⦿ CASE SUMMARY OF:
Mr. Paul Okafor & Ors v. Obi Victor Ntoka & Ors (2017) – CA
by PaulPipar
⦿ PARTIES
APPELLANTS
1. Mr. Paul Okafor
2. Akunnaya Chuka Mozie
3. Mr. Christopher Onuora
4. Akunaya Ifedora Akwuobi
5. Mr. Mbanefo Oguguo
6. Mr. Emma Okonkwo (Suing in representative capacity for themselves and on behalf of Umuobi Traditional Ruling House and Umuobi Family of Nsugbe)
v.
RESPONDENTS
1. Obi Victor Ntoka
2. Obi Paul Nnekwu
3. Obi Peter Amakom
4. Obi Peter Anyansi
5. Obi John Ilodigwe
6. Mr. Peter Okonkwo (1st – 6th Respondents representing themselves, the Ndieze Society and the Town Criers of Nsugbe)
⦿ CITATION
(2017) LPELR-42794(CA)
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, JCA
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Chinedu B. Moore
FOR THE RESPONDENT
– G.B. Obi Esq
⦿ FACT
The case of the Appellants is that parties to this suit are members of Nsugbe Community in Anambra State and are involved in a chieftaincy tussle for the stool of the Igwe of Nsugbe.
The Appellants filed a suit at the lower Court in respect of the said chieftaincy tussle and after the Respondents were served with the Writ of Summons, they ostracized, harassed, intimidated and physically manhandled the Appellants.
Hence, the application for the enforcement of their fundamental rights that led to this appeal.
As well as seeking, a declaration that the incessant intimidation, harassment and threat to life of the applicants by the agents of the 1st to 5th Respondents and particularly false accusation or allegation by the Respondents is wrongful, illegal, unconstitutional as it grossly violates the applicants fundamental rights guaranteed by Sections 37, 38, 39, 40, 41 and 42 Constitution of the Federal Republic of Nigeria and Articles 5, 6 and 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Cap 10 Laws of the Federation 1990.
⦿ ISSUE
1. Whether the omission of the Oath Clause in the affidavit in support of the Respondents’ Application renders it fundamentally defective.
2. Whether from the totality of evidence before the Court, the decision of the trial Court was justified in the circumstance.
⦿ HOLDING & RATIO DECIDENDI
APPEAL DISMISSED.
1. Issue 1 was judged in favour of the respondent.
RATIO:
i. In this case, the said Oath Clause was completely omitted from the affidavit of the Appellants. I am of the view that an omission of the said oaths clause has the result of preventing the affidavit from enjoying the legal protection of ‘substantial compliance’. Thus the affidavit is fundamentally defective and incompetent since it is merely a statement not sworn to. The swearing and the affirmation of the swearing is the most important feature in an affidavit.
ii. In Fundamental Rights Enforcement suits, one of the methods of initiating the proceedings is by a Motion on Notice which is accompanied by a statement in support of the motion as well as an affidavit in support. It is therefore, only a valid Motion and affidavit that confers vires on a Court to commence the proceedings. Accordingly, where the affidavit is incompetent as in this case, the Court would lack the jurisdiction to entertain the matter. Where the matter is heard and determined on the incompetent process, the Court would have only engaged in a wasteful judicial exercise, no matter the effort put into it.
2. Issue 2 was judged in favour of the respondent.
RATIO:
i. As for the allegation of the infringement of the appellant’s right by the respondents under sections 37, 38, 39, 41, 42 of the CFRN 1999, the Court of Appeal held: “In this case, I have looked at the affidavits of the Appellants in its entirety, there is no such deposition to the effect that the Respondent visited their homes or did anything to infringe on this right. I do not see any averment that this right was violated by the Respondents.”
ii. On the allegation of the breach of section 40 of the CFRN 1999, the Court of Appeal, stated, “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 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.”
⦿ REFERENCED
Order II of the Fundamental Human Rights Procedural Rules 2009;
⦿ SOME PROVISIONS
Order IX Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009: “Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to: mode of commencement of the application”
⦿ NOTABLE DICTA
* PROCEDURAL
The failure of a deponent to comply with the format prescribed in the Oaths Act could render an affidavit incompetent. However, where there is substantial compliance with the format set out in the Oaths Act, such an affidavit will not be declared incompetent merely because the exact words were not used. – Ogunwumiju, JCA. Mr. Paul Okafor & Ors v. Obi Victor Ntoka & Ors (2017)
However, as the penultimate Court, it is incumbent on us to decide all issues brought before us in order to ensure that in the event of an appeal to the Apex Court, the Apex Court is given an opportunity to see the decision of this Court on that point in order to review same. – Ogunwumiju, JCA. Mr. Paul Okafor & Ors v. Obi Victor Ntoka & Ors (2017)
The concept of oath taking generally involves:
i. The deponent making a statement in writing.
ii. The document is taken to a Commissioner for Oaths or any person duly authorized to take the oath.
iii. The Commissioner for Oaths requires the deponent to swear on a holy book particular to the deponent’s faith or a mere declaration or affirmation for a deponent whose faith forbids him to swear.
iv. The Commissioner for Oaths then asks the deponent to verify what has been stated.
v. The deponent afterwards signs in the presence of the Commissioner for Oaths who witnesses that the Affidavit was sworn to in his presence. – Ogunwumiju, JCA. Mr. Paul Okafor & Ors v. Obi Victor Ntoka & Ors (2017)
* SUBSTANTIVE
It is important to note that the application for the enforcement of fundamental rights is not the same as in any other suit, it is sui generis. Order IX Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 gives the Court a leeway to treat defects of different nature as mere irregularity which could easily be cured by the exercise of the Court’s discretion. However, when such defect is in the originating process of the application, such defect may nullify the entire proceedings. – Ogunwumiju, JCA. Mr. Paul Okafor & Ors v. Obi Victor Ntoka & Ors (2017)
It is the law that an incompetent originating process by which an action is commenced robs the Court of its competence to entertain the matter. – Ogunwumiju, JCA. Mr. Paul Okafor & Ors v. Obi Victor Ntoka & Ors (2017)
A Court is only competent to adjudicate over a matter, when all the conditions precedent for its having jurisdiction have been satisfied. Thus, an action that was begun by an incompetent process will divest the Court of jurisdiction to entertain the matter. In other words, where an originating process or any other process is found to be incompetent, it cannot be used for any purpose whatsoever in the adjudication process. It is a worthless document and is only good for nothing, being nothing itself, nothing can be built upon it. – Ogunwumiju, JCA. Mr. Paul Okafor & Ors v. Obi Victor Ntoka & Ors (2017)
It is no doubt trite that a condition precedent to the exercise of the jurisdiction of the Courts in fundamental rights enforcement suits is that the enforcement of fundamental rights must be the main claim as well as the ancillary claim; that where the main claim or principal claim is not for securing the enforcement of a fundamental right, the jurisdiction of the Courts cannot be properly exercised and the action will be incompetent. – Ogunwumiju, JCA. Mr. Paul Okafor & Ors v. Obi Victor Ntoka & Ors (2017)
In determining whether or not a Fundamental Rights Enforcement suit is ancillary to a substantive suit, the question to be asked is whether the reliefs sought in the supposed substantive suit will adequately take care of the reliefs sought under the Fundamental Rights Enforcement action. In the event that the question is answered in the negative, the action cannot be said to be ancillary to the other suit. – Ogunwumiju, JCA. Mr. Paul Okafor & Ors v. Obi Victor Ntoka & Ors (2017)
