LawPavilion Online


Back

CHIEF DENNIS C. AHIARAKWE & ORS v. MATTHEW EMERUEM & ORS

(2017) LPELR-42853(CA)

In The Court of Appeal of Nigeria

On Monday, the 7th day of August, 2017

CA/OW/203/2012


Before Their Lordships

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria


Between

1. CHIEF DENNIS C. AHIARAKWE
2. NZE SYLVESTER N. AGOMUO
3. NZE L. O. N. AGWUOCHA
4. NZE BRENDAN IKEKWEM
5. CHIEF JOHN OSUAGWU
6. SIR ALPHONSUS ENWEREM
7. SIR ERNEST IMO
8. SIR PAUL DIBIA
9. CHIEF JOSEPH CHILAKA
10. MR. EMMANUEL IWU
11. CHIEF RAYMOND EREGE
12. MR. CANICE OPARA - Appellant(s)

AND

1. MATTHEW EMERUEM
President-General, Oru Ahiara
Development Union (OADU)
2. HRH, EZE JOSEPHAT OLEKA
3. MICHAEL ONUOHA
Secretary, OADU - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on Enforcement of Fundamental Human Rights.

FACTS:
This is an appeal against the decision of the High Court of Imo State.

The Appellants were the Plaintiffs in Suit No. HME/39/2011 which they filed at the Etiti Division of the High Court of Imo State against the Respondents. The suit was founded on the Fundamental Rights (Enforcement Procedure) Rules 2009. In the application the Appellants sought the following reliefs: -
"(a) A declaration that the arbitrary and forceful closure/harvesting of the palms of the Applicants in the years 2010 and 2011 by the Respondents is a violation of the applicants' rights to acquire and own immovable property anywhere in Nigeria as guaranteed under Section 43 of the Constitution of the Federal Republic of Nigeria, 1999.
(b) A declaration that the Respondents acted ultra vires of the Constitution of Oru Ahiara Development Union (OADU) by closing palms outside the months provided by the OADU constitution.
(c) AN ORDER restraining the 2nd respondent from using the police, vigilante, local thugs or nay other force at all to harass and intimidate the applicants, their privies or agents and to stop interfering with the conducts of the meetings of OADU as well as the activities of the union.
(d) AN ORDER compelling the respondents, jointly and severally, to pay to the Applicants the sum of N6,500,000.00 (six million, five hundred thousand naira) as compensation and/or as general and exemplary damages for the breach of their fundamental rights."

The facts upon which the application are as follows:
"I, Chief Dennis C. Ahiarakwe, a Christian, a retire civil servant now a farmer, a native of Oru Ahiara and Ex-President-General OADU, and a citizen of the Federal Republic of Nigeria, do hereby make oath and state as follows:
1. That I am the 1st Applicant in this suit.
2. That I have the consent of the 2nd to the 13th Applicants to make the joint affidavit of all the Applicants because I am conversant with the facts of the matter.
3. That the Applicants are members of the Oru Ahiara Development Union.
4. That the 1st respondent is the President-General of Oru Ahiara Development Union (OADU) and also a staff of Federal Inland Revenue with office in Katsina State.
5. That the 2nd respondent is the traditional ruler of Oru Ahiara Autonomous Community and the patron of OADU while the 3rd respondent is the secretary of OADU.
6. That OADU is guided by a Constitution referred to as "OADU CONSTITUTION", a copy of the said Constitution is hereby annexed and marked Exhibit "A".
7. That ARTICLE 10(b) of OADU constitution provides that there shall be annual general meeting of the union every 26th December and Easter period where important programmes/matters including financial budgets for the union and development projects of the community are discussed and decisions taken.
8. That no meeting was held during the Easter period of the year 2011, and no decision of any sort was taken during the AGM held on 26th December, 2009, regarding closing the people's palm a second time in May, 2010 for the purpose of mass tax payment for taxable adults in the community.
9. That the 1st and 3rd respondents, in connivance with the 2nd respondent, closed and harvested palm a second time purporting to use the proceed for paying mass tax for taxable adults in the community.
10. That the respondents did not pay any tax for any adult in the community within the year 2010, and as at this date, no male taxable adult can produce evidence of tax payment made on his behalf by the respondents.
11. That some of the Applicants who were deceived by the fraudulent conducts of the respondents have to pay their last year's taxes this year; the respondents conduct denied government of revenue while exploiting the Applicants, yet the 1st and 2nd respondents are government personalities (annexed is a photocopy of the 5th Applicants tax receipt for the year 2010 but paid in 2011, it is marked Exhibit "B").
12. That Oru Ahiara Autonomous Community has no communal palm which OADU can harvest without the consent of the individual members.
13. That the 3rd respondent, again, on the 30th day of April, 2011 sent out a notice to every member of OADU and the entire community, closing the people's individually owned palms from 10th May to 10th June, 2011, contrary to the provisions of Exhibit "A"; the said Notice is hereby annexed and marked Exhibit "C".
14. That the Applicants objected to the arbitrary and unlawful palm closure and forceful harvest of same by the Respondents using the brute force of their thugs through a letter dated 23rd May, 2011; the said letter is hereby annexed and marked Exhibit "D".
15. That rather than retreat from their illegal, unlawful and unauthorized acts, the respondents continued to threaten and intimidate the Applicants, this time with thugs, because the police retrained from assisting them as a result of the ugly incident of 2010 forceful palm closure which still looms at the Nigeria Police Station Intelligence Bureau; a photocopy of an arraignment notice to that effect is hereby annexed and marked Exhibit "E".
16. That the 2nd and 3rd respondents, despite Exhibit "D" and an automatum issued by the Applicants on 27/5/2011, surrounded themselves with thugs and stubbornly summoned a meeting of 31st May, 2011 where they threatened that they must forcefully harvest the community's palm fruits including those of the applicants and that they will continue to close the Applicants palms in the future unrestrained; a photocopy of the said letter of automatum is hereby annexed and marked Exhibit "F".
17. That on the 6th day of June, 2011, the 1st Respondent who came back from Katsina over that weekend and in company of 2nd and 3rd Respondents and their thugs, forcefully harvested the Applicants palms worth N2,000.00 (two million naira); while the palms they forcefully harvested in the 2010 was worth N1,800,000.00 (one million, eight hundred thousand naira).
18. That the Respondents have vowed at another clandestine meeting of OADU which they summoned without the Applicants, to continue the violation of the fundamental rights of the applicants and if not restrained by this Court they will go on and on doing so with impunity.
19. That until the filing of this action, the Respondents have not accounted to OADU what they did with N3,800,000.00, neither have they responded to the warnings and demands of the applicants not to violate their fundamental rights.
20. That unless restrained, the respondents would re-enact their actions of forcefully depriving the applicants of their individually owned immovable property.
21. And that I make this affidavit in good faith, believing the contents to be true in accordance to the Oaths."

The parties exchanged affidavits. The Respondents took out two notices of preliminary objection which the trial High Court consolidated at the hearing. The trial High Court struck out the suit on the ground that the prayers sought in the substantive suit are outside the contemplation of the Fundamental Rights (Enforcement Procedure) Rules 2009.

Dissatisfied with the decision the Appellants filed this appeal.

ISSUES:
The Court considered the appeal on the sole issue for determination formulated by the Appellant as follows:
Having regard to the claims of the applicants at the trial Court, whether claim (a) was not the principal claim?


DECISION/HELD:
On the whole, the Court held that the appeal has no merit and it was thereby dismissed with N50, 000.00 costs to the Respondents.


Read Full Judgment