powers as vendetta or to advance the course of primordial sentiments other than pursuit of justice and fairness. In IGBO & ORS v. DURUEKE & ORS (2014) LPELR-22816(CA), it is stated:

“…suffice it to say that the Nigeria Police Force and its operatives whether at the Federal, State or Zonal Command are empowered by the Police Act, the Constitution and other relevant laws in that regard to investigate crimes or perceived danger which have been reported to them. The police however have absolute discretion as to who to, arrest, charge and prosecute and in so doing arrests may be made and invitations extended to persons who they reasonably believe have committed an offence. There is no gainsaying the fact that in the course of their duty they are enjoined to conduct their investigations in line with the principles of the rule of law and that they must act judiciously and judicially.” Per EKPE, J.C.A (Pp. 19-20, paras. D-A)

Just as individual are not expected to hinder the police when it comes to crime and criminals, the police is prohibited from intervening in purely civil matters. In ARAB CONTRACTORS NIGERIA LTD V. GILLIAN UMANAH (2013) ALL FWLR (PT. 683) 1977 @ P. 1990, it was held inter alia thus:

“A civil arrangement is not a matter for the police. The police is not a debt collecting organization. It is not and should not in any community of civilized people be used as debt or levy collectors, or in the resolution or settlements of civil disputes amongst people. In the instant case, where the plaintiff engaged the police to recover its debt from the defendant, the trial Court rightly held that the act was improper.”

Now, the Applicant said he made a report to the Police in respect of assault on his person consequent upon some persons were charged to court. As a result of this penalty of N50, 000 was slammed on him and there is a threat that unless he pays the penalty he will be ostracized. In OKPALA & ORS v. OKEKE (2014) LPELR-24637(CA) it is stated:

“According to the International Webster’s Comprehensive Dictionary of the English Language (Deluxe Encyclopaedic Edition), at Page 894, ‘ostracism’ means “Exclusion from society or common Privileges by general consent.” So that while the person so ostracized remains physically in the community, he is isolated and shot out from any form of interaction with members of that community and from enjoying any rights and privileges as a member of the said community.” Per EMMANUEL AKOMAYE AGIM ,J.C.A ( P. 31, paras. C-E)

The Respondents denied ostracizing the Applicant but said even if they do; it will not amount to the breach of the Applicant’s rights. They relied on BISHOP JOHN AIREHODION & ORS V. MR. DAVID EHIKPEHALE (2019) LPELR-48267 (CA) per Helen Moronkeji Ogunwumiju, JCA held thus:

“If a person within the community refused to obey the rules of common decency within the community, each individual member of the community has a right to refuse to associate with him. I have earlier mentioned the same view in Okafor & Ors v. Ntoka & Ors (2017) LPELR-42794 (CA) at pg. 29, para. C-F where I rendered my humble opinion as follows: ‘The Appellants averred in paragraphs 17, 18, 20 and 21 of the Affidavit that the Respondents ostracized them via an announcement made to the entire community. The right to peaceful assembly and association entitles every person to associate with any others. If the members of the community decided to boycott whatever function that was organized by the Appellants, their rights to freedom of association has not been violated in any manner. The Appellants right to peaceful assembly would have been violated if the Respondents had prevented the Appellants from associating with members of the community in any way.

I agree with the Respondents that a person who is a member of an Association/Union is bound by the rules and regulation of the Association/Union. The Applicant did not repudiate the fact that he belongs to the Union. In AKUNWATA OGBOGU MBANEFO V. NWAKIBIE HENRY MOLOKWU & ORS. (2008) LPELR-3696(CA) it is stated:

“Thus where a person voluntarily joins a political party and the party makes rules governing the conduct of its members (its constitution) which impinges on a member’s right to associate with another political party; such a member cannot challenge his party’s directive as a breach of his constitutional right. See Rimi vs. P.R.P. (1908) 2 NCLR 763, and Aniekwe vs. Okereke (1996) 6 NWLR (Pt.452) 60. This is the positioning of a political party.” Per TSAMIYA, J.C.A. (Pp.29-30, Paras.C-A) –

Furthermore, freedom of association is not a one way traffic. It is rather a two way traffic. The person/s you want to associate with must also be willing to associate with you. And you must keep to the directions/rules of traffic to remain in the relationship.  In EMEKA v. OKOROAFOR & ORS (2017) LPELR-41738(SC) it is stated:

“The right under Section 40 of the Constitution, the right to assemble and freely associate with others, works both ways. The others you want to associate with must be prepared to associate with you. None can be imposed, by order of Court, on the other. The right to freedom of association also connotes the right of the others to freely associate with or dissociate from whosoever.” Per EKO, J.S.C. (P. 141, Paras. D-E).

In MR. PAUL OKAFOR & ORS v. OBI VICTOR NTOKA & ORS (2017) LPELR-42794(CA) it is stated:

“The right to peaceful assembly and association entitles every person to associate freely with others. This right does not place a duty on any person to associate with any others. If the members of the community decided to boycott whatever function that was organized by the Appellants, their right to freedom of association has not been violated in any manner. The Appellants right to peaceful assembly would have been violated if the Respondents had prevented the Appellants from associating with members of the community in any way. I cannot accuse anyone of persuading or even preventing people from coming to my meeting. I can only accuse someone of preventing me from attending a meeting to which I was invited by the convenor”.

It is not the duty of the court to determine the rules and regulations of a voluntary organization/association except where rules of natural justice are violated. In OGBORO v. REGISTERED TRUSTEES OF LAGOS POLO CLUB & ANOR (2016) LPELR-40061(CA) it is stated:

“The trial Court held that the general rule is that a Court will rarely interfere with decisions of a voluntary association except where rules of natural justice were ignored in arriving at that decision see the case of DAWKINS V ANTROBUS (1881) 17 CHD 615. That is the general rule but with recognized exceptions and each case is determined on its peculiar facts.” Per NIMPAR, J.C.A. (Pp. 18-19, Paras. F-B)

This court will not interfere with the Rules of the Union to which the Applicant belongs and is desirous of continuing to associate with except where it breaches the law of the land. In BISHOP JOHN AIREHODION & ORS V. MR. DAVID EHIKPEHALE (2019) LPELR-48267 (CA) the caveat is: “If a person within the community refused to obey the rules of common decency within the community—“. I do not think the rule not to report a crime qualifies as rule of common decency.

Although a report is made to the police, nothing stops the Union from approaching the Police to mediate in the matter rather than to punish the Applicant for report to the police. Compounding a crime is an offence but compounding of offence is allowed by law. See PML (NIG) LTD v. FRN (2017) LPELR-43480(SC). What the land or the community needs is peace and order but it must not be by subjugation and extermination of freedom.

This application succeeds and accordingly it is:

  1. DECLARED that the imposition of the fine of N50, 000.00k on the Applicant by the Respondents is illegal, unlawful and unconstitutional.
  2. DECLARED that the continuous threat to ex-communicate and ostracize the Applicant for refusing to pay the said fine of (N50,000.00k) Fifty thousand Naira imposed on him by the Respondents is null and void and of no effect.
  3. WRITTEN APOLOGY to the Applicant by the Respondents to be filed and kept in this file
  4. Perpetual injunction restraining the Respondents either by themselves and or through their privies, servants or whosoever claiming from them from violating the Applicant fundamental rights with respect to the fact herein.

I so hold

I.M.Njaka

Judge

9-2-2023

Previous post SUIT NO: HOW/951/2022 – DR CHIBUZOR NWANGUMA VS. 1. INSPECTOR GENERAL OF POLICE 2. THE AlG ZONE 9 UMUAHIA 3. OIC CRACK SQUAD, ZONE 9 UMUAHIA 4. DCP EDEM ITA SELONG, ZONE 9 UMUAHIA 5. COMMISSIONER OF POLICE ABIA STATE 6. MRS. J. N. ELEAZU 7. MR. OBINNA ELEAZU 8. DR. CHINEDUM ELEAZU (For himself and other members of Eleazu Family) – BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA -delivered ON THURSDAY, THE 9TH DAY OF FEBRUARY 2023 – the need for a fair investigation, adherence to the law, and protection of individual rights during the investigative process- importance of freedom of conscience and religion and the need to respect individuals’ beliefs and customs- in cases involving the alleged violation of fundamental rights, the burden of proof lies with the applicant. The applicant must provide concrete, cogent, and credible evidence to support their allegations of an imminent breach of their rights- Mere allegations or depositions in an affidavit are not sufficient to convince the court that there is a likelihood of an infringement of fundamental rights- The court cannot restrain the performance of a constitutional duty by the police, such as conducting an investigation. However, police investigations must be transparent and conducted in accordance with the principles of the rule of law. If the police are found to have acted outside the bounds of the law, an action for the enforcement of fundamental rights can be sustained against them- The court’s role in fundamental rights enforcement suits is to determine from the affidavits and documentary evidence whether the applicant’s rights have been breached, are being breached, or are likely to be breached. If the court cannot discern a breach or imminent breach of the applicant’s rights, it has a duty to dismiss the action or make appropriate orders as justice requires.
Next post SUIT NO: HOW/7/2019- EMEREUWA MAUREEN EZINNE VS. MACIRA REAL HH COY. LTD.- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA delivered ON WEDNESDAY, THE 15TH DAY OF FEBRUARY, 2023- a valid contract for the sale of land requires the agreement of the parties on essential terms, including the parties involved, the property to be sold, the consideration, and the nature of the interest to be granted- what is admitted in the pleadings need not be further proven and is considered established. Facts admitted or not disputed cease to be in controversy- ownership and possession are crucial in property transactions, and a person must first own and possess a property before selling or transferring it to another- the Sale of Goods Act, which governs the sale of goods, does not apply to immovable property like land. Land transactions are regulated by specific legislation – the terms of the written contract are binding, and extrinsic evidence cannot be used to alter or contradict those terms- burden of proof lies on the party making an allegation, not on the party denying it. This is in line with the cases referenced in the judgment, such as ARUM VS NWOBODO and OLALEYE VS TRUSTEES OF ECWA – when a person signs a legal document without reading it and relies on another’s word about its contents, they cannot later claim it is not their document- a power of attorney is considered a contract, especially when coupled with consideration- Withholding of Evidence- Doctrine of Substantial Performance- Pre-judgment interest can be claimed and awarded in situations contemplated by an agreement between the parties, under mercantile custom, or under the principle of equity, such as a breach of a fiduciary relationship- in commercial matters, a party holding onto another’s funds for an extended period without justification should compensate the other party-
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