BEEIOR ISHENGE v. COMMISSIONER OF POLICE, PLATEAU STATE & ANOR
(2019)LCN/13662(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of July, 2019
CA/J/59/2013
RATIO
JURISDICTION: CONDITIONS FOR A COURT TO HAVE JURISDICTION
One of the four conditions for the Court to exercise jurisdiction in a given case is that the suit must have been commenced by due process of law and upon fulfilment of any condition precedent to assumption of jurisdiction. SYLVA V. INEC & ORS. (2015) LPELR 24447 (SC); MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; SKEN CONSULT V. UKEY (1981) 1 SC; DANIEL V. AMOSUN (2009) ALL FWLR (PT. 473) 1339. PER UCHECHUKWU ONYEMENAM, J.C.A.
TECHNICALITIES: THE COURT SHOULD BE MORE INTERESTED IN JUSTICE AS OPPOSED TO TECHNICALITIES
I agree with the position of the counsel for the 2nd Respondent that the era of technicality is over and that agreeing with the Appellant?s contention on this issue will amount to upholding technicality far and above substantial justice which is the judicial order of the day. See: KALU V. CHUKWUMERIJE (2012) 12 NWLR (PT. 315) CA 425; YAKUBA V. STATE (2012) 12 NWLR (PT 1313); OFFOR V. STATE (2012) 18 NWLR (PT. 1333) 421; DAIRO V. FRN (2012) 16 NWLR (PT. 1325) 129 CA. PER UCHECHUKWU ONYEMENAM, J.C.A.
COURTS: DUTY OF COURTS: THE COURT BEFORE WHOM A PROCEEDING IS PENDING OR HAS BEEN COMPLETED TAKES JUDICIAL NOTICE OF ALL THE PROCESSES FILED IN THE PROCEEDINGS AS WELL AS THE PROCEEDINGS ITSELF
It is trite that the Court before whom a proceeding is pending or has been completed takes judicial notice of all the processes filed in the proceeding as well as the proceeding itself including the judgment as the case may be and so following from this proposition of law, all the processes to be relied upon in any application made before that Court in the proceeding are judicially noticed. PER UCHECHUKWU ONYEMENAM, J.C.A.
CONSTITUTIONAL LAW: INTERPRETING THE PROVISIONS OF SECTION 35 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Section 35 (1) (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus:
“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-
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;
S. 35 (4) of the Constitution provides that a person arrested and detained in accordance with Section 35(1) (c) shall be brought before a court of law within a reasonable time. The expression ?a reasonable time? is defined in Section 35(5) of the Constitution to mean-
(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 kilometers, a period of one day; and
(b) In any other case, a period of two days or such longer period as the circumstances may be considered by the Court to be reasonable. PER UCHECHUKWU ONYEMENAM, J.C.A.
ARREST: WHEN A SUSPECT SHOULD BE ARRESTED BY THE POLICE
The position was clarified when the Supreme Court stated in the case of FAWEHINMI V. I.G.P (2002) 7 NWLR PT. 164, 606 Per Uwaifo JSC that:
In a proper Police investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest let alone caution a suspect before the Police look for evidence. See also the case of UBA PLC & ORS V. MR. UGOCHUKWU DURUNNA (2015) LPELR-25625. PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
BEEIOR ISHENGE Appellant(s)
AND
1.COMMISSIONER OF POLICE, PLATEAU STATE
2.NATHANIEL ALAGBE Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of P.L. Lot, J. of the High Court of Plateau State sitting at Bukuru Jos. The Appellant filed an application for enforcement of his fundamental Right against the Respondents. The trial Court heard the application and dismissed the claim of the Appellant. Dissatisfied with the decision of the Court, the Appellant filed a notice of Appeal on three (3) grounds which with the leave of the Court was amended on 16th June, 2014.
The Appellant who was the Applicant at the trial Court brought this action against the Respondents by a Motion on Notice dated 12th day of July, 2011. The Respondents filed their various Counter-Affidavits though out of time. At the hearing of the Suit, the Applicant moved and adopted his Motion on Notice dated 12th June, 2011. The Respondents, particularly the 2nd Respondent adopted his Counter Affidavit. After hearing the Applicant?s Motion alongside the Counter Affidavit of the Respondents, the Court delivered its ruling in the Suit on the 28th day of September, 2012 wherein the application was refused for lacking in merit. ?
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The parties filed and exchanged their respective briefs in accordance with the rules of this Court after which the appeal was heard on 20th May, 2019.Mr. J.I. MANTU Principal State Counsel, Ministry of Justice Plateau State with D.U. ALAMS State Counsel; represented the 1st Respondent. Mr. CALEB G. DAJAN appeared for the 2nd Respondent with C.C. AGBALUGO Esq. Upon the Court being satisfied that the Appellant was duly served with Hearing notice for the day and for the fact that briefs of argument were before the Court, the appeal was heard. Mr. Mantu noted that he did not file any brief in the appeal.
Mr. Dajan prayed the Court to rely on Order 19 Rule 9 (4) of the Court of Appeal Rules 2016, to deem the Appellant?s appeal as duly argued and the Appellant?s amended brief filed 25th January, 2018 but deemed 26th February, 2018 adopted. The learned counsel noted the reply brief filed 8th May, 2017 but deemed properly filed and served 27th November, 2017 which predates both the Appellant?s amended brief and Respondent?s brief and was not further deemed. Thereafter, Mr. Dajan adopted 2nd Respondent?s amended brief
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of argument filed 17th April, 2018 and deemed properly filed and served 21st November, 2018 in urging the Court to dismiss the appeal. Mr. Mantu learned counsel for the 2nd Respondent had nothing to urge since he did not file any brief.
In the Appellant?s amended brief Prof. Agbo J. Madaki submitted the following two issues for the determination of this appeal:
a) ?Whether a trial Court is allowed to consider and rely on processes that are incompetent or not properly before it in arriving at its decision as was done by the learned trial judge in this case.
b) Whether the arrest and detention of the appellant by the 1strespondent for more than 24 hours without arraignment is not a violation of the appellant’s right to personal liberty as guaranteed by the Constitution of the Federal Republic of Nigeria 1999, as amended.?
For the 2nd Respondent Mr. Caleb G. Dajan distilled the following two Issues for determination by this Court.
1. ?Whether the learned Trial Judge was wrong or right in granting and relying on the Counter Affidavit of the 2nd Respondent inspite of the wrong suit No. on the Motion Paper.
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2. Whether the learned Trial Judge was right in dismissing the application of the Applicant (now Appellant) as lacking in merit.?
The two sets of issues raised by the parties are the same in content but differently phrased. The Appellant?s issues though verbose, captivate his grouse and so, I shall adopt them in the determination of this appeal.
SUBMISSIONS ON ISSUE 1
Whether a trial Court is allowed to consider and rely on processes that are incompetent or not properly before it in arriving at its decision as was done by the learned trial judge in this case.
The learned counsel for the Appellant, Prof. Madaki submitted on the competence of a court. He cited: DANIEL V. AMOSUN (2009) ALL FWLR (PT. 473) 1339; MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587. He submitted that the well-established legal requirement of the competence of Court was not satisfied by the Respondents before the trial Court to warrant the decision appealed against.
?
The learned Prof., noted that the 1st Respondent filed its Counter Affidavit and Written Address dated 20th October, 2011 out of time which necessitated its filing a motion on notice dated 7th
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March, 2012 to regularize its position but unfortunately the application to regularize the counter affidavit was not moved before the 1st Respondent adopted same in opposition to the Appellant?s motion on notice at the trial Court. The effect, he submitted is that the 1st Respondent did not challenge or contradict the affidavit evidence and argument adduced by the Appellant in support of his application. He argued that it was wrong and a miscarriage of justice for the learned trial Judge to consider the incompetent processes relying albeit erroneously on S. 122(2) (m) of the Evidence Act 2011.
The learned counsel noted that the 2nd Respondent also filed his Counter-Affidavit and Written Address in response to the Appellant’s application outside the time allowed under the rules. To regularize his position, the 2nd Respondent filed a motion dated 29th February, 2012 bearing suit No: PLD/J261/2001 different from Appellant’s suit No: PLD/J261/2011 that was before the trial Court. The said motion to regularize the 2nd Respondent?s counter affidavit bearing a different year of the suit number was heard and granted by the learned trial Judge. Prof.
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Madaki submitted that the 2nd Respondent?s motion was incompetent and ought not to have been heard at all by the trial Court for want of jurisdiction. He further submitted that the hearing and grant of same occasioned a miscarriage of justice. The cumulative effect of the above is that the trial Court admitted and relied on incompetent and inadmissible evidence to wit Counter -Affidavits and Written Addresses of the Respondents that were not properly before it. He argued that if the inadmissible documents/evidence are expunged from the record, then the result is that the case of the Appellant was neither challenged nor uncontroverted which presents a good ground for reversal of the decision of the trial Court. He referred to: DUROSARO V. AYORINDE (2005) ALL FWLR (PT. 260) 167; OGUNSINA V. MATANMI (2001) FWLR (PT. 48) 1329. The learned counsel submitted that since the deposition of the Appellant in support of his application was not challenged or controverted, the same ought to have been acted upon by the trial Court. He relied on: SHAGARI V. COP (2005) ALL FWLR (PT. 262) 450 AT 467.
He urged the Court to allow the appeal on this issue.
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Mr. C. G. Dajan, learned counsel for the 2nd Respondent submitted that the learned trial Judge was right in granting the Motion of the 2nd Respondent and relying on his Counter Affidavit despite the error of inserting a different Suit No. on the Motion Paper i.e. Suit No. PLD/261/2001 instead of PLD/J261/2011. He relied on: KALU V. CHUKWUMERIJE (2012) 12 NWLR (PT. 315) CA 425; YAKUBA V. STATE (2012) 12 NWLR (PT. 1313); OFFOR V. STATE (2012) 18 NWLR (PT. 1333) 421; DAIRO V. FRN (2012)16 NWLR (PT. 1325) 129 CA; in urging the Court to hold that the Courts have departed from the era of technical Justice to the dispensation of substantial Justice more so since there is nothing on record that showed that the Appellant was misled by the error in the suit number.
He urged the Court to resolve the issue in favour of the 2nd Respondent.
RESOLUTION OF ISSUE 1
One of the four conditions for the Court to exercise jurisdiction in a given case is that the suit must have been commenced by due process of law and upon fulfilment of any condition precedent to assumption of jurisdiction. SYLVA V. INEC & ORS. (2015) LPELR ? 24447 (SC); MADUKOLU V. NKEMDILIM
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(1962) 2 SCNLR 341; SKEN CONSULT V. UKEY (1981) 1 SC; DANIEL V. AMOSUN (2009) ALL FWLR (PT. 473) 1339.
The fact here is that the 2nd Respondent at the trial Court brought an application to regularize his counter affidavit and written address in opposition to the Appellant?s application for fundamental human right enforcement under a wrong suit number. The Appellant?s suit was: Suit No. PLD/J261/2011 but the 2nd Respondent brought his application under Suit No. PLD/J261/2001. The Appellant?s contention is that the trial Court did not have jurisdiction to entertain the 2nd Respondent?s application which he argued was commenced without due process. Accordingly, that the 2nd Respondent did not have any counter against the depositions in the affidavit in support of his application which implies that his application was u
