EZEREBO v. AMUKA & ORS (2020)

EZEREBO v. AMUKA & ORS

(2020)LCN/14860(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/OW/179/2015

RATIO

BRIEF: ATTITUDE OF THE APPELLATE COURTS ON FILING REPLY BRIEFS

This approach has been deprecated by the Appellate Courts, as demonstrated in the case of AHMED VS. AHMED & ORS (2013) LPELR – 12243 (SC) page 91 paras A–C thus: –
“A reply brief is filed by an Appellant only when the Respondent raises in his respondent’s brief new question/argument, or an issue of law. When the need arises for a reply brief to be filed it should be limited to answering the new questions, and issue of law. A reply brief should on no account be used by the Appellant to raise new issues or to reargue his case on appeal. Where this is done, the reply brief would be discountenanced. In this appeal the reply brief was discountenanced and that was the correct thing to do in view of the fact that the reply brief was used to re-argue the Appellant’s case.” PER ANDENYANGTSO, J.C.A.
ARRAIGNMENT: WHAT CONSTITUTES A VALID ARRAIGNMENT IN LAW

The question then to ask is what constitutes a valid arraignment in law A study of the case law on this point reveals the guidelines to be adhered to as follows:- (1) the accused person who is to be tried shall be physically placed before the trial Court unfettered and (2) the charge preferred against him shall be read and explained to him in the language he understands to the satisfaction of the judex by the registrar of the Court or any other designated officer of the Court and (3) the accused shall then be called upon to plead instantly to the charge and (4) the plea of the accused shall also be instantly recorded by the judex. See (1) Rufai v. The State (2001) 13 NWLR (Pt. 731) 718 and (2) Barmo v. The State (2000) 1 NWLR (Pt.641) 424. PER ANDENYANGTSO, J.C.A.

COURT: POWER OF THE COURT TO PREVENT ABUSES OF ITS PROCESS AND CONTROL ITS OWN PROCEDURE

As was decided in several cases, the power of the Court inherent in its jurisdiction to prevent abuses of its process and control its own procedure will, in a criminal Court, include the power to safeguard an accused person from oppression or prejudice. The Court will be failing in its fundamental duty, if in the face of a defective or bad charge, it refused to entertain the application to quash and hastily proceeds to set the criminal case down for trial. It does not matter that the accused/applicant was not physically present in the Court when his application to quash the proceedings was entertained. Indeed, such an application would have been supported by at least an affidavit evidence. In Fawehinmi v. A.-G., Lagos State (No.1) supra this Court per the judgment of Ogwuegbu, J.C.A. (as he then was) observed at page 739 thus: – “It is my view that the Court has the power and a duty to stop a prosecution which on the facts creates abuse and injustice. If the information was defective, it was immaterial whether the respondents were, present in Court or not.” PER ANDENYANGTSO, J.C.A.

JURISDICTION: HOW IS JURISDICTION OF A COURT DETERMINED

it is the law that it is the writ of summons and statement of claim of the Plaintiff that is to be considered by the Court. See OPITI VS. OGBEIWI (1992) 4 NWLR (PT. 294) 184 at 195 and ADEYEMI VS. OPEYORI (1976) 9–10 SC 31 at 49. Where it is discovered that the Court has no jurisdiction to hear and determine a case or matter, everything done in such want of jurisdiction is a nullity. See MUSTAPHA VS. GOVERNMENT OF LAGOS STATE(1987) LPELR–1931 (SC) page 57 paras A–B. In application for the enforcement of the fundamental rights, as in this case, it is the reliefs sought by the Applicant that determines the jurisdiction of the Court. See SHELL B.P LTD VS. ONASANYA (1976) 1 ALL NLR (PT. 1) 425 at 570; MUSTAPHA VS. GOVERNMENT OF LAGOS STATE (1987) LPELR–1931 (SC) page 58 paras B–C. PER ANDENYANGTSO, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

BARR. (CHIEF) CLETUS O. C. EZEREBO APPELANT(S)

And

HON. IKECHUKWU AMUKA 2. EUSTACE AMUKA 3. INSPECTOR GENERAL OF POLICE 4. COMMISSION OF POLICE, IMO STATE 5. DSP LIVINUS NWAIWU (BAR- AT-LAW & O. C. MONITORING UNIT IMO STATE COMMAND) 6. SUPOL OKON (MONITORING UNIT, IMO STATE POLICE COMMAND) RESPONDENT(S)

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Imo State High Court, presided over by the Honourable Justice N. B. Ukoha, J. delivered on Monday the 30th day of March, 2015 in consolidated suits Nos. HOW/231/2014 and HOW/256/2014, wherein the 1st and 2nd Respondents as Applicants, approached the lower Court praying for the enforcement of their fundamental human rights in terms of the reliefs sought by them as contained on pages 5–7 and 218-220 of the Records of appeal (hereinafter referred to as the Records) respectively.

After full hearing, the lower Court granted to the 1st and 2nd Respondents, reliefs 1–9 sought by them and in respect of reliefs 10 and 11 against the Appellant, the lower Court awarded the sum of N500, 000. 00 (Five Hundred Thousand Naira) only, as exemplary damages, (see Page 430 of the Records).

Aggrieved by the decision of the lower Court, the Appellant filed a Notice of Appeal containing 14 Grounds on 16/6/2015 (pages 431–447 of the Record). This Notice was, with the leave of this Court granted on 22/2/2018,

amended and deemed filed same date, which also contained 14 grounds of Appeal.

The Record was transmitted to this Court on 1/9/2015, while the Additional and Supplementary Records were transmitted on 7/9/2016 and 25/9/2018 respectively.

The Appellant’s Brief of argument, settled by him personally, was filed on 19/11/15 but deemed properly filed on the 14/3/2017; the 1st and 2nd Respondents’ Brief of Argument, settled by N. Epelle, Esq. was filed on 24/9/2015 while the Reply Brief by the Appellant was filed on 7/5/19 but deemed properly filed on 19/10/2020.

When the appeal was heard on 19/10/2020, Chief C. O. C. Ezerebo Esq personally appeared for himself being the Appellant, adopted the Appellant’s Brief and urged us to allow the appeal and set aside the decision of the trial Court, while N. Epelle, Esq. learned Counsel for the 1st and 2nd Respondents appeared and adopted their joint Brief of Argument and urged us to dismiss the appeal for lacking merit.

Now the amended Grounds of Appeal, shorn of their particulars, are as follows: –
“GROUND 1: ERROR OF LAW
The learned trial Judge erred in law in dismissing

the preliminary objection to its jurisdiction on the ground that the charge that was pending in the Federal High Court Owerri had been struck out.
GROUND 2: ERROR OF LAW
The learned trial Judge erred in law when he failed to consider and rule on each of the grounds of preliminary objection to its jurisdiction which failure has led to miscarriage of justice.
GROUND 3: ERROR OF LAW:
The Learned Trial Judge erred in law when he failed to consider the judicial authorities cited by the 4th Respondent, especially the case of ADETONA VS. IGELE ENT. LTD (2011) 7 NWLR (PT. 1247) page 535 which clearly showed that the State High Court has no jurisdiction to entertain the applicants’ application since the State High Court has no jurisdiction to try the offences allegedly committed by them.
GROUND 4: ERROR OF LAW:
The learned trial judge erred in law when he held that “from the ruling of my learned brother of the Federal High Court, Charge No. FHC/OW172cI2013 was struck out at the instance of the learned prosecuting counsel.
GROUND 5: ERROR OF LAW
The learned trial judge erred in law when he held that “in effect, the struck

out of Charge No. FHC/OW172cI2013 brought to an end the existence of that suit and in effect the issue of abuse of Courts process raised by the 4th Respondent is no effect anymore”. (Sic)
GROUND 6: ERROR OF LAW:
The learned trial judge erred in law when he held that Court is of the view that since the main issue for which the 4th respondent filed his election petition was based on forged certificate which the election petition dismissed along with other applications/suits, the 4th respondent ought not to continue lodging one complaint or another to the other respondents for the purpose of harassing and intimidating the applicants over a complaint that had already been tried and determined.
GROUND 7: ERROR OF LAW
The learned trial judge erred in law when he held that “if the election tribunal had found merit in the complaint of the 4th respondent before them the 4th respondent can based on the findings of the tribunal report the applicants to the Police for prosecution for the offences of conspiracy, forgery of certificate etc.
GROUND 8: ERROR OF LAW:
The learned trial judge erred in law when he held that “since the 4th

respondent did not succeed at the election tribunal, the 4th respondent has no right to lodge other complaints based on the same issue earlier raised against the applicant at the election petition tribunal.”
GROUND 9: ERROR OF LAW:
The learned trial judge erred in law when he awarded N500,000.00 exemplary damages against the 4th Respondent only for being in breach of the applicants’ fundamental rights.
GROUND 10: ERROR OF LAW:
The learned trial judge erred in law when he awarded N500,000.00 exemplary damages against the 4th Respondent only.
GROUND 11: ERROR OF LAW:
The learned trial judge erred in law when he failed to consider all the exhibits in the Respondent’s preliminary objection as well as in the counter affidavit which failure his led to a serious miscarriage of justice.
GROUND 12: ERROR OF LAW
The learned trial judge erred in law when he went ahead and delivered judgment in the case without hearing from the 1st , 2nd, 3rd, and 5th Respondents or giving them the opportunity to be heard in the matter thereby denying them their constitutional right to fair hearing.
GROUND 13: BIAS:
The

learned trial judge is highly biased in the case.
GROUND 14: ERROR OF LAW
The entire decision of the learned trial judge, is unreasonable, unwarranted and cannot be supported having regard to the evidence before the Court.
Reliefs sought from this Court are: –
i. That the Appeal be allowed.
ii. That the judgment of the lower Court be set aside.”

From the 14 grounds of Appeal the Appellant distilled six (6) issues for determination to wit: –
“i. Whether as at 8/4/2014 when the learned trial Judge made the restraining order against the 1st – 5th Respondents, charge No. FHC/OW/CR/72c/2013: IGP VS. IKECHUKWU AMUKA and ANOR was pending at the Federal High Court, Owerri and whether the applicants’ application before the Court was not therefore an abuse of process (Grounds 1, 4 and 5)
ii. Whether the failure of the lower Court to consider all the grounds, authorities and exhibits in support of the preliminary objection did not occasion a miscarriage of justice. (Grounds 2, 3 and 11)
iii. Whether the 4th Respondent’s/Appellant’s election petition was tried and determined on its merits,

including the offences of certificate forgery, examination malpractice, etc. as to foreclose any further complaint against the Applicants by the 4th Respondent/Appellant. (Grounds 6, 7 and 8)
iv. Whether the award of N500, 000. 00 damages against the 4th Respondent/Appellant only was not punitive and unjust in view of the fact that the Applicants did not show what the 4th Respondent/Appellant did or did not do to breach their fundamental right (Grounds 9, 10 and 13)
v. Whether the learned trial Judge could properly assume jurisdiction to hear the Applicants’ application in view of the fact that the 1st, 2nd, 3rd and 5th Respondents were not served with the originating processes nor hearing notices. (Ground 12)
vi. Whether from all the circumstances of this case, the learned trial Judge was right to have assumed jurisdiction and entertained the matter and whether the judgment is right. (Ground 14)”

The 1st and 2nd Respondents on their part distilled three (3) issues for determination, thus: –
“1. Whether the lower Court had not the requisite jurisdiction to hear and determine the suit filed by the 1st and 2nd

Respondents in that Court? Distilled from ground 1, 2, 3, 4, 5 and 12 of the amended grounds of appeal.
2. Whether the lower Court did not consider the case as made out by the parties before reaching a decision? Distilled from grounds 6, 7, 8, 11, 13 and 14 of the amended grounds of appeal.
3. Whether the lower Court’s award of damages against the Appellant cannot be justified having regard to the evidence before it? Distilled from grounds 9 and 10 of the amended grounds of appeal.

It is to be noted that the 1st, 2nd, 3rd and 5th Respondents did not participate in this proceedings as they did not file any process (see pages 410 and 414 of the Record).

The Appellant argued his issues serially as follows: –
ISSUE (I)
That the Applicants’ fundamental right were not breached in any way as the police authority represented by the 1st – 3rd and 5th Respondents acted on the complaint of suspected certificate forgery dated 9/5/2011 by carrying out extensive investigation which revealed and confirmed the offences of conspiracy, certificate forgery, impersonation, etc. contrary to the provisions of the

Examination Malpractices Act Cap E15 Laws of the Federation of Nigeria 2004, and that this was done in compliance with the provisions of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria (to be simply referred to as the “Constitution”), consequent upon which investigation the Respondents were charged to Court on 7 count charges on 28/11/2013; that the Respondents, rather than face their trial, jumped bail and ran to the Imo State High Court, Owerri and filed this application, knowing fully well that the said Court had no jurisdiction to try the offences with which they were charged, which action constituted an abuse of Court process, relying on NZIDEE & ORS VS. KOOTU & ORS (2007) NWLR (PT. 1014) 99 at 124 -125 paras G – B; OKAFOR VS. A. G. ANAMBRA STATE (1991) 5 LRCN 1497 at 1513; AKINOLA VS. VICE CHANCELLOR UNILORIN (2004) NWLR (PT. 885) 616; CLETUS O. C. EZEREBO VS. IGP & 2 ORS (unreported) Appeal No. CA/A/151/06, judgment delivered on 10th July, 2008 (Coran R.D Mohammed JCA; Jimi O. Bada, JCA, and Abdu Aboki, JCA.

Learned Counsel concluded on this issue that the suits of the Respondents in the consolidated

action constituted abuse of Court process in that they were filed during the pendency of the charge in FHC/OW/CR/72C/2013, therefore ousting the jurisdiction of Imo State High Court in the consolidated suits, relying on A.G ANABMRA STATE VS. CHIEF UBA & ORS (2005) 33 WRN 191 and IBOK VS. HONESTY II (2007) 6NWLR (PT. 1029) 59 – 60 para H -7 (sic), and that had the lower Court considered these cases cited by the Appellant and properly applied same, its decision would have been different, and that failure to do so had resulted in miscarriage of justice. He then urged us to resolve issue one in favour of the Appellant and therefore allow the appeal on this ground.

ISSUE (II)
Learned Counsel submitted that the lower Court did not consider and rule on each of the grounds of the Notice of preliminary objection submitted by him, which failure to do so runs contrary to the authority of the Supreme Court in the case of MOGAJI LASISI ATANDA & ORS VS. SALAMI AJANI & ORS (1989) 3 NWLR (PT. 111) 511 at 539 para B; BRAWAL SHIPPING (NIG) LTD VS. F. I. ONWUDIKE & ANOR (2000) 11 NWLR (PT. 678) 387 at 396 H 11 (sic); EBBA VS. OGODO (2000) 17 WRN

95 at 135 paras 15 – 20; that the failure of the lower Court to pronounce on each of the grounds of the preliminary objection was an abdication of judicial duty especially, that each of the grounds had exhibits attached which was the case with the counter affidavit as contained at pages 117 – 128, 132 – 140, 164 – 175, and 177 – 182 of the Records.

Learned Counsel submitted that the conduct of the Respondents was criminal which made the Election Petition Tribunal sitting in Owerri, Imo State, on 14th October, 2015 to nullify the election of the 1st Respondent in Election Petition NO. EPT/IM/SHA/1/2015 NKECHINYERE UGWU & ANOR VS. IKECHUKWU AMUKA & 3 ORS; that the learned trial Judge failed to make proper finding on the exhibits tendered before him and so lacks the requisite jurisdiction to try the offences created by Examination Malpractices Act Cap E15 Laws of the Federation of Nigera; that the cases of ADETONA VS. IGELE ENT LTD (2011) 7 NWLR (PT.1247) 535 and GAFAR VS. GOVT OF KWARA STATE (2007) ALL FWLR (PT. 360) 1415 were authorities cited before the lower Court but were not accepted by it hence wrongly assuming

jurisdiction. We are urged to resolve issue (ii) in favour of the Appellant and against the Respondents.

ISSUE (III)
Chief Ezerebo, Esq. submitted that the 4th Respondent/Appellant’s election petition was never tried even for a day.

Learned Counsel narrated what transpired at the Election Petition Tribunal and submitted that the principle of estoppel per rem judicata adopted or applied by the trial Judge does not apply in this case because the ingredients of res judicata as held by the Supreme Court in the case of EBBA VS. OGODO (2000) 17 WRN 95 at 119 paras 25 – 30 are not available in this case, which ingredients are: –
1. That the parties must be the same in the previous case and the present action.
2. That the same question that was decided in the previous case must arise in the present action in respect of the same subject matter; and
3. That the decision must be a final decision of a Court of competent jurisdiction.

Put in another way, for the doctrine of res judicata per rem to apply, the parties or their privies must be the same, the cause of action must be the same, the issues must be the same and it

must be a final decision of a Court of competent jurisdiction. Learned Counsel reiterated that although these ingredients are lacking in the instant case, yet the trial Judge proceeded to hold as he did, as complained of under grounds 6, 7 and 8 of the Grounds of Appeal; that the Respondents carried this view to an Election Petition Tribunal which did not acceed to their submissions but nullified the 1st Respondents’ election on the ground of criminality; that the trial Court has no jurisdiction to entertain and determine the case as the Respondents were charged under Examination Malpractices Act Cap E15 Laws of the Federation 2014 and also on the authority of ADETONA VS. IGELE ENT. LTD (Supra) and therefore the judgment of the trial Court is a nullity. Learned Counsel then urged us to resolve this issue in favour of the Appellant and against the 1st and 2nd Respondents.

ISSUE (IV)
Learned Counsel submitted under issue four that the fundamental rights of the 1st and 2nd Respondents were not breached, going by the provisions of Section 35 (1) (b) and (c) of the Constitution which he quoted, and stated that the 1st Respondent was granted bail on

21/7/2011 in the course of investigation but that he jumped bail; furthermore that it was an order of the Federal High Court to the 1st and 2nd Respondents to appear in Court; that the police authority had the power to bring the 1st and 2nd Respondents to Court under arrest for the offences they committed, in compliance with the order of the Court; that the Respondents were not above the law and so were not entitled to any damages.

Chief Ezerebo Esq. submitted that the 4th Respondent i.e. the Appellant herein was not responsible for the breach of the fundamental human rights of the Respondents, if at all their rights were breached; that the award of N 500, 000. 00 against the Appellant was outrageous, designed to irritate, harass, injure, annoy, provoke, intimidate and humiliate the Appellant, relying onAKINTOLA (sic) VS. VICE CHANCELLOR UNILORIN (Supra); NDINWA VS. IGBINEDION (2000) 13 WRN 47 at 56 paras 25–35; AGBANELO VS. UBN LTD (2000) 23 WRN 1 at 16 paras 20–25.

Learned Counsel further submitted that the learned trial Judge acted on wrong principles of law in awarding damages against the Appellant, citing

HABIB (NIG) BANK LTD VS. OCHETE (2000) 19 WRN 20 at 43 paras 35 – 40; NEZAN VS. BENUE P.P.C LTD (2000) 15 WRN 75 at 80 paras 5 – 15 and ETIM VS. IGP (2000) 4 WRN 133 at 150.

Chief Ezerebo also accused the trial Judge of bias, relying on ABALAKA VS. MINISTER OF HEALTH & 44 ORS (2006) 2 NWLR (PT. 963) 105 at 133 paras F – H. He then urged us to resolve this issue in favour of the Appellant.

ISSUE (V)
Learned Counsel submitted that the Trial Judge could not properly assume jurisdiction in view of non-service of the originating processes and Hearing Notices on the 1st, 2nd, 3rd and 5th Respondents, which failure, being fundamental, renders the proceedings a nullity, relying on EMUAKPOR VS. AKAVBE (1975) 2 SC 41; SKEN CONSULT VS. UKEY (2001) 49 WRN 63. Relying on so many other cases, Learned Counsel urged us to resolve this issue in favour of the Appellant and against the 1st and 2nd Respondents.

ISSUE (VI)
Chief Ezerebo Esq. repeated his submissions in issue (v) on the issue of lack of jurisdiction, and submitted that the trial Judge had no jurisdiction to make the order he made exparte on 8/4/2014 for the following reasons: –

“1. A 7 Court charge had already been filed against the 1st and 2nd Respondents as at 28/11/2013.
2. The charge was pending and subsisting against the 1st and 2nd Respondents as at 8/4/2014
3. The charge against the Accused/Applicants were brought under the Examination Malpractices Act Cap E. 15 Laws of the Federation of Nigeria 2014.
4. Under Section 14 of the Act, only the Federal High Court has the jurisdiction to try the offences under the Act.
5. By the authority of ADETONA VS. IGELE ENT. LTD (Supra) Supreme Court held that “a High Court of State shall lack jurisdiction to entertain matters of fundamental rights, although brought pursuant to Section 46 of the Constitution where the alleged breach of such right arose from a transaction or subject matter which falls within the exclusive jurisdiction of the Federal High Court….”
6. By the authority of GAFAR VS THE GOVERNMENT OF KWARA STATE (Supra) jurisdiction must be conferred expressly and unambiguously by statute.
7. There is nothing like radical jurisdiction. It is either you have jurisdiction or you have no jurisdiction.
8. The trial Judge failed to

entertain the matter since jurisdiction was made a serious (sic) in the matter.
9. The trial Judge who has no jurisdiction on 8/4/2014 when he made the restraining order exparte, cannot have jurisdiction on 15/5/2014 when the charge was struck out or on 30/3/2015 when the judgment was delivered.
10. The judgment was perverse and a serious miscarriage of justice.”

Learned Counsel then urged us to apply the principles of law in the cases of DANGACI OF DERE & ORS VS. THE DANGACHI OF EBWA & ORS (2002) 22 WRN 128 at 144 para 20 and BEBEJI VS. ABUBAKAR (2000) 19 WRN 117 to hold that the trial Judge had no jurisdiction to entertain and determine the case of the 1st and 2nd Respondents and resolve issue six in favour of the Appellant and allow Ground 14 of the grounds of Appeal.

In conclusion learned Appellant’s Counsel submitted that the trial Judge failed to hear or give opportunity to be heard to the 1st – 3rd and 5th Respondents in this matter, who are the principal parties; he urged us to allow the appeal, set aside the judgment of the lower Court on the following grounds: –
“1. That there was no finding

against the 1st – 3rd and 5th Respondents to whom the Appellant merely made a report.
2. That the judgment of the lower Court is a nullity on the ground of lack of jurisdiction.
3. That the suit in the Court below was an abuse of Court process as it was filed while Suit NO. FHC/OW/CR/72C/2013 was still pending at the Federal High Court in Owerri.
4. That the issue of jurisdiction can be raised at any time and stage of a proceedings.
5. That the trial Judge was highly biased in the case, as a result, he awarded N500, 000. 00 exemplary damages against the Respondent/Appellant only.
6. That the trial Judge failed to hear or give opportunity to be heard to 1st – 3rd and 5th Respondents who are principal parties whether or not the Applicants’ fundamental rights were breached.
7. That there is no finding that the 1st – 3rd and 5th Respondents to whom the 4th Respondent/Appellant merely made report breached the Applicants fundamental human rights yet award of N500, 000. 00 exemplary damages is awarded against the 4th Respondent only.
8. That reporting a criminal offence or suspected criminal offence to the

Police is not a breach of fundamental human rights.
9. That suing the 1st and 2nd Respondents to Court in any civil proceedings is not a breach of fundamental right.
10. That the entire proceedings is against the weight of evidence.”

The 1st and 2nd Respondents in their joint Respondents’ Brief distilled 3 issues for determination to wit: –
“1. Whether the Lower Court had not the requisite jurisdiction to hear and determine the suit filed by the 1st and 2nd Respondents in that Court? Distilled from Grounds 1, 2, 3, 4, 5 and 12 of the amended grounds of appeal.
2. Whether the lower Court did not consider the case as made out by the parties before reaching a decision? Distilled from Grounds 6, 7, 8, 11, 13 and 14 of the amended grounds of appeal.
3. Whether the lower Court’s award of damages against the Appellant cannot be justified, having regard to the evidence before it? Distilled from Grounds 9 and 10 of the grounds of appeal.

Learned Respondents’ Counsel, N. Epelle Esq. argued his issues as follows: –
ISSUE 1
That it is no longer a subject of controversy that in an action for the

enforcement of an Applicant’s fundamental rights, it is the relief sought by the Applicant that determines whether or not the trial Court has the requisite jurisdiction to hear the suit, relying on SHELL B.P LTD VS. ONASANYA (1976) 1 ALL NWLR (PT. 1) 425, 570; that in the instant case the 1st and 2nd Respondents’ complaint was their continuous harassment by the Appellant at the Federal High Court on an alleged certificate forgery, despite the pending criminal proceedings against them at the insistence of the Appellant, notwithstanding the objection to the jurisdiction of the said Court on the authority of EZEZE VS. STATE (2008) 14 NWLR, (PT. 1116) 52, 66 PARA H that an accused person need not physically be in Court where an objection is being taken to the competence of the charge preferred against him; that despite order of Court that the parties maintain status quo and withdrawal of the charge against the 1st and 2nd Respondents, the Appellant persevered, employing unlawful means to ensure that the 1st and 2nd Respondents were arrested and detained even when there was no order to that effect; that this constant and incessant harassment by the

Appellant compelled the 1st and 2nd Respondents to approach the lower Court, asking for the protection and enforcement of their fundamental rights under Section 46 (1) of the Constitution; that the main thrust of the 1st and 2nd Respondents’ claim at the lower Court was the unlawful attempts by the Appellant, using the instrumentality of the 3rd – 6th Respondents’ attempt to arrest and detain them over the same issue upon which charges had already been preferred against them at the Federal High Court.

Learned Counsel stated that from the reliefs of the 1st and 2nd Respondents at the Court below, what was in contention was the 1st and 2nd Respondents’ right to life, liberty, freedom of movement and right to be heard without inhibition and intimidation, which rights are within the jurisdiction of the lower Court, having regard to Section 272 (1) of the Constitution, which provisions learned Counsel reproduced and Section 46 (1) and (2) of same Constitution which provides for the enforcement of human rights of aggrieved persons. He then submitted that the cause of action at the lower Court was the enforcement of the 1st and 2nd

Respondents’ fundamental human rights to their lives, liberty, freedom of movement and rights to be heard without inhibition and intimidation pursuant to Sections 33, 35, 36, and 41 of the Constitution; that the Appellant, unfortunately misconstrued the issue before the lower Court, contending that, that Court had no jurisdiction to hear the cases of certificate forgery, examination malpractices, impersonation, et cetra, which were not the issues before the lower Court; that the contention of the Appellant that it is only the Federal High Court that has Jurisdiction to entertain and determine the 1st and 2nd Respondents’ application was also misplaced; that it is wrong for the Appellant to argue that exclusive jurisdiction is given to the Federal High Court to try cases of enforcement of fundamental human rights, relying on Section 272 (1) of the Constitution; SUN INSURANCE NIG LTD VS. UMEZ ENGINEERING CONST. LTD (2015) 62 (PT.1) NSCQR 481 at 509; that both the Federal High Court and a State High Court have jurisdiction to try fundamental human right cases as enshrined in Section 46 (1) of the Constitution and

MINISTER OF INTERNAL AFFAIRS VS. SHUGABA (1982) 3 NCLR 915; TUKUR VS. GOVT OF GONGOLA State (1989) 4 NWLR (PT. 117) 517.

Learned Counsel submitted further that it is not in doubt that the jurisdiction of the Federal High Court in respect of fundamental rights actions is conferred within the provisions of Section 251 (1) of the Constitution and no more, relying on ADETONA VS. IGELE GEN. ENT LTD (2011) 7 NWLR (PT. 1247) 535; that Section 46 (1) of the Constitution is a special provision which deals with matters of fundamental rights, conferring jurisdiction on any High Court in a State in matters affecting human rights irrespective of who is affected by an action focused on such rights; that on the other hand Section 251 (1) of the Constitution is a general provision, which provisions do not derogate from what has been specially provided for individually, unless an intention to do so is unambiguously declared, relying on FEDERAL MORTGAGE BANK OF NIGERIA VS. OLLOH (2002) FWLR (PT. 107) 1244, but that there is no such intention in Section 251 (1) of the Constitution; that Section 46 (c) of the Constitution is intended to give access to an aggrieved party to any High Court in a State where an

alleged contravention of his fundamental rights has taken place or is about to take place, and is therefore a provision which should itself be regarded as special and fundamental.

Learned Counsel reiterated that the issue before the lower Court was not the question as to whether the 1st and 2nd Respondents forged certificate or engaged in examination malpractices; that the issue was life, personal liberty, freedom of movement and the right to be heard without inhibition or intimidation, as preserved under Section 33, 35, and 41 of the Constitution, which is within the contemplation of Section 272 (1) of the said Constitution, and completely outside the scope of Section 251 (1) of the Constitution, the Federal High Court being a Court of limited jurisdiction, relying on ADETONA VS. IGELE GENERAL ENT. LTD (Supra). Learned Counsel also submitted that a clear and plain interpretation of Section 251 of the Constitution is that for the Federal High Court to have jurisdiction under Section 251 of the Constitution to entertain a matter, the following conditions must coexist: –
(a) The parties, or party must be the Federal Government or any of its

agencies;
(b) The subject matter of litigation must be the one provided for under Section 251 of the Constitution.

Expatiating, learned Counsel submitted that it is the combined effect of the party (parties), being an agency/agencies of the Federal Government and the subject matter of litigation that confers jurisdiction on the Federal High Court, referring to OBIUWEUBI VS. C.B.N (2011) 3 SCNJ (incomplete citation); OLORUNTOBA–OJU VS. ABDUL-RAHEEM (2009) 5–6 SC (PT. 11) 57; N.E.P.A. VS. EDEGBERO (2002) 18 NWLR (PT. 798) 79; that for the Federal High Court to have jurisdiction over a matter involving the Federal Government or its agency, the subject matter of litigation must relate to the administration, management or control of the Federal Government or its agencies; that the mere fact that the Federal Government or its agencies are parties to a suit does not automatically confer jurisdiction on the Federal High Court but the subject matter and the parties must be considered in determining whether or not the Federal High Court has jurisdiction to entertain the matter, relying on ADELAKU VS. ECU-LINE (2006) 5 SC (PT. 11) 32;

NDIC VS. JACKSON DEVES LTD (2014) LPELR 23378.

Learned Counsel stated that upon the service of the originating processes on the Appellant and the 3rd – 6th Respondents (per Supplementary Records) the 3rd – 6th Respondents withdrew and ceased from any further attempt or arresting and detaining the 1st and 2nd Respondents, but the Appellant persisted despite the order of the Honourable Court below directing the parties to maintain the status quo pending the hearing and determination of the substantive suit.

Learned Counsel stated that from the proof of service in the supplementary Record of Appeal, it is incorrect for the Appellant to argue that the 3rd-6th Respondents were not served with the processes in the suit; that it is the law that once there is proof of service in the Court’s case file, the Court is entitled to proceed with the case even where the parties served with the processes chose not to participate in the proceedings, relying on DUKE VS. KAY-KAY CONSTRUCTION LTD (2019) 14 NWLR (PAT. 1584) MGBENWELU VS. OLUMBA (2017) 5 NWLR (PT. 1558) 3 C 169.

Learned Counsel submitted that a ground of appeal and its particulars

should be predicated on the judgment of the Court being appealed against as decided in A.G. LAGOS STATE VS. EKO HOTELS LTD & ANOR (2006) 9 SCNJ 104, thus appeals and the argument emanating therefrom are drawn from the Records of Appeal (including the Grounds of Appeal) and that materials not traceable to the Ground of appeal or the Records of Appeal itself is incompetent and ought to be discountenanced, referring to HRH EZE DR. ADELE EKE VS. MR. GODFREY CHIZIEZE OGBONDA (2006) S.C 64, and particulars Nos. b and c of Ground 12 of the Grounds of Appeal at page 13 of the Amended Notice of Appeal which are not borne out of the Records of Appeal.

Learned Counsel then urged us to discountenance the said particulars b and c of Ground 12 of the Grounds of Appeal. Learned Counsel further stated that the 3rd–6th Respondents were duly served with the originating and other processes in the suit but they chose not to participate in the proceedings for obvious reasons, making them liable to be bound by the outcome of the suit, by the authority of MGBENWELU VS. OLUMBA (Supra).

Learned Counsel referred to the preliminary objections filed at the lower Court

(pages 97 – 98 of the Record for 1st Respondent and 285 – 286 for 2nd Respondent) and the case of ATTORNEY GENERAL OF THE FEDERATION VS. ANPP (2003) 12 SCM 1 and submitted that the objections were anchored on jurisdiction which is a question of law, but that since the objection was an attack on the facts of the case, the Appellant must depose to an affidavit to prove the facts, otherwise the preliminary objection must be dismissed; that since the facts in the affidavit of the Appellant were laden with allegations of criminal offence, the Appellant must prove the commission of offence beyond reasonable doubt as required by Section 135 (2) of the Evidence Act, 2011 (as amended) and the case of NWOBODO VS. ONOH (1984) 1 SCNLR (incomplete citation); that in this case the Appellant woefully failed to prove the offences beyond reasonable doubt, hence the lower Court had no option than to dismiss the preliminary objection which was proper in the circumstances, further relying on the ATTORNEY GENERAL OF THE FEDERATION VS. ANPP (Supra) and CHIEF WOHEREM VS. EMEREUWA & ORS (2004) ALL FWLR (PT. 221) 1570 at 1584; furthermore that the preliminary objection

was struck out because the charges on which the objection was based were struck out by the Honourable Federal High Court even before the Appellant filed his preliminary objection at the lower Court, referring to pages 10 and 11 of the judgment, which is contained in the Additional Record of Appeal, which learned Counsel reproduced and the Ruling of the Federal High Court at pages 284 – 398 of the Record.

Learned Counsel submitted that by virtue of the charge having been earlier struck out before the Appellant filed his Notice of Preliminary Objection, same had become an abuse of Court process, relying on ACB PLC VS. DANIAN IKECHUKWU NWAIGWE & 2 ORS (2011) 2 SC (PT. 1) 67, and urged us to so hold.

On the complaint of the Appellant that the lower Court did not consider each of the grounds of objections, otherwise it would have arrived at different conclusion, learned Counsel referred us to pages 4 – 8 of the judgment contained in the additional Record of Appeal and submitted that the Court below reviewed the Appellant’s preliminary objection and the argument proffered on it before dismissing the same, and therefore the Appellant

cannot seriously contend that the grounds of objections were not adequately considered by the Court below, and that considering the fact that the charge upon which the preliminary objection was based had been struck out 4 days before the filing of the preliminary objection, any further step taken on it by the lower Court could have been an academic exercise, in which Courts do not engage, except live issues, relying on EFET VS. I. N. E. C. (2011) 7 NWLR (PT. 1247) 423. Learned Counsel, in noting the foul language exhibited by the Appellant against the Learned Trial Judge, urged us to resolve this issue against the Appellant and in favour of the 1st and 2nd Respondents.

ISSUE TWO
THE Learned Counsel for the 1st and 2nd Respondents adopted his submissions in respect of issue 1 above and added that the allegation of bias against the trial Judge was not borne out of the record of appeal as there was no evidence of such before the lower Court; that ground 13 of the amended Notice of Appeal did not emanate from the judgment of the lower Court and is therefore incompetent and amounted to nothing and is of no effect, referring to CCB PLC VS. EKPENE (2007) 3

NWLR (PT. 1022) 492; EMMANUEL VS. UMANA (2016) LPELR – 40037 SC.

Learned Counsel submitted that the Appellant’s appeal in the Election Petition was dismissed by the Court of Appeal and not the lower Court and thus the lower Court at page 28 of the Record employed the same term “dismissed” which the Appellant has given the coloration “bias” against the lower Court which was wrong; that since 2011 when the Appellant contested election with 1st Respondent and lost, the Appellant has aggressively pursued the 1st Respondent, causing the police to arrest and detain him so that the Appellant would win the election, which behaviour lingered up to 2015; that the alleged jumping of bail by the 1st and 2nd Respondents has no proof, referring to paragraphs 27 and 28 of the further Affidavit of the 1st and 2nd Respondents respectively; that the absence of the 1st and 2nd Respondents in Court when the charge against them was called up did not amount to jumping bail as mistakenly submitted by Appellant, as the 1st and 2nd Respondents had filed a motion challenging the competence of the charges and a fortiori the jurisdiction of the

Federal High Court to hear and determine the case. He referred to EZEZE VS. THE STATE (2004) 14 NWLR (PT. 894) 491 at 504 para E; EDET VS. THE STATE (2008) 14 NWLR (PT. 1100) 52 AT 66 para H. Counsel inter alia submitted that the lower Court was right in its decision and the Appellant was unfair in berating it; that the lower Court did not block the prosecution of the 1st and 2nd Respondents as alleged by the Appellant, relying on FAWEHINMI VS. AKILU (1989) 2 NWLR (PT. 102) 122; that the criminal charges preferred against the 1st and 2nd Respondents at the instance of the Appellant was different from the civil suit filed at the State High Court by the said Respondents and therefore, no abuse of Court process has been committed by the 1st and 2nd Respondents; that the submissions in respect of estoppel at pages 19 and 21 of the Appellant’s Brief were neither founded on any ground of appeal nor on the record of appeal and should be discountenanced by this Court, based on the authority of A.G LAGOS STATE VS. EKO HOTEL LTD (2006) 9 SCNJ 104; that the decision in EPT/IM/SHA/2015 was reversed on appeal to this Court in appeal No. CA/OW/EPT/SHA/3/2015 and urged

us to use Section 15 of the Evidence Act, 2011 to take judicial notice of this fact and hold that these grounds of appeal fail and then resolve issue 2 against the Appellant and in favour of the 1st and 2nd Respondents.

ISSUE THREE
Learned Counsel adopted his submissions in issues 1 and 2 and added that by the provisions of Section 46 (1) of the Constitution the 1st and 2nd Respondents were not bound to wait until their rights therein were completely breached before taking action to enforce same, relying on RANSOME KUTI VS. A.G. FEDERATION (2001) FWLR (PT. 80) 1637 at 1681; ADBULHAMED VS. AKAR (2006) 13 NWLR (PT. 996) 127.

Counsel noted that on 8/4/2014 the lower Court made an order for the maintenance of status quo pending the hearing and determination of the substantive suit and when the order was served on the Respondents the 3rd – 6th Respondents promptly obeyed the order and did not take any steps in arresting and detaining the 1st and 2nd Respondents herein but the Appellant insisted, persevered in his effort to arrest and detain the 1st and 2nd Respondents; that the 3rd – 6th Respondents realized that they had been hood winked

by the Appellant to pursue the 1st and 2nd Respondents, eventually withdrew the charges (paragraph 18 of the 1st Respondent’s further affidavit at page 216 of the Record); learned Counsel submitted that the Appellant was politically motivated in all his intrigues and so deserved the award of exemplary damages against him by the Court to serve as deterrent to other persons in like minds who would use their positions in the society (as retired Commissioner of Police) to suppress their fellow citizens, referring to paragraphs 2 -12 of the 1st Respondent’s affidavit in support of his motion for the enforcement of this fundamental rights and paragraphs 30 – 34 of the 2nd Respondent’s affidavit in his motion for the same purpose (pages 13 – 15 of the Record) which paragraphs learned Counsel quoted and submitted that the Appellant cannot seriously contend that the fundamental rights of the 1st and 2nd Respondents were not breached, regard being had to paragraphs 21 – 28 and 35 – 37 of the Affidavit of the 1st Respondent. Counsel also referred us to exhibit D, at pages 177 – 181 of the record and submitted that the

Appellant personally procured the said exhibit without proof of any of the offences alleged by the Appellant; that the Appellant cannot deny the ordeal to which he subjected the 1st and 2nd Respondents as deposed to in paragraphs 21-28, 30 -32, 35 -37 of the affidavit of the 1st Respondent, which averments against the 3rd – 6th respondents were not denied or controverted and so taken as having been admitted by them by the authority of OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT. 966) 205, learned Counsel reproduced paragraph 36 at page 19 of the Record and Paragraph 22 of the further affidavit at pages 214 – 218 of the Records, noting that none of these averments was denied and then submitted that the 1st and 2nd Respondents’ fundamental rights were breached entitling them to the award of exemplary damages against the Appellant, who single handedly procured Exhibit D, upon which charges were preferred against the 1st and 2nd Respondents without just cause.

In respect of the submission of the Appellant that the award of exemplary damages by the lower Court was an abuse of Court process, learned Counsel submitted that

this frame of mind steamed from the Appellant’s lack of respect for the Courts of the land which is typical of Police men and other security agencies, since no Court can abuse its own process; that the complaint of the Appellant at page 404 (2) (sic) page 21 of his Brief of Argument in respect of his perceived harassment, irritation, injury, annoyance, provocation, intimidation and humiliation as well as wrecking vendatta and havoc on him ought to have made the Appellant to ask for transfer of his case to another Court if there was any substance in his allegations; that the award of N500,000.00 to two persons to be shared between them, was too small considering the ordeal they went through in the hands of the Appellant; that the lower Court followed the correct principles of awarding exemplary damages as laid down in cases such as C.B.N VS. OKOJIE (2015) 14 NWLR (PT. 1479) 231 at 243; CALABAR EAST C. T. C. S. VS. IKOT (1999) 14 NWLR (PT. 638) 225; OGOEJEOFO VS OGOEJEOFO (Supra); ISHAKU VS. AINA (2004) 11 NWLR (PT. 883) 143. Learned Counsel urged us to resolve this issue against the Appellant, dismiss the Appeal and affirm the lower Court’s

decision. We were also urged to hold that the lower Court had the requisite jurisdiction to entertain this suit; the lower Court properly considered the case of the parties and arrived at the correct decision and the award of exemplary damages was proper.

As earlier indicated, the Appellant filed a Reply Brief on 7/5/2019 in which he defied all the known rules of this Court and judicial pronouncements in respect thereof governing Reply Briefs. Order 19 Rule 5 of the Rules of this Court 2016 provides as follows:-
“5. (1) The Appellant may also, if necessary, within 14 days of the service on him of the Respondent’s Brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.
(2) Except where the Court directs otherwise, every Reply Brief to be filed in Court shall not exceed 15 (fifteen) pages, and shall conform with Rule 3 (2), (4), (6) (b) and (c) of this Order.”
In this case firstly the Appellant’s Reply Brief exceeded 15 pages as prescribed by the Rule as it is up to 19 pages; secondly, and which is worse, the Reply

Brief is devoted to re-arguing the issues already argued by the Appellant in his Appellant’s Brief of Argument. This approach has been deprecated by the Appellate Courts, as demonstrated in the case of AHMED VS. AHMED & ORS (2013) LPELR – 12243 (SC) page 91 paras A–C thus: –
“A reply brief is filed by an Appellant only when the Respondent raises in his respondent’s brief new question/argument, or an issue of law. When the need arises for a reply brief to be filed it should be limited to answering the new questions, and issue of law. A reply brief should on no account be used by the Appellant to raise new issues or to reargue his case on appeal. Where this is done, the reply brief would be discountenanced. In this appeal the reply brief was discountenanced and that was the correct thing to do in view of the fact that the reply brief was used to re-argue the Appellant’s case.”
In this appeal, the Appellant had done exactly as is prohibited by the Rules of Court and decided authorities of the Appellate Courts. Therefore, the Reply Brief filed by the Appellant on 7/5/2019, having failed to meet the

requirements of the law is hereby discountenanced.

RESOLUTION
In resolving the issues formulated by the parties I shall and hereby adopt the issues formulated by the Learned Counsel for the 1st and 2nd Respondents in their Respondent’s brief because they are brief, precise, concise, clear and straight to the points as well as encompassing all the grounds of appeal contained in the Amended Notice of Appeal.

ISSUE NO. 1
“Whether the lower Court had not the requisite jurisdiction to hear and determine the suit filed by the 1st and 2nd Respondents in that Court? Distilled from grounds 1, 2, 3, 4, 5 and 12 of the amended grounds of appeal.”

The 1st and 2nd Respondents had challenged the competence of a Charge No. FHC/OW/CR/72c/2013: IGP VS. IKECHUKWU AMUKA & ANOR pending at the Federal High Court, Owerri on the grounds that the procedure adopted by the complainant was wrong and therefore ousting the jurisdiction of the Federal High Court. While the motion was being considered, the Honourable Judge of the Federal High Court on 27/1/2014 made an order to wit:-
“Notwithstanding the motions challenging the

jurisdiction of the Court the accused persons must be in Court on the next adjourned date.”

The 1st and 2nd Respondents in their Brief of Argument based their submission on the fact that in an application for enforcement of fundamental rights it is the relief sought by the Applicant that determines whether the trial Court has the requisite jurisdiction to hear the suit. For the Appellant it was contended that the offences contained in the Charge No. FHC/OW/CR/72C/2013: IGP VS. IKECHUKWU AMUKA & ANOR were offences under the exclusive jurisdiction of the Federal High Court and so any action emanating from the suit can only be tried by the Federal High Court.

The 1st and 2nd Respondents on their parts argued that after preferring the charge against them at the Federal High Court, Owerri and while their Counsel was contesting the jurisdiction of the Federal High Court Owerri on the basis of incompetence, ousting out the jurisdiction of that Court, the Appellant continued to instigate the 3rd – 6th Respondents to arrest and detain them without due regard to the pending process at the Federal High Court. The Appellant had insisted that the

1st and 2nd Respondents be brought physically to Court but the learned Counsel to the 1st and 2nd Respondents argued that on the authority of EZEZE VS. THE STATE (2004) 14 NWLR (PT. 894) 491 at 564 para E and EDET VS. THE STATE (2008) 14 NWLR (PT. 116) 52 at 66 para H, the physical presence of the 1st and 2nd Respondents was not necessary while their challenge to the competence of the charge was being considered.
In the case ofEZEZE VS. THE STATE (2004) 14 NWLR (PT. 894) 491 at 564 para E also reported as (2004) LPELR–5659 (CA) pages 9–13 paras B-D it was thus held: –
“On the 3rd issue on the appellant’s brief which issue poses the question as to whether the physical presence of an accused person in Court is mandatory before a motion to quash filed before trial on behalf of such an accused person can be heard or taken by the Court before trial, it was submitted that such physical presence was unnecessary, by virtue of Section 210 of the Criminal Procedure Law Cap. 33 Laws of Lagos State since the trial of the accused at that stage would not had commenced. Support for this submission was found in the decisions in

(1) Fawehinmi v. A.-G., Lagos State (No. 1) (1989) 3 NWLR (Pt. 112) 707 (2) Asakitikpi v. The State (1993) 5 C NWLR (Pt. 296) 641 and Kajubo v. The State (1988) 1 NWLR (Pt.73) 721. The respondent, on the other hand, argued that by the combined effect of Section 353(1) of the Criminal Procedure Law, Sections 215 and 210 of the same Law the physical presence of the accused in the Courtroom, was mandatory before the application to quash could be taken. Section 210 of Criminal Procedure Law provides: “Every accused person shall, subject to the provisions of Section 100 and of Subsection (2) of the Section 223 of this Act, be present in Court during the whole of his trial unless he misconduct himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.” Section 100 stipulates that the physical presence of the accused may be dispensed with if the punishment that the offence carries does not exceed N100 or more than six months, while Section 223(2) says that an accused person’s presence in the Court may be dispensed with if he is of unsound mind and consequently prone to disturbing the proceedings. None of these two provisions are

applicable to the instant case. Suffice it to say however that both Sections 100 and 223(2) provides exceptional circumstances that do justify proceeding with the trial in the absence of the accused. Let it be said, however, that the reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity of answering it. However, such presence to be meaningful does not mean physical attendance but in actual fact, it must carry along with it real capability of the accused person understanding the nature of the proceedings see The king v. Lee Kun (1916) 1 KB 337. Indeed, it is very crucial that the physical presence of a mentally alert person is sought and obtained at the time the arraignment of the accused is to take place and thereafter during the proceedings. The question then to ask is what constitutes a valid arraignment in law A study of the case law on this point reveals the guidelines to be adhered to as follows:- (1) the accused person who is to be tried shall be physically placed before the trial Court unfettered and (2) the charge preferred against him shall be read and explained to him in the

language he understands to the satisfaction of the judex by the registrar of the Court or any other designated officer of the Court and (3) the accused shall then be called upon to plead instantly to the charge and (4) the plea of the accused shall also be instantly recorded by the judex. See (1) Rufai v. The State (2001) 13 NWLR (Pt. 731) 718 and (2) Barmo v. The State (2000) 1 NWLR (Pt.641) 424. The grounds upon which the appellants sought to quash or stay the proceedings are ex facie, that the charge constitutes an abuse of Court process and/or capable of prejudicing the accused or inflicting oppression on them. As was decided in several cases, the power of the Court inherent in its jurisdiction to prevent abuses of its process and control its own procedure will, in a criminal Court, include the power to safeguard an accused person from oppression or prejudice. The Court will be failing in its fundamental duty, if in the face of a defective or bad charge, it refused to entertain the application to quash and hastily proceeds to set the criminal case down for trial. It does not matter that the accused/applicant was not physically present in the Court when his

application to quash the proceedings was entertained. Indeed, such an application would have been supported by at least an affidavit evidence. In Fawehinmi v. A.-G., Lagos State (No.1) supra this Court per the judgment of Ogwuegbu, J.C.A. (as he then was) observed at page 739 thus: – “It is my view that the Court has the power and a duty to stop a prosecution which on the facts creates abuse and injustice. If the information was defective, it was immaterial whether the respondents were, present in Court or not.” Following the principles articulated by the judicial authorities that I have referred to above, I say without any equivocation that the presence of the appellant in Court was not mandatory before his motion to quash could be heard or taken. Issue 3 on the appellant’s brief and issue 3 on the respondent brief both of which are identical, are answered in the negative.”
In the case of EDET VS. THE STATE (2008) LPELR 4016 (CA) pages 13–16 pars E–D it was held as follows: –
“It is imperative that I begin with the provisions of Section 167 of the Criminal Procedure Law of the Cross River State, Vol. II of 1983. It provides: “Any

objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge is read over to the accused and not later.” From the above, it is clear as crystal that the provisions of Section 167 of the Criminal Procedure Law is referable to “any formal defect in a charge” and not “an information”. In Section 2 of the Criminal Procedure Law of Cross River State, “Charge” means: “the statement of offence or statement of offences with which an accused is charged in a summary trial before a Court.” In Fawehinmi vs. A-G, Lagos (No.1) (supra), it was held that an information is not a charge. The filing of an information is a proceeding preliminary to trial. See Sections 340 – 343 of the Criminal Procedure Law of the Cross River State. Unlike in a charge, the accused is not directly indicted in an information. Rather the Court is “informed” by the Attorney-General, who is responsible for the prosecution, that the accused committed the offence or offences. In other words, an “information” is a mode of instituting criminal proceedings. The learned trial Judge misdirected himself when he stated “The question then is at what point can a

charge or information be read to an accused person.” Certainly, the question before the trial Court was not at what point should a charge or information be read to an accused person. Rather the question is whether on the face of the information a prima facie case was disclosed or whether the proofs of evidence attached to the information disclose an offence to justify the criminal trial against him. It is glaringly clear that this was an objection which affect the jurisdiction of the trial Court and not an objection to a charge for any formal defect. It is therefore apparent that the trial Judge misconstrued the objection of the appellant before the trial Court. In Ikomi v. The State (1986) 3 NWLR 340, the Supreme Court listed the various conditions under which an information may be liable to be quashed. These are where: “(a) the Court has no jurisdiction to try the offence; (b) the deposition do not disclose the offence or offences charged; and (c) the consent given in circumstances amounting to abuse of the Court’s process or contrary to Section 340(3) of the Criminal Procedure Law.” The objection of the appellant comes within the purview of the condition

stated under Paragraph (b) above. An objection to an information for whatever reason may be taken at any stage before the trial of the offence charged in the information. This is exactly what the appellant did at the Court below. See Fred Egbe v. The State (supra). It is glaringly clear that the appellant’s objection is directed to the competence of the information filed before the trial Court and afortiori, the jurisdiction of the trial Court. It has nothing to do with a formal defect on the charge as the learned trial Judge thought. Admittedly, the appellant brought his application pursuant to Section 167 of the Criminal Procedure Law of the Cross River State. Apparently that was the wrong Section having regard to the nature of the application. However, there was a clear reference to the provisions of Section 340 and 72 of the same law which the trial Judge should have considered in his Ruling.”
Thus, I agree with the learned Counsel for the 1st and 2nd Respondents that the physical attendance of the 1st and 2nd Respondents was not necessary. The necessity of their physical attendance could arise only after the Federal High Court had determined the

motion challenging the competence of the charges and a fortiori its jurisdiction to entertain and determine the case that they would be required to physically appear and take their plea.

Coming to the issue of the jurisdiction of the Lower Court to entertain the application for the enforcement of the fundamental rights of the 1st and 2nd Respondents, it is the law that it is the writ of summons and statement of claim of the Plaintiff that is to be considered by the Court. See OPITI VS. OGBEIWI (1992) 4 NWLR (PT. 294) 184 at 195 and ADEYEMI VS. OPEYORI (1976) 9–10 SC 31 at 49. Where it is discovered that the Court has no jurisdiction to hear and determine a case or matter, everything done in such want of jurisdiction is a nullity. See MUSTAPHA VS. GOVERNMENT OF LAGOS STATE(1987) LPELR–1931 (SC) page 57 paras A–B. In application for the enforcement of the fundamental rights, as in this case, it is the reliefs sought by the Applicant that determines the jurisdiction of the Court. See SHELL B.P LTD VS. ONASANYA (1976) 1 ALL NLR (PT. 1) 425 at 570; MUSTAPHA VS. GOVERNMENT OF LAGOS STATE (1987) LPELR–1931 (SC) page 58 paras B–C.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellant argued, relying on the provisions of Section 14 of the Examination Malpractices Act Cap E 15 Laws of the Federation of Nigeria, 2004, that the Imo State High Court which tried the case had no jurisdiction but only the Federal High Court that had the jurisdiction to handle the case.
Section 14 of the Examination Malpractices Act Cap E15 Laws of the Federation of Nigeria 2004 stipulates as follows: –
“14. Jurisdiction
Subject to Section 13 of this Act the Federal High Court (in this Act referred to as “the Court” shall have –
a. Jurisdiction to try offenders under this Act;
b. Power notwithstanding anything to the contrary in any enactment, to impose the penalties provided for offences in this Act.”
The Appellant also relied on the dictum of Hon. Justice Ibrahim Tanko Mohammed J.S.C (as he then was, now C.J.N) in the case of ADETONA VS. IGELE ENT. LTD (2011) 7 NWLR (pt. 1247) 535, also reported in the Law Pavilion as (2011) LPELR–159 (SC) at pages 35–36, inter alia as follows: –
“…. Equally, High Court of a State shall lack jurisdiction to entertain

matters of fundamental rights, although brought pursuant to Section 46 (2) of the Constitution where the alleged breach of such matters arose from a transaction or subject matter which fall within the exclusive jurisdiction of the Federal High Court as provided by Section 251 of the Constitution. ”
In the case of ADETONA VS. IGELE ENT. LTD (2011) Supra the facts differ from the facts of the instant case as that case deals with the case where the Appellants locked up the shops and ware house of the Respondent and it was argued that the Appellant’s case fall under the Companies and Allied Matters Act which the Supreme Court rejected and held that it was a matter of Landlord and Tenant and tort.
In the case of GAFAR VS. THE GOVERNOR OF KWARA STATE & ORS (2007) LPELR 8073 (SC) per Mahmud Mohammed JSC (as he was then) it was held at page 12–14 paras C–A as follows:-
“The enforcement of fundamental rights under which the appellant brought his action at the Federal High Court is provided for in Chapter IV of the 1979 Constitution which was then in force at the time of filing the action. Section 42 thereof confers special

jurisdiction on the High Court. This Section states: “42(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress. (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights 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.” It is quite clear from the above provisions of the 1979 Constitution that enough provisions have been made in Chapter IV for the enforcement of fundamental rights. By these provisions, a person whose fundamental right is breached, being breached or about to be breached, may apply to a High Court in that State for

redress. However, by Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979, made by the Chief Justice of Nigeria under Subsection (3) of Section 42 of the 1979 Constitution quoted above which came into force on 1-1-1980, defines the word ‘Court’ as ‘the Federal High Court or the State High Court’. By this definition, in all matters dealing with the enforcement of fundamental rights, both the Federal High Court and the High Court of a State within which the violation of these rights have been alleged to occur, have concurrent jurisdiction in such matter. An application may therefore be brought either to the judicial division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. Therefore, in the instant case, as far as the law is concerned on the complaint of the appellant of an alleged breach of his fundamental right in Ilorin within Kwara State, the Federal High Court has concurrent jurisdiction with the State High Court to hear and determine the appellant’s complaint of any alleged breach

of such rights.”
In the instant case, the Appellant had written a petition against the 1st and 2nd Respondents to the 3rd-6th Respondents who had arrested them and filed an Information at the Federal High Court, Owerri.
The 1st and 2nd Respondents challenged the procedure adopted by the 3rd–6th Respondents in the charge. While the motion was pending the 1st and 2nd Respondents were released on bail by the 3rd – 6th Respondents, but the Appellant insisted that they be arrested and detained because of the order of the Federal High Court that they must appear in Court the next adjourned date.
There was evidence that the 3rd–6th Respondents went after the 1st and 2nd Respondents in an attempt to arrest and detain them and the 1st and 2nd Respondents saw this attempt as too much of harassment and went and filed the application for the enforcement of their fundamental rights, to which the Appellant and the 3rd – 6th Respondents objected on the ground of jurisdiction. See pages 1 -19 of the Record.
The Appellant’s contention that the 3rd – 6th Respondents were not served did not stem from the record as there were

proofs of service. See page 92 of the Record and the whole of Supplementary Record.
Going by the provisions of Section 46 (1) of the Constitution, and the decided cases referred to above, I agree with the 1st and 2nd Respondent’s Counsel that the Court below had the requisite jurisdiction to hear and determine this case. Issue 1 is hereby resolved in favour of the 1st and 2nd Respondents.

ISSUE NO. 2
“Whether the lower Court did not consider the case as made out by the parties before reaching a decision? Distilled from grounds 6, 7, 8, 11, 13 and 14 of the amended grounds of appeal.”

The Appellant has complained that the lower Court did not consider all the grounds of his preliminary objection before reaching its decision. The 1st and 2nd Respondents contended otherwise

I have carefully perused the entire Records of Appeal and I find no evidence of such complaint therein. The lower Court on pages 4, 5, 6, 7 and 8 of the additional Record analyzed the entire case of both parties before reaching its decision, in dismissing the preliminary objection.

It is on record that the charge against the 1st and 2nd

Respondents were struck out on the 15/5/2014 while the preliminary objection was filed on 19/5/2015, 4 days after. When the lower Court became aware that the charge or information against the 1st and 2nd Respondents had been struck out, it had to strike out the preliminary objection. To do otherwise would have been to engage in an academic exercise, the luxury of which the Courts never have. See KPANDEH & ANOR VS. KYENGE & ORS (2015) LPELR–441785 (CA);AKPABOT VS. PHCN & ORS (2013) LPELR–201697 26 at 44: N.I CORPORATION OF NIGERIA VS. POWER & IND. ENGINEERING CO. LTD (1986) 1 NWLR (PT. 14 and NNSC VS. SABANA LTD (1988) 2 NWLR (PT. 74) 23. I so hold and answer this issue in the affirmation and in favour of the 1st and 2nd Respondents and against the Appellant.

ISSUE NO. 3
“Whether the lower Court’s award of damages against the Appellant cannot be justified, having regard to the evidence before it? Distilled from grounds 9 and 10 of the amended grounds of appeal.

The Appellant has submitted that the 1st and 2nd Respondents’ rights were not breached going by the provisions of Section 35 (1) (b) and (c) of the Constitution

which he reproduced, and submitted further that the 1st Respondent was granted bail on 21/7/2011 referring to page 138 of the Record, but that he jumped bail and also the Police that granted him bail had the duty to bring him before the Court; Appellant also referred to the order of the Federal High Court made on 27/1/2014 which said order was a subject of appeal.

This application was filed under Section 46 (1) which provides thus: –
“46 (1) Any person who alleged that any of provisions of this Chapter has been, is being or liable to be contravened in any state in relation of him may apply to a High Court in that State for redress.”
The words “High Court” have been interpreted to mean the Federal High Court, a State High Court or the High Court of the Federal Capital Territory city. See GAFAR VS. GOVERNOR OF KWARA STATE (supra).
Under this Section the Applicant needs not wait until damages to his rights are complete before taking action. See RANSOM KUTI VS. A.G FEDERATION (2001) FWLR (PT. 80) 1637 and 1681; ABDULHAMID VS. AKAR (2006) 13 NWLR (PT. 996) 127.

From the Records of this appeal it

is clear that, while the 3rd – 6th Respondents, on being served with the order of the lower Court, on the need to maintain status quo obeyed the order by not attempting to arrest and detain the 1st and 2nd Respondents any longer, the Appellant continued to trail the 1st and 2nd Respondents. The Appellant who contested the 2011 General Election continued to write petitions against the 1st and 2nd Respondents, threatening to have them arrested and detained.

There was a criminal proceedings in Charge No. FHC/OW/CR/72c/2013 against the 1st and 2nd Respondents. The 3rd – 6th Respondents did not pursue the case anymore. However, the Appellant continued the pursuit of his ambition to arrest and detain the 1st and 2nd Respondents.

From the Records, this matter started in 2011 and continued up to 2015 based on election into the Imo State House of Assembly. It is clear that the legal tussle was politically motivated. See paragraphs 30 – 34 of the affidavit of 1st and 2nd Respondents on pages 13 – 15 of the Record; paragraph 8 of the counter affidavit of the Appellant on page 144 of the Record.

It is clear from Exhibit D at pages

177 – 181 of the Record that the Appellant personally sought and retain the services of one N. U. Ekong and Associates to conduct a forensic analysis which was done and result submitted to the Appellant, without any reference to the 3rd-6th Respondents.

Based on the above I hold the firm view that the Appellant set the law in motion against the 1st and 2nd Respondents and pursued it to the stage of personal investigation and prosecution. I agree with the submissions of the 1st and 2nd Respondents that the Appellant is personally responsible for the peril of the 1st and 2nd Respondents based on election contests of 2011 and the anticipated 2015.

The averments in paragraphs 21 – 38 of the affidavit of the 1st and 2nd Respondents were not denied or controverted in any way by the 3rd – 6th Respondents and so deemed admitted. See OGOEJEOFO VS. OGOEJEFOR (2006) 3 NWLR (PT. 966) 205

On this note I resolve issue No. 3 in the affirmative, against the Appellant and in favour of the 1st and 2nd Respondents.

Having resolved the three issues in favour of the 1st and 2nd Respondents, I hold that this appeal has no merit and ought to

be and is hereby dismissed. I hereby affirm the decision of Hon. Justice N. B. Ukoha J. of the Imo State High Court, sitting at Owerri in Suits No. HOW/231/2014 and HOW/256/2014 which were consolidated.

The Appellant shall pay the cost of this appeal assessed at N100, 000. 00 to the 1st and 2nd Respondents.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I agree

Appearances:

Chief C. O. C. Ezerebo Esq. For Appellant(s)

Epelle Esq. – for the 1st and 2nd Respondents. For Respondent(s)