AIG ZONE 6 CALABAR & ORS v. HRN ETINYIN (DR) ETIM OKON EDET
(2011)LCN/4772(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of August, 2011
CA/C/33/2011
RATIO
ISSUES FOR DETERMINATION: EFFECT OF THE ISSUES FOR DETERMINATION IN AN APPEAL THAT ARE NOT BASED ON THE DECISION APPEALED AGAINST
It is now trite that issues in the appeal should arise and be tied to the grounds of appeal and any issue which is not based on a ground of appeal is incompetent and so should be appeal struck out. Also any ground of appeal not based on the decision appealed against is incompetent. PER KUMAI BAYANG AKAAHS, J.C.A
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. AIG ZONE 6 CALABAR
2. DETECTIVE BEN O. OF SARS
3. CHIEF EDET EFFIONG EDET ATRE Appellant(s)
AND
1. HRN ETINYIN (DR) ETIM OKON EDET
2. HIS HIGHNESS ETUBOM EKPO EYO
3. MURI BENJAMIN EFFIONG EYO EDET Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A (Delivering the Leading Judgment): Before the present suit No. HC/366/2009 which gave rise to this appeal No. CA/C/33/2011 was instituted the 1st and 2nd plaintiffs (now 2nd and 3rd respondents) commenced action in suit No. HCA/18/2008 against chief Edet-Effiong Edet Atre, the clan Head of Amoto usak Edet severally the following reliefs:
(now 3rd Appellant) and joined His Royal Highness Etinyin Dr. Etim Okon Edet, the paramount ruler of Bakassi as 2nd defendant. In the writ of summons, the plaintiffs claimed against the defendants jointly and
“1. A declaration that the AMOTO USAK EDET CLAN if in existence, where the 1st defendant is the clan head is different from AMOTO/EFUT INWANG CLAN in Bakassi LGA.
2. That by the certificate of recongnition of the 1st defendant, he is not the clam head of Amoto/Efut Inwang Clan of Bakassi LGA.
3. An order on the 1st defendant to give account of the monies which he wrongly collected from the Amoto/Efut Inwang Clan from 1999.
4. The sum of N20,000,000,00 (Twenty Million Naira) as compensation to the plaintiffs’ community by the 1st defendant for wrongfully presenting himself as representing the plaintiffs’ clan.
5. Perpetual injunction restraining the 1st defendant from parading himself as presenting the plaintiffs’ clan of Amoto/Efut inwang clan and on the 2nd defendant not to recognise the 1st defendant as representing the Amoto/Efut Inwang Clan.”
On 4th August, 2008, the High Court of Cross River State sitting at Ikot Nakanda and presided over by Ekpe, J. (as she then was) heard a motion ex parte and granted an order of interlocutory injunction restraining the 1st defendant from continuing to parade himself as the clan head of Amoto/Efut Inwang Clan. It was further ordered that any amount accruing to the Amoto/Efut Inyang Clan should be paid to His Royal Highness, Etinyin (Dr.) Etim Okon Edet, the paramount ruler of Bakassi for safe custody pending the hearing of the substantive matter.
The matter was adjourned to 17th October, 2008 for the hearing of the motion on notice. While hearing in the substantive matter was on and has not yet been determined, the 3rd defendant (appellant) petitioned the Assistant inspector – General (A.I.G.) Zone 6 alleging conspiracy and stealing against the plaintiffs and the paramount ruler of Bakassi which led to their subsequent arrest and detention. Although they were later released they were again arrested in 2009 and querried about the money which the court had asked the paramount ruler to keep in safe custody. This is what prompted the plaintiffs to take out an originating summons under the fundamental right enforcement procedure rules seeking the following reliefs:
a) A declaration that the constant arrest, harassment and detention of the applicants by the Police on an act done judicially is unconstitutional, null and void
b) Injunction restraining the Police, their agents, servants and privies from further inviting, harassing, arresting and detension of the applicants based on the transaction involving the Amoto/Efut Inwang Clan.
The grounds on which the order was sought are:
a) The custody of the items by the applicants is at the instance of the court.
b) That it is not a crime to litigate a matter in the court.
c) Police have no authority to overrule any court proceeding.
d) That custody of items, goods or money does not give rise to conspiracy stealing.
His Highness Etubom Ekpo Eyro (2nd applicant/respondent) deposed to a 13 paragraph affidavit in support of the application and stated in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 the following facts:-
“3. That there is a pending matter between the applicants and the 3rd respondent over the clan headship of the 3rd respondent.
4. That he 2nd and 3rd applicants asked the court to give items and money meant for clan to be kept in custody of the 1st applicant pending the hearing of the matter and the order of court is hereby attached as Exh. ‘A’.
5. That the 1st applicant complied with the order to keep custody of the items and money meant for the Amoto/Efut Inwang Clan.
6. That the 3rd respondent has been using Zone 6 Police command to harass and intimidate the applicants.
7. That in 2008 the applicants were severally invited, detained and eventually released by the said Zone 6 police Command.
8. The Police later discovered that the matter was in court.
9. That this year again, the same Police Command invited the applicants in respect of the same matter. See Exhs. ‘B’ kand ‘C’.
10. That the applicants made statements to the Police and were released on bail.
11. That the Police asked the 1st applicant to bring the items and money otherwise they would be detained again.
12. That except an order is given the Police will continue to violate the fundamental right of the applicants.
The ex parte motion was heard on 7th September, 2009 and leave was granted the applicants (respondents) to enforce their fundamental rights enshrined in sections 35, 36 and 37 of the 1999 constitution of the federal republic of Nigeria. The matter was adjourned to 16th September, 2009 for hearing but in 15th September, 2009 the respondents/appellants brought a motion on notice seeking to strike out Suit No. HC/336/2009 for being incompetent/lack of jurisdiction and for non-compliance with Order 2 rule 1(3) and order 2 rule 1(4) of the Fundamental Rights Enforcement Procedure Rules 1979. the 2nd respondent/appellant deposed in paragraphs 5, 6, 8 and 9 that the only processes served on the 1st respondent (i.e. the A.I.G. Zone 6, Calabar) was a hearing notice from the High Court Registry, Calabar informing him that the suit shall be transferred to-the General cause list and an order granting leave to the applicants to enforce their fundamental Ayimo E. Ayimo a bailiff of the High Court Registry, Calabar, swore to an affidavit of service and stated that on the September at 12:34 p.m. he served the 1st and 2nd respondents with motion on Notice, affidavit and the statement in Suit No. HC/336/2009.
Learned counsel for each of the parties submitted written addresses in respect of the motion urging the court to strike out the suit a swell as advancing arguments on the motion to enforce the applicants’ fundamental rights as enshrined in the constitution.
In his ruling which was delivered on 5th October, 2010, the learned trial judge held that the action which was commenced under the 1979 Fundamental Rights Enforcement Rules, is now caught by the new rules which provides that a respondent who files a preliminary objection must as the same time file a counter-affidavit to the action by virtue of order 8 rule 2 of the Fundamental Rights Enforcement Rules, 2009. He proceeded to hold that the respondents are deemed to have admitted the facts stated in the applicants’ affidavit and based on this he entered judgment for the applicants against the respondents.
Dissatisfied with the judgment the respondents appealed. The 1st and 2nd appellants raised four issues for determination while the 3rd appellant had five issues. The respondents said they were adopting the issues raised by the appellants without specifying whether it is the issues formulated by the 1st and 2nd appellants or the five issues distilled by the 3rd appellant.
The four issues contained in 1st and 2nd appellants’ brief are:-
1. whether the learned trial judge was correct in holding that the constant arrest, harassment and detention of the applicants/respondents by the 1st and 2nd appellants on the act done judicially is unconstitutional, null and void.
2. whether the learned trial Judge was correct in law when he held that the action instituted by the 1st and 2nd
Respondents/appellants (sic) under 1979 Fundamental Right (Enforcement Procedure) Rules was caught by the operation of the 2009 Fundamental Right Enforcement Procedure Rules.
3. Whether the learned trial judge was correct when he delivered ruling in suit No. HC/366/2009 in (sic) a date not fixed for the matter without hearing notices to the parties in the suit.
4. Whether there was a proper basis for the learned trial judge to make an order of restrain against the 1st and 2nd respondents/appellants.
The 3rd appellant formulated five issues for determination from the three grounds of appeal filed as follows:
1. Whether the court below was right when it found/held that the court bailiffs actually effected service on 3rd respondent/appellant?
2. Whether the court below was right when it held that he 3rd affidavit dated 16th September, 2009 sworn to by the 2nd applicant/respondent satisfies the legal requirement of order 2 Rule 1(4) of fundamental Rights Enforcement procedure Rules 1979 after it had found that there were in the court file three affidavit s of service?
3. Whether the court below was right when it held that it was seized (sic) with the requisite jurisdiction competence to hear and determine the matter vis-a-vis issues nos. 1 and 2?
4, Whether the court below was right when it held that failure of all the respondents to file affidavit alongside the preliminary objection is deemed to have admitted the fact in the applicants/respondents affidavit inspite of the fact that the matter was commenced under 1979 Fundamental Rights Enforcement Procedure Rules and proceeded to enter judgment on the substantive suit for the applicants/respondents without recourse to the transitional provision Rule 2 and 3 of the 2009 Rules.
5. Whether the court below was right when it delivered judgment/ruling before/against the date fixed for the case?
It is to be noted that the two sets of appellants filed three grounds of appeal each and while the 1st and 2nd appellants raised three issues for determination, the 3rd appellant formulated five issues. The grounds of appeal in the 3rd appellant’s notice contained on pages 93 – 94 of the records read thus:
1. The learned trial judge erred on the facts when he held that the constant arrest, harassment and detention of the applicants/respondents by the Police on the act done judicially is unconstitutional, null and void.
2. The learned trial fudge erred in law when he held that 1st and 2nd respondents/appellants (sic) action which was commenced under 1979 Fundamental Right Enforcement Procedure Rule was caught by the operation of the 2009 Fundamental Rights Enforcement Procedure Rules.
3. The learned trial judge was biased as he delivered judgment/ruling in (sic) a date not fixed for the matter without hearing notices to the parties.
Particulars of Error
(i) The applicants/respondents claim against the 1st and 2nd respondents/appellants is that the constant arrest, harassment and detention by the police on an act done judicially is unconstitutional, null and void.
ii. The 1st and 2nd respondents/appellants were not given right of fair hearing.
iii. The judgment of the trial court dated 5th October, 2010 is against the weight of evidence.
It is now trite that issues in the appeal should arise and be tied to the grounds of appeal and any issue which is not based on a ground of appeal is incompetent and so should be appeal struck out. Also any ground of appeal not based on the decision appealed against is incompetent. Issue No. 1 in the 1st and 2nd appellants’ brief is distilled from ground 1 while issues 2 and 4 are distilled from ground 2. Issues 4 and 5 in the 2nd appellant’s brief can be said to arise from ground 2 and even though the court frowns at distilling more than one issue from a single ground, nonetheless since the two issues are related, they will be considered in the appeal. There are no grounds on which issues 1, 2 and 3 in the 3rd appellant’s brief are grafted. The issues are incompetent and they are accordingly struck out.
The main issue in his appeal is whether the 1st and 2nd appellants could be said to be carrying out their lawful duty in inviting and later arresting and detaining the respondents upon the allegation of conspiracy and stealing made against them by the 3rd appellant. The 3rd appellant did not go to the Police until after the High Court made an order in suit No.HCA/18/2008 in which it ordered that any amount accruing to the Amoto/Efut Inyang Clan should be paid to the 2nd respondent for custody pending the gearing of the substantive matter.
After inviting the respondents to the Police Station and the latter writing their statements the police ought to have exercise more caution in dealing with the matter and should have waited until suit No.HC/18/2008 was disposed of. Their wading into the matter on the pre of investigating a criminal allegation is highly condemnable. No Policeman worth his salt would embark on what the 2nd appellant did under the watchful eye of the 1st appellant. All the claim by the appellant that they were not served with motion papers is a mere ruse if one consideres the fact that Ayimo. E. Ayimo, Chief bailiff of the High Court deposed to an affidavit of service of the court processes in suit No. HC/366/2009 on the appellant on 9th day of September, 2009 and the processes served were Motion on Notice, Affidavit and statement. The learned trial judge was right in holding that the appellants by refusing to file counter-affidavit to controvert the facts contained in the motion are deemed to have admitted the facts contained in the statement. I do not find any merit in the appeal and it is hereby dismissed with N30,000.00 costs against each set of appellants in favour of the respondents.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in draft form, the lead judgment of my learned brother, Kumai Bayang Akaahs, JCA in the instant appeal matter. I do not see the need for me to add a word thereto.
I agree entirely with the review, reasoning, resolution of issues and conclusion reached therein. I most humbly and respectfully adopt them as mine. Thus, for the fuller and more incisive enunciation of applicable principles of law, brilliantly and diligently conducted by my learned brother, Akaahs, JCA in the said lead judgment, I also find that the appeal lacks merit and it is accordingly dismissed by me. Additionally, I abide by all the consequential orders made therein, inclusive of the one regarding costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Kumai Bayang Akaahs, JCA gave me the privilege of reading the draft of the lead judgment he has just delivered in this appeal. I agree with the reasons contained therein for the resolution of issues involved, and I agree with the conclusion that the appeal is devoid of merit, I therefore dismiss the appeal with costs awarded in the lead judgment.
Appearances
Daniel udofa for 1st and 2nd Appellants
Bassey I. Inyang for 3rd AppellantFor Appellant
AND
Chief F. O. OnyebuekeFor Respondent
