ANDREW AYABAM v. COMMISSIONER OF POLICE, BENUE STATE (2019)

ANDREW AYABAM v. COMMISSIONER OF POLICE, BENUE STATE

(2019)LCN/13070(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/MK/185/2017

RATIO

JURISDICTION: IS DETERMINED BY THE VALIM BEFORE THE COURT

It is well settled that jurisdiction is determined by the claim before the Court; Tukur v. Government of Gongola State [1989] 4 NWLR (PT 17) 517; Ohakim v. Agbaso (2010) LPELR-2359(SC); Goldmark Nigeria Ltd v. Ibafon Company Ltd (2012) LPELR-9349(SC); Emeka v. Okoroafor (supra). In APGA v. Anyanwu (2014) LPELR-22182(SC), the Supreme Court, per Kekere Ekun, JSC at page 38 of the E-Report, restated the position of the law thus:
The law is settled that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are the processes filed by the plaintiff or applicant i.e. the writ of summons and statement of claim, or as in the present case the Originating Summons and its supporting affidavit.
Therefore, it is the claim before the Court, which in this case is disclosed in the originating process and its supporting affidavit that have to be looked at or examined in order to ascertain whether it comes within the jurisdiction conferred on the Court.PER JOSEPH TINE TUR, J.C.A.

FUNDAMENTAL RIGHTS: WHICH CLAIMS FALL UNDER THE FUNDAMENTAL RIGHTS PROVISIONS

In Kolo v NPF (2018) LPELR-43635(CA), this Court had reiterated the position of the law as follows, pages 39 ? 40 of the E-Report:
It is also established that for a claim to qualify as falling under fundamental rights, the principal relief sought must be for the enforcement of fundamental right. In Federal Republic of Nigeria v Ifegwu (2003) 15 NWLR (PT 842) 113, (2003) LPELR-3173(SC), the Supreme Court, per Uwaifo, JSC, restated this position at page 20 of the E-Report, thus:
However, for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief is for the enforcement or for securing the enforcement of a fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of a fundamental right. In other words, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as one for the enforcement of a fundamental right
See also Tukurs case (supra); Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt.531) 29; WAEC v Akinkunmi (2008) 4 S.C. 1, (2008) LPELR-3468(SC); Sea Trucks (Nigeria) Ltd v Anigboro (2001) 1 S.C. (PT 1) 45, (2001) LPELR-3025; University of Ilorin v Oluwadare (2006) 14 NWLR (PT 1000) 751, (2006) LPELR-3417(SC); Gafar v Government of Kwara State (2007) 1-2 S.C. 189, (2007) LPELR-8073(SC); Abdulhamid v Akar (2006) 5 S.C. (PT 1) 44; Amale v Sokoto Local Government & Ors (2012) LPELR-7842(SC).PER JOSEPH TINE TUR, J.C.A.

JUSTICES

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

ANDREW AYABAM Appellant(s)

AND

COMMISSIONER OF POLICE, BENUE STATE Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The appellant appealed against the decision of the High Court of Justice, Benue State holden at Makurdi, the decision having been rendered by Ka?kaan, J., (as he then was) on 24th May, 2017 against the appellant. The Notice of Appeal was filed on 2nd June, 2017. The appellant filed a brief of argument on 20th July, 2017. The respondent did likewise on 23rd October, 2017. The respondent?s brief was deemed proper on 24th May, 2018. Learned Counsel argued the appeal on 24th January, 2019 by adopting their respective briefs of argument.

The law is that the party that has appealed usually files a brief of argument and distills the issues for determination under Order 19 Rule 3(1) of the Court of Appeal Rules, 2016 to wit: –
?3(1)The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.?

The issues for determination are set out at page 3 paragraph 3.1 of the appellant?s brief

as follows: –
?1. Whether or not the trial Court was right when it took into cognizance exhibits which were public documents even when such public documents were not certified and relied on them in arriving at its decision. (Distilled from grounds 2 and 3).
2. Whether the trial Court was right when it arrived at its final decision without taking into proper consideration all exhibits placed before it. (Distilled from grounds 1 and 4).?

The two issues are said to arise out of the following grounds of appeal:-
?I. GROUND ONE:
The decision of the trial Court is against the weight of affidavit evidence.
II. GROUND TWO:
The trial Court erred in law when it failed to consider all the issues raised by the appellant, especially, the issue of admissibility of Exhibit ?TY1? and other public documents attached to it that were not certified and this error occasioned a gross miscarriage of justice.
PARTICULAR OF ERROR:
(a) Exhibit ?TY1? and other documents attached to it are public documents but were not certified.
(b) Objection was raised to the admissibility of Exhibit

?TY1? and its accompanying documents but the trial Court did not consider the objection.
III. GROUND THREE:
The trial Court erred in law when it relied on Exhibit ?TY1?, which is inadmissible in law, to find against the appellant and this error occasioned a gross miscarriage of justice.
PARTICULARS OF ERROR:
(a)The trial Court held as follows: ?It can be gleaned from the facts in the affidavit evidence, it is not in doubt that a complaint was initiated and addressed to the respondent vide Exhibit ?TY1?.
(b) Exhibit ?TY1? was a public document but was not certified.
(c) The failure to certify Exhibit ?TY1? makes it an unreliable document.
IV. GROUND FOUR:
The trial Court erred in law when it found that the appellant failed to make a case of infringement or likelihood of infringement to warrant the shifting of burden to the respondent when the appellant succinctly deposed to facts in the affidavit in support of the application that the vehicles, the subject matter of the suit, were his personal vehicles by virtue of his position as a former Chairman of Benue

State Internal Revenue Service and this error occasioned a gross miscarriage of justice.
PARTICULARS OF ERROR:
(a) The appellant deposed in paragraph 7(a)-(j) the he was appointed by the Benue State Government as the Executive Chairman of Benue State Internal Revenue Service.
(b) The appellant also deposed in paragraph 6(a)-(j) that he filed suit No.NICN/ABJ/215/2013 against the Benue State Government after his appointment was unlawfully terminated.
(c) The above suit in which the appellant also claimed to be entitled to 4 new vehicles was settled out of Court at the instance of the Benue State Government wherein the government agreed through a consent judgment to pay N100,000,000.00 to the appellant.
(d) The Benue State Government is yet to fulfill its own obligation under the judgment.
(e) The appellant legitimately came into possession of the said vehicles by virtue of his former office and the judgment that voided the termination of his appointment.?

Issue one and two are said to derive from Grounds 1-4 in the Notice of Appeal. Issue one and two are complaints that the learned trial Judge took into

cognizance exhibits which were public documents? which had not certified true copies before arriving at a decision. The two issues contravene Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016. Section 251(1)-(3) of the Evidence Act, 2011 is couched as follows:-
?251(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.
(2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it appears to the Court on appeal that had the evidence excluded been admitted it may reasonably be held that the decision would have been the same.
(3) In this section, the term ?decision? includes a judgment, order, finding or verdict.?
The appellant has the onus of showing that, if the public documents had been expunged by the learned trial Judge or this Court, the decision would not have been the

same. See Section 251(1) of the Evidence Act, 2011. The appellant has to further show that had the learned trial Judge not wrongfully excluded all the exhibits the appellant is complaining of, but had admitted them in the Court below or on the orders of this Court, it may reasonably be held that the decision would have not favoured the appellant. See Section 251(2) of the Evidence Act, 2011. Order 8 Rules 1-4, 7-10 of the Court of Appeal Rules, 2016 provides as follows:-
?1. The registrar of the Court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the Court.
2. In pursuit of Rule 1 above, the registrar shall within fourteen (14) days summon the parties before him to:-
(a) settle the documents to be included in the Record of Appeal ; and
(b) fix the amount to be deposited by the Appellant to cover the estimated cost of making up and forwarding the Record of Appeal.
3. The said registrar shall whether any of the parties attend or not, provided the notice has been duly served on the parties to the appeal, proceed to settle and determine those matters in accordance with

the provisions of Rules 2 (a) and (b) of this Order.
4. Where at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the Records of Appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar’s failure or neglect.
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7. Every Record of Appeal shall contain the following documents in the order set out:-
(a) The index;
(b) A statement giving brief particulars of the case and including a schedule of the fees paid;
(c) Copies of the documents settled and compiled for inclusion in the record of appeal;
(d) A copy of the notice of appeal and other relevant documents filed in connection with the appeal.
8. The registrar or the Appellant in compiling the record shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal and generally to reduce the bulk

of the record as far as practicable, taking special care to avoid duplications of documents and unnecessary repetition of headings and other merely formal parts of documents; but the documents omitted to be copied shall be enumerated In a list at the end of the record, but where part or parts only of any lengthy document are directly relevant to the subject matter of the appeal it shall be permissible to omit to copy such part of the document as are irrelevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.
9. Every record or additional Record of Appeal compiled by a party to an appeal must be certified by the registrar of the lower Court. Provided that it shall not be necessary for copies of individual documents to be separately certified but the registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules.
10(1) Where the record is compiled by the registrar under Rule 1 of this Order, he shall transmit the record within the time stipulated for compilation and transmission under Rule 1. The record shall be transmitted

together with:-
(a) a certificate of service of the notice of appeal ;
(b) ten copies of the record and two copies of the electronic device used for the production of the records, duly and carefully preserved;
(c) the docket or file of the case in the Court below containing all papers or documents filed by the parties in connection therewith, to the Registrar of the Court.
(2) Where the record is compiled by the Appellant under Rule 4 of this Order, he shall transmit the record within the time stipulated for compilation and transmission by an Appellant under Rule 4. The record shall be transmitted in compliance with Rule 10( 1).
(3) The registrar of the Court below or the Appellant as the case may be, shall within seven (days) of the transmission of the record to the Court, cause to be served on all parties mentioned in the notice of appeal, a notice that the record has been transmitted to the Registrar of the Court who shall in due course enter the appeal in the cause list.?
The appellant did not place before the Court of Appeal all documents and exhibits necessary for the appeal (Order 8 Rule 4) or

the copies of the documents settled and compiled for inclusion in the record of appeal? (Order 8 Rule 7(c) or ?the docket or file of the case in the Court below containing all papers or documents filed by the parties in connection therewith, to the registrar of the Court? (Order 7 Rule 10(1)(c) of the Court of Appeal Rules, 2016) for this Court to determine issues 1 and 2 said to arise out of grounds 2-4 in the Notice of Appeal. The Court must see the exhibits or the documents the appellant wants to use in the appeal to determine issues 1-2 to support grounds 2-4 in the Notice of Appeal. The duty of producing the documents or exhibits the appellant is complaining were not utilized by the learned trial Judge in arriving at a decision is on the appellant.

The duty of a respondent that did not cross-appeal is to answer all the material points of substance raised by the appellant in his or her brief showing why the appeal should be dismissed. That is the purport of Order 19 Rule 4(1)-(2) of the Court of Appeal Rules, 2016 to wit:-
?4(1) The respondent shall also within thirty days of the service of the brief for the

appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.?

The respondent however distilled the following issues for determination at paragraph 4.0 pages 9-10 of the brief as follows:-
?1. Whether the entire case of the applicant at the trial Court was not premised on inadmissible evidence. (Distilled from Ground 1 of the Notice of Appeal).
2. Whether the Exhibit ?TY1? was a duly certified public document for the purpose of tendering and admitting in evidence under the Evidence Act, 2011. (Distilled from Grounds 2 and 3 of the Notice of Appeal).
3. Whether the applicant proved his case to be entitled to the judgment of the trial Court. (Distilled from Ground 4 of the Notice of Appeal).?

I shall limit my consideration of this appeal to the issues formulated by the appellant for consideration, bearing in mind that the appeal arose out of civil proceedings brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009. This was after the applicant/appellant had obtained leave of the Court below to prosecute the claim. The prayers the appellant sought against the respondent have been incorporated in the decision of the learned trial Judge at page 136 lines 16 to 25 of the printed record.

The learned trial Judge had before him oral and documentary evidence supported by the addresses of learned Counsel before holding at page 138 lines 15 to page 140 lines 1-10 of the printed record as follows:-
?As can be gleaned from the facts in the affidavit evidence, it is not in doubt that a complaint was initiated and addressed to the respondent vide Exhibit ?TY1?. It is equally not in doubt that sequel to Exhibit ?TY1?, (the said complaint) respondent caused Exhibit ?AA1?, a letter of invitation to be served on the applicant. That the applicant had other ?co-travellers? in the business of holding onto Government

vehicles (see Exhibit ?AA1?) is neither denied nor controverted.
Exhibit ?AA? from the respondent?s office dated 21st May, 2016 addressed to the applicant captioned POLICE INVITATION reads:-
1. This Office is investigating a case of BEING IN POSSESSION OF 3 GOVERNMENT VEHICLES.
2. You are hereby required to report at O/C SIB OFFICE MKD on the 28th day of September, 2016 at about 10.00hrs.
3. You will please bring along with you Two TOYOTA HILUX AND ONE TOYOTA PRADO.
4. On arrival you will ask of O/O SIB MKD.
SGD.
07035386523
There is no indication that the applicant submitted to the said invitation let alone the investigation. Paragraph 7(a) of the affidavit in support avers:
?7(a) That the applicant currently on a national assignment as Director in the Federal Inland Revenue Service, an assignment that has taken him away from his usual place of work and would last for at least ten days, which will only make him available in October, 2016.?
Section 46 of the Constitution renders justiciable not only actual infringement of rights guaranteed in Chapter IV of the

Constitution but the likelihood or threat of infringement of the rights. I do not think it contemplates a situation in which public authorities especially investigative agencies would be cowed in their call to duty. After all, the same Constitution that provides for the Fundamental Rights of a human person also provides that the respondent can arrest him upon reasonable suspicion of committal of a criminal offence and can even detain him within a period allowed by the same Constitution. Applicant ought to honour the invitation in order to explain his right to keep the vehicles. Instead, claims to be entitled to the paraphernalia of office and the perquisites including official cars by virtue of his appointment as Executive Chairman of the Board for Internal Revenue. That he served his first term and had his second term truncated. The same appointing authority it was that complained to the respondent over what she provided for the applicant whilst the appointment lasted. The question is whether the applicant is still entitled to keep the vehicles even after he had his term of office truncated. Respondent has averred that she acted strictly on the complaint vide

Exhibit ?TY1? attached to the counter-affidavit. Exhibit ?TY1? addressed to the Respondent is captioned ?RE: LIST OF PAST OFFICIALS STILL IN POSSESSION OF GOVERNMENT VEHICLES.? Paragraph 2 of which reads:-
?2. In view of the above, I have been directed to forward same to you and to humbly request that you use your good office to assist in making the recoveries.?
Exhibit ?AA1? is an invitation extended to the applicant amongst others pursuant to Exhibit ?TY1?. It is an invitation without more. I am unable to find any breach of the fundamental right of the applicant or any threat of such infringement from the contents of Exhibit ?AA1?, and indeed the state of evidence before me.
It is settled law that where an applicant has made out a case of infringement or threat or likelihood of infringement, the burden shifts to the respondent to show otherwise. See Ejeofor vs. Okeke (2007) 7 NWLR (Pt.655) 373; Onagoruwa vs. I.G.P. (1991) 5 NWLR (Pt.193) 593. The burden will not as in this case shift if no case of infringement threat or likelihood of infringement is

established.
All that the applicant is able to establish is an invitation from the respondent to him vide Exhibit ?AA1?, which he did not honour. The respondent was entitled to invite him and he had a duty to honour the invitation. I find on the whole that the applicant has not made out any case of infraction of his fundamental right, threat or likelihood of it. In the circumstance, this application must fail. It fails and is hereby dismissed.?

This appeal is to be determined under the provisions of Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016 to wit:-
?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.?
The appellant has the onus of showing that the learned trial Judge committed

substantial wrongs, or that the decision occasioned a miscarriage of justice for this Court to interfere with the findings or the verdict of the lower Court in favour of the appellant. But ?The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned? ? See Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016. Even where an appellant establishes a substantial wrong or a miscarriage of justice, the remedy lies in Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 to wit:-
?9(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.?<br< p=””

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This Court may excise the aspect of the decision that the learned trial Judge committed substantial wrongs or that occasioned a miscarriage of justice and apply the ?Blue Pencil Test? or the ?Blue Pencil Rule? to give final judgment to the party that deserves justice on the remainder of what is admissible oral or documentary evidence under Order 4 Rule 9(3) of the Court of Appeal Rules, 2016. The ?Blue Pencil Rule? or ?Blue Pencil Test? has been applied by the Supreme Court in Ezekpelechi vs. Ugorji (1991) 7 SCN (Pt.2) 244 per Babalakin, JSC at page 258 lines 1-14 as follows:-
?Having found that the plaintiffs pleaded estoppel and the learned trial Judge made use of the judgment as such the summing-up of issues settled which stated same to be res judicata becomes a mere wrong use of words which is a technicality that should not be allowed to becloud the justice of this case so ably x-rayed by the trial Court and the Court of Appeal. This Court has often constantly emphasized that mere technicalities should not be allowed to defeat the justice of a case. In fact a Court should adjudicate on issues

properly submitted by the party and not on matter raised by the parties. See the case of Atoyebi vs. Odudu (1990) 6 NWLR (Pt.157) 384.
Finally on this point, it is not every slip in the lower Court that will result in an appeal being allowed. The misconception of the Counsel for the plaintiffs-respondents that a plaintiff can plead res judicata in a statement of claim is not supported by law.?
In Onifade vs. Olayiwola (1990) 11 SCNJ 16, the Supreme Court held at page 22 lines 10 to page 23 lines 1-43 per Nnaemeka-Agu, JSC as follows:-
?Failure of an appellant to formulate issues in his brief is a non-compliance with the rules and may result in the brief being struck out.
The reason for this is not far to seek. For, quite apart from the fact that it is a requirement of the rules, and it is settled that rules of Court ought to be obeyed, it is an omission which affects the merit of the appeal. Appeals in this Court are now argued on the issues and not on the grounds of appeal. An issue is a combination of facts and circumstances, including the law on a particular point, which when decided one way or the other affects the fate of

the appeal. A ground of appeal, on the other hand, is any wrong decision, resolution, inference or step taken by the Court below which, in the contention of the appellant, is wrong. Any error on the facts or in law may properly be raised as a ground. One or more grounds may form an issue; but it is not every ground that is sufficient to raise an issue. To take a common example: wrongful rejection of an admissible piece of evidence is a valid ground of appeal. But to merely show that a piece of evidence was wrongly rejected cannot be a ground for allowing the appeal. The proper issue that could be raised thereon is whether if the particular piece of evidence was wrongly rejected, it would have, if admitted, affected the decision. It is now too late in the day to dispute the fact that it is not every ground of appeal that has been successfully argued that will necessarily result in the appeal being allowed. Even under the old practice, where a number of grounds were argued and some were successfully attacked but some were not, it did not necessarily follow that because of those successful grounds the appeal must be allowed. The Court, in order to decide whether

the appeal succeeds would, as it were, run a blue pencil across the grounds successfully attacked and see whether the remaining grounds could sustain the decision appealed against. If they could, the appeal failed; but if they could not, the appeal succeeded. This is the so-called ?blue pencil? rule. See Ex parte Whybrow & Co. & Ors. (1910-1911) 11 CLR 1 at pp.34-35. Applying this rule in Sir Abubakar Tafawa Balewa vs. Chief T. Adebayo Doherty (1963) 1 NWLR 949, Lord Devlin in the Privy Council stated at page 960:-
?In their Lordships? opinion the definition cannot be read down. There is no special provision in the Constitution giving to the Court any power of interpretation greater than that which flows from the ordinary rule of construction. The question, therefore, is whether the good can be severed from the bad and so survive. Clearly it cannot here be done under the ?blue pencil? rule.?
In the new practice since the introduction of brief writing, the same principle of practice has been applied in appeals. A ground of appeal or a point in the appeal may succeed, but if it is not shown to have been

substantial or material in the sense that it has occasioned a miscarriage of justice, the appeal will still be dismissed. In the case of His Highness Oba Lamidi Olayiwola Adeyemi & Ors. vs. The Attorney-General of Oyo State & Ors. (1984) 1 SCNLR 525 although the Supreme Court held that the Court of Appeal, Ibadan Division, was in error when it when it held that the Boundary Commissioner appointed under the Local Government and Community Boundaries Settlement Law is a subordinate Court vested with judicial powers, it still dismissed the appeal when it came to the conclusion that, as an administrative Tribunal, the Commissioner had power to enquire into and determine such boundaries as he might be required by the Governor to do. Despite the unwarranted excursion of the Commissioner into the issue of declaration of title, their Lordships still dismissed the appeal. It appears to me therefore to be the law that where an appellant is able to show just that the Court below committed an error without showing that the error is substantial or material in that it has affected the merits of the case one way or the other, the appeal may still be dismissed. See on

this Onojobi vs. Olanipekun (1985) 4 SC (Pt.2) 156, at page 163 (per Obaseki, JSC).
In Adejumo vs. Ayantegbe (1989) 3 NWLR 417 at p.430, dealing with a problem similar to the one that has arisen in this case, I said, and my learned brothers agreed with me:-
?But he should know that once the issues for determination have taken full account of the grounds of appeal filed, he ought not to abandon those issues and base his arguments on the grounds of appeal one by one. Quite apart from the intendment of the Rules that argument in a brief shall be based on the issues, the advantage of this is that whereas a successful argument of a ground of appeal does not necessarily result in the appeal being allowed (for which see Balewa vs. Doherty (1963) 1 WLR 949, at p.960; H.H. Oba Lamidi Olayiwola Adeyemi & Ors. vs. The Attorney-General of Oyo State & Ors. (1984) 1 SCNLR 525, at pp.575 and 605) a resolution of an issue, properly framed, will affect the fortunes of the appeal one way or the other. For an issue, which is usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the

parties, necessary for determination by the Court, and a determination of which will normally affect the result of the appeal. See Standard Consolidated Dredging and Construction Co. Ltd. vs. Katonecrest Nigeria Ltd. (1986) 5 NWLR (Pt.44) 791, at p.799; Ejowhomu vs. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) 1; Chukwuma Okwudili Ugo vs. Amamchukwu Obiekwe & Anor. (1989) 2 SCNJ 95 a pp.103-104; (1989) 1 NWLR (Pt.99) 566.?
In this case, the appellant not only failed to frame any issues, but also he failed to show that his alleged grounds are material or substantial. Besides, it is my view that the decision as to whether or not any relevant grounds of appeal are material or substantial is one which an appellate Court cannot avoid to take before it can intervene. See on this Moulton vs. Graham 22 T.L.R. 380 at page 384. When in this appeal, the appellant failed to allege or show that those unspecified grounds which he complains that the Court of Appeal failed to consider are substantial or material, he is not entitled to any intervention by this Court.
The appellant?s appeal is also doomed to failure for two other reasons.?<br< p=””

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In Ugo vs. Obiekwe (1989) 2 SCNJ 95, Nnaemeka-Agu, JSC held at page 103 lines 15 to page 104 lines 1-34 as follows:-
?First:- Issues for determination numbers (1), (3), (4) and (6) are based on no grounds of appeal at all or upon grounds 4 and 5 which had already been struck out. This should not be. Counsel will do well to remember that issues for determination must arise from and relate to the grounds of appeal filed, and no more. Conversely and issue for determination which has no ground of appeal to support it is worse than useless: See on this Osinupebi vs. Saibu & Ors. (1982) 7 SC 104 at pp.110-111; also Western Steel Works Limited & Anor. vs. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284 at page 304.
Secondly:- Counsel did not held himself much by the arrangement he adopted for his statement of issues. A good deal of useful time was wasted during argument when, pressed by the Court, he had to relate his arguments on the various grounds of appeal to the stated issues but have no relationship with the grounds either in form, arrangement or numbering and arrangement whereby statement of facts, issues and

argument are easily referable to the grounds of appeal filed.
Thirdly:- Counsel appeared to have worked on the misapprehension that every possible slip raises an issue. The result is that he framed too many issues ? nine, for six grounds of appeal. This appears to be a reversal of the usual practice whereby one or two or more grounds raise an issue: one ground can never properly raise more than one issue. It must, however, be borne in mind that an ?issue? in an appeal must be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitled him to the judgment of the Court. This is why apart from the fact that multiplicity of issues tends to reduce most of them to trifles, experience shows that most appeals are won on a few cogent and substantial issues, well framed, researched and presented rather than on numerous trifling slips.
I may here repeat what I said in the case of Standard Consolidated Dredging & Construction Company Limited vs. Katoncrest Nigeria Limited (1986) 5 NWLR (Pt.44) 791 at page 799 where I said:-

?The above manner of wording the issues for determination in both briefs raises two necessary questions, namely:- (I) what is the meaning of ?issues arising for determination? in a brief and (II) what are its objects and purpose? As for the meaning of ?issue? I cannot do better than borrow the words of Buckley, L.J., in Howell vs. Daring & Ors. (1915) 1 K.B. 54, at page 62 thus:
?The word can be used in more than one sense. It may be said that every disputed question of fact is in issue. It is in a sense, that is to say, it is in dispute. But every question of fact which is ?in issue? and which a jury has to decide is not necessarily ?an issue? within the meaning of the rule.”
Later he continued:
?An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence.?
So it is on an appellate brief, mutatis mutandis. It is not every fact in dispute or indeed every ground of appeal that raises an issue for

determination. While sometimes one such fact or ground may raise an issue, more often than not it takes a combination of such facts or grounds to raise an issue. The acid test is whether the legal consequences of that ground or facts as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour. For as Lord Diplock put it in Fidelitas Shipping Co. Ltd. vs. V/O Exportchleb (1966) 1 Q.B. 631 at page 642:-
?But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not ?an issue.?
The issues, as framed, appeared to have served no purpose whatsoever in the appeal. For after framing the nine issues, Counsel went back to argue his grounds of appeal one after another. He made no further reference to the issues framed, in his argument. The proper practice is, of course, that after framing the issues, the statement of facts and the argument to follow should be based on, and be referable to the issues as framed and not to the grounds of appeal. This is the only way whereby Counsel can derive maximum benefit from his brief.?

See Adejumo vs. Ayantegbe (1989) 3 NWLR 417 at 430 and Onojobi vs. Olanipekun (1985) 4 SC (Pt. 2) 156 at 163.

Grounds 2-4 in the Notice of Appeal are complaints that ?the trial Court erred in law? followed by particulars. Neither the Law nor the section that the learned trial Judge ?erred in law? to have applied in determining the dispute against the appellant has been mentioned or particularized. This offends the provisions of Order 7 Rule 2(2)-(3) of the Court of Appeal Rules, 2016 to wit: –
?2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ?the notice of appeal?) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
(2) Where a ground of appeal alleges

misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.?
When a learned trial Judge errs in law in determining a dispute or a controversy is explained in a plethora of decisions of the Supreme Court. In Chidiak vs. Laguda (1964) NMLR 123, Taylor, JSC held at page 125as follows: –
?Time and again do cases come up on appeal in which matters are treated in the Grounds of appeal as misdirection which are no more than findings of fact by the trial Judge. Perhaps it is time to make it clear again what is regarded as a direction. In the case of Bray vs. Ford (2) Lord Watson said that:-
?Every party to a trial by Jury has a legal and constitutional right to have the case which he has made either in pursuit or in defence, fairly submitted to the consideration of that Tribunal.?
This is done by the trial Judge directing the Jury, who are

the Judges of fact, as to the issues of fact, and what is the law applicable to those issues. A misdirection therefore occurs when the issues of fact, the case for the plaintiff or for the defence, or the law applicable to the issues raised are not fairly submitted for the consideration of the Jury. Where, however, the Judge sits without a Jury, he misdirects himself if he misconceives the issues, or summarizes the evidence inadequately or incorrectly or makes a mistake of law, but provided there is some evidence to justify a finding it cannot properly be described as a misdirection. It is of course desirable, and we consider that it should be the practice that the particular findings to which objection is to be taken at the hearing of an appeal should be specified in the grounds of appeal, possibly under the ground of appeal alleging that the judgment was against the weight of evidence.?
In N.N.S.C. vs. Establissment Sima (1990) 12 SCNJ 35 the Supreme Court held at page 38 as follows:-
?Now, the appellant right from the Federal High Court to the Court of Appeal and finally to this Court has tenaciously insisted his grounds of appeal from

the High Court are grounds of law, merely by tagging them ?error in law?. Mere assertion that a ground of appeal is based on ?error in law? does not make it one if the errors particularized are no more than matters of fact. (Metal Construction (W.A.) Ltd. vs. Migliore (1990) 1 NWLR (Pt.126) 299). The grounds of appeal tagged by the appellant as those based on ?error in law? are no more than mere facts, the decision complained of are those of Court?s discretion based on facts deposed in affidavit evidence. (Ogbechie vs. Onochie (1986) 2 NWLR (Pt. 23) 484; Ifediora vs. Ume (1988) 2 NWLR (Pt.74) 5; Obijuru vs. Ozims (1985) 2 NWLR (Pt.6) 167).
When a ground of appeal is based on facts alone, or on mixed law and fact it could not be filed in the Court of Appeal unless leave is sought and obtained. (See Section 221(1) and (2) of the Constitution, 1979; Oluwole vs. L.S.D.P.C. (1983) 5 SC 1; State vs. Omeh (1983) 5 SC 20; Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67) 718. Once a ground of appeal is based on facts or mixed law and facts the jurisdiction of both Court of Appeal and Supreme Court is ousted unless leave has been

sought and obtained to file the ground (Ojemen vs. Momodu II (1983) 1 SCNLR 188, 205).
The appellant right from the Federal High Court to the Court of Appeal has fought a futile battle to have a stay of proceedings pending appeal because its appeal is incompetent being appeal on grounds of facts for which leave was necessary and none was sought or obtained.
It was for the foregoing reasons that I, on 2nd day of October, 1990 dismissed this appeal with costs of N500.00 to the respondent.?
In Nwadike vs. Ibekwe (1987) 12 SC 14 the Supreme Court held at page 54 as follows:-
?(ii) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inferences drawn therefrom are grounds of law; Ogbechie vs. Onochie (supra) at pp.491-192.?
Order 7 Rule 3 of the Court of Appeal Rules, 2016 reads:-
?3. Any ground which is vague or general in term or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under

this Rule may be struck out by the Court of its own motion or on application by the Respondent.?
Grounds 2-4 in the Notice of Appeal are vague and general in terms. Grounds 2-4 and the issues formulated as arising therefrom are hereby struck out.

Ground 1 is a complaint that the ?decision is against the weight of evidence?. A complaint that a decision is ?against the weight of evidence? is an invitation by the appellant for the Court of Appeal to re-evaluate the oral and documentary evidence, without taking into consideration the credibility or veracity of the witnesses which is a matter within the province of a learned trial Judge. The complaint that the decision is against the ?weight of evidence? was explained by Fatayi-Williams, JSC (as he then was) in Mogaji vs. Odofin (1978) 4 SC 91 at 93-94 as follows:-
?When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the

totality of the evidence before the judge. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff?s claim will be dismissed. In certain circumstances, however, the claim is either struck out or the plaintiff is non-suited. Incidentally, in deciding which evidence has more weight than the other, a trial judge sometimes seeks the aid of admissions made by one party to add more to the weight of the evidence adduced by the other party. This is precisely why the

totality of the evidence must be considered and why a trial Judge must weigh the conflicting evidence adduced by both parties and then draw his own conclusions. Of course, the procedure set out above will be unnecessary if the plaintiff?s case is so patently bad that no reasonable Tribunal could possibly act upon it. In such a case, the trial Judge will dismiss the plaintiff?s claim without calling upon the defence.
In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining

which is heavier, the judge will naturally have regard to the following: (a) whether the evidence is admissible; (b) whether it is relevant; (c) whether it is credible; (d) whether it is conclusive; and (e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted?
It would appear from the above that what the defendants are now complaining about is precisely what this Court has criticized in the above case. In short, the trial Judge in that case condemned the defendant without considering the totality of the case before him and weighing the respective cases of the parties on the imaginary scale of justice!
It is manifest that the trial Judge in the case in hand has also not put the defendants? case on that imaginary scale and found it wanting in weight. We therefore think that his approach to the case is grossly unfair to the defendants. With respect, it appears to us that the trial judge, at the time he found for the plaintiffs, had not considered the

defendants? case at all. We think, again with respect, that it is an under-statement to complain that the judgment is against the weight of evidence. What happened is worse than that. No imaginary scale was used in this particular case and the question of weight does not therefore arise.?
In Lions Building Ltd. vs. Shadipe (1976) 2 FNLR 282, Udo Udoma, JSC held at pages 289-290 as follows:-
?The question then is: What order ought the learned trial Judge to have made in the light of the evidence before him at the trial? According to the learned Counsel for the defendant, the claims of the plaintiffs ought to have been dismissed, but according to the learned Counsel for the plaintiffs, Chief Rotimi Williams, judgment ought to have been entered for the plaintiffs. That brings us to a consideration of the last ground of appeal argued by both Counsel, namely, that judgment is against the weight of evidence.
We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the

principle to which a Court of Appeal should act when a judgment is appealed against as being against the weight of evidence, It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest no Court should depart. The principle was enunciated in Macaulay Vs Tukuru (1881 ? 1911) I N.L.R. 35, in these words:
?When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong.
If, however, the appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.?
In Barau vs. Board of Customs & Excise (1982) 2 NCR 1, Fatayi-Williams, C.J.N. held at pages 21-23 as follows: –
?In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent

intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent?s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye vs. Eyiyola (2) this Court held (1968 NMLR at 95) that:-
?Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.?
Again, in Fabumiyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an appeal Court in more detail as follows (1968 NMLR at 247):
?A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances.

It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd. [(1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. [(1962) All NLR 224]; Lawal Braimob Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial.? [These words do not appear in the report of the case at (1967) 1 All NLR 241). It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.
In 1974, this Court again considered the limitations placed on a Court of Appeal in re-evaluating

evidence accepted by a trial Court in Balogun vs. Agboola (6). We observed in our judgment in that case as follows ([1974] 1 All NLR at 73; (1974) 10 SC at 118-119):
?The ascription of probative values to evidence is a matter primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of undisputed facts for the views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.
That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his ?performance? on the day he

brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when ?dealing only with the cold sullen print of the records before them? decided to set aside the Chief Judge?s findings of fact. Like this Court in Balogun vs. Agboola (ibid.), I – have no hesitation in restoring the findings of fact of the learned trial Judge.?
Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.
In case the significance is overlooked, all the grounds of appeal filed and argued before the Federal Court of Appeal were grounds of law. Even the misdirections

complained of in some of the grounds of appeal related either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as my brother Bello, JSC has done in his judgment, which he has been kind enough to allow me to see in draft, that the Federal Court of Appeal could and did make findings of fact (which this Court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this Court, which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.?
The duty of a learned trial Judge is to evaluate the oral and documentary evidence to arrive at a just decision. In doing so, a learned trial Judge takes into consideration the demeanour of the witnesses as they testify in the Court. In Enekebe vs. Enekebe (1964) NMLR 42, Bairamian, JSC observed at page 46 that: ?In the cases on discretion which I have seen, the trial Court goes by

the material presented to it, and the Court of Appeal goes by the material in the record

The appellant and the respondent put before the learned trial Judge affidavit evidence supported by documentary exhibits. Section 115 of the Evidence Act, 2011 reads as follows: –
?115(1) Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the grounds of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place and circumstance of the information.?

A deponent that swears an affidavit is a ?witness? in the proceedings. In Bamaiyi vs. The State (2001) FWLR (Pt. 46) 956, Uwaifo, JSC held at page 978 paragraph ?G? to page 979 paragraphs ?A?-?B? and page 981 paragraphs ?C?-?F? that:-
?I think the two affidavits must now be read as one since the one later in time was sworn in furtherance of the earlier. It must not be forgotten that the deponent, Olakunle Ligali, deposed that by virtue of his schedule of duties, he became conversant with the facts of this case. To be conversant with, is to have knowledge of a matter. Even so, the law requires a deponent of his type to confine himself to facts and circumstances. An affidavit meant for use in Court stands as evidence and must, as near as possible, conform to oral evidence admissible in Court. Sections 86 and 87 of the Evidence Act provides as follows:
86. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
87. An affidavit shall contain extraneous matter, by

way of objection, or prayer, or legal argument or conclusion.
These provisions have received the consideration of this Court in Governor of Lagos State Vs. Ojukwu (1986) 1 NWLR (pt. 18) 621; Orji Vs. Zaria Industries Ltd. (1992) 1 NWLR (pt. 216) 124; and more recently Josien Holdings Ltd. Vs. Lornamead Ltd. (1995) 1 NWLR (pt. 371) 254?
I think the legal position is clear that in any affidavit used in the Court, the law requires, as provided in Sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which Counsel ought to urge upon the Court. if it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may

be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its processes of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that the prayers, objections and legal arguments are matters that may be pressed by Counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.?

The learned Judge again evaluated the sworn affidavits with documentary evidence to arrive at a decision by holding that the appellant was not able to establish that the members of the respondent erred to have invited him for investigation as to how he came into ?Being in possession of three (3) government vehicles.? The authorities I have cited do not authorize an appellate Court to re-evaluate the oral

and documentary evidence that had been admirably done by a learned trial Judge. There is a wall of difference between an ?arrest? and an ?invitation? by law enforcement bodies or authorities that have constitutional or legal powers of investigating a crime said to have been committed by a person. Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered under which the appellant instituted this proceedings in the Court below is couched in the following manner:-
?35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:-
(a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty;
(b) by reason of his failure to comply with the order of a Court or in order to secure the fulfillment of any obligation imposed upon him by law;
(c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such

extent as may be reasonably necessary to prevent his committing a criminal offence;
(d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.?
The duties of the body or authority that arrested or detained any person is provided under Section 35(2)-(7) of the Constitution as follows: –
?(2) Any person who is arrested or detained shall have the right to remain silent or

avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.
(3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.
(4) Any person who is arrested or detained in accordance with Subsection (1) (c) of this section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of:-
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In Subsection (4) of this section, the expression “a reasonable time” means:-
(a) in the case of an arrest or detention in any place where there is a Court of

competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.
(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.
(7) Nothing in this section shall be construed –
(a) in relation to Subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and
(b) as invalidating any law by reason only that it authorises the detention for a period not exceeding three months of a member of the armed forces of the federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces of the Federation or of the Nigeria police force, in respect of an offence punishable by such detention of which he has been found guilty.?

?52

The onus is on the appellant to adduce evidence in the Court below that he was deprived of his ?personal liberty? not .in accordance with a procedure permitted by law? under Section 35(1)-(7) of the Constitution. The Constitution has laid down the procedure that the law permits will be lawful when the personal liberty of any one is deprived as provided under Section 35(1)(a)-(f) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The appellant had the onus of proving that he was deprived of his personal liberty for any moment not in accordance with any of the procedures or for the purposes permitted under Section 35(1)(a)-(f) of the Constitution. That is when the onus would have shifted to the respondent to prove otherwise, for example, that the deprivation of the appellant?s personal liberty was for instance ?for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence? ? See Section 35(1)(c) of the Constitution.

Deprivation of the personal liberty of ?every person? should be based ?upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence? or under Section 35(1)(a)-(b) or (d)-(f) of the Constitution. The deprivation is to be based on a suspicion of committing not a ?civil wrong? but must have arisen in a ?criminal cause or matter.? Civil wrongs are to be heard and determined in Civil Courts of competent jurisdiction. At the time the Police invite a suspect to the Police Station, the complainant may allege that a criminal offence had been committed by the suspect or is about to be committed, presently, or in the foreseeable future. The complainant may lay a complaint to a body of persons or authorities under Section 35(1)(a)-(f) of the Constitution who have the duty to embark on an investigation of the complaint or under Section 4 of the Police Act. Investigation cannot be embarked upon without inviting the suspect by the authorities or bodies of persons who may want to deprive the suspect of this personal

liberty under Section 35(1)-(7) of the Constitution or under Section 4 of the Police Act by the Police for questioning. The Police or the authorities will question the complainant and the suspect with their witnesses if any, to ascertain whether the complaint is criminal or civil. If it is criminal the suspect may be arrested and if the offence is compoundable, the complainant and the suspect can settle out of Court. But if it is not, the police may, using the police officer?s discretion, arrest the suspect with a view to arraigning him before a Court exercising criminal jurisdiction as provided under Section 35(2)-(6) of the Constitution. But if the complaint, upon investigation is a civil wrong, the police have no jurisdiction to arrest the offender nor detain him after been seised of the oral or documentary evidence that discloses that the dispute ought to be heard and determined in a civil Court of competent jurisdiction. The onus is on the appellant to show that the police inquiry revealed that he had committed no crime after the police invited him and the complainant for questioning but after finding that the complaint was civil in nature, arrested

and detained him contrary to the provisions of Section 35(1)-(7) of the Constitution.
Section 35(1)-(7) of the Constitution does not mention the name of the person, authority or body that is empowered to deprive ?Every person? of his or her ?personal liberty? which has to be ?in accordance with a procedure permitted by law? ? See Section 35(1)(a)-(f) and (2)-(7) of the Constitution. The ?procedure permitted by law? for the deprivation of the personal liberty of ?Every person? that may be held to be lawful covers criminal offences hence, any person that alleges a violation of the provisions of Section 35(1)-(7) of the Constitution that seeks remedies under Section 46(1)-(3) of the Constitution has to establish how the complaint was founded, namely, civil, criminal or tortuous.

If the appellant had founded his action in tort the law required to have mention or join those who committed the act.
In Mrs. Anthonia Agbasi vs. United Bank For Africa Plc ? Appeal No.CA/MK/137/2016 (Unreported) delivered on 29th March, 2019 I held at pages 45-55 as follows:

?The onus of proving fraud lies on the appellant in the Court of trial. In the Duchess of Kingston?s Case (1775-1802) All E.R. Rep. 623, De Grey, C.J., held at page 629 that:- ?Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of Justice, LORD COKE says, it avoids all judicial acts, ecclesiastical or temporal.?
Fraud being a crime as shown by the authorities, to discharge the onus of proof, the appellant ought to have adduced documentary evidence of the authorized withdrawal of the money from the Courts, perhaps supported with oral evidence to prove the requirements in Section 135(1)-(3) of the Evidence Act, 2011 to wit:-
135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the

burden of proving reasonable doubt is shifted on to the defendant.?
But Section 139 of the Evidence Act, 2011 reads that:-
?139(1) Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.
(2)The burden of proof placed by this Part upon a defendant charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution whether on cross-examination or otherwise, that such circumstances in fact exist.
(3) Nothing in Sections 135 and 140 or in Subsection (1) or (2) of this section shall:
(a) Prejudice or diminish in any-respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged.
(b) Impose on the prosecution the burden of proving that the circumstances or facts described in Subsection (2) of this section do not exist; or<br< p=””

</br<

(c) Affect the burden placed on a defendant to prove a defence of intoxication or insanity.?
Paragraphs 1-2 of the Statement of Claim pleaded the following facts:-
?1. The plaintiff is a business woman who deals in buying and selling of recharge cards and communication products of different communication companies amongst other business and resides at No. 21, Imesie Gaile Street, Gboko, Benue State within the jurisdiction of the Court.
2. The defendant is a Public Liability Company and a Commercial Bank duly authorized by the Central Bank of Nigeria to carry on the business of banking with its business office within the jurisdiction of this Court.?
If the respondent is a public liability company and a commercial bank duly authorized by the Central Bank of Nigeria to carry on the business of banking, the respondent must be operating the business of banking through human beings who may be the servants under the control of the respondent. The relationship of a master and servant has to be pleaded and proved by the claimant to foist liability upon the respondent. The unidentified person in the employment of the respondent that

committed the crimes for which the respondent is being saddled with these claims has to be pleaded and proved by the appellant to be able to obtain judgment. The appellant had to plead and prove that the various fraudulent withdrawals were perpetrated by the servant in the course of employment. A ?person? is defined in Osborn’s Concise Law Dictionary, 12th edition at page 307 as follows:-
?Person: The object of rights and duties; capable of having rights and of being liable to duties. Persons are of two kinds, natural and artificial. A natural person is a human being; an artificial person is a collection or succession of natural persons forming a corporation. ?Individual? generally denotes a human being but, e.g. under the Consumer Credit Act, 2006, Section 1, individual ?includes a partnership consisting of two or three persons not all of whom are bodies corporate; and (b) an unincorporated body of persons which does not consist entirely of bodies corporate and is not a partnership.?
A ?person? is also defined in Black?s Law Dictionary, 9th edition at page 1257 as ?1. Human

being. ? Also termed natural person.? If the appellant did not establish the ?person? who committed the ?illegal? or ?fraudulent conversion? of the deposits in her account with the respondent as is required in Section 135(2) of the Evidence Act, 2011, it cannot be said that the appellant?s suit did not merit a dismissal. In James vs. Mid-Motors Co. Ltd. (1978) 2 LRN 187, Aniagolu, JSC held at page 197 lines 7 to page 202 lines 1 to wit:-
?The general law is that a corporation aggregate is liable to be sued for any tort provided that (1) it is a tort in respect of which an action will be brought against a private individual; (2) the person by whom the tort is actually committed is acting within the scope of his authority and in the course of his employment as agent of the corporation; (3) the act complained of is not one which the corporation would not, in any circumstances, be authorized by its Constitution to commit unless perhaps the corporation has expressly authorized the act. (See Vol.9, Halsbury?s Laws of England (4th edition) paragraph 1374).

Among the acts for which a corporation can be held liable in tort is fraud. Not being a human person, the corporation or company, of necessity, acts through human beings who are its agents or servants and the corporation or company, like master, is liable for the fraud committed by its servants or agent in the course of its service.
Dealing with the relationship between tort and agency (a relationship which in law has been clearly recognized) Stoljar in his book The Law of Agency (1961 edition), pages 8, 9, makes these observations:-
?In the second place, ?P? is also liable where ?A? commits not a physical but an economic wrong, the main instance of this being where ?A? perpetrates a fraud upon ?P?s? client or customer. In this situation, it certainly is true to say that ?A? acts as an agent as distinct from a servant, the reason for this distinction being simply this: that ?A? would have no opportunity of committing the fraud, unless he is in a position of agent and thus able to deal contractually with the third party. Further, where ?A? so acts as agent, ?P? becomes

liable to ?T? not only where ?A? is a servant, but also where he is an independent contractor; for in the law of agency ?P?s? liability does not depend on ?A?s? precise employee-status, since ?P? can be liable whether ?A? is employed or ?self-employed? provided he is an agent.
(One has to concede that it is difficult to find actual modern instances of a fraud by an independent contractor. Yet, as will be remembered as early as Hern vs. Nichols (1701) Holt K.B. 462 there is mention of ?P?s? liability for the deceit of his factor, the latter being, of course, an independent middleman rather than a servant?. ?It follows that ?P?s? liability for ?A?s? fraud operates very differently, regarding occasion and extent, from the vicarious liability that applies to master and servant. This difference has been much overlooked; which has not only led to misleading questions? but has also led to an over-simplification of the tort-agency relationship: so when it is stated that a principal is liable for

his agent?s torts, this is true of a tort such as fraud, but not true of trespass or negligence i.e. wrong relating to physical service, not of contractual agency.?
A good exposition of the general principle is to be found in the judgment of the House of Lords in Houldsworth vs. City of Glasgow Bank (1880) 5 App. Cas. 317. Lord Selborne put the matter clearly in his own speech ([1874-80] All E.R. Rep. 333 at 339) in which he said:-
?The principle on which Barwick vs. English Joint Stock Bank, Mackay vs. Commercial Bank of New Brunswick, and Swire vs. Francis, relied upon by the appellant, were decided, was thus stated by Willes, J. in the first of those cases and repeated (from his judgment) by the Judicial Committee in the two latter (LR 2 Exch. At pp.265, 266). ?The master is answerable for every such wrong of the servant or agent as is committed in the course of the service, and for the master?s benefit (because, although the master may not have authorized the particular act), he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which that agent has conducted himself

in doing the business which it was the act of his master to place him in.?
To the principle so stated no exception can, in my opinion, be taken, though the manner in which the master is to be answerable, and the nature and extent of the remedies against him, may vary according to the nature and circumstances of particular cases.
That principle received full recognition in National Exchange Co. vs. Drew (1855) 2 Macq 103 and New Brunswick and Canada Railway and Land Co. vs. Conybeare (1862) 9 HL Cas 711, and was certainly not meant to be called in question by any one of the lords who decided Western Bank of Scotland vs. Addie (1867) LR 1 Sc & Div 145. It is a principle, not of the law of torts, or of fraud or deceit, but of the law of agency, equally applicable whether the agency is for a corporation (in a matter within the scope of the corporate powers) or for an individual; and the decisions in all these cases proceeded, not on the ground of any imputation of vicarious fraud to the principal, but because (as it was well put by Willes, J., in Barwick vs. English Joint Stock Bank (1867) L.R. 2 Exch. 259):-

?With respect to the question whether a principal is answerable for the act of his agent in the course of his master?s business, no sensible distinction can be drawn between the case of fraud and the case of any other wrong.?
It is important to note the words: ?in the course of the master?s business? as they relate to Mr. Okoro in the discharge of his master?s functions of selling motor vehicles to the public in Ibadan?
In Lloyd vs. Grace, Smith & Co. a solicitor was held liable for the fraud of his managing clerk who induced a client to transfer property to him and then dishonestly disposed of the property for his own benefit. Adopting the language of Holt, C.J. in Hern vs. Nichols (1970) 1 Salk 289 in which he said:-
?For seeing somebody must be a loser by this deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver should be a loser, than a stranger.?
Earl Loreborn in Lloyd vs. Grace, Smith & Co. at page 725, held:-
?If the agent commits the fraud purporting to act in the course of business such as he was authorized, or held out as authorized, to

transact on account of his principal, then the latter may be held liable for it.?
Lord Shaw of Dunfermline was of similar view when at page 740 he stated:-
?I look upon it as a familiar doctrine as well as a safe general rule, and on making for security instead of uncertainty and insecurity in merchantile dealings, that the loss occasioned by the fraud of a third person in such circumstances ought to fall upon the one of the two parties who clothed that third party as agent with the authority by which he was enabled to commit the fraud.?
Lloyd vs. Grace, Smith & Co. was cited with approval and applied by the Privy Council in United Africa Co. Ltd. vs. Saka Owoade (1954) 13 WAC 207 at 211 and by the Federal Supreme Court in Iko vs. John Holt & Sons Ltd. (1957) FSC 50.
In discussing the plaintiff?s case the trial Judge wrote:-
?In this instant case the question arises whether Mr. Okoro was acting within the scope of his employment. The (defendant company) is not an insurance company. It is not one of its objects to carry on insurance business or act as agents of insurance companies. The only

agencies it can undertake are expressly stated in Clause 3(4), 3(5) and 3(14) of the Memorandum of Association and do not include agency for insurance companies. The employment of Mr. Okoro which the defendant company is entitled to do under Clause 3(17) of the Memorandum of Association does not empower Mr. Okoro to do all such things as are outside the objects of the company and the defendants? witnesses have given evidence which I believe and have accepted that he was acting outside the scope of his employment.?
With every respect for the trial Judge, it is immaterial to the liability of the defendants that the business of insurance was not one of businesses it was incorporated to undertake under its memorandum of and articles of association. Once the servant or agent is acting in the course of his employment in respect of his master?s business the master will be liable, and if he is so acting it is immaterial that the act in question has even been expressly prohibited by the corporation (Limpus vs. London General Omnibus Co. Ltd. (1862) 1 H & C 526).
Mr. Okoro who was admittedly the manager of the Ibadan branch of the

defendant company, and was so found by the trial Judge, was, as far as Ibadan was concerned, the company. He was the manager who had the duty of controlling and selling the company?s vehicles in Ibadan. In Ibadan he was the authority of the company and was not subject to any other person there. To the general public in Ibadan he personified the company. It is to be noted that although the managing director of the defendants denied that Mr. Okoro was the branch manager of their Ibadan branch, yet the defendants in paragraph 3 of the statement of defence admitted paragraph 3 of the statement of claim which reads:-
?3. On the 18th March, 1970 the plaintiff entered into a hire-purchase agreement with the defendant for the sale of a new commercial vehicle described as Hino KA 300 for the sum of 5,418 7s Pounds and the plaintiff will rely on the agreement at the trial of this action.?
By this admission the company had agreed that the transaction conducted by their man at Ibadan legally raised contractual relation between them and the plaintiff and therefore, to that extent, that their man at Ibadan was their agent whose act committed the

company to the contract of hire-purchase. In other words the defendants admitted that the transaction entered into between the plaintiff and their representative at Ibadan (who was, and was found, to be Mr. Okoro) created a genuine hire-purchase agreement between the plaintiff and the defendants, yet they denied that the fraudulent representation made by the same representative was proximate enough to pin liability on them. Mr. Okoro?s act was sufficient and proximate enough to net them 2,000 Pounds hire-purchase benefit but not to affix liability to them in respect of his fraudulent misrepresentation. We feel that the justice of this case dictates to the contrary.
It is true that Mr. Okoro was not called to give evidence by either party. Having regard to the provisions of Sections 134 to 136 of the Evidence Act (Cap.62), we hold the view that the duty of calling Mr. Okoro rested squarely on the defendants in the face of the official receipt for 2,000 Pounds, the hire-purchase agreement and the insurance cover note, respectively the making of which must be imputed to the defendants, and which on their face value carry representations the

implications of which it was the duty of the defendants to rebut.
We appreciate that the trial Judge has held that he was unable to accept the evidence of the oral representation about the Continental Insurance Co. Ltd., said by the plaintiff to have been made by Mr. Okoro to him ?as it was not substantiated? but he also found that the cover note is sufficient evidence of fraudulent misrepresentation by Mr. Okoro if it was ever paid for.? We are unable to appreciate the basis upon which the trial Judge has doubted that the 360 Pounds insurance premium shown on the cover note was paid by the plaintiff when the payment of the 2,000 Pounds shown on the receipt was not denied by the defendants and the 2,000 Pounds was stated by the plaintiff as being the totality of the hire-purchase deposit and the insurance premium.
The evidence points irresistibly to the conclusion that the 360 Pounds insurance premium was in fact paid; the mix-up of the date (18th March, 1970) on which the receipt and the hire-purchase agreement were made and the date (10th April, 1970) on which the cover note was issued (to which the trial Judge rightly made

reference) notwithstanding. In any case, the trial Judge having found that Mr. Okoro was fraudulent, we do not see that the plaintiff, in all the circumstances, had not been made the victim of the fraud by the false and oral representations alleged by the plaintiff to have been made to him by Mr. Okoro. The onus would appear to fall squarely on the defendants, in the face of all the evidence, facts and circumstances, to disprove the evidence of the plaintiff that Mr. Okoro made the false and oral representations testified to by him.?
The respondent might have many employees as her servants. The appellant ought to have named the perpetrators of the fraudulent withdrawals that jointly or severally acted in the course of employment and authority to saddle the respondent with financial liability. The failure to do so was fatal to the appellant?s claim in the Court below.?
The respondent is a creation of the Constitution. The members of the respondents contingent in Benue State are human beings. The claimant has to show by naming who breached his fundamental rights under Chapter IV of the Constitution or under Section 4 of the Police Act

to help the Court in fixing liability and making the appropriate order or direction under Section 46(1), (2)-(3) of the Constitution or Section 340-341 of the Police Act. Section 46(1)-(3) of the Constitution reads as follows:-
?46(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 this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing 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.?
Section 35(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is of a general application. The

respondent in the Court below and in this Court is the Commissioner of Police, Benue State.
I can take judicial notice of the fact that a Commissioner of Police for each State of the Federation is to be appointed by the Police Service Commission? under Section 214(1) and 215(1)-(2) of the Constitution to wit:-
?214(1) There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.
215(1) There shall be:-
(a) an Inspector-General of Police who, subject to Section 216(2) of this Constitution shall be appointed by the President on the advice of the Nigeria Police Council from among serving members of the Nigeria Police Force;
(b) a Commissioner of Police for each state of the Federation who shall be appointed by the Police Service Commission.
(2) The Nigeria Police Force shall be under the command of the Inspector-General of Police and contingents of the Nigeria Police Force stationed in a state shall, subject to the authority of the Inspector-General of

Police, be under the command of the Commissioner of Police of that state.?
In Finnih vs. Imade (1992) 1 SCNJ 87, Babalakin, JSC held at pages 102 to 103 as follows:
?The Court of Appeal in its judgment alluded to the provisions of the Boundary Dispute (Determination) Notice No. N.S.L.N. 72 of 1974 later re-enacted as Edict No.6 of 1977 Section 2(1) of which provides as follows:
?(m) In the interest of peace and order, all allotment of plots erroneously made by the plot Allotment Committees for Wards 18H, 17H, and A1 before the date of commencement of this Edict and which have received the approval of his Highness, the Oba of Benin shall be deemed to have been validly made to those concerned.?
This is inter-alia to show that the plaintiff/respondent was not throwing away his money when he re-bought the land in dispute for N2,400.00k from one Omoruyi who claimed the land and asserted that he derived his title from the Oba of Benin through Ward ?A? because at one time the plot Allotment Committee Ward ?A? asserted their right over the area where the land in dispute is situated. The other purpose of

the Edict was to clear once and for all the confusion that has arisen about grants relating to Ward ?A? and Ward ?17?.
The Court of Appeal referred to this edict after making a finding of fact that the plaintiff/respondent was in actual possession of the land in dispute at the material time of trespass complained of and was not a trespasser.
By this reference it cannot be construed to mean that the Court of Appeal was setting up for the plaintiff/respondent a case he did not make as submitted by Counsel for the defendant/appellant. It must be understood that the Court of Appeal is entitled to take judicial notice of this edict by virtue of Section 73 of the Evidence Act, and there was no need for Court of Appeal to call on both Counsel to address it before doing so. The answer to issue No. 4 formulated by the defendant/appellant is YES.
Section 73(1)(a) of Evidence Act provides:
?73(1) The Court shall take judicial notice of the following facts:
(a) All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria?.?

The person that appoints has the power to ?fire? or terminate the appointment. Section 11(1) of the Interpretation Act reads as follows:-
?11(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes-
(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) power to remove or suspend him;
(c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint,-
(i) to reappoint or reinstate him,
(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.?
Section 318(1) of the Constitution defines ?appointment? or ?its cognate expression? to include ?appointment on promotion and transfer or confirmation of appointment?. Section 318(3) of the Constitution further provides

as follows:-
?(3) In this Constitution, references to a person holding an office shall include reference to a person acting in such office.?
Being an appointee of the Police Service Commission (See Section 153(1)(m) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, where the master or appointing authority or body is known, the agent or agency ought not to be a party to the proceedings.
In Niger Progress Ltd. vs. North East Line Corporation (1989) 3 NWLR (Pt.107) 67 at page 83 paragraph ?G? to page 84 paragraphs ?A?-?C?, page 85 paragraph ?G? to page 86 paragraphs ?A?-?B? as follows:-
?I do not intend to deal with issues No.1, 2 and 3 as they are not issues for determination in this appeal. With regard to issues No.4 and 5, the argument of the appellant is twofold. According to the submission of learned Counsel for the appellant, Chief Akinrinsola, in any dispute arising from the contract agreement between the respondents and Sour Fap-Famos Beograd, it is to an arbitration that the dispute must first be submitted. Learned Counsel

relied on the provision of Section 5 of the Arbitration Act, Laws of the Federation of Nigeria, 1958, as authority for this submission.
Secondly, it was submitted by Counsel that the appellants are agents of a disclosed principal Sour Fap-Famos Beograd and that the proper party to be sued under Nigerian Laws is Sour Fap-Famos Beograd the disclosed principal. Learned Counsel then cited the case of Dommil Khonam vs. Elizabeth Fife John (1939) 15 NLR p.12 at 15 where Butler Lloyd held that a defendant acting on? behalf of a known and disclosed principal incurs no liability. The fact that the disclosed principal is a foreigner does not affect the question of liability.
This submission, in my view, totally determines the appeal in favour of the respondent. If the appellant is an agent of a disclosed principal and is not a party to the contract Exhibit ?A?, he cannot exercise any power under Exhibit ?A? which properly belongs to his principal who is a party to the contract.
Learned Counsel to the respondent?s short submission in reply is that the appellant is not a party to the contract Exhibit ?A?

between Sour Fap-Famos Beograd and the respondent?.
The law on agency governing disclosed agent, disclosed principal is not in doubt and their rights and liabilities to third parties are clearly set out in Bowstead on Agency, 14th edition, page 231, Article 78.
A disclosed principal may sue or be sued on any contract made in his behalf and in respect of any money paid or received on his behalf by his agent acting within the scope of his actual authority (Duke of Norfolk vs. Worthy (1808) 1 Camp 337).
The appellant has not established the existence of a contract of agency between Sour Fap-Famos Beograd and itself. It has also not established the scope of its actual authority and has failed to establish that he received the amount claims from him as agent acting within the scope of his authority to enable it demand arbitration.
I see no merit in the appeal. The appeal fails and is hereby dismissed with N500.00 costs to the respondent. The decision of the Court of Appeal is hereby affirmed.?
See also Vassilev vs. Paas Industries Ltd. (2000) FWLR (Pt.19) 418.

In Edem vs. Canon Balls Ltd. (2005) FWLR (Pt. 276) 693 at pages 706-707 paragraphs ?A?-?A? as follows:-
?The main dispute between the parties, in my view, was the refund of the money paid to the defendant/appellant for a failed consideration. The question whether the appellant actually bought the tractor from a dealer who failed to deliver to him as raised in his said issue 2 not considered at the Court below is, in my view, totally irrelevant. Similarly, the fact that the appellant disclosed the name of the company from whom he claimed he bought the tractor and that the respondents wrote the said company a letter to which there was no reply, as raised in the appellant?s issue 3 in the Court below, is also irrelevant. So also is the contention of the appellant that he received the money and made the purchase from a supplier, who failed to deliver as raised in the issue 4, is no defence to his liability for the plaintiff?s claim.
The law is settled that a Court should confine itself to the issues raised by the parties in the case before it. See UBA Ltd. vs. Achoru (1990) 6 NWLR (Pt.156) 254; and Rabiu vs. Abasi (1996) 7 NWLR (Pt.462) 505. Thus, apart from the

questions raised in the brief of the parties that are relevant to and arise from the issues raised in the case, all other secondary issues are irrelevant and should rightly be ignored because they invariably obscure the main or real issues requiring determination. See Din vs. African Newspapers of Nigeria Ltd. (1990) 3 NWLR (Pt.139) 392. In the instant case, I have no doubt that the three issues not considered by the Court below are totally irrelevant to the questions in dispute in the appeal before the Court. They were therefore rightly rejected. Similarly, the Court below was right when it formulated the two new issues with which it resolved the questions raised in the appeal. There is therefore no merit in the appeal as it relates to the appellant?s issue 1.
The contention of the appellant, as canvassed in issue 2, is that the intervention of the respondents when they made direct contact with the company from whom the appellant claimed he bought the tractor, was sufficient to discharge him from further responsibility to deliver the tractor to the respondents. It is submitted that the respondents? act had reduced the appellant relationship

with the respondents as that of principal and that of a disclosed agent.
I have no doubt in dismissing this submission as totally inapplicable to the instant case. This is because an agency relationship exists only where a person called the agent has the authority to act on behalf of another called principal. See Bamgboye vs. University of Ilorin (1991) 8 NWLR (Pt.207) 1. But the facts of the instant case do not support that contention. This is because the facts in this case are that the respondents merely wrote to the company in Belgium, from whom the appellant claimed he bought the tractor, asking for information about the purchase made by the appellant and to which there was no reply. That act is definitely not enough to reduce the relationship existing between the parties to that of principal and agent. There is therefore no merit in the appeal as it relates to the second issue.
In the final result, I hold that there is totally no merit in the appeal and I accordingly dismiss it with N10,000.00 costs in favour of the respondents.?
Section 215(2) of the Constitution provides that any ?contingents of the Nigeria Police Force

stationed in a State shall, subject to the authority of the Inspector-General of Police, be under the Command of the Commissioner of Police of that State.? Section 214(2)(a) and (b) of the Constitution however provides that:-
?214(2) Subject to the provisions of this Constitution:-
(a) the Nigeria Police Force shall be organized and administered in accordance with such provisions as may be prescribed by an act of the National Assembly;
(b) the members of the Nigeria Police shall have such powers and duties as maybe conferred upon them by law.?
The National Assembly promulgated the Nigeria Police Act Cap. P.19 and the Nigeria Police Regulation as the provisions for organizing and administering the Nigeria Police Force ?as may be prescribed? under Section 214(2)(a) of the Constitution. Section 214(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads:-
?(b) The members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law.?
Section 318(1) of the Constitution defines a ?member? as when used with

reference to any commission or other bodies established by this Constitution includes the Chairman of that Commission or body.? Section 4 of the Police Act sets out the powers and duties of ?members of the Nigeria Police? as may be conferred upon them by law? to wit:-
?The police shall be employed for (1) the prevention and (2) detection of crime, (3) the apprehension of offenders, (4) the preservation of law and order, (5) the protection of life and (6) property and (7) the due execution of all laws and regulations with which they are directly charged, and (8) shall perform such military duties within or outside Nigeria as may be required of them by or under the authority of this or any other Act.?
(Figures and brackets are supplied for emphasis)
Section 6 of the Act reads as follows:-
?6. The Force shall be under the command of the Inspector-General, and contingents of the Force stationed in a State shall, subject to the authority of the Inspector-General, be under the command of the Commissioner of that State.?

Section 35(1)-(7) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is a ?general legislation? that empowers or prescribes the facts and circumstances that if they occur, a person?s personal liberty ?shall be deprived? but ?in accordance with a procedure permitted by law etc. The provision has not mentioned or listed the names of the persons, bodies or authorities that can exercise the powers, functions or duties of depriving ?Every person? of his or her ?personal liberty? in accordance with a procedure permitted by law? hence the Police authorities may also deprive, seek or intend to deprive any ones personal liberty by invoking the provisions of Sections 4 and 6 of the Police Act or Section 35(1)-(7) of the Constitution for the purposes I listed above. The Police Act is a special legislation that details the powers and duties of members of the Nigeria Police Force under Section 214(2)(c) of the Constitution. In Government of Kaduna State vs. Kagoma (1982) 6 SC 87, Fatayi-Williams, JSC (as he then was) held at pages 107-108 as follows:-
It is now trite that where there are two enactments one making specific

provisions, the specific provisions are by implication excluded from the general provisions.?
In Osadebay vs. Attorney-General, Bendel State (1991) SCNJ 102, Nnaemeka-Agu, JSC held at page 218 as follows:-
?One of the basic principles of interpretation of our construction and statutes is of course that the law maker will not be presumed to have given by the right in one Section and taken it in another.?
In Attorney-General of the Federation vs. Abubakar (2007) All FWLR (Pt. 375) 405 the Supreme Court held at pages 472 and 574 as follows:-
?It is not the function of the Court to make law but to interpret the words used by the legislature whose primary function is to make the law while that of the Court is to declare it. Assuming the Court has the power of making a legislation, without so deciding, it is doubtful if the law given as a result of the interpretation of Section 146(3)(c) would affect the plaintiff?s right or interest which it had vested. The enactment purportedly made in the course of this judgment would clearly not be applicable to the circumstances of this case. See Samuel Ekeocha vs. Civil

Service Commission, Imo State & Another (1981) 1 NCLR 154, 165 per Oputa, C.J. (as he then was). See also Re Cuno (1889) 43 Ch.D. 12, 19 where Bower, L.J. remarked thus:
?In the construction of statutes you must not construe the words so as to take away right which already existed before the statute was passed unless you have plain words which indicate that such was the intention of the legislature.?
Another factor militating against the contention of the counter-claimant is that where there are two enactments one making specific provisions and the other general provisions, the specific provisions are impliedly excluded from the general provisions. See Government of Kaduna State vs. Kagoma (1982) 6 SC 87 at 107-108 per Fatayi-Williams, CJN:
?It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions.
Similarly, in Osadebay vs. Attorney-General, Bendel State (1991) SCNJ 102 at 218, Nnaemeka-Agu, JSC stated inter alia thus:
?One of the basic principles of interpretation of our construction and statutes is

of course that the law maker will not be presumed to have given by the right in one Section and taken it in another.?
The sum total of these authorities is that the general provision contained in Section 146(3)(c) will by implication be excluded from the previous specific provisions enacted in Section 146(3)(a) and (b) because it cannot be presumed that the intention of the makers of the construction is to give a right with one hand and take same away by another. See pages 277-279 of the records. It is submitted that the above findings and pronouncements are correct and unassailable in law.?

The appellant instituted this proceeding against the respondent. The respondent is the Commissioner of Police, Benue State, an appointee of the Police Service Commission. The appellant?s suit postulates that the Commissioner of Police was the authority that infringed his fundamental rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The reliefs the appellant claimed against the respondent in the exparte application filed on 30th September, 2016 verified on affidavit evidence is at pages 1-2 of the

record of appeal. The reliefs claimed by the appellant against the respondent are at pages 31-34 of the printed record to wit:-
?(a) A DECLARATION that ?being in possession of 3 government vehicles? is not an offence known to any written Law or Act of the National Assembly currently operating in Nigeria.
(b) A DECLARATION that inviting, arresting or detaining the applicant for, ?being in possession of 3 government vehicles?, which is not an offence known to any written law or Act of the National Assembly currently operating in Nigeria will infringe upon his right to fair hearing to wit: not to be arrested, tried or convicted for an act that does not constitute an offence; his right to freedom of movement, right to liberty and the freedom from degrading and inhuman treatment guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(c) A DECLARATION that the applicant legally and legitimately came into possession of the two Toyota Hilux Vans, and one Prado Jeep by virtue of his former position as the Executive Chairman, Benue State Internal Revenue Service, a purely civil

arrangement, and the respondent has no powers to interfere with his possession of the said vehicles without Court judgment directing him to recover the said vehicles.
(d) A DECLARATION that even if the applicant did not legitimately come into possession of the two Toyota Hilux Vans, and one Prado Jeep by virtue of his former position as the Executive Chairman, Benue State Internal Revenue Service, he is entitled to a lien on the said vehicles based on the out of Court settlement agreement and the consent judgment between him and Benue State Government and the respondent has no business demanding for the said vehicles.
(e) AN ORDER of perpetual injunction restraining the respondent from arresting or detaining the applicant for ?being in possession of 3 Government Vehicles? namely his two Toyota Hilux Vans, and one Prado Jeep an offence not known to any written law or Act of the National Assembly currently operating in Nigeria and or impounding the applicant?s two Toyota Hilux Vans and one Prado Jeep.
(f) AND for such further ORDERS as the Honourable Court may deem fit to make in the circumstance of this case.

GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT:
(a)The applicant is entitled to enjoy his fundamental rights to personal liberty, right to fair hearing, right to dignity of the human person, right to freedom of movement and freedom from torture guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 as amended.
(b) There is offence known to any written law or Act of the National Assembly currently operating in Nigeria known as ?being in possession of 3 government vehicles.?
(c) Inviting, arresting or detaining the applicant for, ?Being in possession of 3 government vehicles?, which is not an offence known to any written law or Act of the National Assembly currently operating in Nigeria will infringe upon his right to fair hearing to wit: not to be arrested, tried or convicted for an act that does not constitute an offence; his right to freedom of movement, right to liberty and the freedom from degrading and inhuman treatment guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(d) The applicant?s fundamental rights to personal liberty, right to fair hearing, right

to dignity of the human person, right to freedom of movement and freedom from torture as enshrined in Sections 34, 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 have been and are in danger of being breached and violated by the respondents.
(e) Only an order of this Honourable Court can enforce and prevent the violation of the applicant?s rights.?
The respondent has to invite the complainant and his witnesses if any, and the respondent with his witnesses, if any for investigation of the complaint. The complainant and the suspect will have to appear or honour the invitation supported, if possibly, with documents to support their oral testimonies. The members under the command of the respondent have to make up their mind after conducting the investigation, whether the suspect had committed a civil wrong or a crime to determine whether to arrest and detain or to determine their dispute in a civil Court of competent jurisdiction. The appellant had the onus of proving that after investigation there was no grounds or reasonable suspicion a crime had not been committed or it was not desirable or necessary for his

arrest or detention to prevent the commission of a crime to warrant his arrest or detention when yet, the members of the police under the command of the respondent effected an arrest, grant or refused to grant the suspect bail and subsequently arraigned or released him from custody contrary to Section 35(1)(c) and (2)-(5) of the Constitution.
The invitation of the appellant by the respondent?s members to their office was to ensure that the appellant was not a trespasser in a public building or place under the possession of the respondent for investigation of the complaints against the appellant. A ?detention?, ?investigative detention?, ?pre-trial detention?, ?preventive detention? or ?secret detention? is defined at page 514 of the Black?s Law Dictionary (ante) as follows:-
?Detention:- 1. The act or fact of holding a person in custody; confinement or compulsory delay.
Investigative Detention (1968) The holding of a suspect without formal arrest during the investigation of the suspect?s participation in a crime. Detention of this kind is constitutional only if

probable cause exists.
Pretrial Detention (1962) 1. The holding of a defendant before trial on criminal charges either because the established bail could not be posted or because release was denied? 2. In a juvenile-delinquency case, the Court?s authority to hold in custody, from the initial hearing until the probable-cause hearing, any juvenile charged with an act that, if committed by an adult, would be a crime. If the Court finds that releasing the juvenile would create a serious risk that before the return date the juvenile might commit a criminal act, it may order the juvenile detained pending a probable-cause hearing. Juveniles do not have a constitutional right to bail. The Supreme Court upheld the constitutionality of such statutes in Schall vs. Martin, 467 U.S. 253, 104 S.Ct. 2403 (1984). ? Also termed temporary detention.
Preventive Detention (1952) Confinement imposed usually on a criminal defendant who has threatened to escape, poses a risk of harm, or has otherwise violated the law while awaiting trial, or on a mentally ill person who may cause harm.
Secret Detention:- The holding of a suspect in an undisclosed

place, without formal charges, a legal hearing, or access to legal Counsel, and without the knowledge of anyone other than the detaining authority. See secret detainee under DETAINEE.?
Only an investigation of the complaint by the members of the respondent would have revealed whether a crime had been committed for ?preventive detention? measures to have been applied by the police. The appellant, on his showing alleges he had committed no crime. The police found he did not hence the police did not invoke their powers under ?investigative? or ?detention? measures against the appellant to have warranted the institution of this proceedings in the Court below and the pursuit of this appeal. An ?arrest? may be ?civil? or ?criminal?. There are many kinds of arrests. The authors of Black?s Law Dictionary (ante) defines both at page 124 as follows:-
?Arrest:- 1. A seizure or forcible restraint. 2. The taking or keeping of a person in custody by legal authority, especially in response to a criminal charge; specifically, the apprehension of someone for the purpose of

securing the administration of the law, especially of bringing that person before a Court.
?The question of what constitutes an arrest is a difficult one. On one end of the spectrum, it seems apparent that detention accompanied by handcuffing, drawn guns, or words to the effect that one is under arrest qualifies as an ?arrest? and thus requires probable cause. At the other end, a simple questioning on the street will often not rise to the level of an arrest. Somewhere in between lie investigative detentions at the stationhouse Charles H. Whitetbread, Criminal Procedure, Paragraph 3.02, at 61 (1980).
Arrest on Final Process:- Hist. Arrest in a civil case after the conclusion of a trial. ? Also termed arrest in execution.
Citizen?s Arrest (1941):- An arrest of a private person by another private person on grounds that (1) a public offence was committed in the arrester?s presence, or (2) the arrester has reasonable cause to believe that the arrestee has committed a felony.
Civil Arrest:- Hist. An arrest and detention of a civil-suit defendant until bail is posted or a judgment is paid. Civil

arrest is prohibited in most states.
Dragnet Arrest:- A sweeping arrest of people suspected of possible involvement in criminal activity or a civil disturbance. This type of arrest is illegal because it is based not on probable cause but on unsupported suspicion or belief. ? Also termed round-up; wholesale arrest.
False Arrest:- An arrest made without proper legal authority. Cf. FALSE IMPRISONMENT.
Lawful Arrest:- The taking of a person into legal custody either under a valid warrant or on probable cause that the person has committed a crime. ? Also termed arrest by warrant; warrant arrest. Cf. unlawful arrest.
Malicious Arrest:- An arrest made without probable cause and for an improper purpose; especially an abuse of process by which a person procures the arrest (and often the imprisonment) of another by means of judicial process, without any reasonable cause. Malicious arrest can be grounds for an action for abuse of process, false imprisonment, or malicious prosecution.
Unlawful Arrest:- The taking of a person into custody either without a valid warrant or without probable cause to believe that the person has committed

a crime. Cf. lawful arrest.
Warranted Arrest (1950) An arrest made under authority of a warrant.
Warrantless Arrest (1958) A legal arrest, without a warrant, based on probable cause of a felony, or for a misdemeanor committed in a police officer?s presence. ? Also termed arrest without a warrant.?
In Alderson vs. Book (1969) 2 All E.R. 271, Lord Packer, C.J., sitting with Blain and Donaldson, J.J. in the Queens Bench Division on 26th February, 1969. The Chief Justice and each of the Justices that heard the appeal held from page 272 paragraph ?F? to page 274 paragraph ?A? as follows:-
?LORD PACKER, C.J.: This is an appeal by way of Case Stated from a decision of justices of the peace for the West Riding of the county of York sitting at Uppermill, who dismissed an information preferred by the appellant against the respondent for an offence against Section 1(1) of the Road Safety Act, 1967. The only relevant facts so far as this case is concerned are that a police officer came on a road accident involving the driver of a motor car who was the respondent; he asked, as he was entitled to under

Section 2(1) of the Road Safety Act, 1967, for the respondent to provide a specimen of breath for a breath test. The respondent did, and it proved positive. Thereupon the finding is that the constable informed the respondent of the result of the test and said ?I shall have to ask you to come to the police station for further tests.? The respondent accompanied the constable to a police station, where the respondent was given an opportunity to provide a specimen of breath for a breath test there, but that in turn proved positive; he was then asked for a sample of blood which from analysis showed that his blood contained no less than 203 milligrammes of alcohol in 100 millilitres of blood, against the prescribed limit of 80 milligrammes.
It is quite clear, and the justices recognize the fact, that in order to prove this offence it is necessary to prove that a specimen of blood has been taken in accordance with Section 3, and when one looks at Section 3 one finds that a specimen of blood can only be taken if, amongst other things, a man has been lawfully arrested. The question arises at once: had this man been arrested after the first breath test

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under Section 2(4), which provides that:-
?If it appears to a constable in consequence of a breath test carried out by him on any person under Subsection (1) or (2) of this section that the device by means of which the test is carried out indicates that the proportion of alcohol in that person?s blood exceeds the prescribed limit, the constable may arrest that person without warrant except while that person is at a hospital as a patient.?
Accordingly, the narrow point here was whether the justices were right in holding, as they did, that there never had been an arrest. In their opinion, which is clearly partly opinion and partly of finding of fact, they say this:
?We were of opinion that when the respondent accompanied the constable to the police station it was not made clear to him either physically or by word of mouth that he was under compulsion. We consider that compulsion is a necessary element of arrest and we therefore did not regard the respondent as a person who had been arrested.?
There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when

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it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying ?I arrest you? without any touching, provided of course that the accused submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which, in the circumstances of the case, were calculated to bring to the accused?s notice, and did bring to the accused?s notice, that he was under compulsion and thereafter he submitted to that compulsion.
Looked at in that way, I for my part have little doubt that just looking at the words used here ?I shall have to ask you to come to the police station for further tests? they were in their con words of command which one would think would bring home to an accused that he was under compulsion. But the justices here had the evidence not only of the police officer but of the respondent, and they were not satisfied, having heard him, that it had been brought home unequivocally to him that he was under compulsion.

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I confess it surprised me he was believed, but believed he was when he said or conveyed that he was not going to the police station because he thought he was under compulsion, but was going purely voluntarily. It seems to me that this is so much a question of fact for the justices that, surprising as this decision is, I feel that this Court cannot interfere.
I would only say this, that if what I have said is correct in law, it is advisable that police officers should use some very clear words to bring home to a person that he is under compulsion. It certainly must not be left in the state that an accused can go into the witness box and merely say ?I did not think I was under compulsion.? If difficulties for the future are to be avoided, it seems to me that by far and away the simplest thing is for a police officer to say ?I arrest you?. If then the accused goes to the police station after hearing those words, it seems to me that he simply could not be believed if he thereafter said ?I did not think there was any compulsion, I was only going voluntarily.? Accordingly, I would dismiss this appeal.
BLAIN, J.: I agree.

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I would add that I have considerable sympathy with any police officer who believes that he has arrested a person with good reason, and finds that he has failed to do so through using words selected with a laudible desire to perform his duties with the maximum of courtesy. That, however, is of far less importance than the vital right of the subject to know when he is compellable and when he is free. I agree that this Court cannot interfere.
DONALDSON, J.: I too agree. I agree in particular that courtesy is to be encouraged and that police officers in these circumstances are faced with a difficult decision to make. But it is particularly desirable that clear words should be used in circumstances in which, as a result of the effect of drink or drugs, a person?s understanding may be dulled.?
The appellant did not show that he understood by the invitation of the police to their office that he was under compulsion to honour the invitation or he was by the invitation under ?arrest? to found a cause of action against the respondent, an agency of the Federal Police Service Commission. Section 4 of the Police Act states that these are

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the powers and duties ?The Police are employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property etc.
The learned authors of Black?s Law Dictionary (supra) defines an ?invitation?, ?invitee?, ?public invitee? and ?inviter? at pages 904 as follows:-
?Invitation:- Torts. In the law of negligence, the enticement of others to enter, remain on, or use property or its structures; conduct that justifies others in believing that the possessor wants them to enter. Cf. PERMISSION.
Invitee (1837): A person who has an express or implied invitation to enter or use another?s premises, such as a business visitor or a member of the public to whom the premises are held open. The occupier has a duty to inspect the premises and to warn the invitee of dangerous conditions. ? Also termed licensee with an interest. Cf. LICENSEE (2); TRESPASSER; BUSINESS VISITOR (1).
Public Invitee (1937): An invitee who is invited to enter and remain on property for a purpose for which the

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property is held open to the public.
Inviter (16c): One who expressly or impliedly invites another onto the premises for business purposes. ? Also spelled invitor. Cf. INVITEE.?
The respondent?s members are inviters. They invited the appellant to their premises for their officers to be able to perform their statutory functions under Section 4 of the Police Act. The powers were exercised by virtue of Section 214(2)(a) and (b) of the Constitution. When is suspicion ?reasonable In Oteri vs. Okorodudu & Anor. (1970) 1 All NLR 199, Lewis, JSC considering the issue of false imprisonment from pages 203-207 as to when suspicion was reasonable to arrest a suspect as follows:-
?Counsel for the appellant submitted that false imprisonment had been made out and relied on Dumbell vs. Roberts (1944) 1 All E.R. 326 in particular at page 329 where Scott, L.J. said:-
?The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statues for suspicion of various misdemeanours, provided always they have reasonable ground for their suspicion, is a valuable

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protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statues, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.
I am not suggesting a duty on the police to try to prove innocence; that is not their function; but they should act on the assumption that their prima facie suspicion may be ill-founded. That duty attaches particularly where slight delay does not matter because there is not probability in the circumstances of the arrest or intended arrest, of the suspected person running away.?
He further submitted that if

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the 1st defendant had not been satisfied with the explanation at the least he should have gone off to ?investigate, as the plaintiff asked him to do, at the plaintiff?s headquarters and he relied on John Lewis and Co. Ltd. vs. Tims (1952) 1 All E.R. 1203 though that case in fact turned on the requirement to take and arrest a person before a justice of the peace or a police officer as soon as reasonably possible.
In our view the test to be applied, with the onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J., in Allen vs. Wright 8 Car. And p.522 where he said that it must be that of a reasonable person acting without passion and prejudice.
The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, not on subsequent facts that may come to light as is shown by Wright vs. Sharp (1947) L.T. 308. Lord Wright in McArdle vs. Egan (1933) All E.R. Rep. 611 at 613 showed that the responsibility is ministerial and not judicial when he said:-
?It has to be remembered that police officers, in determining whether or not to arrest, are not finally

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to decide the guilt or innocence of the person arrested.?
Their functions are not, but ministerial.? We would also refer to the judgment of Diplock, L.J. (as he then was) in Dallison vs. Caffrey (1965) 1 Q.B. 348 as to the question of reasonableness in a case involving both false imprisonment and malicious prosecution where at page 371 he said:-
?One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonably. In this con it means no more than that he himself at the time believed that there was reasonable and probable cause, in the sense that I have defined it above, for the arrest or for the prosecution, as the case may be. The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test is satisfied, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what

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ex hypothesi he would have believed had he been reasonable (See Herniman vs. Smith (1938) A.C. 305, 316 per Lord Atkin). In the nature of things this issue can seldom seriously arise.?
The test of what is reasonable suspicion is not as high as establishing a prima facie as Lord Devlin in Shasban Bin Hussain vs. Chong Fook Kam (1969) 3 All E.R. 1926 in an appeal from the Federal Court of Malaysia made clear in the Privy Council when he said at 1630:-
?Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; ?I suspect but I cannot prove.? Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many

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factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police enquiries are examples of those factors with which all judges who have had to grant or refuse bail are familiar. There is no serious danger in a large measure of executive discretion in the first instance because in countries where common law principles prevail the discretion is subject indirectly to judicial control.?
Mr. Akporiaye for the 1st defendant/respondent submitted that the learned Judge on appeal was right to reverse the learned Chief Magistrate as the 1st defendant had reasonable grounds for suspicion in that Exhibit ?C? might not have belonged to the plaintiff and was not dated, that he had authority to go in search of tax evaders and had arrested 13 of them with the plaintiff, and that even accepting that Exhibits ?A?, ?B? and ?C? were shown to the 1st defendant he was entitled to require further proof and was not to be expected to go to the P. and T. headquarters for confirmation as he was asked to do.
This however to our minds

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quite overlooks that the arrest was made at 7:00am and the 1st defendant did not hand the plaintiff over to the 2nd defendant till 9:30am and that Exhibit ?C? in fact was shown to be an up-to-date union card in the P. and T. with a photo in it of the plaintiff in uniform. The circumstances that there were other arrested persons is to our mind quite immaterial so far as the plaintiff was concerned and if the 1st defendant wanted to investigate further then he should have done so in the 2 and half hours that he held the plaintiff as the headquarters of the P. and T. was in Warri and the arrest was made in Warri town. In our view however once the 1st defendant was told the plaintiff worked in the P. and T. he had no possible justification to disbelieve him, as he stated in his evidence that he did, especially when he saw Exhibits ?A?, ?B? and ?C?. Indeed we think it not unimportant that in his evidence he sought to pretend that Exhibits ?A?, ?B? and ?C? were not shown to him, though this was disbelieved by the learned Chief Magistrate. Similarly, the denial of the 1st defendant

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that the plaintiff asked him to come and see his ?boss? at the P. and T. Warri was disbelieved by the learned Chief Magistrate. It seems to have been assumed by the learned Judge on appeal, and indeed Mr. Akporiaye sought to argue before us, that there was a legal requirement to carry a final certificate of payment of income tax under the P.A.Y.E. system, but he was quite unable to show us any legal authority for that proposition. He relied on Section 255 of the Local Government Law which reads:-
?255. Any person who, without lawful justification or excuse, the proof of which shall lie on the person charged, refuses or fails to pay any rate payable by him under this Law on or before the date on which it is payable, shall be guilty of an offence and shall be liable on conviction to a fine of one hundred pounds or in default of payment imprisonment for one year.?
But later conceded that that section pertains to refusal or failure to pay any rate payable under that Law and had nothing to do with P.A.Y.E. The 1st defendant had admitted in his evidence that he knew that P. and T. workers were paid by the P.A.Y.E. system as he said

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? ?I know that workers in the P. and T. pay tax as they earn?, and he himself was in like situation as he said ? ?I paid tax as I earned last month, I have no receipt yet. I have no pay slips to that effect.?
We do not think that solely because the plaintiff was unable to produce a tax receipt that this in itself discharged the onus on the 1st defendant to justify his arrest and detention of the plaintiff, as the 1st defendant had said inter alia in his evidence ? ?from the time I arrested the plaintiff I did not allow him to move to any other place,? by showing that he had reasonable suspicion of the plaintiff of committing an offence. The 1st defendant?s powers were admittedly no higher or lower than that of a police officer, in particular under Section 20 of the Police Act, having regard to Section 3(1) of the Law Enforcement Law, and if the matter is looked at objectively through the eyes of a reasonable man, he could have had in our view no reasonable suspicion of an offence. It was no more incumbent on the plaintiff when challenged by the defendant to fully prove his innocence than for the

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1st defendant to have at that moment proof, even prima facie proof, of his guilt and the only issue was whether the 1st defendant discharged the onus on him of justifying his arrest and detention of the plaintiff by virtue of having reasonable suspicion of an offence, and, as we have indicated we do not think he did for either.
In our view therefore the learned Chief Magistrate on the facts came to the right conclusion and the learned Judge on appeal was in error in reversing him. We accordingly set aside the judgment of Begho, J., dismissing the plaintiff?s claim and, as no argument was presented before us as to the quantum of damages awarded, we restore the judgment of the Chief Magistrate awarding the plaintiff, as against the 1st defendant, 100 Pounds damages and 35 guineas costs. The plaintiff is also entitled as against the 1st defendant to his costs in the High Court on the appeal which we assess at 20 guineas and to his costs in this Court which we assess at 71 guineas. As we have stated earlier, the appeal as against the 2nd defendant was dismissed during the hearing.
Appeal allowed: judgment of High Court set aside.?

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The appellant had a duty to establish in the Court below that the name of the police officer(s) to be a member or members of the respondent in Benue State who actually abused their statutory powers and duties under Section 4 of the Police Act to sustain this action for Section 340-341 of the Police Act reads as follows:-
?340. A police officer is required to have a thorough understanding and knowledge of the laws, and of police orders and instructions, and to develop the attributes of:-
(a) efficiency and thoroughness through meticulous attention to details in the performance of his duties;
(b) courtesy, forbearance and helpfulness in his dealings with members of the public;
(c) tact, patience and tolerance, and the control of his temper in trying situations;
(d) integrity, in refusing to allow religious, racial, political, or personal feelings, or other considerations, to influence him in the execution of his duties;
(e) impartiality, in the avoidance of feelings of vindictiveness, or the showing of vindictiveness towards offenders;
(f) strict truthfulness in his handling of investigations, and in the giving of evidence.<br< p=””

</br<

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341. In the individual exercise of his powers as a police officer, every police officer shall be personally liable for any misuse of his powers, or for any act done in excess of his authority.?
The individual police officer(s) will be held liable for the misuse of his or their powers or for any act(s) done in excess of his or their constitutional or statutory duties. The onus is on the claimant to prove that the police officer(s) abused or misused their statutory or constitutional powers or acted in excess of his or their authority under the Constitution or the Police Act to establish liability.
?The provisions of Section 341(a)-(f) of the Police Act will come into effect after the complainant and the suspect with their witnesses supported possibly by documentary evidence appear on invitation to any office of the respondent in Benue State where the complaint or suspicion is investigated to arrive at a decision. If the learned trial Judge or this Court holds otherwise, complaints or suspicions that a crime has been committed or there is need to prevent its commission or to protect lives and property, etc, will not be possible to invite the

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complainant and the suspect to the offices of the respondent will be a civil wrong to render the complainant and the members of the respondent in a state sueable and liable to damages. That can never be the intention of the legislature. The appellant again founded this suit in the Court below on the provisions of Section 34, 36(12) and 41 of the Constitution of the Federal Republic of Nigeria, 1999 as altered which provides as follows:-
?34(1) Every individual is entitled to respect for the dignity of his person, and accordingly:-
(a) no person shall be subject to torture or to inhuman or degrading treatment;
(b) no person shall he held in slavery or servitude; and
(c) no person shall be required to perform forced of compulsory labour.
(2) for the purposes of Subsection (1) (c) of this Section, “forced or compulsory labour” does not include –
(a) any labour required in consequence of the sentence or order of a Court;
(b) any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such;
(c) in the case of persons who have conscientious objections to

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service in the armed forces of the Federation, any labour required instead of such service;
(d) any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community; or
(e) any labour or service that forms part of –
(i) normal communal or other civic obligations of the well-being of the community.
(ii) such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly, or
(iii) such compulsory national service which forms part of the education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly.
xxxxx
36(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.
41(1) Every citizen of Nigeria is entitled to move freely throughout

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Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom.
(2) Nothing in Subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society-
(a) imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
(b) providing for the removal of any person from Nigeria to any other country to:-
(i) be tried outside Nigeria for any criminal offence, or
(ii) undergo imprisonment outside Nigeria in execution of the sentence of a Court of law in respect of a criminal offence of which he has been found guilty:
Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.?
There is no oral or documentary evidence from the affidavit evidence to support the suit under Section 34(1)-(2) of the Constitution. Fair hearing applies if a person or authority wants ?a Court or other Tribunal established by law and constituted

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in such manner as to secure its independence and impartiality? under Section 36(1) is to determine ?his civil rights and obligations, including any question or determination by or against any government or authority?. That is when ?a person shall be entitled to a fair hearing within a reasonable time under Section 36(1) of the Constitution. The respondent is not ?a Court or other Tribunal established by law and neither has the respondent have the powers nor jurisdiction to determine the ?civil rights and obligations? of the appellant not being a Court or other tribunal. The appellant is not ?any government or authority? within the contemplation of Section 36(1) or (2) of the Constitution and has no constitutional or statutory powers to hear and determine an application under Section 36(1) of the Constitution not being a ?Court or other Tribunal established by law etc. In Baba vs. Civil Aviation (1991) SCNJ (Pt.1) 1, Nnaemeka-Agu, JSC held at page 25 when construing Section 33(1) of the 1979 Constitution that:

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?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.?
The appellant was not convicted by the respondent for any criminal offence for Section 36(12) of the Constitution to be invoked by the respondent. There is not an iota of evidence for the respondent to have invoked the provisions of Section 46(1)-(3) of the Constitution nor to cry there is a lion when there is none. The phrase ?reasonable suspicion? or ?reasonably necessary? is not employed under Section 4 or 6 of the Police Act for members of the Police Force to exercise their powers and duties. The requirement that the application of Section 35(1)(c) of the Constitution is to apply or be invoked where the body, authority or person depriving ?Every person? personality has to be ?upon reasonable suspicion or

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as may be reasonably necessary etc, is omitted in Section 4 of the Police Act.

This frivolous and vexatious proceedings resulting to this appeal was initiated in the Court below on 30th September, 2016 and is being ?determined? namely, put to an end today 12th April, 2019. The parties have dissipated their resources and energy, burdening judicial officers with a frivolous suit and appeal. The entire suit in the Court below and this appeal are frivolous and vexatious litigations deserving condemnation from right-thinking members of the society to be remedied in damages. A ?frivolous appeal? is defined in Black?s Law Dictionary, 9th edition, page 113 as:-
An appeal having no legal basis, usually filed for delay to induce a judgment creditor to settle or to avoid payment of a judgment. Federal Rules of Appellate Procedure 38 provides for the award of damages and costs if the appellate Court determines that an appeal is frivolous. Fed. R. App. P.38
Order 20 Rule 11 of the Court of Appeal Rules, 2016 reads as follows:-

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?11(1) The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.
(2) The powers contained in Sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.?

I am guided by the provisions of Order 4 Rule 9(1)-(3) of the Court of Appeal Rules, 2016 in dismissing the appeal with N100,000.00 cost to the respondent.

ONYEKACHI AJA OTISI, J.C.A.: I read in advance a draft copy of the lead Judgment of my learned Brother, Joseph Tine Tur, JCA, dismissing the appeal. I agree with the conclusion that the appeal is without merit.

The Respondent had also filed a Respondent?s Notice on 23/10/2017 but deemed properly filed and served on 24/9/2018 in which he sought the judgment of the lower Court to be affirmed on other grounds than those relied upon by the

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lower Court, as follows:
That the trial Court lacked the jurisdiction to hear the matter same having been commenced via a fundamental right application.
The grounds upon which the Notice was brought were:
1. That the cause of action of the applicant at the trial Court was only ancillary and incidental to a breach of fundamental rights.
2. That the case of the applicant was commenced in contravention to Order IX Rule 1(2) of the Fundamental Rights Enforcement Procedure Rules, 2009.
3. That the subject matter of the suit was not cognizable via fundamental rights application.

Mr. Eko, learned Counsel for the Respondent raised this issue for determination as follows:
Whether the case of the applicant as constituted before the trial Court was competent before the Court; and or whether the trial Court had the requisite jurisdiction to have entertained the action before it.

It was contended by the Respondent that the crux of the Appellant?s case, as emphasized by the cause of action and highlighted by material depositions in the affidavit in support of his application, relates to the issue of his possession of vehicles,

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which he believed to be part of his entitlements. The Appellant feared the invitation of the Respondent was targeted toward dispossessing him of the said vehicles, hence his action for the enforcement of his fundamental rights at the trial Court. It was submitted that this grievance was related to proprietary rights, which were alleged to be tied to the non-enforcement of a consent judgment. The alleged threat of infractions of his fundamental rights was only incidental and ancillary to the main plank of his cause of action. Reliance was placed on a number of authorities including: Abdulhamid v. Akar (2006) ALL FWLR (Pt. 321) 1191, W.A.E.C v. Adeyanju (2008) ALL FWLR (Pt. 428) 206 at 225; Emeka v. Okoroafor (2017) LPELR-41738. It was further submitted that it is irrelevant that the Appellant had couched his suit as though it were a fundamental rights suit, the Court had the discretion to look at the facts and the circumstances surrounding the cause of action and the facts in issue to determine whether the matter qualifies in fact as a fundamental rights matter. The decision of this Court in Governor, Kwara State v. Lawal (2006) ALL FWLR (Pt. 336) 346-347 was also cited and relied on. ?

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For the Appellant, it was submitted that it is the plaintiff?s claim that determines and vests jurisdiction on the Court, relying on Ports and Cargo Handlings Services Co., Ltd & Ors v. MIGFO (Nig) Ltd & Anor (2012) 6 SCNJ (PT 11) 618 at 642. It was argued that the reliefs sought by the Appellant would reveal that the fulcrum of the application was the enforcement of fundamental rights and not a dispute as to property rights or non-enforcement of a consent judgment.

Resolution
It is well settled that jurisdiction is determined by the claim before the Court; Tukur v. Government of Gongola State [1989] 4 NWLR (PT 17) 517; Ohakim v. Agbaso (2010) LPELR-2359(SC); Goldmark Nigeria Ltd v. Ibafon Company Ltd (2012) LPELR-9349(SC); Emeka v. Okoroafor (supra). In APGA v. Anyanwu (2014) LPELR-22182(SC), the Supreme Court, per Kekere Ekun, JSC at page 38 of the E-Report, restated the position of the law thus:
?The law is settled that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are the processes filed by the plaintiff or applicant

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i.e. the writ of summons and statement of claim, or as in the present case the Originating Summons and its supporting affidavit.?
Therefore, it is the claim before the Court, which in this case is disclosed in the originating process and its supporting affidavit that have to be looked at or examined in order to ascertain whether it comes within the jurisdiction conferred on the Court.

The Appellant as applicant before the lower Court sought the following reliefs, pages 1 and 2 of the Record of Appeal:
(1) An Order of the Honourable Court enforcing the Applicant’s Fundamental Rights to Personal Liberty, Right to fair hearing, Right to dignity of the human person, right to freedom of movement and Freedom from torture, guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (in terms of the reliefs sought in the Statement accompanying this application and the affidavit in support of this Application).
(2) ANY other order that the Honourable Court may make in the circumstances as to meet the justice of the case.

In paragraphs 7 and 10 of the affidavit in support, the Appellant deposed, pages 3 – 7 of the Record of

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Appeal:
7. That I know as of fact from the instruction received by our T. Oscar Aorabee, Esq in the course of his brief as follows:
a.That the Applicant is currently on a national assignment as a Director in the Federal Inland Revenue Service, an assignment that has taken him away from his usual place of work and would last for at least ten days, which will only make him available in October, 2016.
b. That the applicant was appointed as the Executive Chairman of Benue State Internal Revenue Service by the Government of Benue State for an initial term of two years on 6th September, 2010, which appointment was for a period of two years and attracted for him all the fringe benefits applicable to political and public office holders in the State Public Service. A Copy of the letter is exhibited hereto as “Exhibit AA-3”.
c. That the Applicant meritoriously served the first term of his appointment and was re-appointed to the said office on 4th April, 2012 which entitled him to official vehicles to be provided and maintained by the Government. A Copy of the letter is exhibited hereto as “Exhibit AA-4”.

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d. That while he was on leave, the Government of Benue State unlawfully and illegally terminated the applicant’s appointment and also set up an audit committee to audit his tenure.
e. The Applicant challenged the decision of the Benue State Government to terminate his appointment and the finding of the Audit Committee before the National Industrial Court in two suits namely (1) NICN/ABJ/215/2013 Mr. Andrew Ayabam v. Benue State Government & 6 Ors., and (2) NICN/MKD/25/2014 Mr. Andrew Ayabam v. Benue State Government & 4 Ors.,
f. That suit No. NICN/MKD/25/2014 in which the Applicant also claimed to be entitled to 4 new vehicles, was settled out of Court at the instance of the Benue State Government wherein the Government agreed through a Consent Judgment to pay our client the sum of N100, 000,000.00 (One Hundred Million Naira) only which was to be paid by the Government through our client’s Counsel Sebastine Tar. Hon SAN within 14 days of the delivery of the judgment. A copy of the Terms of Settlement signed on behalf of the Government by the Attorney General of Benue State, Mr. Michael Gusa Esq., exhibited hereto as “Exhibit AA-5”

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g. That the matter in NICN/ABJ/215/2013 is still before the Court of Appeal Abuja in CA/ABJ/57/2014. Copies of the Applicant’s Notice of Appeal, Additional grounds of Appeal and Brief of Argument are exhibited hereto as “Exhibit AA-6 and AA-7” respectively.
h. That the Benue State Government is yet to fulfill its obligations under that judgment close to a year after that judgment was entered in favour of the applicant.
i. That the Applicant legitimately came into possession of the said vehicles in his possession by virtue of his former office and the judgment that voided the termination of his appointment by the Government of Benue State.
j. That the applicant could also hold to the vehicles as long as his entitlements from the N100,000,000.00 consent judgment which the Benue State Government has not fully liquidated, but that is not the reason he is presently in possession of the vehicles.
10. That unless restrained, the Respondent will arrest and impound the Applicant?s vehicles for no known offence and violate his fundamental rights to liberty and freedom of movement and may subject the applicant to degrading and inhuman treatment.

(Emphasis mine)

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These depositions clearly unveil the true face of the fear of the Appellant to be that the vehicles in issue could be impounded without settlement of the terms of the consent judgment in Suit No. NICN/MKD/25/2014 by the Benue State Government. The secondary fear expressed was an alleged threat to violate his fundamental rights to liberty and freedom of movement, with the added conjecture that he may also be subjected to degrading and inhuman treatment.

The originating application was brought pursuant to Sections 35, 34, 36(12), 41 and 46 of the 1999 Constitution, as amended and under the Fundamental Rights (Enforcement Procedure) Rules, 2009. The only claims that may be brought pursuant to these provisions are claims that are founded on infractions of fundamental rights or threats thereto. Citing with approval the decision in Borno Radio Television Corporation v. Basil Egbuonu (1991) 2 NWLR (Pt.171) 81 at 89, the Supreme Court in Tukur v Government of Taraba State (1997) LPELR-3273(SC) per Ogundare, JSC, said, at pages 33 ? 34 of the E-Report:
?Adio JCA said, and I agree with him:
“When an application is brought under the

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Fundamental Rights (Enforcement Procedure) Rules, 1979, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental right or the securing of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental right or securing the enforcement thereof should, from the applicant’s claim as presented, be the principal or fundamental claim, and not an accessory claim.?
In Kolo v NPF (2018) LPELR-43635(CA), this Court had reiterated the position of the law as follows, pages 39 ? 40 of the E-Report:
?It is also established that for a claim to qualify as falling under fundamental rights, the principal relief sought must be for the enforcement of fundamental right. In Federal Republic of Nigeria v Ifegwu (2003) 15 NWLR (PT 842) 113, (2003) LPELR-3173(SC), the Supreme Court, per Uwaifo, JSC, restated this position at page 20 of the E-Report, thus:
?However, for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief is for the enforcement or for securing the enforcement of a fundamental right and

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not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of a fundamental right. In other words, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as one for the enforcement of a fundamental right
See also Tukur?s case (supra); Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt.531) 29; WAEC v Akinkunmi (2008) 4 S.C. 1, (2008) LPELR-3468(SC); Sea Trucks (Nigeria) Ltd v Anigboro (2001) 1 S.C. (PT 1) 45, (2001) LPELR-3025; University of Ilorin v Oluwadare (2006) 14 NWLR (PT 1000) 751, (2006) LPELR-3417(SC); Gafar v Government of Kwara State (2007) 1-2 S.C. 189, (2007) LPELR-8073(SC); Abdulhamid v Akar (2006) 5 S.C. (PT 1) 44; Amale v Sokoto Local Government & Ors (2012) LPELR-7842(SC).?
Therefore, the principal claim sought by an applicant under the Fundamental Rights Enforcement Procedure, must fall within fundamental rights as constitutionally guaranteed.

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The application was brought pursuant to Sections 35, 34, 36(12), 41 and 46 of the 1999 Constitution, as amended. However, the Appellant, who had not yet honoured the invitation from the Respondent, did not reveal from his affidavit evidence that he had been deprived of his personal liberty, that he had suffered disregard of respect for dignity of his person, or that his freedom of movement had been curtailed. Any alleged infractions of fundamental rights or threat of infraction must be real; Diamond Bank v. Opara & Ors (2018) LPELR-43907(SC). The alleged infraction or threat thereto must not anticipatory or conjectured; Orkater v. Ekpo & Ors (2014) LPELR-23525(CA); Akinbolaji & Ors v. Taiwo (2018) LPELR-46578(CA). It is patently clear that failure to settle a consent judgment does not fall within the purview of breaches of fundamental rights as constitutionally guaranteed or threats of breaches thereof.
It is established that a Court would be competent to hear and determine the issue before it when:
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case

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is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See: Madukolu & Ors v. Nkemdilim (1962) LPELR-24023(SC) at page 10 of the E-Report. By virtue of Order IX Rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, where the subject matter of the claim brought under the Fundamental Rights Enforcement Procedure does not fall within Chapter IV of the Constitution or the African Charter on Human and People Right (Ratification and Enforcement Act) the proceedings do not amount to mere irregularity, the proceedings are a nullity. Jurisdiction, being the very basis on which any Court or tribunal entertains a matter, proceedings commenced or conducted by a Court without jurisdiction amount to a nullity; Petrojessica Enterprises Limited & Anor v. Leventis Technical Company Limited (1992) LPELR-2915(SC).
?
I see no point in dissipating further judicial energy on this issue. The learned trial Judge had dismissed

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the Appellant?s application, as he had not made out a case of infraction of his fundamental rights. I agree with the Respondent that the decision of the learned trial Judge ought also to be affirmed on the grounds as elaborated above, that the claim brought before the lower Court did not fall within fundamental rights. The Appellant?s claim was therefore incompetent and the lower Court had no jurisdiction to entertain the same.

This appeal is completely without merit and is hereby dismissed. I abide by the orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I read before now the judgment of my learned brother, Tur, JCA.
The Office of the Special Advisor on Security Matters, Benue State, wrote a letter dated 14/9/2016 to the respondent titled ?Re ? List of Past Officials Still in Possession of Government Vehicles?. Forwarded along with the letter was another letter of the Government of Benue State titled ?List of Past Officials Still in Possession of Government Vehicles?; dated 6/9/2016. A copy of the report forming the basis of the letter was attached, with the appellant

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as the third name on the list of past officials still in possession of Government vehicles. The letter of 14/9/2016 along with the attachment is Exhibit TY 1 attached to the counter ? affidavit of the respondent before the trial Court.

It is the contention of the appellant that the letter along with the attachment is inadmissible in evidence, being uncertified photocopy of original public document and that the trial Court did not consider the objection. It is my view that the fact that the trial Court did not consider the point raised by appellant?s counsel is of no moment. This is because the document was attached to a counter ? affidavit and so the question of its admissibility did not arise. In Jukok International Limited V Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55, this Court held that an uncertified copy of a public document attached to an affidavit in support of an originating summons cannot be rejected by the Court simply because it is not certified. The trial Court therefore rightly took cognizance of Exhibit TY 1 and the attachment to it.

Acting on Exhibit TY1, the police invited the appellant by means of Exhibit AA

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? I to report at the Police Station. The invitation reads;
?This Office is investigating a case of BEING IN POSSESSION OF 3 GOVERNMENT VEHICLES.
You are required to report at O/C SIB OFFICE MKD on the 28 day of SEPT 2016 at about 10. 00 hrs.
You will please bring along with you Two TOYOTA HILUX AND ONE TOYOTA PRADO. On arrival you will ask of O/C SIB MKD.”

There is nothing in the invitation letter which has a whiff of infringement, threat or likelihood of breach of appellant?s fundamental right. In the case of Diamond Bank Plc v Opara (2018) 7 NWLR (Pt. 1617) 92, 110 the Supreme Court considered a matter involving a letter of invitation from the Economic and Financial Crimes Commission (3rd respondent) to the 1st and 2nd respondents regarding an alleged bank fraud and diversion of depositor?s money reported by the appellant against the 1st and 2nd respondents. Bage, JSC, stated:
?I hold the view that there is no doubt that a mere letter of invitation from the 3rd respondent to the 1st and 2nd respondents did not constitute abuse of the process of law, and/or breach of fundamental right. However,

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looking at the surrounding circumstances, before the letter, one will think otherwise.”
I see nothing in the facts and circumstances of this case to warrant a finding that the invitation amounted to a breach or likelihood of the breach of the fundamental rights of the appellant to ground his case against the respondent.
?
It is for the above reasons that I agree with the conclusion of my learned brother that the appeal has no merit. I accordingly dismiss the same.
The parties shall bear their costs.

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Appearances:

T. O. Aorabee, Esq. with him, J. T. Nyiatagher, Esq., Tyosar Agatse, Esq., M. T. Or, Esq. and G. I. Akpongo, Esq.For Appellant(s)

Eko Ejembi EkoFor Respondent(s)

Appearances

T. O. Aorabee, Esq. with him, J. T. Nyiatagher, Esq., Tyosar Agatse, Esq., M. T. Or, Esq. and G. I. Akpongo, Esq.For Appellant

AND

Eko Ejembi EkoFor Respondent

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