GLOVER PRINCESS v. EXECUTIVE GOVERNOR OF OGUN STATE & ORS
(2018)LCN/11845(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/IB/206/2016
RATIO
EVIDENCE: AFFIDAVIT
“It is trite law that paragraphs of an Affidavit which lack evidential value or has (sic) infractions, the Court has no time to waste with but strike out those paragraphs. See Saidu Ahmed & Ors v. Central Bank of Nigeria (2013) LPELR 20744 (SC)…An Affidavit or Counter-affidavit may therefore be described as the variant of oral evidence of a fact in issue, in a documentary form. See Section 107 of the Evidence Act, 2011 and the cases of Busari v. Oseni (1992) 4 NWLR (pt. 135) 688 at 715 & 718; Ume v. Nigeria Renowned Trading Co. Ltd (1997) 8 NWLR (pt. 516) 344 at 352 and Josien Holdings Ltd v. Lornamead Ltd (1995) 1 NWLR (pt. 371) 257 at 265 paragraph F.” PER HARUNA SIMON TSAMMANI, J.C.A.
JUSTICE
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria
NONYEREM OKORONKWOJustice of The Court of Appeal of Nigeria
Between
GLOVER PRINCESS – Appellant(s)
AND
1. EXECUTIVE GOVERNOR OF OGUN STATE
2. OGUN STATE JUDICIARY
3. OGUN STATE TELEVISION AUTHORITY
4. OGUN STATE COMMISSIONER OF POLICE
5. CHIEF JUDGE OF OGUN STATE HIGH COURT
6. MRS. OLATOKUNBO OLOPADE
7. MR. O. S. OLOYEDE
8. MRS. TITILAYO BELLO
9. ANGEL ODIACHI
10. FESTUS EZE EKE – Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Federal High Court sitting in Abeokuta, Ogun State delivered by A. T. Mohammed, J on the 29th day of February, 2016 in Suit No: FHC/AB/CS/75/2015.
In an Application for the Enforcement of her Fundamental Rights, the Appellant as the Applicant, had by a Motion on Notice dated the 9/10/2015 and filed on the same day, sought the following reliefs:
(A) A DECLARATION that the illegal and unlawful detention of the Applicant, false imprisonment of the Applicant; illegal and unlawful ejection of the Applicant from her house; the unlawful taking away of Applicants house, goods, properties, monies, certificates, books documents by the Respondents; the unlawful and illegal detention and incarceration of the Applicant at the Ifo Police Station, Eleweran SCID Abeokuta and Ibara Old Prisons, Abeokuta for three weeks; the arraignment of the Applicant at both the Ifo Magistrate Court and Isabo-Abeokuta Magistrate Court as a fake lawyer, refusal of bail and remanding of the Applicant at Ibara Old Prisons, Abeokuta for two weeks are illegal, unlawful, unconstitutional, null and void.
(B) An Order that all these are illegal as all these violate Applicants human rights as guaranteed by Sections 33, 34, 35, 39, 41, 42, 43 of the 1999 Constitution of the Federal Republic of Nigeria as amended, Articles 2, 3, 4, 5, 6, 18(3), 20, 21, 22 of the African Charter on Human and Peoples Rights; Article 38 of the Statute of the International Court of Justice.
(C) An Order that the Applicant should be put back into her house immediately and all the goods, monies, properties, documents, books, certificates with 500 million naira taken away from her be immediately returned to her.
(D) An Order that the removal of Applicants Fifteen Million Naira cash by Mrs. Titilayo Bello, her bailiff and Festus Eze Eke, from the Applicants house which she was using in building the house and the continuous seizure of such money by Mrs. Titilayo Bello is highly unlawful, unconstitutional, illegal, null and void; and therefore should be returned to the Applicant immediately.
(E) A declaration that an order that the Chief Magistrate, Mrs. Titilayo Bello sitting on the bench and refusal to do justice but was rather doing injustice and demanding for a bribe of 15 million from the Applicant, of which refusal to give such bribe to her resulted in her blackmailing the Applicant as a fake lawyer and handed her to Ifo Police, arraigned the Applicant before herself and later moved the Applicant to Eleweran, Abeokuta, Applicant was detained and locked up in the cell for days, was arraigned again at Isabo Chief Magistrate Court, denied bail in a bailable offence, sent to prison for another two weeks before Applicant was granted bail on appeal to the High Court; that all these are gross infringements of Applicants fundamental human rights, illegal, and unlawful, null and void which resulted to both physical health, mental, social, economic, financial, emotional and psychological tortures, losses, damages and pains to the Applicant and is highly condemnable and Applicant is demanding for 50 million naira as compensation from the Respondents.
(F) An Order that the videoing, airing and showing of the Applicant as a fake lawyer on Ogun State Television, internet and other radio and television houses courtesy of the Respondents invitations and permissions to video and air the Applicant as a fake lawyer even when the Applicant is a real lawyer, and yet this was done to defame the Applicant into sending her to jail in order not to be able to be out to tell the true story are unlawful, null, void, illegal, highly defamatory and that the Applicant has been affected both physically, healthwise, mentally, socially, economically, financially, emotionally and psychologically; Applicant has suffered a lot of tortures, losses, damages and pains; and must be compensated for the losses, damages, pains, agonies with the sum of 50 billion naira as compensation for damages and losses incurred and suffered.
(G) An Order that the Applicants further claim of another 50 billion naira from the Respondents as damages and compensation on the infringement of her Fundamental Rights, false imprisonments, illegal and unlawful detention unlawful ejection, breach of contract is in order and that this Honourable Court would so order by granting the Applicant the sum as compensation for these damages, agonies, pains and losses.
(H) AN ORDER OF URGENT INJUNCTION restraining the Respondents, the Ogun State Television Authority and all other radio, television and media houses in Ogun State or any other state at all, from further showing and broadcasting of the defamatory and libelous videos which are illegally and wrongfully portraying the Applicant as a fake lawyer because the Applicant is actually a genuine and real lawyer.
(I) AN ORDER directing both the Respondents and the Ogun State Television Authority and all other radio, television and medial houses in Ogun State and any other State, that the Ogun State television authority has given the videos and tapes to produce all the videos and audio tapes before this honourable Court for destructions.
(J) AN ORDER of Mandamus, compelling the Nigeria Police at the State C.I.D, Abeokuta to return to the Applicant her enlarged call to bar portraits and all other certificates and documents of the Applicant that are in their possession because Applicant is not a fake lawyer but a real and genuine lawyer; and to also dismiss the unlawful and illegal charge of a fake lawyer put up against the Applicant before Magistrate Araba of Isabo, Abeokuta because no citizen should be put through the rigours of trial in a criminal proceeding when there is no prima facie evidence. And the Applicant has been attending Isabo Magistrate Court before His Worship Araba since the 29th day of June, 2015 in a Criminal Charge that is highly frivolous, malicious and should not have been in existence; so much so that the Applicant had an accident on the 10th day of September, 2015 on her way to the said Court because of the said malicious and frivolous criminal charge that lacks merit.
(ii) An Order compelling the Nigeria Police to dismiss the said malicious criminal charge of fake lawyer against the applicant which should not even have come into existence in the first place, because the Applicant is not a fake lawyer and that the Applicant did not appeal before her worship and also most importantly did not go to the IFO Chief Magistrate Court as Counsel but as an Applicant in her own personal matter.
(k) An Order restricting the Respondents or their agents from publishing further defamatory publications against the person of the Applicant on the internet or any other media of communications at all.
(L) An Order compelling the Nigeria Police to arrest and prosecute the said Counsel, Festus Eze Eke for perjury and sharp practices because it is highly criminal that the said Counsel went into the witness box and lied on oath that he knows the Applicant very well, when in fact and in reality the Applicant does not know him and his principal has never had any dealings with them, not on this property and not on any other occasion at all. The said Festus Eze Eke misrepresented all the facts and grossly misled the Court with all his false Claims.
(M) An Order compelling the said Festus Eze Eke and his so called principal, Angel Odiachi to produce any legal and tenancy agreements where they signed agreements with the Applicant and the Applicant portrayed herself as Princess Dum, or any other document where the Applicant had any dealings with them and claimed to be Princess Dum.
(N) An Order nullifying and declaring that both the judgment of the Chief Magistrate and the execution are all illegal, null and void, and that the Applicant be put back into the house immediately with all her properties, monies, goods, documents, certificates and books returned to her immediately.
(O) An Order recognizing and declaring that the parties and issues joined and sued in this matter are properly joined because they are proper, necessary and desirable parties and issues in this matter in order to avoid duplicity of suits.
(P) An Order compelling the said Respondents to produce the accurate inventory of all the goods, monies, properties, books, certificates and documents they took away from the said house after the said Counsel, Festus Eze Eke and Bailiff to the said Chief Magistrate Titilayo Bello did the execution and forced the house open few days after the judgment without the notification and approval of the appropriate Sheriffs, Bailiff and with no police present to also take inventory of all the items and monies found and taken away from the said house.
(Q) AND FOR SUCH Further Order or Orders as this honourable Court may deem fit to make in these circumstances.
The Motion was supported by an Affidavit of 34 paragraphs deposed to by the Applicant/Appellant herself, and a Written Address. Attached to the Affidavit were some documents marked as Exhibits A F respectively.
In opposition to the Motion, the 9th and 10th Respondents filed a Counter-Affidavit of 28 paragraphs, deposed to by the 10th Respondent. Annexed to the said Counter-Affidavit were ten (10) Exhibits marked as Exhibits FE1 FE10 respectively. The 9th and 10th Respondents also accompanied the Counter-Affidavit with a Written Address. The 1st and 3rd Respondents also filed a Joint Counter-Affidavit of 13 paragraphs deposed to by one Kola Oso, an Executive Officer (Information and News) with the 3rd Respondent. The 2nd, 5th, 6th, 7th and 8th Respondents, also filed a Joint Counter-Affidavit of 49 paragraphs deposed to by the 8th Respondent, to which were attached several documents marked as Exhibits A1 G respectively. The 1st 8th Respondents then filed a Joint Written Address settled by Miss S. O Osanyin of Counsel in the Ogun State Ministry of Justice. The Motion was heard on the 19/2/2016 when the parties adopted their Written Addresses. Thus, in a considered judgment titled RULING, delivered on the 29/2/2016, the learned trial Judge dismissed the Applicant/Appellants Motion.
Being aggrieved by the decision, the Applicant/Appellant has initiated this Appeal.
The Notice of Appeal consisting of five Grounds of Appeal was filed on the 09/5/2016. In compliance with the Rules of this Court, the Appellant filed and served an Appellants Brief of Arguments. It was dated and filed on the 20/6/2016.
Five (5) issues were distilled therein for determination as follows:
1. Whether it was proper for the learned trial Judge to hold and rule on the last paragraph of page 40 of his Ruling and I quote, I have carefully examined the nature of the reliefs sought by the Applicant, reliefs A – Q are reproduced above in the course of this Ruling, I am of the firm belief that the reliefs sought are not cognizable under the Human Rights (Enforcement Procedure) Rules being ancillary to the main issues and claim? – Thereby denied the Appellant justice and fair hearing. [Ground One].
2. Whether it was proper for the learned trial Judge to hold and rule in his Ruling and I quote, this Court lacks jurisdiction to entertain or grant reliefs that are in the nature of Appeal against decisions of competent Courts established under the Constitution and/or on matter that is pending before a competent Court and I so hold. Thereby denied the Appellant justice and fair hearing?. [Ground Two].
3. Whether it was proper for the learned trial Judge to hold and rule on page 42 of his Ruling and I quote, I have examined the above provision vis-??-vis the averments contained in the Applicants Affidavit in Support of this Application, particularly, paragraphs 2 34 and hold that the averments contained therein offend the provisions of Section 115(2) of the Evidence Act, 2011. It is trite law that paragraphs of Affidavit which lack evidential value or have infractions, the Court has no time to waste with but to strike out those paragraphs. See SAIDU AHMED AND ORS Vs CENTRAL BANK OF NIGERIA (2013) LPELR 20744 (SC). Accordingly, paragraph 2 34 of the Applicants Affidavit in Support are hereby struck out. Having struck out the above paragraphs, I am of the view that the Applicant has failed to make out a case of violation of her fundamental rights. This Court will therefore not resolve any other issues formulated by the parties. Consequently, the Application dated 9th October, 2015 is hereby dismissed. No order as to cost is made. This is the Ruling of the Court, this 29th day of February, 2016. End of quotes?
4. Whether it was proper for the learned trial Judge to refuse to resolve all issues formulated by the Appellant and went ahead to hold that the Appellant has failed to make out a case of violation of her fundamental rights; and dismissed a very good case that has lots of merits and credibility, thereby denied the Appellant fair hearing and justice?.
5. Whether it was proper for the learned trial Judge to merely reproduce the Respondents arguments and submissions leaving out those of the Appellant; and even worse still did not also resolve those issues in order to bring out the merits of the case; but merely reproduced them in his Ruling, thereby did not do justice to this case and denied the Appellant justice and fair hearing?
[Ground Five].
The 1st, 2nd, 3rd, 5th, 6th, 7th & 8th Respondents Brief of Arguments was dated the 24/1/2017 and filed on the 26/1/2017 but deemed filed on the 06/4/2017. Therein, four (4) issues were distilled for determination as follows:
1. Whether the Appellant was denied justice and fair hearing based on the fact that the reliefs sought by the Grounds 1 & 4 Appellant claims are not cognizable under the Human Rights (Enforcement Procedure) Rules.
2. Whether the trial Court lacked jurisdiction to entertain or grant the reliefs sought by the Appellant.
[Ground 2].
3. Whether the averments contained in the Appellants Affidavit in Support of Application do not offend the provisions of Section 115(2) of the Evidence Act, 2011. [Ground 3].
4. Whether his Lordship erred by reproducing arguments and submissions of the Respondents leaving out those of the Appellant and not resolving issues raised. [Ground 5].
The 9th and 10th Respondents Brief of Arguments, settled by Festus Eze Eke was dated and filed on the 15/2/2017 but deemed filed on the 29/11/2017. Therein, five (5) issues were distilled for determination as follows:
1. Whether the Lower Court was right to hold that the reliefs sought by the Appellant are not cognizable under the Human Rights (Enforcement Procedure) Rules, being ancillary to the main issue and claim? [Ground One].
2. Whether the Lower Court was right to hold that it lacks jurisdiction to entertain the reliefs sought by the Appellant as they are in the nature of an Appeal against the decision of a competent Court and/or matter pending before a competent Court?
[Ground Two].
3. Whether the Lower Court was right to hold that the Affidavit in Support of the Appellants Application offends the provision of Section 115 of the Evidence Act and that the offensive paragraphs of the Affidavit be struck out? [Ground Three].
4. Whether the Appellants Fundamental Right was infringed by the Respondents, particularly the 9th and 10th Respondents as alleged by the Appellant in its (sic: her) Application of the 9th day of October, 2015?
5. Whether the Appellants Right to Fair Hearing was breached by the Lower Court, in considering the Appellants Application dated 9th day of October, 2015 against the Respondents?
[Ground Five].
Before I proceed to determination of the issues, I wish to point out that, the 1st, 2nd, 3rd, 5th 8th Respondents raised and argued a Preliminary Objection at pages 3 7 (paragraphs 3.1 3.8) of their Brief of Arguments. However, before I consider the Preliminary Objection, I consider it necessary for a proper appreciation of the Appellants case before the trial Court, which is now on Appeal, to set out, even briefly, the facts that led to the initiation of the suit before the trial Court.
Now, the brief facts of the case are that the 9th Respondent rented out her three (3) bedroom bungalow situate, lying and being at No. P11A, Sparkling Estate Isheri Olofin in Ifo Local Government Area of Ogun State to one Princess Dum at the rate of N18,000.00 per annum for a period of two years. That, at the expiration of the tenancy, the said tenant (Princess Dum) did not renew same, but locked up the bungalow and abandoned same, such that the bungalow went into dilapidation. That all efforts to locate the said Princess Dum failed as her whereabouts was not known. That, it was in that situation that the 9th Respondent (Abigail Odiachi) gave power to the 10th Respondent vide power of Attorney dated 5/1/2013 to recover the said three bedroom bungalow from the tenant/occupier. That armed with the Power of Attorney, the 10th Respondent searched everywhere for the said tenant (Princess Dum) without success.
The 9th and 10th Respondents contended that it was in that situation that the 10th Respondent proceeded to serve the said Princess Dum a Notice of the Owners Intention to proceed to Court to recover possession of the said bungalow by pasting the said Notice on the entrance door to the 3 bedroom bungalow, and that it was after the expiration of the Notice, that the 9th Respondent filed a Summons at the Chief Magistrates Court, Ota. That several efforts were made by the Bailiff of the Magistrate Court to serve the Summons on the said Princess Dum without success; and therefore, on the Application of the 10th Respondent, the Magistrates Court granted an order Ex-parte, to serve same by substituted means, to wit: by pasting same on the entrance door of the property in dispute. That pursuant to that Ex-parte Order, the Summons together with the enrolled order for substituted service were served as ordered by the Bailiff of the Chief Magistrate Court, Ota.
It is also deposed that, when the matter came up for hearing in the Chief Magistrate Court, Ota on the 25/11/2014, the learned Chief Magistrate confirmed that service was effected in accordance with the Ex-parte Order but the said Princess Dum did not appear in Court. That, despite the absence of the said Princess Dum, the learned Chief Magistrate further adjourned the matter so as to afford her (Princess Dum) another opportunity to put in her defence. That the matter could not go on due to industrial action by the Ogun State Judiciary Workers till it was transferred from Ota to Ifo Chief Magistrates Court upon the creation of Ifo Magisterial District.
That, when the matter came up before the Chief Magistrates Court, Ifo, it was further adjourned to the 4/6/2015 with an order that hearing notice be issued and served on the Defendant; Princess Dum. Again, hearing Notice was issued and served on the said Princess Dum by pasting same on the entrance door of the bungalow. That when the matter came up on the 4/6/2015, the said Princess Dum was not in Court nor was she represented; and upon being satisfied that she was duly served the hearing Notice and the Originating Process, the Chief Magistrate (8th Respondent) permitted the 10th Respondent, as Attorney to the 9th Respondent to give evidence in proof of their case. The said 10th Respondent testified orally and tendered some Exhibits; and the learned trial Chief Magistrate delivered judgment dated 4/6/2015 but directed that the judgment should not be executed until 7 days after the judgment had been served on the Defendant; Princess Dum.
It is also the case of the Respondents that, a Certified True Copy of the judgment was then pasted on the entrance door of the 3 bedroom bungalow pursuant to order of Court, and that on the 16/6/2015, the Court granted leave to the 9th Respondent through her Attorney, (10th Respondent), to forcefully open the 3 bedroom bungalow as the Defendant, Princess Dum had abandoned the bungalow after locking same up for more than four (4) years. The said order was executed on the 23/6/2015 by the officials of the Court acting in their official capacity.
That, on the 25/6/2015, the said Princess Dum, who now called herself Glover Princess, suddenly appeared in Chief Magistrates Court with a copy of the judgment which she had removed from the entrance door of the 3 bedroom bungalow. That the said Princess Dum, who styled herself as Glover Princess introduced herself to the Court officials as a lawyer, though she could not answer certain elementary questions pertaining law. That, not being satisfied that she was a Legal Practitioner, the Court officials called in the Police; and the Police invited her to their station for further interrogations. That, as she was unable to convince the Police that she is truly a Legal Practitioner, she was promptly arraigned before the Chief Magistrate Court, Abeokuta.
The 2nd, 5th, 6th, 7th and 8th Respondents case is as deposed to by the 8th Respondent, Mrs. Titilayo Bello. The summary of it as deposed by the said 8th Respondent is that, she was in her chambers on the 24/6/2015 when one of her clerks, one Mr. Alamu Taoreed Ayodeji came in to inform her that a Lawyer requested to see her. That, though it was not in her habit to admit lawyers into her chambers, she agree to see the said lawyer who claimed to have been directed by the Chief Judge of Ogun State to see her.
That, when the lawyer came in, she introduced herself as Princess Glover, a lawyer practicing in Lagos, and that she had been directed by the Chief Justice of Nigeria through the Chief Judge of Ogun State to see her (8th Respondent). That the said Glover Princess (Appellant herein) complained that judgment was entered against her without service of process on her.
On that note, the 8th Respondent decided to look into her complaint, and that upon going through the case file, she discovered that judgment in the matter was entered on the 4/6/2015. That upon further check, the 8th Respondent discovered that the name on the case file was Princess Dum but the Appellant introduced herself as Glover Princess, and that when the attention of the Appellant was drawn to the discrepancy, she stated that she rented the 3 bedroom bungalow in the name of Princess Dum. That the Appellant then requested her (8th Respondent) to assist in stopping the execution of the Court order but was told that as a lawyer, she should know what to do. That on the 25/6/2015 she saw the case file on her table with an application and a request that it be set down for hearing.
That, the 8th Respondent however discovered some irregularities on the Application as a result of which she directed the Principal Registrar of the Court to invite the Appellant.
The 8th Respondent stated that considering the irregularities, she decided to probe further, so as to ensure that the Applicant/Appellant is indeed a Lawyer called to the Nigerian Bar. That the Appellant then became agitated and started shouting at the 8th Respondent and threatened to deal with her (8th Respondent). That the Appellant then accused the 8th Respondent of having been bribed to enter judgment against her and that she will ensure that she is removed from the bench. That at that point, the 8th Respondent decided to call the Chief Registrar (7th Respondent) and related to him what was going on, and the Chief Registrar (7th Respondent) advised her to hand over the Appellant to the police. That based on the directive of the 7th Respondent, the 8th Respondent handed over the Appellant to her police orderly, who then took her to the Police Station at Ifo. That the following day, being the 26/6/2015, the Commissioner of police directed that the Appellant be taken to the State CID office at Eleweran, Abeokuta for further investigation.
That on the 29/6/2015, the Appellant was arraigned in the Chief Magistrate Court but was released on bail on the order of the High Court of Justice, Abeokuta on the 13/7/2015. When the Appellant was released on bail, she wrote a Petition to the National Judicial Counsel demanding that the Chief Judge of Ogun State (5th Respondent) and the (7th & 8th Respondents) be removed from office, and the Petition was investigated and dismissed as baseless.
The Appellant as Applicant in the Court below, deposed that, she had labored to finish building the house subject of the dispute between her and the 9th Respondent on the agreement that the money she had spent would be included in her rent or used for outright purchase of the house. That she had spent close to ten million (N10m) in building and trying to put finishing touches to the house and the surrounding environs. That she moved into the house on the 31/12/2014 with a lot of legitimate goods of high quality, properties, documents, books, certificates worth about 500 Million Naira and the sum of Fifteen Million Naira (N15m) cash.
That, to her surprise, the said house was forced open on the 23/6/2015 by the Chief Magistrate Ifo, Festus Eze Eke (8th & 10th Respondents) and a Bailiff on the Claim that she (Appellant) had locked up the house and disappeared after her rent expired. That a few days after the judgment by the Chief Magistrate, Ifo, the house was forced open and Appellants properties, goods, monies, documents, certificates, properties and even photographs were taken away.
The Appellant complained bitterly about the judgment of the Chief Magistrate on a number of grounds in her Affidavit in Support of her application subject of this appeal. That, she wanted to appeal to the High Court against that decision of the magistrate, when the said Chief Magistrate (8th Respondent) invited her (Appellant) into her chambers and tried to persuade her not to go on appeal, but that she (Appellant) should apply to set aside the judgment. That she did file the Motion to set aside the judgment but instead of attending to the Motion, the Chief Magistrate (8th Respondent) demanded a bribe of N1.5million after blackmailing her as a fake lawyer. That when she refused to yield to the demand of the 8th Respondent, she was branded a fake lawyer and handle over to the Police as a result of which she was incarcerated for weeks.
The Appellant then narrated how she was paraded on Television and other media including the internet. That the 8th Respondent instigated her arrest and detention by the Police so that she would not be able to appeal the judgment. That as a result of the incarceration, defamation, false imprisonments, unlawful and illegal ejection, breach of contract and infringement on her Fundamental Rights she suffered a lot of great pains, agonies, losses and damages both healthwise, physically, socially, emotionally, psychologically, financially. The Appellant then demanded for compensation in the sum of fifty billion naira (N50Billion) from the Respondents. She also demanded the return of N15 Million allegedly taken away in the course of execution of the judgment and a further sum of Fifty Billion Naira (N50 Billion) for the infringement on her Fundamental Rights.
The above summarized facts are what I am able to deduce from the circumstances leading to the inition of the action and thus, this appeal. As I stated earlier, before I proceed to a determination of the substance of this appeal, I need to first of all consider the Preliminary Objection raised by the 1st, 2nd, 3rd, 5th 8th Respondents.
Now, learned Counsel for the 1st, 2nd, 3rd, 5th 8th Respondents had argued that Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal are incompetent and should be struck out. That, grounds of appeal must be succinct and concise complaints against the decision being appealed against. The case of Sosanya v. Onadeko & Ors (2005) All FWLR (pt. 255) 1000 at 1031 was cited in support. It was then submitted that the Grounds of Appeal herein did not lucidly state the complaints of the Appellant against the judgment of the trial Court. The case of Omega Bank (Nig.) Plc v. O.B.C Ltd (2005) All FWLR (pt. 249) 1964 was also cited in support, and to further contend that the Grounds of Appeal are vague, general in terms and argumentative and thus violated Order 3 Rules 1(3) and (4) of the Court of Appeal Rules. We were accordingly urged to strike same out for being incompetent.
Now, Order 7 Rule 1 (3) of the Court of Appeal Rules, 2016 (Order 3 Rule 1(3) of the Court of Appeal Rules, 2011) stipulate that:
Any Ground which is vague or general in terms or which discloses no reasonable Ground of Appeal shall not be permitted, save the general Ground that the judgment is against the weight of the evidence, and Ground of Appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own Motion or on Application by the Respondent.
As indicated above, this provision which is in pari materia with earlier provision thereon, has been interpreted in several decisions of the Supreme Court and this Court. The accepted position therefore is that, where the parties to an appeal, and the Court are not misled by the contents of a Ground of Appeal, complaint as to its form will be considered a mere technicality which does not occasion a miscarriage of justice and therefore inconsequential. See Ogboru v. Uduaghan & Ors (2012) 2 3 S.C. p. 66; Dakolo & Ors v. RewaneDakolo & Ors (2011) 16 NWLR (pt.1272) 22; Eneh v. Ozor & Anor (2016) LPELR 40830 (SC) and Saraki v. Kotoye (1990) 6 S.C 1. See also Lagga v. Sarhuna (2008) 10 NWLR (pt.114) 427.
The whole purpose of a Ground of Appeal therefore, is to give sufficient notice and information to the Respondent of the exact nature of the complaint against the judgment appealed against. Once the Ground of Appeal is able to convey to the parties and the Court the nature of the Appellants complaint, it may not be struck out for being imprecise, vague, inaccurate, etc. It should be noted that the purpose of drafting Grounds of Appeal is primarily to ensure fairness and justice to the parties. I have been able to careful peruse the five (5) Grounds of Appeal filed. While I agree that they appear to be rigmarole, verbose and large, they are able to convey to me the real complaints of the Appellant against the judgment appealed against. I therefore hold that, it would amount to dwelling on technicality to strike them out. This ground of the objection is accordingly discountenanced.
Another Ground for the objection is that, the 6th, 7th and 8th Respondents who are the Chief Judge, Chief Registrar and Chief Magistrate of Ogun State are creations of statutes, to wit: Section 271 of the Constitution of the Federal Republic of Nigeria, 1999, Section 7 of the Magistrates Courts Law, Laws of Ogun State, 2006 and Section 3 of the Sheriffs and Civil Process Act, Laws of Ogun State respectively. That yet, the 6th, 7th and 8th Respondents have been sued in their personal capacities and not in their official capacities. Learned Counsel then cited the cases of HDP v. INEC & Ors (2009) LPELR 1375 (SC) and A. Akunne Eddy Ononye v. Miss. Nneka Odita & Anor (2007) LPELR 8297 (CA) in support.
It was further submitted that, the 6th, 7th and 8th Respondents are judicial officers and therefore protected from being sued in any civil Court for any act done or ordered to be done by them in the discharge of their judicial duties, whether or not within the limits of their jurisdiction. Section 71 of the High Court Law, Laws of Ogun State, 2006 and Section 55 of the Magistrate Courts Law, Vol. 3, Laws of Ogun State, 2006; and the cases of SBM Services (Nig.) Ltd & Ors v. Okon & Ors (2003) LPELR 7292 (CA); Egbe v. Adefarasin & Anor (1985)16 NSCC (pt. 1) 643; (1985) 1 NWLR (pt. 3) 549; Ndefo v. Obiesie (2000) 15 NWLR (pt. 692) and Onitiri v. Ojomo 21 NWLR 19 at 23 were cited in support.
It was then submitted that, the scope of the judicial immunity is absolute and unqualified, and that so long as the Judge is acting in his judicial capacity, he is protected. We were accordingly urged to hold that the judicial immunity avails the 6th, 7th and 8th Respondents in this case.
I have been able to avail myself of the High Court Laws, Vol. 2, of the Laws of Ogun State, 2006 and the Magistrate Courts Law, of the Vol. 3, Laws of Ogun State, 2006. Section 71 of the High Court Laws of Ogun State (supra) stipulate that:
71(1). No Judge or other person acting judicially should be liable to be sued in any Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction.
(2) No officer of any Court or other person bound to execute the lawful warrants or orders of any such Judge or other person acting judicially, shall be liable to be sued in any Court, for the execution of any warrant or order which he would be bound to execute, if within the jurisdiction of the person issuing the same.
The provisions of other statutes in pari materia with this provision have been the subject of judicial interpretation in several cases. The overwhelming judicial position is that a Judge of Superior Court of record acting within jurisdiction in respect of the matter complained of, or where acting in excess of jurisdiction in respect of the matter complained of, cannot be sued for any act or order made by him so long as he believes himself to have the jurisdiction to do the act or make the order complained of.
Thus, so long as the judicial officer has the honest belief that he is acting within jurisdiction, though he may be mistaken, or even ignorant of the law, is not liable for an action arising therefrom. See Egbe v. Adefarasin & Anor (1985) 1 NWLR (pt. 3) 549. Thus, in Egbe v. Adefarasin (supra) cited above, the Supreme Court, per Karibi-Whyte, JSC explained the purpose of Judges immunity in the following words:
In Taaffee v. Downes (supra), Fox, J., stated the principle at considerable length as follows:- The principle at law of exemption from being sued for matters done by Judges in their judicial capacity is of great importance. It is necessary to the free and impartial administration of justice that the person administering it should be uninfluenced by fear and unbiased by hope. Judges have not been invested with this privilege for their own protection merely, it is calculated for the benefit of the people by ensuring to them a calm, steady and impartial administration of justice; it is a principle coeval with the law of the land and the dispensation of justice in this country; and is founded on the very frame of the Constitution, it is to be met with in the earliest books of law, and has been continued down to the present time without one authority or dictum to the contrary, that I have been able to find.
Similarly, Section 55 of the Magistrates Court Law, Vol.3, Laws of Ogun State 2006 stipulate that:
55(1). No Magistrate, justice of the peace or other person acting judicially, shall be liable to be sued in any civil Court for an act done or ordered to be done by him, in the discharge of his judicial duty whether or not within the limits of his jurisdiction:
Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of. (2) No officer of any Court or other person bound to execute the lawful warrants or orders of any such Magistrate, justice of the peace or other person acting judicially, shall be liable to be sued in any civil Court, for the execution of any warrant or order which he would be bound to execute, if within the jurisdiction of the person issuing the same.
This provision is no doubt, a statutory restatement of the principles of law enunciated in Egbe v. Adefarasin (supra). It follows that the 6th and 8th Respondents who are the Chief Judge of Ogun State, and Chief Magistrate in the Ogun State Judicial Service cannot be sued personally in their names for any act or order made or done by them in the discharge of their judicial duties. The Affidavit evidence deposed to by the parties reveal clearly, that whatever claim the Appellant has against them, arose from the acts of the said 6th and 8th Respondents in the execution of their judicial or official functions. The Affidavit evidence also discloses that the 7th Respondent is the Chief Registrar of the Ogun State High Court, but there is no single fact alleging any wrongful act against him. See Monier Construction Co. Ltd v. Azubuike (1990) 3 NWLR (pt.136) 74.
I am therefore of the view and do hold that the 6th, 7th and 8th Respondents have protection by virtue of Sections 71 of the High Court Law of Ogun State (supra) and 55 of the Magistrates Law of Ogun State (supra).
Now on the substantive appeal, I begin with issue three. Arguing the issue, the Appellant quoted from page 42 of the judgment of the trial Court to contend that, the learned trial Judge erred when he held that paragraphs 2 34 of the Affidavit in Support of the Motion on Notice offend the provisions of Section 115(2) of the Evidence Act, 2011. The case of Saidu Ahmed & Ors v. Central Bank of Nigeria (2013) LPELR 20744 (SC); Fed. Airport of Nigeria v. Bi-Courtney Ltd & Anor (2011) LPELR 19742; Bamaiyi v. State (2001) 8 NWLR (pt. 270); Josien Holdings Ltd & Anor v. Lornamead Ltd & Anor (1995) 1 NWLR (pt. 371) 254 and Dr. Oladipo Maja v. Mrs. Costa Samouris (2002) 7 NWLR (pt. 765) 78 at 102 were then relied on to submit that the cases cited do not support the Respondents. That the Affidavit contains facts known to the Appellant in respect of all that transpired from the time the Appellant went to the Chief Magistrates Court, Ifo up to the time she filed the suit for the enforcement of her Fundamental Rights. It was then submitted that the Appellants Affidavit did not offend the provisions of Section 115(2) of the Evidence Act, 2011 and therefore did not lack evidential value.
In response, learned counsel for the 1st, 2nd, 3rd, 5th 8th Respondents argued that the learned trial Judge was right when he held that paragraphs 2, 3, 4, 10, 11, 13, 14, 15, 17, 18, 19 32 of the Affidavit in Support of the Appellants Application run foul of the requirements of an Affidavit as stipulated in the Evidence Act, as the stated paragraphs of the Affidavit are prayers, legal arguments and conclusions. The cases of Josien Holdings Ltd & Ors v. Lornamead Ltd & Anor (1995) 1 NWLR (pt. 371) 254 at 264 and Saidu Ahmed & Ors v. CBN (2013) LPELR 20744 (SC) were then cited to further submit that, the Supreme Court has held that such an Affidavit lacks evidential value and should be struck out. Refering to Sections 86, 87 and 88 of the Evidence, 1990 (now Section 115 of the Evidence Act, 2011) were also cited to submit that, where an Affidavit contains legal arguments, conclusions or other extraneous maters, it would offend Section 115 of the Evidence Act, and may be struck out. That, if such an Affidavit is not struck out, no weight should be attached to it. The cases of Josien Holdings Ltd & Ors v. Lornamead Ltd & Anor (supra) at 264 and Dr. Oladipo Maja v. Mr. Costa Samouris (2002) 7 NWLR (pt. 765) 78 at 102 were cited to urge us to uphold the decision of the trial Court striking out those paragraphs of the Affidavit of the Appellant in Support of the Motion for the enforcement of her Fundamental Rights.
Learned Counsel for the 9th and 10th Respondents also contended that the Affidavit attached in support of the Appellants Application offends Section 115 of the Evidence Act, 2011. The cases of General & Aviation Services Ltd v. Thahal (2004) All FWLR (pt. 211) 1368 at 1390 and Eghobamien v. Federal Mortgage Bank of Nigeria (2002) 7 NWLR (pt. 797) 488 at 500 were cited in submitting that the learned trial Judge was right when he held that the various paragraphs of the Appellants Affidavit are merely inferences, arguments, legal conclusions and objections.
Furthermore, that the learned trial Judge was right in holding that the paragraph of the Appellants Affidavit in Support of her Motion offend Section 115 of the Evidence Act, 2011 as it contained extraneous matters. The cases of Maduka v. Ubah (2015) 11 NWLR p. 207 at 225 (wrong citation) and Abbas v. Tera (2013) 2 NWLR (pt.1338) 284 at 292 were cited in support.
Now, pronouncing on this issue, the learned trial Judge had held at page 292 of the Record of Appeal that:
I have examined the above provisions vis-a-vis the averments (sic: depositions) contained in the Applicants Affidavit in Support of this Application, particularly, paragraphs 2 34 and hold that the averments (sic: depositions) contained therein offend the provisions of Section 115(2) of the Evidence Act, 2011.
It is trite law that paragraphs of an Affidavit which lack evidential value or has (sic) infractions, the Court has no time to waste with but strike out those paragraphs. See Saidu Ahmed & Ors v. Central Bank of Nigeria (2013) LPELR 20744 (SC).
Accordingly, paragraphs 2 34 of the Applicants Affidavit in Support are hereby struck out.
To properly appreciate the position taken by the learned trial Judge, I find it incumbent to refer to, and reproduce the provision of Section 115(2) of the Evidence Act, 2011. It Stipulates that:
115.(1)
(2) An Affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
I am also of the view, that to appreciate the ambit of the stipulations in Section 115(2) of the Evidence Act, 2011, it will be necessary to explain what an extraneous matter is with respect to an Affidavit. To determine the matter, our discourse will require us to understand what an Affidavit is. The entire provisions of the Evidence Act, 2011, (from Sections 107120) dealing with Affidavit do not define what an Affidavit is. To find an answer, I have had recourse to judicial pronouncements on the issue. Generally, an Affidavit has been judicially defined as a statement of fact which the maker or deponent swears on oath to be true to the best of his knowledge, information or belief. A Counter-Affidavit on the other hand is also made on oath in opposition to an Affidavit sworn to in support of an Application.
An Affidavit or Counter-affidavit may therefore be described as the variant of oral evidence of a fact in issue, in a documentary form. See Section 107 of the Evidence Act, 2011 and the cases of Busari v. Oseni (1992) 4 NWLR (pt. 135) 688 at 715 & 718; Ume v. Nigeria Renowned Trading Co. Ltd (1997) 8 NWLR (pt. 516) 344 at 352 and Josien Holdings Ltd v. Lornamead Ltd (1995) 1 NWLR (pt. 371) 257 at 265 paragraph F.
That being so, an Affidavit must only contain facts which are capable of being given in oral evidence in Court. That is why Section 115(1) of the Evidence Act, 2011 stipulates that:
Every Affidavit used in the Court shall contain only a Statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
To that end, Section 115(2) of the Evidence Act, 2011, has prohibited deposing to an Affidavit which is full of objections, prayers or legal arguments or conclusions.
See A.G; Adamawa State & Ors v. A.G; Federation & Ors (2005) 18 NWLR (pt. 958) 581; A.G; Anambra State v. A.G; Federation (2007) LPELR 24343 (SC); Okponipere v. State (2013) 10 NWLR (pt. 1362) 209; Bamaiyi v. State & Ors (2001) 8 NWLR (pt. 715) 270 and Emeka v. Chuba Ikpeazu & Ors (2017) LPELR 41920 (SC). See also General & Aviation Services Ltd v. Thahal (supra) cited by learned counsel for the 9th & 10th Respondents. In the case of Bamaiyi v. State & Ors (supra), the Supreme Court, per Uwaifo, JSC stipulated the test for determining whether an Affidavit contains extraneous matter as follows:
I think the legal position is clear, that in any Affidavit used in the Court, the law requires, as provided in Sections 86 and 87 of the Evidence Act, that it shall contain only a Statement of facts and circumstances derived from the personal knowledge of the deponent, or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter.
The test for doing this, in my view, is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument,or it may be a conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a Statement of facts and circumstances which may be deposed to in an Affidavit. It therefore means that prayers, objections and legal arguments are mattes which may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in Affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.
The effect therefore is that, where any paragraph of an Affidavit offends Section 115 of the Evidence Act, 2011, it should be struck out, or if not struck out, it should be ignored or discountenanced as having no evidential value. See Akinbajo v. Olowolayemo & Ors (2016) LPELR 41946 (CA); Ahmed & Ors v. CBN (2013) LPELR 20744 (SC) and Military Governor of Lagos State & Ors v. Ojukwu & Anor (1986) 1 NWLR (pt.18) 621.
I have carefully perused the contents of the entire paragraphs of the Affidavit deposed to by the Applicant/Appellant in Support of the Motion for the enforcement of her Fundamental Rights. After much reflection, I am of the firm view that paragraphs 2, 3, 6, 7, 8, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 29, 30 and 32 offend the provisions of Section 115(2) of the Evidence Act, 2011. They consist of a cocktail or amalgam of objections, prayers, legal arguments and/or objections. The learned trial Judge was therefore right when he struck same out. They are of no evidential value. This issue, (issue 3) is therefore resolved against the Appellant.
Now on issue one (1), learned counsel for the Appellant contended that, she is shocked that, a Judge sitting on the bench would hold that issues and causes of action that bother on illegal and unlawful detention of the Appellant, false imprisonment, illegal and unlawful ejection of the Appellant from her home, unlawful taking away of Appellants goods, certificates properties, monies, books, documents by the Respondents; the arraignment of the Appellant in the Magistrates Court for being a fake lawyer when she is not. That, she was aired and shown on the Ogun State Television, the internet and other media houses as a fake lawyer, remanded in the Ibara Prisons and refused bail for being a fake lawyer. The Appellant then wondered what else could amount to breach of her Fundamental Rights, if a Judge could sit at the high bench and hold that those facts do not fall within the Fundamental Rights Enforcement Rules but are ancillary to the main issues and claim. The case of Uzochukwu v. Ezeonu II (1991) 6 NWLR (pt. 200) 708 was then cited in support.
The Appellant then submitted that, the onus was on the Respondents to prove that the detention and false imprisonment of the Appellant were lawful, because, having ransacked her properties and taken away all her monies, goods, properties, documents, books, certificates, etc; and having verified the authenticity of her certificates to confirm that she is a genuine lawyer, she should not have been arraigned and detained in prison. The Appellant then cited the cases of Fajemirokun v. C. B. (C. L.) Nig. Ltd (2002) 10 NWLR (pt. 774) 95; Iyere v. Duru (1986) 5 NWLR (pt. 44) 665; Onagoruwa v. I.G.P. (1991) 5 NWLR (pt. 195) 593 and Ejefor v. Okeke (2000) 7 NWLR (pt. 665) 363 were then cited to submit that, her detention and malicious and oppressive criminal prosecution were in breach of her Fundamental Rights.
That, in the instant case, the Appellant has discharged the onus that she was arrested, detained and imprisoned falsely and unlawfully, and that the Respondents set the law in motion against her as they were actively instrumental to her unlawful arrest, illegal and unlawful detention and imprisonment. That, the onus then shifted to the Respondents to prove or show that the detention, find false imprisonments were lawful.
The Appellant went on to argue that, there was indeed no good cause for her arrest, and that even if there was, having ransacked and collected all her certificates and having verified the genuineness of the certificates via the internet, she should have been granted bail, and should neither have been charged nor arraigned. That, if the Respondents were not satisfied with the results of their findings from the internet, they should have verified same from the Nigerian law School, the Supreme Court and the Nigeria Bar Association.
It was then contended that instead, the Respondents hastily framed her up as a fake lawyer, charged her to Court where she was arraigned and detained for more than 48 hours. Several cases, such as Solomon Adekunle v. A.G; of Ogun State (2014) LPELR 22569 (CA): Alhaji Abdulhamid v. Thahal Akar & Anor (2006) 13 NWLR (pt. 996) 127, Odogu v. A.G; Federation (1996) 6 NWLR (pt. 456) 508 at 513; W.A.E.C v. Omodolapo Yemisi Adeyanju (2008) NWLR (pt.1092) 270, FBN Plc v. A.G; Federation (2014) 12 NWLR (pt. 1422) 470 at 500 501, etc were then cited to submit that, all the authorities favour the Appellants case, because the main and principal claims are all within the purview of the Fundamental Rights (Enforcement Procedure) Rules. We were then urged to hold that the claims are not ancillary to the principal relief sought, which is not ipso facto a claim for the Enforcement of Fundamental Right.
Miss S. O. Osanyin of learned counsel for the 1st, 2nd, 3rd and 5th 8th Respondents contended that for the Applicant/Appellant to succeed, she must show that the reliefs sought are within the purview of the Fundamental Rights (Enforcement Procedure) Rules, 2009 made by the Chief Justice of Nigeria in the exercise of the powers granted him under Section 46(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). That, the Fundamental Rights entrenched in the Constitution are very important such that an individual whose rights have been infringed has the right to seek redress in a competent Court of law. The case of Solomon Adekunle v. A.G, Ogun State (2014) LPELR 22569 (CA) was cited in support.
Learned Counsel for the 1st 3rd & 5th 8th Respondents then contended that, to initiate a claim under the Fundamental Rights (Enforcement Procedure) Rules (supra), the Applicant must show that the principal relief sought is for the Enforcement of a Fundamental Right, and not that from the nature of the claim, the grievance is ancillary to the principal relief which in itself is not a claim for the Enforcement of Fundamental Rights. The cases of Alhaji Abdulhamid v. Thahal Akar & Anor (2006) 13 NWLR (pt. 996) 127 was cited in support, and to further submit that, the Court would examine the claim in order to ascertain whether or not it comes within the ambit of the Fundamental Rights (Enforcement Procedure) Rules. It was then submitted that, if the alleged breach is only incidental or ancillary to the main complaint, it would be incompetent. The cases of Tukur v. Government of Taraba State (1997) 6 NWLR (pt. 510) 549; Egbuonu v. Bornu Radio & Television Corporation (1977) 12 NWLR 29 (wrong citation) and Sea Trucks v. Anigboro (2001) 2 NWLR (pt. 696) 159 at 175 were also cited in support. See also Ejefor v. Okeke (2000) 7 NWLR (pt. 665) 378.
Learned Counsel went on to submit that, in Fundamental Rights cases, the law still remains that he who asserts must prove, and therefore the burden lies on an Applicant who seeks the Enforcement of his Fundamental Rights to establish by credible Affidavit evidence that his Fundamental Right was breached.
That, though the Fundamental Rights are inalienable, they are subject to derogations from time to time as circumstances permit. It was then submitted that, it is only after the Applicant has placed before the Court all the vital and credible evidence regarding the right breached, that the burden would shift to the Respondent. That, in the instant case, the main claim of the Appellant was predicated on the issue of Landlord Tenant dispute that was instituted in the Ifo Magistrate Court, presided over by the 8th Respondent. Learned Counsel then submitted that, in that respect, the main claims of the Appellant are not cognizable under the Fundamental Rights (Enforcement Procedure) Rules (supra). We were accordingly urged to resolve this issue against the Appellant.
Learned Counsel for the 9th and 10th Respondents also argued that, where the breach of Fundamental Right alleged is incidental or ancillary to the main claim or complaint of the Applicant, it will be incompetent to proceed under the Fundamental Rights (Enforcement Procedure) Rules. The cases of Sea Trucks (Nig.) Ltd v. Anigboro (2001) 2 NWLR (pt. 696) at 175; Opara v. S.P.D.C.N. Ltd (2015) 14 NWLR (pt. 1479) 307 at 357 paragraphs D H and Adefila v. Popoola (2015) 8 NWLR (pt. 1460) 186 at 197 200 paragraph G H were cited in support.
Learned Counsel then submitted that, it is clear from a perusal of the facts of this case and the reliefs claimed by the Appellant, that the alleged breach of the Appellants Fundamental Rights is not the main claim. That the main claim/grievance of the Appellant is the judgment entered in favour of the 9th Respondent in respect of tenancy matter filed against one Princess Dum; which judgment was entered by the 8th Respondent. Furthermore, that the Appellant complains about the refusal of the Ogun State High Court to grant her extension of time to appeal the said judgment of the Magistrates, Court against the said Princess Dum. That in any case, the Appellant has since appealed to the Court of Appeal against the decision of the Ogun State High Court refusing her extension of time to appeal. That, the Appeal No: CA/IB/M.216/2015 has been dismissed for lacking in merit and an abuse of Court process.
Learned Counsel for the 9th and 10th Respondents further submitted that, the learned trial Judge was right in holding that the reliefs sought by the Appellant are not cognizable under the Fundamental Rights (Enforcement Procedure) Rules. The cases of Tukur v. Government of Taraba State (1997) 6 NWLR (pt. 510) 549 at 578 paragraphs C D and Borno Radio Television Corporation v. Egbuonu (1991) 2 NWLR (pt. 171) 81 at 90 were then cited to urge us to hold that the Appellants Application brought under the Fundamental Rights (Enforcement Procedure) Rules is incompetent, because the main claim of the Appellant was her dissatisfaction with the judgment entered by the 8th Respondent in favour of the 9th Respondent, in which the 10th Respondent was Counsel.
Now, the settled law, as decided in plethora of authorities is that, for an Application for the Enforcement of any of the Fundamental Rights entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to be grounded, it must be shown by the Applicant that, the breach of a Fundamental Right is the main claim. It therefore means that, if the claim or violation of a Fundamental Right is only incidental or ancillary to the main claim or relief sought, it would be incompetent to institute the action as one for the enforcement of a Fundamental Right. In other words, the main or principal relief sought must be shown to be one for the enforcement of a Fundamental Right, otherwise, the action initiated by way of enforcement of Fundamental Rights under the Fundamental Rights (Enforcement Procedure), Rules, 2009 would be incompetent and liable to be struck out.
See Tukur v. Government of Taraba State (1997) 6 NWLR (pt. 510) 549; Unilorin & Anor v. Oluwadare (2006) (pt. 1000) 751; WAEC v. Akinkunmi (2008) LPELR 3468(SC): Emeka v. Okoroafor & Ors (2017) LPELR 41738 (SC); Mbalian & Ors v. Udende & Ors (2015) LPELR 24789) (CA) and Okafor & Ors v. Ntoka & Ors (2017) LPELR 42794 (CA). Thus, in the case of W.A.E.C. v. Adeyanju (2008) 9 NWLR (pt.1092) 270, Mohammed, JSC said:
I am of the view that the proper approach is to examine the reliefs sought by the Respondent as Applicant before the trial Court as a party seeking to enforce her Fundamental Right, the grounds for seeking the reliefs and the facts relied upon to support the reliefs being sought.
If the reliefs sought, the grounds, upon which the reliefs were sought together with the facts relied upon in support of such reliefs, have disclosed that breach of Fundamental Right is the main plank upon which the reliefs are being sought, then redress may be sought by the Fundamental Rights (Enforcement Procedure) Rules, 1979. However, where the alleged breach of Fundamental Right is incidental or ancillary to the main complaint, it is incompetent to proceed under the rules.”
My Lords, Akaahs, JSC expressed the same view in the case of Emeka v. Okoroafor & Ors (supra), when he held that:
I agree with the submission made by the Learned Counsel for the Respondent that the Fundamental Rights Procedure Rules enshrined in Section 46(1) of the Constitution can be invoked when the main or principal complaint of an Applicant is the enforcement or securing of the enforcements of a Fundamental Right is in issue, then the Court could exercise jurisdiction to entertain the application under the Fundamental Rights (Enforcement Procedure) Rules.”
My Lord, Kekere-Ekun, JSC, in the case of Emeka v. Okoroafor & Ors (supra) cited with approval, the dictum of Niki Tobi, JCA (as he then was) in the case of Peterside v. I. M. B. (1993) 2 NWLR (pt. 278) 712 at 718 719, as follows:
It has now become a fashion or style for parties to push or force the provisions of Chapter IV into most claims which cannot in law be accommodated by the chapter. Parties at times take undue advantage of the general and at time nebulous provision of the chapter and try to tailor in their actions even when the size of the cloth does not fit into it. The provisions of Chapter IV though appear omnibus and at large both in their character and con are chained here and thereby Constitutional gadgets by way of safeguards Counsel by way of his professional calling and expertise may dexterously frame a claim or relief to have the semblance of a breach of a constitutional right as contained in Chapter IV of the Constitution. He does this to give the matter a higher status in the litigation process But where an action does not have a Constitutional flavor in the sense that the provisions of the Constitution are not breached, it cannot be elevated to the status of a Constitutional wrong.
A trial Judge should in such circumstances be able to apply the eye of an eagle to scrupulously examine the character and con of the claim with a view to removing the chaff from the grain and come to grips with the camouflage or disguise in the action. He has to unveil the pretentious legal phraseology of the action and take an appropriate decision.”
The long and short of it all is that, where an action is instituted under the Fundamental Rights (Enforcement Procedure) Rules, the Court would peruse the reliefs sought, the grounds for seeking the reliefs and the Supporting Affidavit, so as to determine the appropriateness or competence of the action under the Fundamental Rights (Enforcement Procedure) Rules. Where the Court finds that, a breach of a Fundamental Right guaranteed by Chapter IV of the Constitution is the main or principal claim, the action instituted under the Fundamental Rights (Enforcement Procedure) Rules would be proper and competent. But, where the breach of a Fundamental Right is merely ancillary or incidental to the main claim, the action would be incompetent and liable to be struck out.
I have carefully perused the facts of this case and the reliefs sought in respect thereof. It is clear to me that the principal or main claim of the Appellant relate to the judgment given against one Princess Dum by the Chief Magistrates Court, Ifo, presided over by the 8th Respondent. The said judgment is in respect of a tenancy matter instituted by the 9th Respondent who was represented by the 10th Respondent (a Legal Practitioner and Attorney to the 9th Respondent).
The Appellant sought before the said Chief Magistrates Court to have the judgment set aside. She did not introduce herself as Princess Dum, but as Glover Princess, a Legal Practitioner based in Lagos. Due to the conduct of the Appellant, she was accused of being a fake lawyer and handed over to the Police for investigation. The Police conducted their investigation and in their wisdom, decided to arraign the Appellant before a Magistrate Court for impersonating a Legal Practitioner and for acting in a manner likely to cause breach of public peace. There is no evidence on record that the prosecution of the Appellant before the Chief Magistrates Court has been concluded with her exoneration or that the matter was withdrawn or terminated in limine.
The Appellant now seeks to be compensated with humongous sums of money running into billions of dollars ostensibly for breach of her Fundamental Rights, return of properties allegedly carted from the 3 bedroom bungalow subject of the tenancy between the 9th Respondent and one Princess Dum; and also to be reinstated as the owner of the said bungalow. Unfortunately, she has not shown that she has any link with the said tenancy agreement because the tenancy is between the 9th Respondent and one Princess Dum; and the judgment of the Chief Magistrate (8th Respondent) is against Princess Dum and not Glover Princess.
One interesting thing I have discovered in this case is that, there is no single deposition in the entire Affidavit in Support of the Application, linking the 1st, 2nd, 5th, 6th and 7th Respondents with the incident leading to the Application filed by the Appellant for the enforcement of her Fundamental Rights. Furthermore, there is no fact linking the 9th and 10th Respondents to the accusation of the Appellant for being a fake lawyer, her arrest, detention and subsequent arraignment before the Chief Magistrate for falsely representing herself to be one Princess Mimi Duru, a Legal Practitioner, and for acting in a manner likely to cause breach of public peace. Considering that scenario, it is my view that, the 1st, 2nd, 5th, 6th, 7th, 9th and 10th Respondents ought not to have been joined in this suit; and having been joined their names ought to have been struck out by the trial Court. In any case, the Appellant had instituted an action before the Ogun State High Court under the Fundamental Rights (Enforcement Procedure) Rules, 2009 wherein she prayed for extension of time to file an appeal against the judgment delivered by the Chief Magistrates Court in respect of the Tenancy Agreement against Princess Dum.
The Application was predicated on facts substantially the same as those in this Appeal. That Application came before us in Appeal No: CA/IB/M.216/2015 but same was dismissed for lacking in merit. It was when Appeal No: CA/IB/M.216/2015 was pending before us that the Appellant instituted the action before the Federal High Court, subject of this Appeal.
From the foregoing, it would be seen that the entire grievance of the Appellant in the Motion for the enforcement of her Fundamental Rights, centre mainly on the tenancy matter between the 9th Respondent and one Princess Dum. It also centres on her arrest and arraignment before the Magistrates Court for falsely representing herself to be a Legal Practitioner and for conduct likely to cause breach of the peace. While the tenancy matter has been concluded and can only be set aside by way of appeal, the criminal allegation against the Appellant has not been shown to have been determined one way or the other. I am therefore of the view, which I hold that the learned trial Judge was right when he held that the enforcement or the securing of the enforcement of the Appellants Fundamental Right is only incidental or ancillary to the main or principal claims or reliefs desired by the Appellant.
Having held as above, I do not see any utility value in expending time to resolve the remaining issues raised in this Appeal. On the whole therefore, this Appeal lacks merit and is accordingly dismissed. The decision of the Federal High Court, holden at Abeokuta, in Suit No: FHC/CS/75/2015 delivered on the 29th day of February, 2016 is hereby affirmed. The parties are to bear their costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI JCA. The Appellant Glover Princess, it seems put herself in a difficult situation by the way she handled issues pertaining to her tenancy agreement with the 9th Respondent which eventually resulted in her arrest and detention on charges of impersonating a Legal Practitioner and for acting in a manner likely to cause a breach of public peace. Lumping all her grievances into an application for the Enforcement of her fundamental rights was a wrong move.
The law is that the provisions of Chapter IV of the Constitution apply only where the main or principal relief sought is one for the enforcement of the fundamental rights of the Applicant. My learned brother has painstakingly set out the facts and circumstances leading to this appeal. He has also exhaustively dealt with the relevant issues in the appeal. I agree with his approach to the issues, the reasoning and conclusions arrived at. I also dismiss the appeal. I abide by the orders in the lead judgment including the order as to costs.
NONYEREM OKORONKWO, J.C.A.: An application for Fundamental Rights Enforcement under Chapter 4 of the Constitution is a special procedure designed to enforce breaches of fundamental rights under 46 of the Constitution.
It may happen that in the course of a transaction for example in commerce or in some deliberate tortious move some infringement of fundamental rights may occur as collateral phenomenon. In such situation, the requisite action should still come under the mainstream civil action because the breach of any fundamental rights is incidental or collateral. See Tukur vs. Government of Taraba State (1997) 6 NWLR (pt. 510) 549 at 578.
In the lead judgment by my Lord Haruna Simon Tsammani JCA, his Lordship highlighted that the breach complained of must be the main claim and not merely ancillary or incidental.
I agree with that and his Lordships application thereof to this case resulting in the dismissal of this appeal.
Appearances:
Appellant in personFor Appellant(s)
S. O. Osanyin (Miss) (Principal State Counsel, Ogun State Ministry of Justice, Abeokuta)- for 1st, 2nd, 3rd & 5th-8th Respondents.
Deborah A. Ikem; Esq – for 9th & 10th Respondents.
4th Respondent is absent.For Respondent(s)
