ECOBANK v. MADUFORO & ORS (2021)

ECOBANK v. MADUFORO & ORS

(2021)LCN/14958(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, January 04, 2021

CA/A/30/2014

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

ECOBANK NIGERIA LTD APPELANT(S)

And

IZUCHUKWU MADUFORO 2. INSPECTOR GENERAL OF POLICE 3. THE COMMISSIONER OF POLICE FCT 4. ACCESS BANK PLC RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal stems out of the decision of the High Court of the Federal Capital Territory, Abuja delivered by Hon. Justice Jude Okeke on 17th July, 2013 in suit No. FCT/HC/CV/536/2012.

The 1st Respondent has by motion on Notice filed on 29th October, 2012 claimed against the Appellant as follows:
A. An Order enforcing or securing the enforcement of the Applicant’s Fundamental Rights to the dignity of human person, persona/liberty and freedom of movement as guaranteed and protected under Sections 34, 35, 36, 41 & 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 5, 6 and 7 of the African Charter on Human and People’s Rights (Enforcement and Ratification Act), Laws of the Federation of Nigeria 1990 in the terms of the reliefs sought in the statement accompanying this application.
B. And for such order or orders as this Honourable Court may deem fit to make in the circumstance.

The application was supported by an 81-paragraph affidavit deposed to by the 1st Respondent, Statement consisting of the name and

description of the Applicant, the relief sought, the grounds upon which the reliefs are sought and a Written Address of the 1st Respondent Counsel.

The Appellant filed a motion on notice for extension of time within which to file its counter affidavit on the 16th of July, 2013. The Court heard the application on 17th July, 2013 and dismissed same for lacking merit on the same day the Learned Trial Judge delivered judgment as follows:
“I hold that the 1st, 2nd, and 4th Respondents by other acts stated above violated the Applicant’s rights to freedom of movement and dignity of his person as guaranteed by Sections 35(1)(4)(5) and 34(1) of the Constitution respectively. The 1st and 2nd Respondents also in their failure to inform him in writing within 24 hours of the nature of the offence of which he was arrested and detained till 6th September, 2012 after 8 days violated his right i.e. to be so informed guaranteed under Section 33(5) of the 1999 Constitution of Nigeria.
For their infractions of the Applicant’s rights, he is entitled to award of damages to compensate him for the infractions as prescribed by Section 35(6) of the Constitution…”

Accordingly, the Court in the exercise of its discretion after putting everything into consideration awards exemplary damages assessed at not the N500,000,000.00 claimed by the Applicant but N15,000,000.00 against the 1st and 2nd Respondents and N5,000,000,000.00 against the 4th Respondent in the favour of the Applicant. The Court having found for the Applicant and the Applicant already arraigned, the Respondents are hereby restrained from further arresting and detaining the Applicant in connection with the subject matter of this suit.
The Applicant having succeeded in the main shall be paid a cost assessed at N20,000.00 by 1st and 2nd Respondents and N10,000.00 by the 4th Respondent.

The Appellant was aggrieved by the above findings and has by her notice of appeal dated and filed on 23rd of July, 2013 appealed to this Court on 12 grounds which without their particulars are as follows:
GROUND 1
The Learned trial judge erred in law when he held that the Fundamental Rights Enforcement Procedure Rules 2009 takes precedence over the Sheriff and Civil Processes Act, Cap S6 Laws of Federation of 2004 and

therefore prevails over the latter in the event of a conflict between their respective provisions.
GROUND 2
The Learned trial judge erred in law and misdirected himself when he held that the provisions of Sections 97 and 99 of the Sheriff and Civil Processes Act, Cap S6 Laws of Federation of 2004 were inapplicable to actions for enforcement of fundamental rights commenced pursuant to the Fundamental Rights Enforcement Procedure Rules 2009 and thus compliance with its mandatory provisions could be dispensed with in commencement of fundamental human rights proceedings.
GROUND 3
The Learned trial judge lacked jurisdiction to entertain the matter on the 27th of May, 2013 when it came up for hearing in view of the non-compliance with the mandatory provisions of Sections 97 and 99 of the Sheriff and Civil Processes Act Cap S6 Laws of Federation of Nigeria 2004 which robbed the Court of jurisdiction in the matter.
GROUND 4
The Learned trial judge erred in law in not setting aside the 1st Respondent’s originating processes for non-compliance with the mandatory provisions of the Sheriff and Civil Processes Act or in the alternative

granting the Appellant’s prayer for an adjournment of the proceedings until a date after the expiration of 30 days as stipulated under the Sheriff and Civil Processes Act.
GROUND 5
The Learned trial judge erred in law when His Lordship ordered service of the 1st Respondent’s process on the Appellant and the 4th Respondent by substituted means, contrary to the settled principle of law that the Court cannot order substituted service of Court processes on an incorporated company as established by the Supreme Court in MARK V EKE (2004) 5 NWLR (PT. 865) 54 and applied by this Honourable Court in RFG LTD V SKYE BANK PLC (2013) 4 NWLR (PT. 1344) 251 AT PAGE 27, PARASA-D.
GROUND 6
The Learned trial judge erred in law when he held that the Appellant’s preliminary objection to the competence of the suit was improper in form and thus could not be entertained by the Court on the basis that same was not in writing as required by the Fundamental Rights Enforcement Procedure Rules 2009.
GROUND 7
The learned trial judge erred in law and breached the right to fair hearing of the Appellant when he refused the Appellant’s application for an

adjournment and extension of time to file its processes in opposition to the 1st Respondent’s originating processes.
GROUND 8
The learned trial judge erred in law in refusing to consider the Appellant’s counter-affidavit in opposition to the originating process filed prior to the delivery of judgment thereby occasioning a miscarriage of justice on the Appellant.
GROUND 9
The learned trial judge erred in law when he held that the Appellant’s application for extension of time to file its counter-affidavit in opposition to the originating process filed prior to the delivery of judgment was an abuse of Court process and consequent/y dismissed same.
GROUND 10
The learned trial judge erred in law when he held the Appellant liable for a breach of the fundamental rights of the 1st Respondent for merely reporting the commission of an offence by the 1st Respondent to the 2nd and 3rd Respondents.
GROUND 11
The learned trial judge erred in law when he applied double standards by holding the Appellant liable for breach of fundamental rights of the 1st Respondent after earlier in his judgment holding such acts to only be

actionable in a tortuous claim for false imprisonment and assault.
Ground 12
The learned trial judge erred in law in his award of damages in favour of the 1st Respondent.

The Appellant filed her amended brief of argument on 31st May, 2017. It is dated same day and was deemed filed 9th May, 2018. 1st Respondent’s amended brief of argument dated 27th February, 2020 was filed 28th February, 2020. The Appellants reply brief was filed on 9th June, 2015 and was deemed filed 3rd March, 2020.

It must be stated at this stage and for the record that the 2nd and 4th Respondents filed no process or briefs of argument in this appeal.
The Appellant distilled five issues of determination as follows:
i. Whether the Fundamental Rights Enforcement Procedure Rules 2009 takes precedence over the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 and therefore prevails over the latter in the event of a conflict between their respective provisions? (Grounds 1 & 2).
ii. Whether the lower Court was competent to hear the suit in view of the non-compliance with the mandatory provisions of

Sections 97 and 99 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 which robbed the Court of jurisdiction in this matter? (Grounds & 5).
iii. Whether the proceedings of the Lower Court and its refusal to consider the Appellant’s processes filed in response to the Originating Motion was not in breach of the Appellant’s right to fair hearing as guaranteed under the 1999 Constitution (as amended)? (Grounds 6, 7 & 8).
iv. Whether the lower Court was right when it dismissed the Appellants’ application for extension of time to file its counter affidavit as an abuse of Court process and subsequently held that the Appellant was liable for a breach of fundamental rights of the 1st Respondent for merely reporting the omission to the 2nd to 4th Respondents upon which they acted on their own accord? (Grounds 9, 10 & 11)
v. Whether the lower Court was right in its award of damages in favour of the 1st Respondent? (Grounds 12).

Learned Counsel to the 1st Respondent formulated five issues for determination which are in tandem with the issues raised by the Appellant.

The appeal will be determined on the issues raised by the Appellant.

Issue 1:
Whether the Fundamental Rights Enforcement Procedure Rules 2009 takes precedence over the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 and therefore prevails over the latter in the event of a conflict between their respective provisions? (Grounds 1 & 2).

Learned Counsel to the Appellant submits that this issue calls for the resolution of a vital constitutional question relating to the hierarchy of laws in Nigeria that invokes the interpretative jurisdiction of this Honourable Court to pronounce on the precedence of statutory laws over subsidiary legislation made by the Chief Justice of Nigeria pursuant to powers conferred by Section 46 (3) of the Constitution of Nigeria 1999 (As Amended). He relied on MAKO V. UMOH (2010) 8 NWLR (PT. 1195) PG. 82.

That the fact that the Fundamental Rights Enforcement Procedure Rules 2009 was made by the Chief Justice of Nigeria pursuant to a constitutional provision does not elevate the Fundamental Rights Enforcement Procedure Rules 2009 to the status of a constitutional provision as held by the lower Court.

He relied on the case of OYEGUN V. NZERIBE

(2010) 7 NWLR (PT 1194) 577 to state that the power to make rules for all superior Court is a constitutional power derived directly from the Constitution. Thus, all rules of Court including Fundamental Rights Enforcement Procedure Rules 2009 derive from express powers granted by the Constitution and thus have constitutional flavour.

That nevertheless, it has been held by the Court of appeal in a plethora of decided authorities that rules of Court are subsidiary legislation and thus cannot override statutory provisions where in conflict. He relied on the following cases:
a. AFRIBANK V AKWARA (2006) 5 NWLR (PT. 914) PG. 619
b. IBRAHIM V FULANI (2010) 17 NWLR (PT. 1222) PG. 24
c. NASIR V CSC KANO STATE (2010) 5 NWLR (PT. 1190) PG. 253 SC
d. ANPP V INEC (2010) 13 NWLR (PT. 1212) PG. 549

That the reasoning of the lower Court that Fundamental Rights Enforcement Procedure Rules 2009 prevails over statutes because it was enacted pursuant to the Constitution overlooks the fact that statutes also made by the National Assembly pursuant to an express constitutional provision in Section 4 of the 1999 Constitution.

That the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 was enacted by the National Assembly pursuant to powers conferred on it by Item 57 of part 1 of the Second Schedule to the Constitution of Nigeria 1999 (as amended); and this Legislative power of the National Assembly cannot be overridden by the Fundamental Rights Enforcement Procedure Rules 2009 which is a subsidiary legislation enacted by the Chief Justice of Nigeria.

The Learned Counsel relied on the case of KWARRA V. INNOCENT (2009) NWLR (PT. 1121) PG 179 to state that Acts of the National Assembly comes next to the Constitution on hierarchy.

That the cases of ABIA STATE UNIVERSITY V. ANYAIBE (1996) 1 NWLR (PT. 439) PGS 660- 661 and FRN V. IFEGWU (2003) 45 WRN PG. 27 AT 69 relied upon by the lower Court are inapplicable to the instant case.

That contrary to the decisions relied upon by the lower Court, a full 5 man panel of this Honourable Court has unanimously pronounced on the issue of conflict between the Fundamental Rights Enforcement Procedure Rules 2009 and Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 in the case of NGIGE V. ACHUKWU (2005)

2 NWLR (PT. 909) PG. 123 where it was held that in the cases of the Fundamental Rights Enforcement Procedure Rules 2009, service of processes thereof outside a state to another must be done in accordance with Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004.

That the practice and procedure of a High Court for enforcement of Fundamental Rights are regulated by the Fundamental Rights Enforcement Procedure Rules 2009, while issues of service of processes outside the territorial jurisdiction of the High Court is governed by the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004. That the Fundamental Rights Enforcement Procedure Rules 2009 is silent on service of processes outside jurisdiction of the High Court before whom the application is brought.

In response, learned counsel to the 1st Respondent contends that Fundamental Rights Enforcement Proceedings/application that was brought pursuant to Fundamental Rights Enforcement Procedure Rules 2009 is sui generis and a peculiar and special action in its own right.

That the decision of this Court in the case of

ABIA STATE UNIVERSITY V. ANYAIBE (supra) Ratio 6 states that for the Court to have jurisdiction to proceed with any fundamental rights application, the rules provided for its proceedings must be strictly followed as the said rules have the same force of law as the Nigeria Constitution.

He relied on the case of FABUNMI V C.O.P. OSUN STATE (2011) 14 NWLR (PT. 1269) PG 19 to state that where the Fundamental Rights Enforcement Procedure Rules 2009 are silent on a specific issue, the rules of the Court shall apply in regulation of such issue.

That this Court held in the case of ABIA STATE UNIVERSITY V. ANYAIBE (supra) that the procedure of the Fundamental Rights Enforcement Procedure Rules 1979 extends to any other enactments which seeks to provide alternative rules of procedure for the Fundamental Rights Enforcement Proceedings.

That the Fundamental Rights Enforcement Procedure Rules 2009 overrides any other enactment which seeks to provide alternative rules of procedure in Fundamental Rights Enforcement Proceedings, including the Sheriff and Civil Process Act Cap S6 Laws of the Federation of Nigeria 2004, notwithstanding its enactment by the National Assembly.

That this Court in NGIGE V. ACHUKWU (supra) at ratio 10 confirmed the precedence of the Fundamental Rights Enforcement Procedure Rules 2009 over and above other enactments including Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 and affirmed the non-applicability of Section 99 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 to Fundamental Rights Enforcement proceedings especially in a situation where Fundamental Rights Enforcement Procedure have adequately provided for that particular procedure.

That this Court further explained in its decision that since the Fundamental Rights Enforcement Procedure Rules 1979 has provided for 14 days within which the Defendant or Respondent shall enter appearance and defend the suit from the time leave was granted by the Honourable Court that the 14 days prevailed over the days provided for by the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004.

That this goes to confirm that in the event of conflict between both provisions that is Fundamental Rights Enforcement Procedure Rules 1979 now 2009 and Sheriff and

Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004, the Fundamental Rights Enforcement Procedure Rules 2009 will prevail over the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 in any Fundamental Rights Enforcement proceedings.

That this Court while considering Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 in the case of NGIGE V. ACHUKWU (supra) held that the said section was applicable to Fundamental Rights Enforcement proceedings under Fundamental Rights Enforcement Procedure Rules 1979 made pursuant to Section 42(3) of the 1979 Constitution because the Fundamental Rights Enforcement Procedure Rules 1979 did not make provision for mode of service therefore Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 applied to Fundamental Rights Enforcement proceedings.

The implication of this decision is that in a circumstance where a specific issue has not been provided for by Fundamental Rights Enforcement Procedure Rules 2009 resort can be made to alternative provisions, the provisions, Sheriff and Civil Process Act Cap

36 Laws of the Federation of Nigeria 2004, inclusive to fill up the missing gaps.

That the consequence of failure to comply with the said Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004, makes suit incompetent and a nullity as the Honourable Court was robbed of jurisdiction to entertain that suit which was solely on the ground that endorsement on the writ for service outside jurisdiction was not provided for by the Fundamental Rights Enforcement Procedure Rules 2009.

That above was the position of the law before the coming to force of the Fundamental Rights Enforcement Procedure Rules 2009 which brought in new provisions that neutralised the nullity effect of non-compliance with the requirements of law, any Fundamental Rights Enforcement proceedings and gave the Honourable Court not only the jurisdiction to hear and determine such application but also the discretion to see such non-compliance as an irregularity in place of nullity to achieve the sole directive of strictly looking at substantive issues on time in the enforcement of Fundamental Rights Enforcement cases before the Courts as attested in the

Fundamental Rights Enforcement Procedure Rules 2009.

That Order 9 Rule 1(i) and (ii) of Fundamental Rights Enforcement Procedure Rules 2009 specifically cures the effect of Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 and other requirements applicable to the Fundamental Rights Enforcement proceedings such as may be required to be complied with in law, at any stage of the proceedings in connection with any Fundamental Rights Enforcement proceedings. That the non-compliance no longer renders such proceedings a nullity but rather, Court is now empowered to treat such non-compliance as an irregularity.

Learned Counsel submits that the provisions of Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 is no longer applicable to the Fundamental Rights Enforcement proceedings pursuant to the Fundamental Rights Enforcement Procedure Rules 2009. That Order 15 Rule 4 of the Fundamental Rights Enforcement Procedure Rules 2009 provides that where it appears that there is no adequate provision in these rules in any situation arising from the Fundamental Human Rights

Enforcement proceedings the rules of Court for the time being in force shall apply.

That the rules of the FCT High Court (Civil Procedure) Rules 2004 where this case emanated from did not specifically provide that service of Court process outside jurisdiction must be endorsed thus. “to be served from this jurisdiction to the other jurisdiction and on outside jurisdiction” as required by Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004. That the provision of Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 is no longer applicable to Fundamental Rights Enforcement application brought pursuant to Fundamental Rights Enforcement Procedure Rules 2009.

Learned Counsel relied on the case of NGIGE V. ACHUKWU (supra), ratio 10 and all other Rules of Fundamental Rights Enforcement Procedure Rules 2009 will prevail over Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 in any Fundamental Human Rights Enforcement proceedings.

That Applicant’s issue 1 and grounds 1 are mere academic exercise, general in terms and vague. That it is settled law

that a ground of appeal and issue formulated therefrom must not be general in term. That it must disclose reasonable complaint against a ratio decidendi in the decision as opposed to an orbiter dictum, he relied on the case of VICTINO FIXED ODDS LIMITED V. JOSEPH OJO (2010) 185 LRCN 166 RATIO 1.

That the incompetent ground 1 of the Appellant by reason of being general in terms, vague and a mere academic exercise having been argued with Appellant ground 2 under Appellant issue 1 contaminates the said Appellant issue 1 which ought to be dismissed. He relied on the case of TELE DANBOYI V DALI SA’AD (Supra). He urged that this Court dismiss the arguments of the Appellant.

ISSUE 2:
Whether the lower Court was competent to hear the suit in view of the non-compliance with the mandatory provisions of Sections 97 and 99 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 which robbed the Court of jurisdiction in this matter? (Grounds 3, 4 & 5).

Learned Counsel to the Appellant submits that this issue flows from the resolution of issue 1 and revolves around the jurisdiction of the lower Court to entertain the

instant suit in view of the non-fulfilment of a condition precedent to the institution of the present suit as stipulated by Sections 97 and 99 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004.

That an originating process for commencement of a Fundamental Rights enforcement procedure is covered of the provisions of Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004. He cited the CHIEF EFFIONG V. EBONG (2006) 18 NWLR (PT. 1010) PG 109, that the instant suit commenced by an Originating Motion on notice falls within the contemplation of Section 95 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 as it is an originating process by which the instant suit was commenced and must therefore be in compliance with the provisions of Sections 97 and 99 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 where it is to be served on a defendant outside jurisdiction.

That non-compliance therewith renders suit and any decision rendered thereon null and void and will be set aside by superior Court. He cited the case of NGIGE V. ACHUKWU (supra).

He relied on the case of OWNERS OF THE MV ARABELLA V NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT 1097) PG. 182 to submit that any originating process for service out of the state in which it is issued must have endorsed thereon, notice indicating that the summons is to be served out of the state and in which state it is to be served.

That failure to so endorse is not a mere irregularity but a fundamental defect that renders the process incompetent and goes to the root of the jurisdiction of the Court. He cited the case of MAKO V. UMOH (supra).

That the originating process in this matter was issued at the High Court of the Federal Capital Territory Abuja for service. The Appellant in Lagos State outside the jurisdiction of the Court without any endorsement as to service outside jurisdiction. That the originating processes was served on the Appellant in Lagos on 13th May, 2013 along with a hearing notice indicating the matter was scheduled to come up for hearing on 27th May, 2013 barely 14 days after the date of service.

That the Appellant objected to the jurisdiction of the Court to entertain the matter on 27th May, 2013

and draw the attention of the Court to the provisions of Sections 97 and 99 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004.

That the law is settled that the jurisdiction of a Court can only be invoked where all condition precedent on the institution of the suit has been complied with. He cited the case of MADUKOLU v NKEMDILIM (1962) 1 ANLR 123.

That non-compliance with the mandatory provisions of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 in commencing an action being a condition precedent renders the proceedings and judgment derived therefrom a nullity regardless of how well conducted. He relied on the following cases: –
1. OWNERS OF THE MV ARABELLA V NIGERIA AGRICULTURAL INSURANCE CORPORATION (SUPRA)
2. NEWSWATCH COMMUNICATIONS LTD V ATTA (2000) 2 NWLR (PT. 646) PG. 592
3. NNPC V ELUMAH (1997) 3 NWLR (PT. 492) PG. 195

That the Appellant had during the hearing of the 1st Respondent’s originating process orally raised its objection to the jurisdiction of the Court to entertain the action and was granted leave by the lower Court to argue same alongside

its oral response to the 1st Respondent’s originating process.

That the Learned Trial Judge had declined to grant the Appellant’s application for a short adjournment to enable it to file its counter- affidavit. That where a Respondent is unable to file a counter- affidavit, it cannot be denied the opportunity of objecting to patent irregularities in the proceedings, especially relating to the jurisdiction of the Court. He relied on the case of OLADEKOYI V IGP (2011) 16 NWLR (PT. 1273) PG 406.

That it is trite law that jurisdiction being the cornerstone of every adjudication can be raised at any time even for the first time on appeal. He relied on the following cases:
1. NEWSWATCH COMMUNICATIONS LTD V ATTA (2000) 2 NWLR (PT. 646) PG. 592
2. PETROJESICCA ENTERPRISES LTD V. LEVENTIS TECH CO. LTD (1992) 5 NWLR (PT. 244) 625
3. CROWN STAR CO LTD V. THE VESSEL/MW VAN (2000) 1 NWLR (PT.639) 37
4. NDIC V. CBN (2002) FWLR (PT. 99) 1021 AT 1025

That Section 78 of the Companies and Allied Matters Act CAP C Laws of the Federation of Nigeria 2004 is explicit on the mode of service of an originating process on a corporate body.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That the Fundamental Rights Enforcement Procedure Rules 2009 is silent on the mode of service of a process on a corporate body and does not provide for service on a company under Order V Rule 7 which provides for substituted service that the Fundamental Rights Enforcement Procedure Rules 2009 provides that where the rules of Court are silent on an issue. That the Civil Procedure Rules of the Court would apply.

That service of an originating process on a corporate body by substituted means is unknown to Nigerian law. That the Appellant could not have been properly served as was done pursuant to an order for substituted service. He relied on the following cases:
1. MARK V EKE (2004) 5 NWLR (PT 865) 54 AT 79
2. BEN THOMAS HOTELS LTD V. SEBI FURNITURES LTD (1989) 5 NWLR (PT 123) 523
3. EMPERION WEST AFRICA LTD V AFLON LTD & ANOR (2014) LPELR – 22975 (CA)

That service of Court process on the Appellant by substituted means is not permissible under the law and therefore the order of Court dated 21st February, 2013 was not within the jurisdiction of the Lower Court and amounts to a nullity. That it is settled law that where lower

Court lacks jurisdiction to make an order and it proceeded to make it, an Appellate Court has the power to strike it out. He relied on the cases of OKEDION v FEDERAL AIRPORT AUTHORITY OF NIGERIA (2007) LPELR – 8678(CA) and SANUSI V MAKINDE (1994) NWLR (PT 343) 214.

That service of processes is a sine qua non to commencement of proceeding in Court of law and not merely an irregularity and it robs the Court of its jurisdiction and nullifies any subsequent proceedings to entertain a matter of service is not affected in compliance with the law. He cited the cases of ONYEJEKWE V ENWEONWU &ORS (2008) LPELR – 4876 (CA) and ODUTOLA V ALIMOSHO (1966) ALL NLR 250 AT 252.

That failure of the Learned Trial Judge to set aside the proceedings for lack of jurisdiction and non-compliance with Sections 97 and 99 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 and the invalid order for substituted service on the Appellant are fatal to the proceedings and eventual judgment and renders it null and void and liable to be set aside by this Honourable Court.

In response to this issue, learned counsel repeated his arguments in

issue 1 on the service of the originating processes on a corporate body. Learned counsel submits that although Fundamental Rights Enforcement Procedure Rules 2009 was silent on the mode of service of Court process on a company under Order V Rule 7, the Fundamental Rights Enforcement Procedure Rules 2009 resort can be made to the Civil Procedure Rules of the particular Court hearing the matter.

He urged this Court to discountenance and dismiss the argument on substituted service raised by the Appellant as the 1st Respondent served all the originating processes in this suit on the Appellant according to the law and the Appellant never denied receipt of same and same was done in accordance with statutory provisions of the FCT, High Court under Order 11 Rule 5 and Section 78 of the Companies and Allied Matters Act CAP C Laws of the Federation of Nigeria 2004.

That the Appellant’s counsel did not raise and argue any issue as regards to service of the originating Court processes of the lower Court on the Appellant by substituted means at the lower Court and therefore must do so on appeal by the leave of Court first sought and obtained.

That the mode of commencement as provided for by Order 9 Rule 1(i), Fundamental Rights Enforcement Procedure Rules 2009 does not include endorsement of writ as provided for by Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004. That the trial Court rightly held that the 1st Respondent is entitled to the provisions of Order 9 Rule 1 of the Fundamental Rights Enforcement Procedure Rules 2009.

That by arguing the incompetent ground 5 together with grounds 3 and 4 under issue 2 renders the entire grounds 3 and 4 and issue 2 defective and incompetent and liable to be dismissed. He relied on the following cases:
1. BEREYIN V GBOBO (1989) 1 NWLR (PT 95) AT PG 372
2. IDAAYOR V. TIGIDAM (1995) 2 NWLR (PT 377)
3. TELE DANBOYI V DALI SA’AD (SUPRA)

He urged this Court to dismiss the issue as lacking in merit and that the said Sections 97 and 99 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 are inapplicable to Fundamental Rights Enforcement Proceedings in view of the express provisions of Order 2 Rule 2 Order II Rules VI, Order 9 Rule 1 (i) and (ii), Order 15 Rule 4 of Fundamental Rights Enforcement Procedure Rules 2009

as all these conferred unfettered jurisdiction on the trial Court to hear and determine the suit.

ISSUES 3 AND 4: Whether the proceedings of the Lower Court and its refusal to consider the Appellant’s processes filed in response to the Originating Motion was not in breach of the Appellant’s right to fair hearing as guaranteed under the 1999 Constitution (as amended)? (Grounds 6, 7 & 8).
Whether the lower Court was right when it dismissed the Appellants’ application for extension of time to file its counter affidavit as an abuse of Court process and subsequently held that the Appellant was liable for a breach of fundamental rights of the 1st Respondent for merely reporting the omission to the 2nd to 4th Respondents upon which they acted on their own accords? (Grounds 9, 10 & 11).

The grouse of the Appellant’s case under issue 3 is that she was refused an adjournment to enable her file its processes in opposition to the 1st Respondents’ originating processes and subsequent application for extension of time to file its counter- affidavit already filed as proper.

That her application was not an abuse of Court process but an expression of desire to legitimately ventilate the Appellant’s right to fair hearing guaranteed under the 1999 Constitution.

Learned Counsel to the Appellant conceded that the grant or refusal of an adjournment is discretionary power of a trial Court, which is exercised based on the peculiar facts of the case before it. He relied on the cases of PAM V MOHAMMAD (2008) 14 NWLR (PT 112) PG. 375 and SIEC EKITI STATE V NCP (2008) 12 NWLR (1102) PG 412.

But that the law is settled that the discretion of a Court to grant or refuse an adjournment must be exercised judicially and judiciously and must have regard to the need to balance the scale of justice between the parties. He relied on the cases of OOMF LTD V NACB (2008) 12 NWLR (PT 1098) PG 412 and CHIJIOKE V SOETAN (2006) 10 NWLR (PT 990) PG 179.

That the Appellant was still within time to respond to the Originating Motion as at 27th May, 2013 when the matter came up for hearing in view of Section 99 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 which stipulates that the time within which the Appellant is

required to respond to the Originating Motion shall not be less than 30 days but the lower Court held that Fundamental Rights Enforcement Procedure Rules 2009 grants a Respondent, 5 days to file its counter affidavit.

He relied on the cases of FABS LTD V IBIYEYE (2008) 14 NWLR (PT 1107) PG 375; NEWSWATCH COMM LTD V ATTA (SUPRA) to submit that justice must not be sacrificed on the altar of expediency.

That an appellate Court will interfere with the discretion of trial Court to refuse an adjournment where it tends to do injustice to one of the parties before the Court. He relied on the following cases: –
1. CHIJIOKE V SOETAN (2006) 10 NWLR (PT 990) PG 179
2. MAINS VENTURES LTD V PETROPLAST IND. LTD (2000) 4 NWLR (PT 651) PG 12
3. CEEKAY TRADERS V GENERAL MOTORS CO. LTD (1992) 2 NWLR (PT 222) PG 132
He relied on the case of KINFAU V KINFAU (2006) 6 NWLR (PT 975) PG 200 to submit that rules of Court should be abandoned in favour of doing substantial justice.

That the Appellant moved its motion for extension of time to file its counter affidavit and order deeming the counter affidavit filed and as properly served on 17th

July, 2013 when the matter came up for judgment.

That the Appellant’s motion was refused by the Court in its ruling and the Learned Trial Judge proceeded to deliver judgment in favour of the 1st Respondent on the sole basis of the 1st Respondent’s affidavit.

That the case of NEWSWATCH COMMUNICATIONS LTD V ATTA (supra) relied upon by the trial judge in reaching the conclusion that the Appellant’s application was an abuse of Court process is distinguishable from the facts of the instant case and thus inapplicable to the instant case.

That the Learned Trial Judge erred in law when he relied on the fact that the preliminary objection to the jurisdiction was raised orally as an alternative ground for dismissing the preliminary objection.

Under issue 4, learned counsel to the Appellant contends that the law is settled that a person does not incur liability for pointing out or reporting the commission of an offence which he reasonably suspected to have been committed to a law enforcement agency in which the agency acts on their own volition to arrest or detain and prosecute the suspect. He relied on the cases of:

FIRSTBANK OF NIGERIA V ONUKWUGHA (2005) 16 NWLR (PT 950) PG 120
2. NWADINOBI V BOTU (2002) 16 FWLR (PT 96) PG 450

That the judicial authorities relied upon by the Learned Trial Judge in finding the Appellant liable for breach of the 1st Respondents fundamental rights are all authorities relating to tortuous claims of malicious prosecutions and false imprisonment.

That the Court has a duty to adhere to the principle of fair hearing which is fundamental to Court procedure and proceedings. That slavish adherence to the Rules of Court cannot undermine the cause of justice. He relied on the following cases:
1. OJUKWU V NNORUKA (2000) NWLR (PT 641) PG 360 PARA F
2. ATANO V AG OF BENDEL STATE (1988) 2 NWLR (PT. 75) 132 AT 227 – 228 PARAS H-A
3. SALU V EGEIBON (1994) 6 NWLR (PT 348) PG 120
4. CEEKAY TRADERS V GENERAL MOTORS CO. LTD (1992) 2 NWLR (PT 222) PG 132

That it is settled law that there is no limitation in the Court’s power to extend the time within which a procedural step can be taken in a proceeding. He relied on the following cases:
1. UBA PLC V MODE NIGERIA LIMITED (2001) 1 NWLR (PT 693) PG 141 AT 148

AJANI V GIWA (1986) NWLR (PT. 32)
3. WILLOUGHBY V INTERNATIONAL MERCHANT BANK (NIG) LTD (1987) 1 NWLR (PT. 48) 10

That the discretionary power of a Court to grant or refuse an application for extension of time must be exercised judicially and judiciously he relied on the following cases:
1. AMGBARE V SYLVA (2008) ALL FWLR (PT 419) 576 AT 600 PARA D – E
2. STANDARD CHARTERED BANK NIGERIA LTD V AMEH (2014) LPELR – 22765 (CA)

In response, learned counsel to the 1st Respondent submitted that fair hearing as enshrined under Section 36 of the 1999 Constitution demands a litigant be given opportunity to present his case without let or hindrance. But where such opportunity is not made use of without any hindrance is occasioned by the party complaining, he can no longer turn around to complain of breach of his right to fair hearing. He relied on the case of OLUMESAN V OGUNDEPO (1996) 2 NWLR (PT 433) PG 628 AT 631 – 632, RATIOS 1, 2 & 3.

He relied on the case of NEWSWATCH COMMUNICATIONS LTD V ATTA (supra) to submit that the principle of fair hearing is not available to a party who sets up a trial; in the litigation process against the Court and

accuses the Court of assumed wrongdoing even when such so called wrongdoing was as matter of fact propelled or instigated by the party through his counsel which is the case in this instant matter.

That the Appellant after participating fully in the proceedings of the Court on 27th July, 2013 cannot turn around and allege that he was not given fair hearing but that all parties’ present were given ample and full opportunity to present their cases to the best of their abilities.

That the combined reading of the decision of NWADIOGBU & ORS v ANAMBRA/IMO RIVER BASIN DEVELOPMENT AUTHORITY & 4 ORS (2010) 12 SC PAGES 6-7 and Order IV Rule 2 of Fundamental Rights Enforcement Procedure Rules 2009 is to the effect that adjournment of proceedings under Fundamental Rights Enforcement Procedure Rules 2009 will only be done where sufficient materials are placed before the Court and upon which the Court is urged to exercise its discretion.

That the rules of Court do not make provision for an application which serves to arrest a judgment of a Court. He relied on the following cases of:
1. NEWSWATCH COMMUNICATIONS LTD V ATTA (supra)

EKE V OGBONDA (2006) 18 NWLR (PT 1012) PAGE 506That the Appellant’s ground is argumentative and contains conclusions thus making the Appellant’s grounds 6, 7 and 8 incompetent, having been argued together with defective ground 7 under issue 3 of the Appellants’ brief. He urged this Court to dismiss grounds 6, 7, and 8 of the Appellant’s notice of appeal and Issue 3.
Under Issue 4, learned counsel to the 1st Respondent repeated his arguments under issue 3 in response to the contentions of the Appellant. That it is now settled as was decided in the case of NV SCHEEP v MV “ARAZ” (2001) FWLR (PT 34) PAGE 551, RATIOS 1 & 2 that the frontiers of abuse of Court process has expanded to include unlawful invocation of the judicial process to intimidate, annoy, or harass an adverse party.

That where a person takes further steps other than merely reporting and or pointing out the commission of an offence to the police and took active part in the arrest and detention of the suspect, the person who reports and took active steps is as liable as the police for the breach of the fundamental rights of the suspect and both in law must account and be jointly

liable for the breach of the fundamental rights of the suspect and in this instant case the 1st Respondent. He relied on the case of EZEADUKWA v MADUKA (1997) 8 NWLR (PT 518) PG 635. He urged this Court to dismiss the issue for lacking in merit.

ISSUE 5:
Whether the Lower Court was right in its award of damages in favour of the 1st Respondent? (Grounds 12).

Learned counsel to the Appellant submits that the law is settled that the award of damages by a trial Court must be predicated on cognisable principles of law and must not be arbitrary or based on the whims and caprices of the trial judge. He relied on the following cases:
1. OYENEYIN V AKINKUGBE (2010) 4 NWLR (PT 1184) PAGE 265
2. ALADE V AUC (NIG) LTD (2010) 19 NWLR (PT 1226) 111
3. UBA PLC V OMIYI (2010) 1 NWLR (PT 1176) PAGE 640

That an appellate Court will interfere with an award of damages by a trial Court where it is capricious and unjustifiable by law and pleaded facts. That there was no proof of the extent of damage suffered by the 1st Respondent.

That award of damages is not intended to be a profit or windfall for a plaintiff in an action, but it is

meant to compensate him for actual damage suffered and must thus be sustainable with reference to settled principles of law and pleaded facts.

That the discretion of the Learned Trial Judge in awarding damages against the Appellant was not exercised judicially and judiciously and has therefore occasioned miscarriage of justice against the Appellant.

In response to this issue, learned counsel to the 1st Respondent contends that once an Applicant who seeks redress for the infringement of his Fundamental Rights can establish his case in Court that is the alleged breach of his Fundamental Right, he is automatically entitled to award of damages in that regard without any further proof. He relied on Section 35(4) of the 1999 Constitution as amended and the case of ABIOLA V ABACHA (1998) HRLRA PAGE 447 AT 454, RATIO 9

That the award of exemplary damages by the trial Judge in this instant case was based on sound reasoning deduced from uncontradicted affidavit evidence of the 1st Respondent supported by his unchallenged Exhibits C – C1 which was relied on by the trial Court. That what the 1st Respondent sought was general, exemplary and

aggravated damages which do not require special or strict proof and not special damages as submitted by learned counsel for the Appellant.

That it is trite law that exemplary damages ought to be on an increased scale over and above special, actual, or general damages as it is done in aggravated circumstances and punitive in nature. He relied on the following cases:
1. G.K.F INVESTMENT NIGERIA LIMITED V NIGERIAN TELECOMMUNICATIONS PLC (2009) 15 NWLR (PT 1164) PAGE 344 AT 352, RATIOS 7, 8
2. ELIOCHIN (NIG) LTD V MBADIWE (1986) 1 NWLR (PT 14) PAGE 47
3. ODIBA V AZEGE (1998) 9 NWLR (PT 566) PAGE 370 AT PG 377 PARA C-F
4. ODOGU V FEDERATION (2000) 2 HRLR PAGES 82 AT PAGE 96 PARA E-F

He urged this Court to dismiss this appeal and uphold the judgment of the lower Court. He also urged this Court to award 20% interest on the judgment sum until the entire judgment sum is liquidated.

The Appellant’s reply brief is not different from the arguments canvassed in the Appellant’s brief of argument. Pursuant to Order 19 Rule 5(1) of the Court of Appeal Rules 2016, an Appellant’s reply brief is not an avenue or gateway to reargue

arguments contained in the main brief of the Appellant. An Appellant’s reply must be targeted at replying to new points particularly on law as may be raised in a Respondent’s brief of argument. The Appellant’s arguments in the reply brief is hereby discountenanced.

RESOLUTION OF ISSUES
Now issues 1 and 2 Appellant’s Brief are to the effect that the lower Court was wrong in holding that Fundamental Rights Enforcement Procedure Rules 2009 takes precedence over Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 and that the action herein was commenced or initiated in breach of Section 97 of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 in that leave of lower Court ought to have been obtained by the 1st Respondent for the issuance of the initiating Originating Motion and for service of same on the Appellant in Lagos outside the jurisdiction of the lower Court.

The Appellant also challenged the order of lower Court granting leave to the 1st Respondent to serve the processes in this suit on the Appellant vide substituted means through courier service outfit as an order made without jurisdiction

in that a corporate outfit like Appellant cannot be served through substituted means.

The law needs no restatement that issue of jurisdiction is very fundamental and pivotal to adjudication of any proceedings and where a Court is bereft of jurisdiction whatever the proceeding it adjudicates upon will be treated as a complete nullity. In other words, any proceeding conducted without the necessary vires or jurisdiction by a Court or Tribunal is void and of no effect. Such a proceeding undertaken by a Court of trial will be declared a nullity by an Appellate Court. See:
1. CHIEF DANIEL AWODELE OLOBA VS ISAAC OLUBODUN AKEREJA (1988) 2 NSCC 120 at 129 Per OBASEKI JSC who held as follows:
“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter, or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive

matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the Appeal Court. This issue can be raised by any of the parties or by the Court suo motu if the parties fail to draw the Courts attention to it. See ODIASE VS AGHO SUPRA. There is no justice in exercising jurisdiction where there is none. It is injustice to the Law, to the Court and to the parties so to do.”
2. C.B.N VS RAHAMANIYYA GLOBAL RESOURCES LTD (2020) 4 SCM 1 AT 17 B-C
“The law is indeed well settled that the issue of jurisdiction is fundamental in any proceeding and consequently raises the question of competence of the Court to adjudicate in the matter. It follows therefore that where a Court is devoid of jurisdiction to entertain a case, such proceedings becomes a nullity ab initio no matter how well conducted and decided. Jurisdiction is the life wire of adjudication which should be determined at the earliest opportunity. See Madukolu & Ors v Nkemdilim & Ors (1962) 2 SCNLR 341; Skenconsult (Nig.) Ltd v Ukey (1981) 1 SC 6; Goldmark (Nig) Ltd v Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) page

291, (2012) 5 SCM 113; Nigerian Union of Road Transport Workers & Anor v Road Transport Employers Association of Nigeria & Ors (2012) 10 NWLR (pt. 1307).”

As earlier stated, the submissions of Appellant on issues 1 and 2 are weaved and clustered around Sheriff and Civil Process Act Cap. S6 LFN 2004. Sections 97 and 99 thereof. Sections 96, 97, 98 and 99 of the said Act are as follows:
“96 (1) A writ of summons issued out of or requiring the defendant to appear at any Court of a State, or the Capital Territory may be served on the defendant in any other State or the Capital territory.
(2) Such service may, subject to any rules of Court which may be under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital territory in which the writ was issued.
97. Every writ of summons for service under this part out of the State or the Capital territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital territory, have endorsed thereon a notice to the following effect (that is to say)-
“This Summons (or as

the case may be)… and in the State (or as the case may be):
98. A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such state or the Capital territory and shall in that case be marked as concurrent.
99. The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the Court to the writ of summons shall not be less than thirty days after service of the writ has been affected, or if a longer period is prescribed by the rules of the Court within which the writ of summons is issued not less than that longer period…”
The above sections of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 have received judicial consideration and interpretation in the following cases viz:
1. HON (MRS) DOROTHY MATO VS HON I. H. HEMBER & ORS (2018) 5 NWLR (Part 612) 258 at 286 – 287 per My Noble Lord ONNOGHEN, CJN Rtd who held firmly thus:-
“with regards to Section 96 and 97 of the Sheriffs and Civil Process Act (supra) the

Court below mixed up the issues of filing of process, issuance, and service of process, I agreed, without reservation that service of writ of summons on the defendant is very fundamentals to assumption of Jurisdiction by a Court and where leave is required before service, it must be sought and obtained before such service can be effective. Leave is nothing other than permission from the Court to serve outside Jurisdiction. Once granted, “service can be carried out.”
Any service outside jurisdiction that is done without leave renders the service nullity. See Skenconsult (Nig) Ltd vs Ukey (1981) 1 SC 6, Adegoke Motors Ltd vs Adesanya (1989) 3 NWLR (PART 109) 250 and Nwabueze vs Obi Okoye (1988) 4 NWLR (PART 91) 664.
The questions that may be asked is whether the filing of process in Court and service of the said process are the same. Without much ado, they are not the same, Thus, a party who seeks to place his matter before a Court of law must first approach the registry of the Court and file same in accordance with the rules of Court. After filing the matter, the next step is to serve the process on the defendant, except it is a matter which

the law permit to be done ex-parte.
Where the law, as in this case, requires that leave be obtained before service can be affected, such leave must be sought and obtained. The Court below seems to have taken the issue of leave to serve outside jurisdiction to mean leave to file the process in Court. This is where the lower Court erred. If one takes a look at Section 96 and 97 of the Sheriffs and Civil Process Act (supra) it will reveal that they come under a subtitle-
“service of process” “it does not come under filing of process.”
These are two separate things. One relates to service of process while the other relates to filling of same.
2. PDP V. INEC & ORS (2018) 12 NWLR (PART 1634) 533 AT 549 E-H TO 550 A-B Per RHODES-VIVOUR, JSC who said:
“it is so obvious after reading, Section 97 of the Sheriffs and Civil Process Act that is couched in mandatory terms. It is abundantly clear that any service of a writ without the proper endorsement has stipulated by Section 97 (supra), is not a mere irregularity but is a fundamental effect that render the writ incompetent.
There can be no doubt whatsoever that by virtue of

Section 97 of the Sheriffs and Civil Process Act, every writ of summon (or originating summon) for service out of the state in which it was issued must with addition to any endorsement of notice required have endorsed on it, a notice indicating, that the summons is to be served out of the stated and in which State it to be settled. Once again, failure to endorse the required notice on an originating process for service outside the state where it was issued is not a mere irregularity but a fundamental defect that renders the originating process incompetent. A Court would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance with Section 97 of the Sheriffs and Civil Process Act. See Odua Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Part 523) P.1 Nwabueze and Anor v. Justice Obi Okoye (1988) 4 NWLR (Part 91) P664 Skenconsult (Nig) Ltd v Ukey (1981) 12 NSCC P.1.
The Court have no description under Section 97 of the Sheriffs and Civil Process Act. Once claimant fails to comply with the mandatory provision in Section 97 supra, the Court will no longer have jurisdiction to hear the suit. It is fundamental that the claimant obeys and

complies fully with the Provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement, except to enter conditional appearance.
I have examined the originating summons and subsequent amendment to it, and I am satisfied that there is no endorsement on it for service in Abuja outside Delta State. The originating summons is invalid, worthless and void. There would be no need for me to consider whether leave was obtained, since non-compliance with Section 97 of the Sheriffs and Civil Process Act brings the hearing of this appeal to an end. The Court of Appeal was wrong while the High Court was right. Once there was non-compliance with provision of Section 97 of the Sheriffs and Civil Process Act, the trial Court would have no jurisdiction to hear the case.”
I am very much of the view that Sections 97, 98 and 99 of Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 are not applicable to proceedings or suit for enforcement of fundamental rights of citizens and other persons as contained in Sections 33 – 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

because the enforcement of the said Fundamental Rights and preventions of their breach are sui generis or on a special class in terms of enforcement.
The Constitution itself specifically provides the procedure or methods of enforcement of fundamental rights and their prevention or their breach in Section 46 of the Constitution of the Federal Republic of Nigeria 1999 as amended to enable easy access to designated Courts under the said Constitution and or expeditious attention and hearing of matters relating to or pertaining to enforcement of fundamental rights and preventions of their breach by authorities and persons.
The said Section 46 of the Constitution provides:
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 order, issue such writs, and give such directions as

it may consider appropriate for the purpose of enforcing or securing g the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter.
3. The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.
4. The National Assembly –
a) May confer upon a High Court such powers in addition to those conferred by this section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by this section; and
b) Shall make provisions –
I. For the rendering of financial assistance to any indigent citizen of Nigeria where his right under this chapter has been infringed or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim, and
II. For ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal and real.
Thus, procedure for institution of action touching and concerning

fundamental rights action has been provided for expressly in the Constitution and the Fundamental Rights (Enforcement Procedure) Rules 2009 made at Abuja on 11th day of November 2009 by the then Chief Justice of Nigeria — IDIRIS LEGBO KUTIGI (Rtd) of blessed memory.
The Rules contained therein are specially made for the enforcement of the rights guaranteed and enshrined in the 1999 Constitution (as amended) Chapter IV thereof. Therefore, the special status and uniqueness of the Fundamental Rights Enforcement Procedure and the importance attached to it have been eloquently stated in the case of EFCC VS WOLF GANG REINL (2020) 5 SCM 128 at 143 F-S to 145 A-H per KEKERE-EKUN, JSC who said:
“It is also evident from Section 46(1) of the Constitution that a person seeking to enforce his fundamental rights may seek redress in any High Court. The question that arises is whether the nature of the respondent’s claim before the trial Court has in any way restricted jurisdiction to hear it to Federal High Court? It has been argued by learned counsel for the appellant that what should determine the Court’s jurisdiction is the subject matter of the alleged

breach, which in his view, relates to the administration or management and control of the appellant.
With the greatest respect to learned counsel, this is an erroneous conception of the import of Section 46(1) of the Constitution. The provisions are clear and should be given their natural and ordinary meaning. At the risk of repetition, it provides that any persons who alleges that any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened in any state in relation to him, may apply to a High Court for redress.
A careful examination of the respondent’s claim shows clearly that he is not challenging any administration any administrative or executive act or the management and control of the appellant. He is alleging that his fundamental right to personal liberty guaranteed under Section 35(1) and (4) of the Constitution, his right to be notified in writing of any offence allegedly committed by him, guaranteed by Section 35(3) of the Constitution; his right to dignity guaranteed by Section 34(1) of the Constitution; and his right to property guaranteed by Section 43 of the Constitution.

In case of Jack v. University of Agriculture, Makurdi (2004) 1 SC (pt.1) 100 @ 111-112, Section 46(1) of the 1999 Constitution was interpreted by this Court. Reference was made to the interpretation of Section 42(1) of the 1979 Constitution (which is in pari material with Section 46(1) of the 1999 Constitution, as amended), which was considered in Bronik Motors Ltd. V. Wema Bank Ltd. (1983) 1 SCNLR 296 and Tukur v. Government of Gongola State (1989) 9 SC 1; (1989) 4 NWLR (Pt,117) 517, to the effect that where both the State High Court and the Federal High Court exist in a state, they have concurrent jurisdiction in matters pertaining to fundamental rights. His Lordship Nwafor, JSC continued at page 111 line 21 to page 112 line 3 as follows:
“Section 42 (1) is a special provision which deal with matter of fundamental rights. It confers jurisdiction on any High Court in State in matter of Fundamental Rights in respective of who us affected by an action founded on such right. On the other hand, Section 230(1) (s) of the 1979 Constitution (as amended) is a general provision. The law is that where there is a special provision in a statue, a later general provision in

the same statute capable of covering of the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. See Federal Mortgage Bank of Nigeria vs Olloh (2002) 4 LC (Part 11) 117; (2002) 9 NWLR (773) 475 at 489, (2002) 7 LCM, 63. In my view, Section 42(1) is intended to give access to an aggrieved party to any High Court in a state where an alleged contravention of his fundamental rights has taken place or is to take place, it is therefore a section which should itself be regarded as special and fundamental. The Court below was in error to hold that when a suit in respect of matters of fundamental rights was brought against the Federal Government or any of its agency, Section 230(1) (s) of the 1979 Constitution (As Amended) prevail over Section 42(1).”
This authority is a direct answer to the appellant contention that the Federal High Court has exclusive jurisdiction to entertain the suit. The Respondent contention in his supporting affidavit is that he was unlawfully detained without been inform in writing of his alleged offence and without being

charged before a competent Court. It therefore cannot be correct to contend, as learned counsel for the appellant has done, that the subject matter of the Originating Motion was money laundry.
I am of the view and I do hold that the decision of this Court in Jack v University of Agriculture, Markudi, (supra) and authorities of Bronik Motors Limited v Wema Bank Limited and Tukur v. Government of Gongola State (supra) represent the correct position of the law in this regard.
In a recent decision of this Court in Federal University of Technology, Minna, Niger State & Ors v. Bukola Oluwaseun Olutayo (2017) LPELR-43827 (S C) @ 27-32- D-A, I expressed the following opinion:
“it is quite evident that Section 46 Sub-section 1 of 1999 Constitution (as Amended) above refers to: “A High Court of a State without any restriction. The violation of the citizens fundamental rights is reviewed so seriously that framers of the Constitution sought to ensure that no fetters are placed in the part of the citizen seeking to enforce his right. In other words, the provision ensure that he has access to any High Court as long as it is within the state in

which the alleged infraction occurred. Indeed, it would negate the principle behind the guarantee of fundamental rights if a citizen were to have any obstacles placed in the part of enforcing those rights. There is no ambiguity in the provision of the Constitution or of the Fundamental Rights (Enforcement Procedure) Rules… regarding which Court has the jurisdiction to entertain an application for the enforcement of fundamental rights. The decision of this Court in Jack v University of Agriculture, Makurdi (2004) ALL FWLR (Part 200) 1506 @ 1518 B-D has put the matter to rest… “I adopt the view so express in the instant case. So long as the enforcement of the applicant fundamental rights is the main claim in the suit and not an ancillary claim, the Federal High Court and State High Court, including the High Court of the FCT, have concurrent jurisdiction to entertain it. See… Tukur v. Government of Gongola State (supra).” (Underlined mine)
See also:
ORDER II RULES 1, 2 and 3 of the Fundamental Rights Enforcement Procedure Rules 2009:
“1. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or

African Charter on Human and People’s Rights (Ratification and Enforcement) Act 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:
Provided that where the infringement occurs in a State which has no division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate.
2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provision of the Rules, lie without leave of Court.
3. An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the ground upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made.” (underlined mine)
ORDER IV RULE 1 and 2 of the Fundamental Rights Enforcement Procedure Rules 2009 also provide:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“1. The application shall be fixed for hearing within 7 days from the day the application was filed.
2. The hearing of the application may from time to time be adjourned where extremely expedient, depending on the circumstances of each case or upon such terms as the Court may deem fit to make, provided the Court shall always be guided by the urgent nature of application under these Rules.”
The Appellant had complained that it ought not to have been served vide substituted means. I am of the solemn view that by and under the Fundamental Rights Enforcement Procedure Rules 2009 Service by substituted means is permitted under Order V Rules 7 which Provides:
“Where it appears to the Court, either after or without an attempt at personal service of the Court processes that for any reason personal service cannot be conveniently effected the Court may order that service be effected either-
(a) By delivery of the document to an adult person at the usual or last known place of abode or business of the party to be served; or
(b) By delivery of the document to some person being an agent of the party to be served, or to some other person, on

it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or the person, come to the knowledge of the party to be served; or
(c) By delivery of the document to any senior officer of any government agency that has office both in the state where the breach occurred and head office either in Federal Capital territory or elsewhere; A service on the agency through its office in any state where the breach occurred will be considered as sufficient service; or
(d) By advertisement in the Federal Government Official Gazette, or in some newspapers circulating within the jurisdiction; or
(e) By notice put up at the principal Court House of, or some other place of Public resort in the judicial division where the proceedings in respect of which the service is made is instituted, or as the usual or last known place of abode or business, of the part to be served.”
In any event, the mode of service upon the Appellant is contemplated under Section 78 of Company and Allied Matters Act. Section 78 thereof which provides:
“A Court process shall be served on a company in the manner provided

by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company.”
The suit herein was competently commenced or initiated, and the Appellant was duly served all processes filed in this suit and service of same was confirmed by its Legal Practitioner at the Court below. The lower Court has the jurisdiction to have entertained the action. The Appellant bank can be served vide substituted means under the Fundamental Rights (Enforcement Procedure) Rules 2009. Issues 1 and 2 are resolved against the Appellant.

On issue 3 as to whether the Learned Trial Judge’s refusal to consider the Appellant’s processes filed in response to the Originating Motion was not in breach of Appellant’s right to fair hearing? Recourse must be had to the Appellant’s Application seeking to file its Counter Affidavit and Written Address out of time.
The said Motion on Notice was filed on 17th July, 2013, the very day the Learned Trial Judge fixed for the delivering of Judgment in this action (see pages 82 – 113 of the record). This was almost two months after the learned

counsel to the Appellant – Mr. P. U Abba chose to address the Lower Court orally on points of law upon the hearing of the 1st Respondent’s Originating Motion on 27-5-2013.
There is no doubt that the Appellant deliberately engaged in delay tactics and outright abuse of Court process. There is no act of seriousness exhibited by the Appellant to merit the indulgence and exercise of the lower Court’s discretion in its favour. Right to fair hearing which is enshrined in Section 36 (1) of the Constitution of the Federal Republic Nigeria 1999 (as amended) cannot be invoked at the whims and caprice of indolent litigant like Appellant which decided to waste every opportunity given to it to put across its defence in the suit. He cannot benefit from his own wrong and lackadaisical attitude in Court’s proceedings. There is nothing adverse on record to show that the Appellant was denied right of Fair hearing. See FEMI AYOADE VS THE STATE (2020) 5 SCM 1 at 14 D-1 to 15 A per AUGIE JSC who said
“Learned counsel for the Appellant roped in the fair hearing principle. I have seen in recent times that parties, who have bad cases, embrace, and make use of the

constitutional provision for fair hearing to bamboozle the adverse party and the Court with a view to moving the Court away from five issues in litigation. They make so much weather and sing familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental provision available to a Party, who is really denied fair hearing because he was not heard or that he was not property heard in the case. Let litigant, who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for asking.
The term, fair hearing, is a recurring decimal in criminal cases because, it is a fundamental

right guarantee to citizen under the Constitution, and a breach of which will nullify the proceedings in favour of a victim, therefore, it is very easy for lawyers and litigant alike to come crying to an Appellate Court that their right to fair hearing has been violated.
But “fair hearing” is not just an expression of mere rhetoric or empty verbalism; it cannot be construed outside the fact and a party alleging the breach must show dearly that the said right is violated or breach. See Gbadamosi v. Dairo (2007) 3 NWLR (Part 1021) 282 SC.
In other words, it is not enough for a party alleging such a breach to merely mention fair hearing and expect this Court to automatically side with him and determine the case in his favour just for the asking. The fact of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading, as this Court made very clear in Adebayo v. A G Ogun State (supra).”
The Appellant was adequately afforded opportunity to prosecute his defence, but it chose to bungle it. It cannot blame the lower Court which justifiable ruled against the Appellant on her belated

application for extension of time to file counter affidavit and address in support of the said Counter Affidavit. Issue 3 is also resolved against the Appellant.

Issue 4 and 5 will be taken together. The bone of contention under issue 4 is that the lower Court ought not to have found the Appellant liable for breach of 1st respondent fundamental right because Appellant merely reported commission of crime to the 2nd and 4th Respondents upon which the said 2nd and 3rd Respondents acted on their own discretion while the contention under issue 5 is that the lower Court was wrong in daminifying Appellant in award of damages in favour of 1st Respondent.

I agree with the Appellant that merely reporting a crime or commission of crime to the Police ought not to attract punishment unless it is found that the Appellant was acting malafide. Once a matter is reported to the Police the complainant has no control on how the Police will carry out its investigation. See CHIEF (DR) FAJEMIROKUN VS COMMERCIAL BANK (CREDIT LYONNAS LTD) & ORS (2009) 5 NWLR (PART 1135) 588 AT 600C Per OGEBE JSC. In the said report my Lord ALOMA MARIAM MUKHTAR JSC later CJN RTD said:

“It is very clear that series of cheques that bounced were issued by the appellant’s company, (acts which were criminal in nature), for which the respondents were at liberty to resort to the police for their intervention, by reporting the matter to them. As citizens of Nigeria, they have the choice to exercise their legal rights of placing their grievance before the police, being custodians of law and order, and that is where their own impute stops. Whatever action the police takes thereafter is not solely their responsibility and they are not solely liable. In this vein, the reliefs sought by the applicants against the respondents should not be against them alone if all was the instigated the action. If at all there was ‘arrest’ and detention it was not done -by the respondents, but the police who had the authority to do so. At most the police should have been joined. The ‘arrest’, ‘invitation’, and or detention may have been caused by the steps taken by the respondents, but as I have said earlier on, the respondents were exercising their legal rights to seek the police intervention. Indeed, no one can deprive any citizen of that right more so when

there was good ground for the action taken by the police, as it was not as a result of mere suspicion, but Dud cheques were actually given, as was proved by the annexure to the counter-affidavit. In this regard, I am of the view that the case of Dumbell v. Roberts 1944 1 A.E.R. 326 is of assistance. In the circumstances, resolve the above issues in favour of the respondents and dismiss the related grounds of appeal.”
(Underlined mine)
Relying on the above decision of apex Court, I said in the case of MR. KEYAMO VS DIRECTOR-GENERAL STATE SECURITY SERVICE & ORS (2020) 14 NWLR (PART 1744) 306 at 325 H-327A as follows:
“Now the law is trite that a citizen of this country and foreigner alike who believes that a crime has been committed or in the process of being committed or that there is likelihood of an offence to be committed against the citizen or a foreigner or any other citizen or person, such a citizen or person is under a duty under the law and the Constitution of this country to report the matter to the Police or other security apparatus or agency of the Federal or State Governments. The report could be made via petition or personally

by a citizen or any individual as aforesaid. The Police have no right to ignore report made to it concerning commission of crime or offence or any conduct likely to cause breach of peace within its area of jurisdiction.
See CHIEF (DR) FAJEMIROKUN VS COMMERCIAL BANK (CREDIT LYONNAS LTD) & ORS (2009) 5 NWLR (PART 1135) 588 AT 600C Per OGEBE JSC who said:
“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 citizen cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.”
However, the person who report a matter or draws the attention of the police or security agency to commission of crime or its imminent commission has no control over the method or manner of investigation, invitation or even the prosecution of the person suspected to have committed or planning to commit such an offence. It is true that under the Constitution and the law, the Police or other security organs of government have constitutional and statutory duties to prevent,

detect and prosecute offenders or persons that commit or plan to commit crime yet the citizen cannot force the investigator or security agent to perform their duties in the manner suitable or convenient to the complainant or person who reports crimes or attempt to commit crime against another person even where as in this case the alleged crime or attempt was allegedly directed against him. The security agents have discretion in the matter of investigation and or prosecution. The description is seldom control by the Court. It must also be stated that security agent and the Police are not under obligation to take instruction from the complainant who may even turn out in some cases to be culpable also.
I am of the solemn view that order of mandamus will not lie to command or mandate the Police or Security agents to act in a particular manner to suit the complainant in any investigation, Investigators or security operatives are not subordinate to the complainant. The complainant has no constitutional or statutory rights to have report of Police Investigation or Order Security Agent made available to him (complainant). The discretion of what the security

agents would do with the investigation remains with the investigators. That is not to say the Police has no responsibility to bring offenders to book.”
See also CHIEF PETER OGUEBE V FBN PLC & ANOR (2020) 4 SCM 119 AT 134H TO 135A-B per ABBA AJI, JSC who said:
“To instigate is to intentionally aid or facilitate by any act or illegal omission the doing of that thing. See Njovens v The State (1973) All NLR 371. The police are empowered to investigate any criminal allegation. They may take any action they deem fit to take upon investigation. They may arrest, detain and prosecute an alleged offender. See Section 20 of the Criminal Procedure Act. See also Section 35(1) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). In the legitimate discharge of their duties, they cannot be sued in Court. The Law is well settled a citizen’s civic responsibility include reporting crimes and perceived or suspected criminal act either to his person or to the person of a fellow citizen, and such citizen, after making such complain to the appropriate security agencies cannot be held culpable for performing his civic responsibility, unless at

the conclusion of the investigation of the complaint he made, it is found that they were baseless and made mala fide. See FAJEMIROKUN VS COMMERCIAL BANK (CREDIT LYONNAS LTD) & ORS (2009) 5 NWLR (PART 1135) 588 (SC); (2009) LPELR – 1231 (SC), (2009) 2 SCM, 55, Pg. 9 – 10 Paras F-G. It is not the law that a person becomes culpable and liable to pay damages for making a report to the police.”
There is nothing to show on the record of Appeal that the Appellant was frivolous, reckless or acted in bad faith in reporting the 1st Respondent to the 2nd and 4th Respondents.
A calm reading of eighty-one paragraph affidavit in support of the 1st Respondent Originating Motion did not link any named official of Appellant with the alleged violation of 1st Respondent’s Fundamental Rights. Issues 4 and 5 as they relate to the report of 1st Respondent to the 2nd and 4th Respondents and in respect of which damages was awarded against the Appellant are hereby resolved in Appellant’s favour.

Notwithstanding that Issues 1, 2 and 3 have been resolved against the Appellant, the Appellant’s appeal succeeds in part. The Judgment of the lower Court awarding exemplary

damages assessed at N5,000,000.00 (Five Million Naira) against the 4th Respondents now Appellant and cost of N10,000.00 (Ten Thousand Naira) awarded against the 4th Respondent now Appellant by the lower Court are hereby set aside and vacated. There will be no order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in complete agreement with the reasoning and conclusion arrived at. I have nothing useful to add.
I also allow the appeal in part and abide by the other orders made therein.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother PETER OLABISI IGE JCA, just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.

Appearances:

Babajide B. Lawal, Esq. For Appellant(s)

Paul Asimiakpeokha, Esq. For Respondent(s)