HAKIMI & ORS v. MUSTAPHA (2020)

HAKIMI & ORS v. MUSTAPHA

(2020)LCN/14459(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/G/138A/2019

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

MUSTAPHA UMAR HAKIMI (HAKIMI BIU) 2. TIJJANI MAI UMAR (BABALELE) 3. IBRAHIM SAIDU (MALIYA) 4. MUHAMMED UMAR (DADDY KYAU-KYAU) 5. ALHAJI BUKAR CHAPOLA (CHAPOLA BIU) 6. COMMISSIONER OF POLICE, BORNO STATE APPELANT(S)

And

ALHAJI IBRAHIM MUSTAPHA RESPONDENT(S)

RATIO

WHETHER OR NOT AN ORIGINATING MOTION IS AWAY BY WHICH AN ACTION CAN BE COMMENCED IN COURT

The Cross-Appellant’s case was fought on affidavit evidence, vide his Originating Motion, which no doubt is a way by which an action can be commenced in Court. Like in a Writ, where all the facts are averred in the pleadings, the facts in support of the Motion were deposed to in an affidavit together with the application. See the cases of KRAFT FOODS HOLDINGS INC V. ALLIED BISCUITS CO. LTD (2010) LPELR-4409(CA) DSSS V. AGBAKOBA 1999 NWLR PT. 595 314, DIN V. A-G FEDERATION 1986 1 NWLR PT. 17 471 and KEYAMO V. LSHA & ORS 2002 18 NWLR PT. 799 605. PER WILLIAMS-DAWODU, J.C.A

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This Cross-appeal emanated as a result of the Judgment of the Federal High Court, Maiduguri, delivered on March 29th 2019 by Hon. Justice M. T. Salihu, wherein all the reliefs of the Cross-Appellant (the Applicant at the Court below) were granted upon his Originating Motion in Suit No. FHC/MG/CS/28/18 pursuant to Sections 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria, Article 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and the Fundamental Rights (Enforcement Procedure) Rules 2009.

The 1st to 5th Cross-Respondents (the Respondents at the Court below), being dissatisfied with the Judgment, appealed same in Appeal No. CA/G/138/2019 as the 1st to 5th Appellants therein and the Cross-Appellant was the 1st Respondent therein.

At the Court below, the Cross-Appellant as the Applicant sought the following reliefs:
1. A declaration that the seizure, confiscation and detention of the Applicant’s trucks by the 1st Respondent at the behest of the 2nd to 6th Respondents without any legally

justifiable cause thereby causing the Applicant loss of earning, physical and psychological trauma; is illegal and a breach of the Applicant’s right to own moveable and immoveable property in any part of Nigeria as guaranteed by Sections 43 & 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Article 14 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act.
2. An Order of this Court directing the Respondents to forthwith release and return all the properties compulsorily confiscated and detained by the Respondents back to the Applicant forthwith.
3. An Order of prohibitory injunction restraining the Respondents, their agents, privies or any other person acting through them from further harassing or attempting to infringe on the Applicant’s property rights guaranteed under Sections 43 & 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
4. An Order of this Honourable Court directing the Respondents jointly and severally to pay the

Applicant the sum of N500,000,000.00 (Five Hundred Million Naira) being general and exemplary damages for the seizure, confiscation and detention of the Applicant’s 8 DAF Trucks at the 1st Respondent’s premises at Biu Divisional Police headquarters, Borno State without any lawful cause since 19th January, 2017 till date.
5. 25% judgment interest on the damages herein as will be ordered by this Court From the date of delivery of Judgment until the judgment sum is fully paid by the defendants.
6. And for such further order or other orders as this Honourable court may deem fit to make in the circumstance of this case.

From the printed Record before this Court. the gist of the facts in this appeal is that, on January 19th 2017, the trucks used for transport business and other properties of the Cross-Appellant were confiscated and impounded by some “armed thugs” allegedly sent by the 1st to 5th Cross- Respondents. The Cross-Appellant, who around the time of the incident served as the private Secretary of the Emir of Biu, is a successful businessman and farmer. The 6th Cross-Respondent herein (the 1st Respondent at the Court below)

was the 2nd Respondent in Appeal No. CA/G/138/2019, took custody of the trucks, allegedly for safe keeping. The Cross-Appellant there upon instituted a suit at the Court below vide an Originating Motion. As already stated, judgment was found in his favour, however, being dissatisfied with part of the judgment, has cross-appealed vide his Notice of Appeal filed May 14th 2019 as amended and filed on October 23rd 2019 and was deemed as properly filed and served on January 20th 2020 with a single Ground of Appeal.
The following reliefs are being sought:
a. To allow the Cross Appeal
b. To hold that the damages and the reliefs granted by the trial Court in favour of the 1st Respondent/Cross Appellant is against the 1st – 5th Appellants/Cross Respondents and the 6th Cross Respondent jointly and severally.
c. And for such further or other orders as this Honourable Court may deem fit to make In the circumstances.

On July 9th 2020, at the hearing of this appeal, Mr. A. M. Adoyi Esq. for the Cross-Appellant, pursuant to the Leave of Court of July 9th 2020, argued his appeal on the Cross-Appellant’s brief alone filed October 23rd 2019 which

was settled by Abdulwahab Muhammed Esq., and was deemed January 20th 2020 as properly filed and served. He urged that the Cross-appeal be allowed. The 1st to 5th Cross-Respondents did not file any brief though represented in Court by Mr. D. Bitrus. The 6th Cross-Respondent was not in Court, and was not represented, though there was evidence of service of the notice of hearing of the Cross-appeal as well as the Cross-appellant’s motion for the appeal to be heard on his brief alone. Judgment was thereafter reserved.

SOLE ISSUE SUBMITTED FOR DETERMINATION
The Cross-Appellant submitted a singular Issue for determination as follows:
Whether the learned trial Judge was right when he made an order directing only the 1st to 5th Appellants/Cross-Respondents to pay the 1st Respondent/Cross Appellant the sum of N50,000,000.00 (Fifty Million Naira) only being general and exemplary damages for the seizure, confiscation and impounding of the 1st Respondent/Cross-Appellants 8 DAF trucks without joining the 6th Respondent.

SUBMISSION FOR THE CROSS-APPELLANT
Mr. Adoyi Esq. submitted as follows on behalf of the Cross- Appellant:

That to claim a relief jointly and severally against a party or parties means that each party is responsible jointly with each other and also severally for the whole amount of damage. That, the same principle should apply in the Cross-Appellant’s Relief 4. In support he cited the case of IFEANYI CHUKWU (OSUNDU) CO. LTD. V. SOLEH BONEH NIG. LTD. 2000 NWLR PT. 656 P. 322. He asserted that, the claim is against all the Respondents as contained in the Cross-Appellants’ supporting affidavit, which is the same as pleadings and cited the case of ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR. V. EKWENEM 2009 13 NWLR PT. 1158 P. 410. He submitted that, the Court found in favour of the Cross-Appellant against all the Respondents but made the award against the 1st to 5th Cross-Respondents only and failed to join the 6th Respondent. That, such omission did not flow from the finding of the Court as all the Respondents were found to have breached the property rights of the Cross-Appellant and cited in support the case of OYEYEMI & ORS V. IREWOLE LOCAL GOVT. IKIRE & ORS 1993 1 NWLR PT. 270 P. 462 and OGBECHIE & ORS V. ONOCHIE & ORS 1988 1 NWLR

70 P. 370.In conclusion, he urged that, the singular issue be resolved in favour of the Cross-Appellant and to direct the 6th Respondent to pay a sum of N50,000,000. to the Cross-Appellant as general and exemplary damages.
The law on unchallenged Appellant’s or Cross-Appellant’s brief is no departure from the general principle of law where the Claimant seeks declaratory reliefs. It is that, he must still prove his claim, in other words, establish that he is entitled to the reliefs being sought. And that principle equally applies herein. Cross-Appellant’s Relief 4 reads thus:
An Order of this Honourable Court directing the Respondents jointly and severally to pay the Applicant the sum of N500,000,000.00 (Five Hundred Million Naira) being general and exemplary damages for the seizure, confiscation and detention of the Applicant’s 8 DAF Trucks at the 1st Respondent’s premises at Biu Divisional Police Headquarters, Borno State without any lawful cause since 19th January, 2017 till date.

At this juncture, in my view and humbly, it is necessary to consider the position of the Court or the outcome of the main

Appeal No. CA/G/138/2019 which is on the Judgment upon which the instant Cross-appeal is based and pursued. Otherwise, going ahead herein without any recourse to it may turn out to be sheer waste of quality judicial time and resources, as well as an exercise in futility.
The Cross-Appellant’s case was fought on affidavit evidence, vide his Originating Motion, which no doubt is a way by which an action can be commenced in Court. Like in a Writ, where all the facts are averred in the pleadings, the facts in support of the Motion were deposed to in an affidavit together with the application. See the cases of KRAFT FOODS HOLDINGS INC V. ALLIED BISCUITS CO. LTD (2010) LPELR-4409(CA) DSSS V. AGBAKOBA 1999 NWLR PT. 595 314, DIN V. A-G FEDERATION 1986 1 NWLR PT. 17 471 and KEYAMO V. LSHA & ORS 2002 18 NWLR PT. 799 605.
The Judgment which was appealed against in aforementioned Appeal NO. CA/G/138/28/2018 found in favour of the Cross-Appellant on all his claims that, his trucks and machines were confiscated and impounded to the effect that his fundamental right pursuant to Sections 43 and 44 of the 1999 Constitution was violated by all the

Respondents but awarded damages against the 1st to 5th Respondents alone without any award against the 6th Respondent. That portion of the Judgment is what is being appealed upon in the instant Cross-appeal. As afore stated, the outcome or the position of this Court in Appeal No. CA/G/138/2019 is sine qua non.
This Court in Appeal No. CA/G/138/2019, found that the Suit of the 1st Respondent, humbly, cannot be regarded as suitable for the enforcement of his fundamental right given the evidence before the Court. There were conflicts in the affidavits, which ought to be resolved by oral or further documentary evidence and pointed to the fact that it was not simply a matter of some “thugs” impounding and confiscating the Cross-Appellants properties. The Cross-Appellant’s Originating Motion was therefore found not to be competent, that a Writ of Summons was the required process in the circumstance. As stated by this Court per Tsammani JCA in the case of NWACHUKWU V. NWACHUKWU & ANOR 2018 LPELR-44696 SC that;
“…the fundamental Rights (Enforcement Procedure) Rules is a special procedure for the enforcement of fundamental rights and no manner of

crafting or Interpretation can give right to party to bring an action under those Rules where his cause of action is not suited for or recognized thereby…”
This Court has put it more aptly in the case of EZEANYIKA V. GOVT. OF IMO STATE per Dongban-Mensem, J.C.A. in the following words:
“It was the learned justice Okay Achike, JSC (of blessed memory) who described as “deliberate and disingenuous” the “act of over sighting the restricted frontiers of chapter four…” of the Nigerian Constitution and the specified fundamental rights enforcement rules in claims totally of ordinary civil nature. The Apex Court and this Court have been consistent in holding that a party who seeks redress under the fundamental rights special provisions must have his claim, fall squarely within the four walls of the fundamental rights provisions. Refer Peterside V. International Merchant Bank (Nigeria) Ltd. (1993) 2 NWLR (Pt. 278) 7; (2) Sea Trucks Nigeria Ltd. V. Panya Anigboro (2001) 2 PWLR (Pt. 696) 159. Where the claim is merely tangential to the main complain, this Court will not devalue the provisions of the Fundamental Rights

Enforcement Rules by extending its restricted boundaries. The Fundamental Rights Enforcement Rules constitute the intensive Care Unit (I.C.U.) of judicial Proceedings. Only urgent matters affecting the life or liberty of citizens should be addressed thereunder.’
The 1st to 5th Cross-Respondents’ appeal in the light of the foregoing, was allowed and the judgment of (he Court below was set aside for being a nullity as it was found that the Court lacked jurisdiction. From the foregoing, the judgment that was in favour of the Cross-Appellant herein, upon which he filed his Notice of Appeal as amended, fought this appeal and pursued his claim herein, being found to be a nullity, has been set aside, no more in existence and therefore not able to avail his position this Cross-appeal.
If that be the position of this Court in Appeal CA/G/138/2019, in my considered view and humbly, clearly, this Cross-appeal has nothing to stand on, one cannot put something on nothing. This Cross-appeal cannot be allowed, it is doomed to fail and is hereby accordingly dismissed.

JUMMAI HANNATU SANKEY, J.C.A.: My learned brother, Williams-Dawodu, J.C.A. availed me

before now of her comprehensive Judgment just delivered. I am in total agreement with her reasoning and conclusion. In view of the fact that Appeal No. CA/G/138/2019, upon which this Cross-Appeal was based, has been declared a nullity, this Cross-Appeal has, by the same token, become redundant.
It is accordingly struck out.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, E.O. Williams- Dawodu, JCA.
This is a cross-appeal to an appeal against the judgment in a suit which as found in the lead judgment in the main appeal was wrongly commenced and determined on originating motion, and was accordingly struck out.

I am therefore in agreement with my lord that the cross-appeal must therefore suffer the same fate. Accordingly, the cross-appeal is hereby struck out.

Appearances:

MR A.M. ADOYI For Appellant(s)

MR D. BITRUS For Respondent(s)