ECONOMIC AND FINANCIAL CRIMES COMMISSION v. DR. ERASTUS AKINGBOLA (2014)

ECONOMIC AND FINANCIAL CRIMES COMMISSION v. DR. ERASTUS AKINGBOLA

(2014)LCN/7652(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of December, 2014

CA/L/462/2011

RATIO

PRACTICE AND PROCEDURE: INTERLOCUTORY INJUNCTION; THE PRINCIPLE THAT THE TRIAL COURT MUST WARM ITSELF NOT TO DELVE INTO THE SUBSTANTIVE ISSUES TO BE TRASHED DURING THE TRIAL AT THE INTERLOCUTORY STAGE

It has also been settled that at the stage of an application for an interlocutory injunction, the Court should avoid the resolution of complex and intricate issues of facts since at that stage the veracity of the affidavit evidence would not have been tested in cross-examination.
See. Egbe V. Onogun (1972) 1 All NLR 95; Amachree V. I.C.C. Ltd. (1989) 4 NWLR (Pt. 118) 686; Williams v. Dawodu (1988) 4 NWLR (Pt. 118) 686; Williams v. Dawodu (1988) 4 NWLR (Pt 87) 189; Onyesoh V. Nnebedum (1992) 3 NWLR (Pt. 229) 315. In Onyesoh V. Nnebedun (1992) 3 NWLR (Pt. 229) 315 at 348, this Court per Akpata, JSC spoke of this principle in the following terms: –
“Besides, a trial Judge in considering whether to order an interlocutory injunction has to be circumspect in respect of his finding and should not be seen to be deciding the issue in the substantive case by his pronouncement in the interlocutory application. He only has to be satisfied that the substantive case is not only frivolous and he does not do this by making findings of fact on vital issues in the substantive case”.
Adamu V. Att. Gen. Nasarawa State (2007) 6 NWLR (Pt. 1031) 485 at 493- 494, where this Court per Ndukwe-Anyanwu, JCA, explained –
“This has been the attitude of the courts in plethora of cases that the trial court must warm itself not to delve into the substantive issues to be trashed during the trial at the interlocutory stage. In Obioha v. Military Administrator Imo State (1998) 10 NWLR (Pt.569) 205 at 208, the Court held that:-
“In an application for interlocutory injunction the court must be satisfied that there is a real or substantial question to be tried in the substantive suit, although at that stage the rights of the parties cannot be determined. That is a function that will be performed by the court in the substantive suit.”
In Saraki vs. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 149 the Supreme Court has this to say: –
“In dealing with an interlocutory application, the court will confine itself strictly to the point which n is called upon to decide and will express its opinion on the case only so far as is necessary to show the grounds upon which the interlocutory application is disposed of, and, in the absence of very special circumstances, will impose only such restraint as will suffice to stop the mischief and keep things as they are until the hearing”
See also Shanu vs. Afribank (Nig) Plc. (2002) 17 NWLR (Pt 795) 185 at 230-231 where Uwaifo, JSC, succinctly stated: –
“…A court shouid not devolve into issues meant for the substantive suit or appal when considering relevant interlocutory application”
“In the determination of any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncements which may prejudice the trial of the claims filed and still pending before the court. To do otherwise is to prejudice the matter in respect of which evidence is still to be led” See Globe Fishing Industries Ltd. vs. Coker (1990) NWLR (Pt.162) 265 at 301 where Akpata, JSC held that: –
“The court always refrain in its ruling on an application for an interlocutory injunction from resolving matters which should be adjudicated upon at the trial. It should not make pronouncements which would make the trial a mere formality and a mockery of judicial procedure.” Obeya Memorial Hospital vs. Attorney-General of the Federation (supra). per. AMINA ADAMU AUGIE, J.C.A.

FUNDAMENTAL HUMAN RIGHTS(ENFORCEMENT PROCEDURE) RULES 2009; THE SPECIAL PROCEDURE STIPULATED FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS
The Application that culminated in this appeal was brought pursuant to the Fundamental Human Rights (Enforcement Procedure) Rules 2009, and the special procedure stipulated for the enforcement of fundamental rights is quite different from the normal proceedings that we are used to –
See Director, SSS V. Agbakoba (1999) 3 NWLR (Pt. 595) 314 SC.

Order II rule 2 of the said Enforcement Procedure Rules provides that an application for the enforcement of the Fundamental Right may be made by any originating process accepted by the court, and by rule 3 –
“An application shall be supported by a statement setting out the name and description of the applicant the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the facts upon which the application is made”.
Order II rule 5 provides that “every application shall be accompanied by a Written Address which shall be succinct arguments in support of the grounds of the application”, and Order IV rule 3 specifically says that –
“The Court may, if satisfied that exceptional hardship may be caused to the Applicant before the service of the application especially when the life or liberty of the Applicant is involved, hear the Applicant ex parte upon such interim reliefs as the justice of the application may demand”.
Order IV rule 4 of the said Enforcement Procedure Rules stipulates that –
(a) The application ex-parte under this Order shall be supported by affidavit which shall state sufficient grounds why delay in hearing the application would cause exceptional hardship;
(b) A party moving the court ex-parte may support the application by argument addressed to the Court on the facts put in evidence;
(c) Where the Application is made ex-parte for interim reliefs, the Court may make the following orders:
(i) Grant bail or order release of the Applicant forthwith from detention pending the determination of the application.
(ii) Order that the Respondent against whom the order for the release of the Applicant is sought be put on notice and abridge the time for hearing the application;
(iii) Order the production of the Applicant on the date the matter is fixed for hearing if the Applicant alleges wrongful or unlawful detention;
(iv) Grant injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all actions pending the determination of the application;
(v)Any other order as the Court may deem fit to make as the justice of the case may demand. per. AMINA ADAMU AUGIE, J.C.A.

APPEAL: PRELIMINARY OBJECTION AND AN ISSUE FOR DETERMINATION; THE DIFFERENCE BETWEEN A PRELIMINARY OBJECTION AND AN ISSUE FOR DETERMINATION

APPEAL; ISSUES FOR DETERMINATION; WHETHER A RESPONDENT CAN FORMULATE HIS OWN ISSUES FOR DETERMINATION AND THE EFFECT OF ISSUES FORMULATED BY THE RESPONDENT OUTSIDE THE GROUNDS OF APPEAL

There is no law prohibiting a Respondent from formulating his own issues for determination, but a Respondent who has not cross-appealed or filed a Respondent’s Notice is not entitled to formulate issues outside the grounds of appeal, which contain the complaints against the decision – see Mushuwareng V. Abdu (2003) 11 NWLR (Pt.831) 403. See also Nwankwo v. F.R.N. (2003) 11 NWLR (Pt.809) 1; Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511; Igbinoba v. Igbinoba (2003) 3 NWLR (Pt.803) 39; and Ibator v. Barakuro (2007) ALL FWLR (Pt. 371) 1669, where the Supreme Court per Mohammed, JSC (as he then was) held as follows –
“The Respondents who have not filed any cross-appal from which grounds of appeal these further issues could have arisen, nor filed a Respondent’s Notice to affirm the Judgment of the Court below on grounds other than grounds argued by the Appellant, have not got an unbridled right or freedom of raising issues or further issues for determination which have no relevance to the grounds of appeal filed by the Appellants”. It is also settled that any issue formulated by the Respondent outside the grounds of appeal raised is incompetent, and is liable to be struck out –
See Ojegbe v. Omatsone (1999) 6 NWLR (Pt.608) 591 SC. In this case, the “Issue” formulated by the Respondent, which is not hinged on any of the Grounds of Appeal raised by the Appellant is, therefore, struck out, and arguments canvassed thereon in his brief will be discountenanced. per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

ECONOMIC AND FINANCIAL CRIMES COMMISSION Appellant(s)

AND

DR. ERASTUS AKINGBOLA Respondent(s)

AMINA ADAMU AUGIE, J.C.A.: (Delivered the Leading Judgment): This is one of the Appeals filed by the Appellant against the decisions of Archibong, J., in respect of Charges brought against the Respondent at the Federal High Court, after he was removed as the Managing Director of Intercontinental Bank Plc., by Central Bank of Nigeria [CBN], in 2009.

CBN had laid criminal complaints with the Appellant on 14/8/2009, alleging that in his position as Group Chief Executive of the said Bank, he engaged in serious economic and financial crimes, including money laundering, theft, market manipulation, obtaining by false pretences, criminal granting of loans and facilities, insider abuse, insider trading and abuse of office. He was invited by EFCC to answer to the allegations, and was later declared wanted, when he failed to honour their invitation.

On 21/12/2009, the Appellant filed a 28-Count Charge against him, and an Amended Charge on 29/1/2010. Meanwhile, the Respondent was in the United Kingdom but he voluntarily returned to Nigeria on 3/8/2010.
Upon his return, he voluntarily reported to EFCC, and was detained but later granted bail by Idris, J., on 30/8/2010. One condition for his bail is –
“[To] report to the Officers investigating this case at the offices of EFCC on the first working day of every week until otherwise directed by an order of Court”.

On 3/5/2011, he went to their Office in compliance with the above Order, and was detained by the Appellant. On 5/5/2011, he presented an Originating Motion for the Enforcement of his Fundamental Human Right at the Federal High Court, wherein he sought the following reliefs –
a. A Declaration that the arrest detention, harassment and incarceration of the [Respondent] is a violation of [his] Fundamental Right to dignity of human person, personal liberty and freedom of movement guaranteed by S. 34, 35 and 41 of the Constitution and Articles 5, 6 and 12 of the African Charter on Human and People’s rights (Ratification and Enforcement Act) (cap A9) – –
b. A Declaration that the continued detention, constant harassment, humiliation and maltreatment of the [Respondent] by the [Appellant] – – is wrongful, illegal and unconstitutional as it is a violation of the Applicants fundamental right as guaranteed by the 1999 Constitution – – and Articles 5, 6 and 12 of the African Charter on Human and People’s Rights- – –
c. A Declaration that the act of the [Appellant] – – is unlawful, illegal, wrongful and unconstitutional as it violates [his] fundamental rights to dignity of human person, personal liberty and freedom of movement guaranteed by Section 34, 35 and 41 of the Constitution – – and Articles 5, 6 and 12 of the African Charter on human and People’s Rights (Ratification and Enforcement Act) —
d. An Oder directing the [Appellant] to release the [Respondent] from its custody with immediate effect.
e. An Order of perpetual injunction restraining the [Appellant] whether by themselves or by their agents, servants, officers, privies or otherwise however from further arresting and/or detaining the [Respondent] in any other manner violating [his] fundamental right to dignity of human person, personal liberty and freedom of movements as guaranteed by Section 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 5,6 and 12 of the African Charter on Human and People’s rights …

On the same 5/5/2011, he filed a Motion Ex-parte brought pursuant to to the above-mentioned Statutes, wherein he prayed the lower Court for –
1. AN INTERIM ORDER of this Honourable Court directing the [Appellant], its servant, agents and/or privies to release the [Respondent] from detention forthwith pending the hearing and determination of the Originating Motion filed for the enforcement of his fundamental rights
IN THE ALTERNATIVE TO PRAYER ABOVE
2. AN INTERIM ORDER – – admitting the [Respondent] to bail pending the conclusion of the investigation of any crime allegedly committed by him by the [Appellant] or any other law enforcement agency.
3. AN ORDER OF INTERIM Injunction restraining the [Appellant], its servant agents and/or privies from further arresting or detaining the [Respondent] in connection with any matter relating to the complaint for which [he] was arrested and detained pending the hearing and determination of the Motion on Notice filed for the enforcement of his fundamental right or as this Honourable Court may otherwise Order.

The Record of the Proceedings on 6/5/2011 before Archibong, J., reads-
“Sasegbon (SAN): We appear for the Applicant. We have a Motion Ex-parte, which we move in terms.
Court: I have gone through your papers. I grant your Prayer 1, which is for an interim order of release of the Applicant pending the determination of the Originating Motion. This is to operate as a stay of all action, including any arguments pending the determination of same”.

Dissatisfied with the Interim Order, the Appellant filed a Notice of Appeal dated 13/5/2011, and followed it up with an Application dated 16/5/2011 for stay of further proceedings pending the determination of the appeal.
The Record of Proceedings on 18/5/2011 before the same Judge reads –
“No representative for the Respondent
Fagbohunobe (SAN): Our application is dated 5/5/2011 and filed sane day. The application is supported by a 15 paragraph Affidavit with exhibits. We also have a written address dated and filed same day. This was served on the Respondent- Your Lordship’s order of 6/5/2011 was also served on the Respondent.
Court: Their response is a motion for stay of proceedings pending appeal, ignoring the interim order of Court. EFCC and the Senior Counsel leading the Prosecution team are in contempt of court.
Fagbohungbe (SAN): We move in terms of our application.
Court Oder/Declarations sought as prayed”.

Also dissatisfied with this Order in respect of the said Originating Motion, the Appellant filed another Notice of Appeal dated 19/5/2011. The two Notices of Appeal dated 13/5/2011 and 19/5/2011 were later amended.
Thus, there are two separate Appeals being argued before this Court – one against the Interim Order of 6/5/2011: and the other challenging the substantive reliefs granted on 18/5/2011. The first Amended Notice has 5 Grounds of Appeal while the second Amended Notice has 4 Grounds.

The Respondent objected to the first Amended Notice of Appeal, and filed a Notice of Preliminary Objection to that effect, which he argued in his Brief of Argument prepared by Chief F. O. Fagohungbe (SAN), Rickey Tarfa (SAN), Deji Sasegbon (SAN) and Dapo Oduwole, Esq.

The Grounds of Objection as set out in the Respondent’s brief are that –
a) The leave of Court is statutorily required where an appeal as presented in a Notice of Appeal that questions the interlocutory/interim order of a Court of law.
b) The Appellant has appealed against the interim order of the Trial Court delivered on 6/5/2011. Fatally, the Appellant failed, refused or neglected to seek and obtain the leave of the Trial Court or this Hon. Court before appealing against the interim order of the trial Court made on the 6/2/2012.
c) Failure of the Appellant to seek and obtain the leave of the Trial Court or this Hon. Court renders the extant appeal incompetent.
As a preliminary point of law, he formulated the following issue –

“The Appellant’s Amended Notice of Appeal dated 14/2/2012 raises grounds of facts or mixed law and facts. However, the Appellant failed to obtain the leave of this Hon. Court as required by Section 242 (1) 1999 Constitution (as amended). Is the Appellant’s Notice of Appeal dated 14//2/2012 competent in the circumstance?

He submitted that leave of this Court must be obtained before an appeal can be instituted on ground of fact or mixed law and fact, and that failure to satisfy this constitutional requirement is that an appeal is incompetent, citing Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555; that the Grounds of Appeal in the Appellant’s Amended Notice of Appeal dated 14/2/2012 are either factual grounds or mixed law and facts; that they constitute a challenge on the sufficiency/adequacy or otherwise of material evidence, and the manner in which the Court exercised its discretion, which is what it is regardless of the language conveying or transmitting it, citing Coker B. UBA Plc. (1997) 2 NWLR (Pt. 490) 641; that regardless of who the Grounds are characterized or conceived, the question is whether the appeal raises questions of law and facts or whether facts have a role in the consideration of the lower Court, which facts this Court will have to understand to put the lower court’s discretion in con; and that –
“Put differently, the determination by this – Court on whether the judicial discretion of the Trial Court was properly exercised irresistibly leads to the consideration of the Affidavit by which the Applicant furnished facts necessitating the grant of the interim order for the release of the Applicant pending the determination of the substantive suit. The appellate Court will be required to evaluate the Affidavit of Adebisi Oyelade dated 5/3/2011 purporting the Applicants Ex parte Motion by which the Trial Court made its interim order). Clearly, the basis of the Appellant appeal is a challenge to the exercise of judicial discretion of this Court and leave bi Court is required to institute an appeal on this grounds.

At this point, he reproduced the Grounds of Appeal being challenged –
“GROUND ONE
ERROR IN LAW
The learned trial Judge erred in Law when he granted the orders prayed for ex parte in this matter.
PARTICULARS OF ERROR
a. The Application to restrain the arrest and arraignment of the Respondent was heard and granted on 6/5/2011.
b. The Respondent had been in the custody of the Appellant before the Order restraining the arrest was made.
c. The Respondent was on 5/5/2011 charged before Hon. Justice Abiru of the High court of Lagos State and duly served with the charge on the same date and acknowledged thereof.
d. The Hon. Court did not take into account all the relevant facts and thus acted other than judiciously and judicially.
e. The Respondent had been in the custody of the Appellant on a legal warrant.
f. The orders of the Hon. Court obtained in its Ruling of 6/5/2011 related to matters which had since occurred and incapable of being restrained.

GROUND 4
ERROR IN LAW
The learned Trial Judge erred in law and thereby occasioned a miscarriage of justice when issued against the Defendant an order injunction the Appellant from performing its statutory duties without affording the Appellant the opportunity to be heard.
PARTICULARS OF ERROR
(a) The right of the Appellant to be head in defence of an allegation against it is fundamental and inalienable, granted by common laws and constitutionally recognised, protected and preserved under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(b) The Court is duty bound to observe, recognise and apply to all parties’ right to fair hearing in it matters where allegation is made against one of the parties before arriving at any decision that may affect either of the parties based on the allegation.
(c) The Ex parte Order made by the learned trial Judge on 6/5/2011 against the Appellant without affording the opportunities to know and be heard in defence thereof was an infraction of the Appellant’s fundamental Right to fair hearing.
(d) The Respondent had ample opportunity to reach and serve the Appellant on the day it rushed to Court, but ii rushed to Court, but chose instead to proceed ex parte, and the Court rather than at best issue orders to show cause proceeded to grant orders which wilt cripple the Appellant in the performance of its high constitutional and statutory functions, and restrain illegally and without warrant the unlimited jurisdiction of another Court. (sic)
GROUND 5
ERROR IN LAW
The learned trial Judge Hon. Achibong J. erred in law when on 6/5/2011 he granted the Respondent an interim release on an ex parte application pending the determination of the application for the enforcement of his fundamental rights when the claim of immediate’ release’ was the claim in the substantive application.

It argued that the Grounds of Appeal show that the Appellant’s objection is a challenge of the exercise of the Court’s discretionary power, and that such a challenge involves evaluation of relevant/sufficient facts, which makes the grounds of appeal one of fact or at best mixed law and fact, citing UBA V. GMBH & Co. (1989) 3 NWLR (Pt. 110) 374. SC; that he says deserves careful analysis for its factual semblance with this case.
He also referred to other decisions of the Supreme Court in the cases of Ogbechie v. Onochie (1986) 1 NWLR (Pt. 23) 484, Ifediorah V. Ume (1988) 2 NWLR (Pt. 74) 5, Ojemen v. Momodu (1983) 3 S.C 173 at 207, Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 and CBN V. Okojie (2002) 8 NWLR (Pt. 675) 48, and submitted that the Appellant’s Appeal filed without the leave of is incompetent; that its purported appeal rests on “absolutely nothing”; that Courts have been consistent on deciding the fate of an incompetent appeal, citing Nigeria Westminster Dredging and Marine Ltd. v. UFT Engineering Ltd. (2011) 8 NWLR (Pt. 1249) 309.
We were urged to strike out the Appeal on ground of incompetency.

In its Reply Brief prepared by J.B. Daudu (SAN), Emmanuel Ukala (SAN), Dr. Koyinsola Ajayi (SAN), Chief Godwin Obla, Esq., and Oluwadamilola Babalola, Esq, the Appellant, argued that his arguments on the purported preliminary objection is academic and predicated on a non-existent ground; that after setting out specific grounds of objection, which complains that it appealed against an interim or interlocutory order without leave of court, it went on to argue off-tangent that the grounds of appeal were either grounds of mixed law and facts, facts or an appeal against the discretion of the lower court, which required leave of Court.

It submitted that it is settled that parties in formulating prayers and grounds in proceedings must be specific and precise to the point that there can be no ambiguity as to what was asked for, citing Ozueh & 15 Ors V. Ezeweputa & 2 Ors (2005) 4 NWLR (Pt. 915) 221; that what has been placed before this Court are grounds challenging the appeal on the basis that being a challenge against an interim/interlocutory order, leave should have been sought but there is no specific ground challenging the grounds as being incompetent because they are of mixed law and facts or plain facts.; that its very generous arguments on grounds of mixed law and fact go to no issue, and this Court is not, in the words of Esho JSC in Ebba V. Ogodo (1984) 1 SCNLR 372 “a knight errand looking for skirmishes all about the place”; that we will not adjudicate upon what is not placed before is or indeed what is not properly placed before us.

It further argued that ordinarily this should end the sojourn of the preliminary objection but it would be in the interest of justice to show that viewed from whatever angle, the preliminary objection is misconceived.
It referred to paragraph 4 of the Respondent’s brief, where he described the nature of the action/proceedings as follows –
‘On 5/5/2011, the Respondent (as Applicant before the trial Court) presented an Originating Motion for the Enforcement of his Fundamental Human Rights before the Federal High Court, Lagos.
The purport of the Respondent’s Originating Motion (sic) to challenge his unlawful detention, harassment, humiliation and incarceration by the Appellants (as Respondent before the trial court) contrary to the African Charter on Human and Peoples (Ratification and Enforcement) Act Cap A9 LFN 2004.”
And paragraph 5, where he identified the action leading to the appeal-
“On 5/5/2011, the Respondent also presented a Motion Ex Parte seeking an interim order of the Federal High Court Lagos to order the Appellant to release the Respondent from custody pending the determination of the substantive suit. On 6/5/2011, the trial Court heard and granted the Respondent’s Ex Parte Application for the interim order of the court releasing the Respondent from custody pending the determination of the substantive suit.’

It submitted that the subject matter of the proceedings is rooted in the application for the enforcement of the Respondent’s fundamental rights; that where an appeal arises from proceedings rooted in the enforcement of fundamental rights, Section 241(1) (d) of the Constitution designates such an appeal as one of as of right, citing UBN Plc. V. Sogunro (2006) 16 NWLR (Pt.1006) 504; that an appeal from any decision arising from a proceeding “where the liberty of a person or the custody of an infant is concerned”‘ is automatically by Section 241 (1) (d) an appeal as of right; that the appeal arose because it was aggrieved that the Respondent was prematurely given his liberty by the trial Court; that the question whether it is one of mixed law and fact will not arise because where an appeal arises from one of the classifications referred to above, it is irrelevant and immaterial if the grounds are grounds of mixed law and facts and/or facts simplicity, they are deemed to be hinged on an appeal as of right.

Furthermore, that the Respondent objected to Grounds 1, 4 and 5 of the Grounds of Appeal but it only argued Ground 5, which means that the other Grounds have been abandoned and the reference to them by the Respondent as being objectionable goes to no issue; that a cursory analysis of the said Ground 5 show that it is an undiluted ground of law as it complains that the interim release granted had the same substratum as the remedy sought in the substantive fundamental rights matter, and the particulars allege that by granting the interim release, the trial court had unwittingly determined the substantive suit, and it was not heard before such an overreaching order was made; that the Ground cannot be construed as a ground of mixed law and facts or facts; that where grounds arising from civil or criminal proceedings are grounds of law, they are appealable as of right, citing Kasandubu v Ultimate Pet. Ltd. (2008) 7 NWLR (Pt. 1086) 274; and that it is therefore, evident that all the authorities cited by the Respondents, are irrelevant and immaterial.

Yes, it is true that the Respondent’s Grounds of Objection say one thing and his arguments in support thereof say a different thing but I am not going to lose any sleep over it; in my view, the Preliminary Objection itself is nothing but a distraction. In the first place, the Appellant clearly stated under Issues for Determination at page 5 of its Brief that its Issue No 1 is distilled from the said Ground 5 in the Amended Notice of Appeal in relation to the appeal dated 13/5/2011. It did not distill any other Issue or mention any other Grounds in the said Amended Notice of Appeal, and the position of the law is that a ground of appeal from which no issue has been distilled and upon which no arguments has been canvassed is deemed abandoned by an Appellant, and should be struck out – see Iyoho V. Effiong (2007) 11 NWLR (Pt. 1044) 31 SC. The Respondent’s hue and cry over the abandoned grounds of appeal, are unnecessary, and he should simply have asked us to strike out the grounds of appeal.
The Appellant conceded that it abandoned the other Grounds of Appeal, and they are accordingly struck out. The said Ground 5 complains –
“The learned trial Judge Hon. Achibong J. erred in law when on 6/5/2011 he granted the Respondent an interim release on an ex parte apptica1on bending the determination of the application for the enforcement of his fundamental rights when the claim of ‘immediate’ release’ was the claim in the substantive application.

PARTICULARS OF ERROR
(a) By granting ex parte the release of the [Respondent] while similar substantive remedy was pending, the learned trial Judge had wittingly determined the substantive relief sought before him and prejudiced all matters related thereto.
(b) The Trial court compounded matters by not hearing the present Appellant or giving it an opportunity to be heard before releasing the present Respondent.
The Appellant formulated the following Issue for Determination from it –
Whether the trial Court was right in granting an ex-parte order of interim release of the Respondent when that was the same relief being sought in the substantive application for the enforcement of fundamental rights and if answered in the negative what is the appropriate consequential order to make in the circumstances?’

The Respondent spelt out the correct position of the law on the subject.
To determine whether a ground of appeal is a ground of law or of fact requires examining it in terms of its Particulars so as to determine the nature of the question the ground raised is complaining about – see Garuba V. Omokhodon (2011) 6-7 SC (Pt. V) 89. The mere fact that a ground of appeal is described as one of fact or law will not stop a Court from looking into whether the Ground is actually one of law or of mixed law and fact and/or of facts – see Ejiwunmi V. Costain (W.A) Plc- (1988) 12 NWLR (Pt. 576) 146, Olojoun V. Ozima (1985) 2 NWLR (Pt. 6) 167.
Where a party intends to raise issues of mixed law and fact, leave of the Court must be first sought for and obtained – See Garuba V. Omokhodon (supra), where Rhodes-Vivour, JSC, further explained as follows –
“Leave means permission. Before an appeal on ground of mixed fact and law or on facts can be entertained by this Honourable Court, the Applicant must first seek and obtain leave from the Court of Appeal or this Court Failure to obtain leave render the appeal incompetent and it will b thrown out -“.
See also Okwuagbala & 3 Ors V. Ikueme & 2 Ors (2010) 12 SC (Pt.4) 1, where the supreme court per Mukhtar JSC (as he then was), observed –
“It is on record that the Appellant did not seek and obtain leave to argue the grounds as required by law. The law is trite that grounds of appeal that are of facts or mixed law and fact required the leave of either the Court of Appeal or this Court before it can be argued in this Court. In the absence of such leave, the Grounds are incompetent and must be struck-out -“.

The Respondent may have stated the correct position of the law but I do agree with the Appellant that his objection lacks merit. It is settled that where a ground of appeal reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, it would be a question of law; where it requires questioning the evaluation of facts before the application of the law, it would amount to a question of mixed law and fact – see Ononuju v. AG Anambra State (2009) 10 NWLR (Pt. 1148) 182 SC and Ogbechi V- Onochie (supra).

The said Ground 5 cannot be ground of fact or of mixed law and facts.

Discretion is the power or right to decide or act according to one’s own Judgment; freedom of judgment or choice – see Dictionary.Com.
When applied to public functionaries, which includes Judicial Officers, the word discretions defined in Black’s Law Dictionary 6th Ed., thus –
“A power or right conferred upon them by LAW of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.
It connotes action taken in tight or reason as applied to all facts and with view to rights of all parties while having regard for what is right and equitable under all circumstances and LAW”.

In this case, the Respondent contends that the said Ground 5 challenges the exercise of the lower Court’s discretion. He submitted as follows –
“The determination by this Court on whether the judicial discretion of the Trial Court was properly exercised irresistibly leads to the consideration of the Affidavit by which the Applicant furnished facts necessitating the grant of the interim order for the release of the Applicant pending the determination of the substantive suit. The appellate Court will be required to evaluate the affidavit of Adebisi Oyelade dated March 5, 2011(supporting the Applicant’s Ex parte Motion by which the Trial Court made its interim order”.

The Respondent missed the plot completely; the Appellant’s complaint in the said Ground 5 has nothing whatsoever to do with judicial discretion.
Its gripe is that releasing him on an ex-parte Application in the face of an identical substantive relief was a misuse of the court’s judicial power, which cannot be equated with judicial discretion. Yes, it is empowered to exercise its discretion in certain circumstances but it goes without saying that discretion cannot dictate to the law; it is the law that dictates when a Court can exercise its discretion; how it can exercise that discretion; and what it is allowed to exercise its discretion on. See UBA V. Stahibau GMBH & Co. K.G. (1989) 3 NWLR (Pt. 110) 374 where Oputa, JCA (as he then was) in dealing with judicial discretion, observed as follows –
“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment based on facts and guided by the law or the equitable decision”.

The said Ground 5 is purely a ground of law that questions the power of the Court to grant the Interim Order for the release of the Respondent.

Moreover, the lower Court did not refer to any Affidavit evidence in its Ruling that would require this Court to evaluate the said Affidavit by which it had made the Interim Order, as postulated by the Respondent.

Finally, and more importantly, as the Appellant rightly submitted, Section 241 of the 1999 Constitution emphatically provides as follows –
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
d. Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person.
f. Decisions made or given by the Federal High Court or a High Court-
(i) Where the liberty of a person or the custody of an infant is concerned”.

The Respondent is not disputing the fact, and the lower Court made it clear in the Interim Order appealed against that the Appellant is directed to release him forthwith pending the hearing and determination of the “Originating Motion filed for the enforcement of fundamental rights”.

The said Section 241 (d) and (f) of the Constitution did not limit the scope of the appeal to the person affected or who made the Application; it says that an appeal shall lie as of right from decisions on the question as to whether any of the provisions of Chapter IV of the said Constitution has been, is being or is likely to be contravened in relation to any person; and where the liberty of a person is concerned. As it is, the Appellant is aggrieved by the interim order made by the lower Court directing it to release him from detention and it is entitled by LAW to appeal as of right. Besides, the Appellant is also complaining that it was not heard or given an opportunity to be heard, which touches on its own right to fair hearing.

From whichever angle one looks at it and firing from all cylinders, there is no substance to the Respondent’s objection and it is overruled.
The said Ground 5 in the Amended Notice of Appeal against the Ruling of the lower Court delivered on 6/5/11 is competent, and is here to stay.

The Appellant’s contention as regards the Issue formulated from the said Ground 5, which I reproduced earlier, is that the lower Court was in error when it granted the substantive relief sought through the avenue of an interlocutory remedy sought simultaneously with the final remedy; that appellate Courts have frowned on the act of granting or commencing on a final remedy while determining an interlocutory application, and it referred to the following decisions of the Supreme Court and this Court –
D.P.C.C. Ltd. V. B.P.C. Ltd. (2005) 4 NWLR (PT. 1077) 376, where the Supreme Court per Mahmud Mohammed, JSC (as he then was) stated –
“Let me first refer to the two main reasons on which the learned trial Judge premised his decision. His first reasons is that in the determination of an application for interlocutory injunction care must be taken to avoid making pronouncements that may prejudice the fair trial of the substantive suit. I entirely agree with the learned trial Judge. At the stage of an application for interlocutory injunction pending the determination for the substantive suit, the only evidence is the incomplete untested affidavit evidence and a Court should, at that stage, refrain from making pronouncements on issues to be decided in the substantive suit. Otherwise it will fall into the unhealthy situation of deciding the issue twice, first at the interlocutory application and then in the ultimate decision at the end of trial.
Such a procedure will be prejudicial to the fair trial of the substantive case. It has also been settled that at the stage of an application for an interlocutory injunction, the Court should avoid the resolution of complex and intricate issues of facts since at that stage the veracity of the affidavit evidence would not have been tested in cross-examination.
See. Egbe V. Onogun (1972) 1 All NLR 95; Amachree V. I.C.C. Ltd. (1989) 4 NWLR (Pt. 118) 686; Williams v. Dawodu (1988) 4 NWLR (Pt. 118) 686; Williams v. Dawodu (1988) 4 NWLR (Pt 87) 189; Onyesoh V. Nnebedum (1992) 3 NWLR (Pt. 229) 315. In Onyesoh V. Nnebedun (1992) 3 NWLR (Pt. 229) 315 at 348, this Court per Akpata, JSC spoke of this principle in the following terms: –
“Besides, a trial Judge in considering whether to order an interlocutory injunction has to be circumspect in respect of his finding and should not be seen to be deciding the issue in the substantive case by his pronouncement in the interlocutory application. He only has to be satisfied that the substantive case is not only frivolous and he does not do this by making findings of fact on vital issues in the substantive case”.
Adamu V. Att. Gen. Nasarawa State (2007) 6 NWLR (Pt. 1031) 485 at 493- 494, where this Court per Ndukwe-Anyanwu, JCA, explained –
“This has been the attitude of the courts in plethora of cases that the trial court must warm itself not to delve into the substantive issues to be trashed during the trial at the interlocutory stage. In Obioha v. Military Administrator Imo State (1998) 10 NWLR (Pt.569) 205 at 208, the Court held that:-
“In an application for interlocutory injunction the court must be satisfied that there is a real or substantial question to be tried in the substantive suit, although at that stage the rights of the parties cannot be determined. That is a function that will be performed by the court in the substantive suit.”
In Saraki vs. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 149 the Supreme Court has this to say: –
“In dealing with an interlocutory application, the court will confine itself strictly to the point which n is called upon to decide and will express its opinion on the case only so far as is necessary to show the grounds upon which the interlocutory application is disposed of, and, in the absence of very special circumstances, will impose only such restraint as will suffice to stop the mischief and keep things as they are until the hearing”
See also Shanu vs. Afribank (Nig) Plc. (2002) 17 NWLR (Pt 795) 185 at 230-231 where Uwaifo, JSC, succinctly stated: –
“…A court shouid not devolve into issues meant for the substantive suit or appal when considering relevant interlocutory application”
“In the determination of any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncements which may prejudice the trial of the claims filed and still pending before the court. To do otherwise is to prejudice the matter in respect of which evidence is still to be led” See Globe Fishing Industries Ltd. vs. Coker (1990) NWLR (Pt.162) 265 at 301 where Akpata, JSC held that: –
“The court always refrain in its ruling on an application for an interlocutory injunction from resolving matters which should be adjudicated upon at the trial. It should not make pronouncements which would make the trial a mere formality and a mockery of judicial procedure.” Obeya Memorial Hospital vs. Attorney-General of the Federation (supra).
With the foregoing it was wrong for the trial Judge to comment on the claims in the substantive matter, which read thus: – “Since he is not in legal possession, they have allocated another land which he has accepted and has not complained.” These are issues to be trashed out during trial by leading credible evidence to prove same. Care should be taken to make pronouncements which may prejudice the trial of the claims filed and still pending before the court. To do otherwise is to prejudge the matter in respect of which evidence is still to be led.”
The trial Judge is to warm himself to resist the temptation of delving into the substantive issues in an interlocutory application”.

It further argued that the main issue could not have been resolved in an interim order where no opportunity has been afforded it to explain its own side of the matter; and that releasing him on an ex-parte application in the face of an identical substantive relief was a misuse of the court’s judicial power. We were urged to resolve this Issue No 1 in its favour.

Despite his Objection to the appeal, the Respondent challenged the merit of the appeal. He formulated Issues and proffered arguments.
As regards this Issue, he conceded that it is elementary law that in determining an interlocutory application, Courts have to be careful not to delve into or predetermine the substantive actions because this will prejudice the substantive action, citing United Spinners Ltd V. C. B. Ltd. (2001) 14 NWLR (pt. 732) 195 at 220 the Supreme Court held that –
“A Court should not make any finding in an interlocutory application which may prejudice a pending substantive case. It should not determine the merit of a case which is not before it for a decision.”
Odutola Holding Ltd. V. Ladejobi (2006) 12 NWLR (Pt. 994) 321 cited.

That said, he also argued that a determination on whether or not a Court’s findings or decision at the interlocutory stage has predetermined the substantive action is strictly a question of fact and nothing else; that such determination involves consideration of relevant facts presented and upon which the Court made it findings or Order; that a party alleging predetermination of the substantive suit at the interlocutory stage must sufficiently discharge such burden because appellate Courts are usually very reluctant to interfere with the findings or decisions of lower Courts, except where such findings of the lower Court is manifestly unjust, citing Ohwovoriole V. FRN (2003) 2 NWLR (Pt. 503) 18, Mohammed V. Hussein (1998) 14 NWLR (Pt. 554) 34; that the Appellant has failed, refused or neglected to satisfy same; and that factual consideration is key determining whether or not a Court has made a findings or decision at the interlocutory stage, which may prejudice the substantive action.
He cited his own authority – Leasing Co. Nig. Ltd. V. Tiger Ind. Ltd. (2007) 14 NWLR (Pt. 1054) 346, where the Supreme Court held that-
A trial Court should, as much as possible, try not to delve into or predetermine the substantive case at the interlocutory stage Hence, the Courts determining an application for interim injunction must only confine themselves to those issues necessary for the disposal of the application without more. Thus, before an order of interlocutory injunction is made, the Court would exercise the discretion based on facts made available to it, knowing fully well that it cannot determine the case at that Stage. – – In the instant case, it was not disputed that the matter before the trial Court was only at an interlocutory stage, with the substantive suit yet to be entertained. It was obvious therefore that the basis of the application in the trial Court was essentially the face deposed to on the affidavits of parties.
Falomo V. Banigbe (1998) 7 NWLR (Pt. 559) 679 also cited.

He further argued that it is undisputed that he was in the custody of the Appellant without any charge preferred against him, which is why he urgently applied for the enforcement of his fundamental human right, which necessitated the ex-parte Application for his release pending the determination of the substantive suit; that the said ex-parte Application for an Interim Order of the lower Court was a request made pending the determination of the substantive action which the Appellant knew was still pending at the relevant time; that the said Interim Order of 6/5/2011 was made pending the determination of the substantive action; and that –
“In whatever manner the Appellant wants to spaciously portray the Order; clearly it is an interim order of the trial Court and nothing more. In fact it is what the Trial Court says it is and not what the Appellant perceives it to be.

Furthermore, that all authorities cited by the Appellant are mere rehash and restatement of the elementary principle that in the determination of an interlocutory application, courts should not to make pronouncements, which may prejudice the substantive action, which does not assist it in any manner, as it failed to show from a factual or legal standpoint how an Order made pending the determination of the substantive suit constitutes a predetermination of the substantive suit, which is it wants this Court to believe; and that this assertion is quite unknown to our jurisprudence.

The Appellant replied that the Respondent’s argument is untenable as its complaint is that the trial Court erred when it granted a substantive relief through the avenue of an interlocutory remedy; that it became clear that with the Respondent’s premature release, the trial Court no longer had any plausible business with the case, hence the terse Ruling in the substantive matter while hearing an interlocutory application in the same matter, citing Akapo v. Hakeem -Habeeb (1992) 6 NWLR (Pt. 247) 266 and Okomo V. Umoetuk (2004) 10 NWLR (Pt. 882 ) 526 at 547.

These are the arguments/submissions for and against this issue 1, as well as the authorities relied on by the Appellant and the Respondent to buttress their positions, but as it turns out, we are not going to need it.
The Application that culminated in this appeal was brought pursuant to the Fundamental Human Rights (Enforcement Procedure) Rules 2009, and the special procedure stipulated for the enforcement of fundamental rights is quite different from the normal proceedings that we are used to –
See Director, SSS V. Agbakoba (1999) 3 NWLR (Pt. 595) 314 SC.

There it is in black and white; and the provision of Order IV rule 4 (c) (i). no doubt, speaks for itself, and what it says is that the lower Court could direct the release of the Respondent by way of an ex-parte Application under the Fundamental Human Rights (Enforcement Procedure) Rules, which is a special proceeding with its distinctive rules and procedure.

All the authorities cited by the Appellant and the Respondent relate to normal proceedings specialty applications for interlocutory injunctions, and they provided us with excellent authorities on the subject, however, they did not address their minds to the specific procedure for this case.

Even so, the Ruling appealed against leaves much to be desired.
Under the Rules, before the Court can hear an Applicant ex-parte, it has to be satisfied that exceptional hardship may be caused him before the Respondent is served with a substantive Application, and the Application ex-parte must be supported by an Affidavit stating sufficient grounds why the delay in hearing the Application would cause exceptional hardship.
There is nothing in the lower Court’s Ruling to show what criteria it used in arriving at its decision to order the Respondent’s release at that stage.

Yes, the Application ex-parte dated 5/5/2011 is supported by a 15- paragraph Affidavit, a number of Exhibits, and his Written Submissions in line with Order IV rule 4(b), however, all that the lower Court said is this –
“I have gone through your papers. I grant your Prayer 1, which is for an interim order of release of the Applicant pending the determination of the Originating Motion. This is to operate as a stay of all action, including any arguments pending the determination of same”.

There is nothing to indicate what “paper” the lower Court went through, and what exceptional hardship would be caused the Respondent before the service of the substantive Application on the Appellant. In addition, the lower Court also granted the main prayer and an alternative prayer, which is regarded as being totally unacceptable – see The M.V. Caroline Maersk & Ors V. Nokoy Investment Ltd. (2002) 12 NWLR (Pt. 782) 472, where the Supreme Court per Ayoola, JSC, explained as follows –
“Where a Plaintiff is uncertain whether the facts he relies on would entitle him to a relief either in addition to a first relief or merely as an alternative, he can claim the subsequent relief as a “further” or “alternative relief”. Where the first and principal relief is exhaustive of his remedy, there would be no need to grant the subsequent relief claimed as a further or “alternative relief”.
In other words, after granting the main prayer, it is no longer open to the trial Court to consider the alternative prayer, not to mention of granting it, since an alternative relief cannot succeed unless the main relief fails –
See Agidigbi V. Agidigbi (1996) 6 NWLR (Pt. 454) 300 SC and UBA Plc. V. Mustapha (2004) 1 NWLR (Pt. 555) 443. In this case, the lower Court granted the main prayer 1 and the alternative prayer 3, which is wrong.

Nonetheless, these anomalies are neither here nor there because the Appellant’s appeal against the said Ruling is hinged on the mistaken belief that like in normal proceedings, which this is not, the Court cannot order the release of an Applicant on an ex-parte Application pending the determination of the substantive suit. The Fundamental Human Rights (Enforcement Procedure) Rules, makes provision for the Interim Order appealed against, and this Issue must be resolved against the Appellant.

The next port of call is the second Ruling delivered on 18/5/2011, and proceedings of the lower Court on the said date reads as follows –
“Fagbohungbe SAN: Our application is dated 5/5/2011 and filed same day. The Application is supported by a 15 paragraph affidavit with Exhibits. We also have a written address dated and filed same day. This was served on the Respondent. Your Lordship’s order of 6/5/2011 was also served on the Respondents.
Court: Their response is a motion for stay of proceedings pending appeal, ignoring the interim order of court. EFCC and the Senior Counsel leading the prosecution team are in contempt of court.
Fagbohungbe SAN. We move in terms of our application.
Court: Oder/Declarations sought prayed (sic)”.

The Amended Notice of Appeal against this Ruling contains 4 Grounds of Appeal and the Appellant distilled a sole Issue from Ground 4 only i.e.
“Whether the failure by the learned trial Judge to provide reasons in the Judgment granting the Respondent’s substantive Application for the enforcement of his Fundamental Rights did not render the said Judgment invalid and unenforceable, and if answered in the affirmative whether the entire proceedings were thereby not rendered a nullity?
But the Respondent formulated the following Issue for determination –
“Generally in appeals, Issues for Determination must as a matter of law, be derived from the grounds of appeal as contained in the Notice of Appeal. In the circumstance, can a court validate an Issue for determination which is unsupported by or at variance with grounds of appeal as presented in the Notice of Appeal?

I am stunned by what the Respondent formulated, and I cannot fathom whether it is a Preliminary Objection because it is, certainly, not an issue for determination, and if it is an Objection, this is not the right place for it.

There is a marked difference between a Preliminary Objection and an Issue for Determination, which is raised from the Grounds of Appeal, and is usually a proposition of law or of fact in dispute between parties, necessary for determination by the Court and the determination of which would affect the result of an appeal. Its purpose is to narrow the Issues in the Grounds of Appeal in the interest of accuracy, clarity and brevity- see Ogbuayinya V. Okudo & Ors (No.2) (1990) 8 NWLR (Pt- 146) 55.
Just as Statement(s) of Claim supersedes Writ(s) of Summons, Issues for Determination, where formulated, also displace the Grounds of Appeal. In other words, the Grounds of Appeal must give way to the Issues for Determination – see Iyere V. Bendel Feed (2001) 7 NWLR (Pt.711) 76, Ogun V. Asemah (2002) 4 NWLR (Pt. 756) 208 and Trustees, P.A.W. Inc. V. Trustees, A.A.C.C. (2002) 15 NWLR (Pt. 790) 424.

In this case, the first part of his Issue is the legal conclusion that –
“generally in appeals, Issues for Determination must, as a matter of law, be derived from grounds of appeal as contained in the Notice of Appeal”, and the second part asks a question best suited as a preliminary issue – can a Court validate an Issue for Determination that is unsupported by or at variance with grounds of appeal as presented in the Notice of Appeal?

Obviously, this question posed by the Respondent Transcends the bounds of an Issue properly so called and has entered into the realms of a preliminary objection” – see Okelue V. Medukam (2011) 2 NWLR (Pt.1230) 176, wherein this court per Lokulo-Sodipe, JCA, further held that-
“It is settled law that there is a difference between a preliminary objection and an issue for determination. — If the Respondent has any grouse with the competence of the instant appeal, he should avail himself of the procedure adopted in the Rules of this Court relating to the manner in which the competence of the process by which an appeal is initiated is challenged. The Respondent cannot challenge the competence of the appeal by an issue he has formulated for the determination of the appeal”.

In this case, the Respondent’s “issue” is not an issue for Determination; it is an Objection that should have been raised with the earlier objection.
In addition, the said “Issue” is not related to the Grounds of Appeal, and it is trite that grounds of appeal must arise from the ratio decidendi of the decision appealed against and Issues formulated for the determination of the appeal by an appellate Court must arise from the Grounds of Appeal, which emanated from the decision appealed against – see Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt.863) 243.

It is also settled that any issue formulated by the Respondent outside the grounds of appeal raised is incompetent, and is liable to be struck out –
See Ojegbe v. Omatsone (1999) 6 NWLR (Pt.608) 591 SC. In this case, the “Issue” formulated by the Respondent, which is not hinged on any of the Grounds of Appeal raised by the Appellant is, therefore, struck out, and arguments canvassed thereon in his brief will be discountenanced.

Be that as it may, the Appellant’s contention as regards this Issue is that the failure of the lower court to provide any reasons for granting the Respondent’s substantive Application rendered the Ruling invalid and unenforceable, and to that extent that the proceedings was a nullity.
It submitted that the lower Court granted the Application/Order although no one knows which order was granted or the scope of the said order; that the only indication from that terse ruling that it was in relation to the fundamental rights application is the Court Order that was served on it by substituted service; and that such a one line Ruling bereft of reasons is anathema to the established mode of writing and rendering Judgments.
It referred us to the decision of Chukwuma-Eneh, JSC, in Ovunwo & Anor V. Woko & Ors. (2011) LPELR-SC 297/2005, as follows –
I have tried as per the above foregoing cases as urged by the parties based on their respective briefs of argument to narrow the same to resolving issue 2 for determination only. I have given my reasons for so doing above. I must however, respectfully observe at this stage vis-a-vis the lower court’s manner of couching its judgment in this appeal that every judge reserves the right as to his own style of writing judgments whether sitting at the trial or appellant level of the courts. All tie same, what must be recognised as settled law is the duty to pronounce judgment on all issues placed before the judge for resolution. Without over simplifying this duty every judgment has to state the fact of the case, state the points at issue requiring the court to pronounce on them, then the court’s decision with the reasons for the same.”

It submitted that terse or uncoordinated Judgments have been frowned at by this Court, and referred us to N.I.T.T. V. Dange (2009) 9 NWLR (Pt.1091) 127 at 148/149,where Okoro, JCA (as he then was) observed – –
“After taking a cursory took at the one-paragraph and short Ruling, which I have recast above, can it be said that it qualifies to be a Judgment? The answer – – is in the negative. I agree that Judgment writing is a matter of style of the individual Judges. Bui there are certain essential and mandatory components, which a good Judgment must contain. I refer to – Adeyeye V. Ajiboye (1987) 3 NWLR (Pt.61) 432 at 451, per Oputa, JSC-
The proper approach — is to first set out the claim or claims, then the pleadings, the issues in dispute, the trial Judge will then consider the evidence in proof of each issue; then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this the trial judge will then record his logical and consequential finding of fact. It is after such a finding that the trial court then discuss the applicable law against the background of his findings of facts.”
In the instant case, the steps enunciated above are completely absent…”
“It is said that the learned trial Judge not only delivered to the parties an intentional Judgment on 9/7/2004 but also failed to invite them for the final judgment over three years thereafter. From the Ruling of the learned trial judge, my view is that he made his intention about the Judgment known to the parties hoping to invite them on a later date for the judgment proper but it was not to be. There is no how that ruling can be taken to be the Judgment envisaged under S. 294(1) of he Constitution – – It is no judgment at all since it lacks even the elementary requisites of a good judgment. I hold the view that the learned trial judge erred substantially by failing to deliver to the parties a judgment known to law. I hold that the one paragraph ruling of the learned trial judge is a nullity not being in conformity with laid down and known principles of a good Judgment. – – This appeal is hereby allowed and the suit – – remitted back to the Chief Judge of the Federal High Court for re-assignment for trial de-novo by any other Judge of that court…”.

It also referred us to the contribution of Ba’aba, JCA, in the same case, and urged us to resolve this issue No 2 in its favour. The Respondent did not bring anything to the table because all his arguments focused on his objection to the Grounds of Appeal vis-a-vis the Appellant’s Issue 2.

The Appellant stated in the main brief that since a nullity situation had been introduced by the lower Court’s error, there was no need to canvass Issues that would have arisen from other Grounds of Appeal, and stated without equivocation that they are thereby abandoned. Thus, the Respondent did not need to go on and on about them in his brief.

Be that as it may, it must be obvious from the facts of this case that what the lower Court passed as a Ruling is not a Ruling in its true sense.
In my view, the Fundamental Rights (Enforcement Procedure) Rules, which is a serious piece of Legislation, deserved much better attention.
The Rules expects more from the court than the one line Ruling it gave –
“Order/Declarations sought prayed (sic)”. Its Preamble 1 states –
“The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule”.

The said Rules, therefore, expects the Court to do more than grant an Application as prayed in a perfunctory manner; it expects that it will apply and interpret any of its rules whenever it exercises any power given to it.
The Respondent presented an Application before the lower court for –
a. A Declaration that his arrest detention, harassment and incarceration by the Appellant is a violation of his Fundamental Right to dignity of human person, personal liberty and freedom of movement.
b. A Declaration that his continued detention, constant harassment, humiliation and maltreatment by the Appellant is wrongful, illegal and unconstitutional. —
c. A Declaration that the Appellant’s act is unlawful, illegal, wrongful and unconstitutional as it violates [his] fundamental rights to dignity of human person, personal liberty and freedom of movement.
d. An Order directing the Appellant to release him from its custody immediately.
e. An Order of Perpetual Injunction retraining the Appellant, whether by themselves or by their agents, servants, officers, privies from further arresting and/or detaining him in any other manner violating his fundamental right to dignity of human person, personal liberty and freedom of movements.

The Respondent’s liberty was at stake, and these were serious prayers; he is entitled by law to know why his Application was granted and which particular declarations/orders were granted. The Appellant believed that it had valid reasons for detaining the Respondent, and also has an equal and corresponding right to know why the said Application was granted, and which particular declarations/order were made against its interest, as the Respondent alleged inter alia that its acts were unconstitutional.
The lower Court’s Ruling was vague to the point of being no Ruling at all.

I do not want to belabour the point because it is self-evident that the purported Ruling delivered by the lower Court on 18/5/2011 fails any known test for assessing what a Ruling in the true sense of the word is, and this Issue will, therefore, be resolved in favour of the Appellant.

The end result is that the appeal is allowed, and the said Ruling of the lower Court delivered on 18/5/2011 is set aside for being a nullity.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother Amina Adamu Augie JCA, and I agree with the reasoning and conclusion that the appeal is meritorious and the ruling of the lower court delivered on 18/5/2011 be set aside for being a nullity.

What transpired at the sitting of the lower court on the 18/5/2011 leaves much to be desired and indeed falls below the standard expected of a superior court of record, and for want of a better expression, I will term it Kangaroo proceedings which end result is the delivery of a stunted ruling devoid of any substance.

For the purpose of clarity I herein below set out the proceedings of the said 18/5/2011 and the so called ruling delivered there on:
“FAGBOHUNGBE SAN; our application is dated 5/5/2011 and filed same date. The application is supported by a 15 paragraph affidavit with exhibits; we also have a written address dated and filed same date.
This was served on the respondents.

COURT; their response is a motion for stay of proceedings pending appeal, ignoring the interim order of court. EFCC and the senior counsel leading the prosecution team are in contempt of court.

FAGBOHUNGBE SAN: we move in terms of our application.

COURT: order/declarations sought prayed (sic).”

The respondent as applicant in the lower court, for the enforcement of his fundamental rights sought five reliefs. The learned trial judge without much ado as to any justification or explanation why all the reliefs sought should be granted or made any specific finding of the fact that the act of the appellant in detaining the respondent was not justified and constitutes a breach of his fundamental rights as guaranteed by the 1999 Constitution simply in one ambiguous phrase stated thus:
COURT: order/declarations sought prayed (sic)
Thus to my mind falls short of the decision of a superior court of record in an application for the enforcement of fundamental human rights as enshrined in chapter four of the 1999 Constitution. Order XII of the fundamental rights (enforcement procedure) rules 2009 provides that the hearing of the application shall be on parties written address which content is required to include the application which the address is based, a brief statement of facts with reference to exhibits attached if any; issues and authorities cited in support. (See also order 11 rule 5).

The above requirement in the rules no doubt does not envisage or contemplate the delivery of a ruling that is less that a sentence. Rather there should be an analysis of the issue/issues in contention by the way of reasoning and conclusion Vis a Vis the facts, statutes and authorities. This will then justify a grant refusal of any or all the reliefs sought.
This to my mind is what constitutes a decision of a superior court of record, especially in a germane matter involving an application for the enforcement of the fundamental rights where the liberty of an applicant is at stake.
Black’s Law Dictionary 9th edition at page 467 defines decisions as:
“A judicial or agency determination after consideration of the fact and the law, especially a ruling, order or judgment pronounced by a court when considering or disposing of a case.”

In the instant case, given the requirements for a successful commencement of an action for the enforcement of a persons, fundamental human right, the ruling of the learned trial judge on 18/5/2011 not only falls short of the decision of a superior court of the record but I find it to be inchoate.

For this and the fuller reason contained in the lead judgment I also allow this appeal. The ruling of the lower court delivered on 18th May, 2011 is hereby set aside.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft copy of the lead judgment of my learned brother HON. JUSTICE AMINA ADAMU AUGIE, JCA and I agree with the reasoning and conclusion reached therein.

In this case, the two motions were filed on 5/5/011; one was an originating motion for the Enforcement of Fundamental Human Right at the Federal High Court and the other was an Ex-parte Motion under same Procedure Rules 2009.

On the 6/9/011, the lower court granted the prayer 1 of the ex-parte Motion which is: to release Respondent from detention forthwith pending the hearing and determination of the Originating motion filed for the enforcement of his fundamental rights. But the court also proceeded to add that “this is to operate as a stay of all actions, including any arguments pending the determination of same.”

By virtue of Order IV (4a) of the FREPR, five orders are provided for.
In this case a combination of orders IV (4c) (ii & vi) was granted viz:
(ii) Grant bail or order release of the Applicant forthwith from detention pending the determination of the Application.
(vi) Grant injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all actions pending the determination of the application.

The Ex-parte motion had prayer 1 and in alternate to prayer 2 & 3.
Having granted Prayer 1 in its ruling, the lower court over reached the Respondent when it added prayer 3 – to the order. The prayers were specific and the clear the use of “alternative” has restricted the court to either/or and conjunctive. See GKF INVESTMENT V NITEL 39 NSCQR 426 @ 460. Incidentally prayer 1 is the same as prayer (d) in the Originating Summons filed and was pending. Furthermore, the lower court on 18/5/011 in the absence of the Respondent – granted the Originating Summons – in this manner “Court: – Order/Declarations sought as prayed.” In the meantime the Respondent had filed a motion for stay of proceedings dated 16/15/011 – it was still pending, when the order was made. In the above scenario as in a matter for fundamental human rights – the crux here is: “Will the reasonable and fair-minded observer who watched proceedings be able to come to the conclusion that the court has been fair to all the parties. See MMS LTD V OTEJU PT 945 2005 14 NWLR 517, ARIORI V ELEMO 1983 1 SCNLR 1.

It is trite that where a trial court denies a party, before it the opportunity to be heard, it is a breach of his constitutional right to fair hearing, especially where it also failed to give any reason for so doing, the appellate court is duty bound to interfere in the matter. ANISIUBI V EMODI (1975) 2 SC 9, See also Section 36 of the 1999 Constitution (as amended).

It is the duty of a court to hear and determine all applications or issues brought before it by litigants. See BRAWAL SHIPPPING LTD V F. I. ONWADIKE CO. LTD 2000 11 NWLR (Pt 678) 38; SBN PLC v BAO MOTORS (NIG) LTD -2004 7 NWLR (Pt 873) 579.
The Trial Judge overreached the Respondents, by going ahead to hear the originating summons, inspite of the pending motion and absence of the Respondent, the fact that it was barely into the second day – after service, it was not 2 clear days – the Appellant still had time to respond. There was no rush, having granted the release of the Applicant in the ex-parte motion.
It is a clear case of overreaching, the court still went ahead to grant the same prayer in the Originating Summons in ‘Leg D’ without stating reasons.
Certainly, this has occasioned a clear breach of a party’s right to fair hearing and procedural law. CHUKWUMA – ENEH JCA (as he then was) in SBN PLC V BAO MOTORS (supra) at 597 paras A – E said:
“The whole essence of justice is largely procedural. Fair hearing is spoken of more in matters of procedure. It is procedure that spells much of the difference between rule of law and rule of whim and caprice. Steadfast adherence to strict procedural safeguards is the main assurance that there will be equal justice under the law. To ignore fair hearing is to enthrone arbitrariness. Thus, determination of whether there is fair hearing has to be governed by the facts and circumstances of each case. Hence, the test of fair hearing is the impression of an objective bystander who watched the proceedings of the court. In the instant case, no bystander having watched what transpired would come away with the impression that the appellants got a fair hearing. Clearly, they did not”
Per OGEBE, J.C.A. at page 600, paras. A – B:
“The moment the appellants’ counsel withdrew appearance for them orally in court in the absence of the appellants’ the trial court had no right to proceed with the hearing without adjourning and notifying the appellants directly the fate of their case. In a situation like this the appellant must be given every opportunity to employ the services of another counsel. The action of the trial court from that stage on was arbitrary and its judgment is a complete nullity.”

I must comment on the vagueness of the record of proceedings which leaves one wondering as to what actually transpired on the day of the ruling to have warranted the application of Order 3 of the Fundamental Enforcement Procedure Rules. It is not clear on what date they were served with order and/or motion; and what the return date was at the hearing of the Ex-parte motion to have a clear picture of the whole scenario.
However, the court is bound by the records as transmitted.
For this reason and all other reasons in the lead judgment, the circumstances highlighted, the judgment given cannot be allowed to stand.
I too allow the two appeals and set aside the rulings of 6/5/11 and 18/5/11 and I abide by the consequential orders in the lead judgment.

Appearances

J. B. Daudu (SAN) With Dr. K.U.K Ekwueme, Esq. Adedayo Adedeji, Esq., and Miss Adetutu DisuFor Appellant

AND

Opeyemi Usiola-Kuti, Esq. With Mrs. Ogunola JegedeFor Respondent