HON. MINISTER OF DEFENCE & ANOR v. OCHIKIRI & ORS (2020)

HON. MINISTER OF DEFENCE & ANOR v. OCHIKIRI & ORS

(2020)LCN/14744(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/C/325/2014

RATIO

EVIDENCE: CONTENTS OF AFFIDAVITS

Section 115 of the Evidence Act 2011 deals with the “contents of affidavits” as it was in the old Evidence Act (2004) as follows:
(1). Every affidavit used in 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.
(2). An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his information (sic) informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information. PER OWOADE, J.C.A.

EVIDENCE: RULES ON ORAL EVIDENCE

Sections 125 and 126 of the Evidence Act 2011 stipulates that oral evidence must be direct rather than hearsay evidence:
“125. All facts, except the contents of documents may be proved by oral evidence.
126. Subject to the provisions of Part III, oral evidence shall, in all cases whatever, be direct if it refers to –
(a) a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
(c) a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the persons who holds that opinion on those grounds…… “PER OWOADE, J.C.A.

WORDS AND PHRASES: DEFINITION OF THE WORDS INSURRECTION AND AUTHORITY

Blacks Law Dictionary and Section 318(1) of Amended CFRN 1999 define the following words:
Insurrection: A violent revolt against an oppressive authority, usu. a government.
Authority: – includes government PER OWOADE, J.C.A.
INTERPRETATION: CARDINAL PRINCIPLE OF INTERPRETATION

When the wordings of a statute are clear and unambiguous as in the instant case, the duty of the Courts is simply to interpret the law or constitution as made by the Legislature. See A. A. D. ENT. LTD. v. M.V. NORTHERN REEFER (2009) 12 NWLR (Pt. 1155) 255 @ 261; K. S. I. E. C. v. PDP. (2005) 6 NWLR (Pt. 920) 39; EHUWA v. ONDO STATE I. E. C. & ORS (2006) 10 NWLR (Pt. 1012) 544 @ 588; YUSUF v. OBASANJO (2005) 18 NWLR 119. PER OWOADE, J.C.A.

CRIMINAL LAW: CIRCUMSTANCES WHERE MEDICAL EVIDENCE WILL NOT BE NECESSARY IN HOMICIDE CASES

This is because, in homicide cases, where the cause of death is obvious, as in the instant case, medical evidence ceases to be of practical necessity. See BEN v. STATE (2006) 16 NWLR (Pt. 1006) 582 SC; AIGUOREGHIAN v. STATE (2004) 1 NWLR (Pt. 888) 315 SC; UGURU v. STATE (2002) 9 NWLR (Pt. 771) 90 SC; ALARAPE v. THE STATE (2001) L.R.C.N 634 SC; BABUGA v. THE STATE (1996) 7 NWLR (Pt. 450) 279. PER OWOADE, J.C.A.
AGENCY: SITUATION WHERE ACT OF THE SERVANT WILL BE DEEMED TO BE IN COURSE OF EMPOLYMENT

The law is that a servant’s wrongful act is deemed to be in the course of his employment if it is either a wrongful act authorized by the master, or a wrongful and unauthorized mode of doing some act authorized by the master. See N.B.N v. T.A.S.A LTD. (1996) 8 NWLR (Pt. 468) 511 @ 513 CA. PER OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. THE HON. MINISTER OF DEFENCE 2. THE CHIEF OF ARMY STAFF APPELANT(S)

And

MRS. ALICE EFENJI ODEP OCHIKIRI 2. MR. SIMON EBUNG 3. MR. SIMON IDOKO 4. MR. EZEKIEL EGBUNG 5. NIGERIA SECURITY AND CIVIL DEFENCE CORPS. 6. GOVERNMENT OF THE FEDERAL REPUBLIC OF NIGERIA. 7. THE HON. ATTORNEY GENERAL AND MINISTER OF JUSTICE RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an Appeal and Cross-Appeal against the judgment of the Federal High Court, Calabar delivered by His Lordship, Hon. Justice A. F. A. Ademola on the 22nd day of March, 2012.

The Appellants were the 1st and 2nd Defendants in the Court below in the Suit filed by the 1st – 4th Respondents (1st set of Respondents) as Plaintiffs in the Court below.

The 1st-4th Respondents (1st set of Respondents) as Plaintiffs commenced Suit No. FHC/CA/CS/4/2007 against the Appellants and the 5th – 7th Respondents (2nd set of Respondents) as Defendants by way of Writ of Summons dated and filed on 22/1/2007.

By paragraph 23 of the 1st-4th Respondents Amended Statement of Claim on pages 160-161 of Records, the 1st-4th Respondents Plaintiffs claim against the Appellants and the 5th-7th Respondents (Defendants) jointly and severally as follows:
WHEREFORE the Plaintiffs claim against the Defendants jointly and severally as follows:
(i) A DECLARATION that the action of the Defendants in using men and officers of the Nigerian Army in a non-aggressive and non-combatant situation

to “Cordon and search” the Plaintiffs’ community and brutalize, torture and dehumanize the Plaintiffs, who are defenseless civilians and innocent law abiding citizens; and in the continuous detention of the corpse of Mr. Efenji Odep Ochikiri, tortured to death by the joint operation force of men and officers of the Nigerian Army and Nigeria Security and Civil Defense Corps (NSCDC), is unconstitutional, illegal, inhuman, barbaric, brutish and a violent infringement of the Plaintiffs’ rights as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 and the Africa Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004.
(ii) AN ORDER DIRECTING the Defendants, particularly the 1st and 2nd Defendants, to forthwith release the corpse of late Mr. Efenji Odep Ochikiri to the 1st Plaintiff and other members of his family for a decent burial in accordance with the customs and tradition of the people of Afrike 1 (Egurude) community of Okpeche Bekwarra Local Government Area of Cross River State of Nigeria.
(iii) AN ORDER DIRECTING the Defendants to pay

to the Plaintiffs the sum of One Hundred and Fifty Million Naira (150,000,000.00) only as compensation and damages for the unlawful and unconstitutional infringement of their rights, the destructions of their properties and for the unlawful killing of Mr. Efenji Odep Ochikiri.

The Appellants as 1st and 2nd Defendants filed their Statement of Defence.

The 1st to 4th Respondents as Plaintiffs filed their list of witnesses, Written Statements on Oath and Additional Written Statement on Oath. The Appellants as 1st and 2nd Defendants also filed the list of witnesses and Written Statement on Oath of their sole witness. The 5th, 6th and 7th Respondents, however did not comply with the order of Court to so file.

The gist of the 1st- 4th Respondents’ case at the trial Court was that in the early hours of 22nd October, 2006, a combined force of men and officers of the Nigerian Army and the Nigeria Security and Civil Defence Corps (NSCDC), in a combatant manner invaded their community with arms under what they called “operation Cordon and search”.

The joint operation force claiming to be acting under the directive of the Army

Headquarters took the entire of the 1st – 4th Respondents community under siege, terrorized, brutalized, dehumanized, humiliated and infused timidity into the indigenes generally, destroying properties and other personal effects of the 1st – 4th Respondents in particular and other indigenes of the community in general.

The operation was commanded by three troops, namely teams A, B, and C, the three (3) teams were led by different Army Officers and they operated in different areas. Team A led by OC MP Captain I. J. Bulama operated in the Plaintiff’s community, Afrike 1, which is also known as Egurude. It was comprised of 2 officers, 18 soldiers and 3 NSCDC personnel.

The husband of the 1st Respondent, Mr. Efenji Odep Ochikiri was abducted, roughly manhandled and beaten by the armed soldiers with booths of their rifles and back of machetes. He was taken to all imaginable spots suspected by the team to be “hot spots” or areas suspected to be where arms and ammunitions could have been hidden, forcing him to excavate such “spots” which included graves.

The 1st Respondent’s husband eventually died in

traumatic circumstances after bleeding through his mouth, nostrils and ear. Upon his death, the late Mr. Ochikiri’s corpse was dumped at the mortuary of the Monaiya Hospital in Ogoja by the Appellants and 5th Respondents’ team. Relatives of the deceased were denied access to his corpse because of the circumstances leading to his death and the involvement of the army in the entire scenario. His corpse was only released by the order of the trial Court made on 5/5/2008. (pages 63-64 of the Record)

The 1st to 4th Respondents’ case at the trial Court bordered on the infringements of their rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2009.

The Appellants (1st and 2nd Defendants) on the other hand claimed that it was reported to the authorities of the Nigerian Army by the Cross River State Government that some politicians were stockpiling arms and ammunition in preparation for the April 2007 General Election in Afrike 1 and 2 (Egurude) Community of Bekwarra Local

Government Area of Cross River State and Ogoja Local Government Area respectively.

That consequent upon the above information, the Nigerian Army and the Nigeria Security and Civil Defense Corps were mandated to conduct Cordon and Search Operation to search for arms and ammunitions in the said Local Government Areas. The Cordon and Search Operation was conducted on the 22nd day of October, 2006 as a result of which some Military weapons and 120 rounds of 7.62 special ammunitions including double barrel, single barrel short guns and 124 cartridges were recovered from the said Afrikes 1 and 2 community.

At the conclusion of the Operation Cordon and Search, 11 principal suspects were arrested and one of them died on the way to Army barracks, Ogoja.

It was on the account of the said operation Cordon and Search and the eventual death of one of the suspects that the 1st – 4th Respondents Plaintiffs commenced the action at the Court below. The 1st – 4th Respondents Plaintiffs called three witnesses PW1, PW2, PW3 and tendered four (4) Exhibits, AE 001-3B.

The Appellants 1st -2nd Defendants opened and concluded their defence on the 5th day of

July, 2011 calling only one witness, Major M. I. Falana who testified as DW1 and tendered Exhibits NA-4.

At the conclusion of the trial and filing of the Written Addresses, the learned trial judge granted the 1st – 4th Respondents Plaintiffs claims jointly and severally against the Appellants and the 5th – 7th Respondents Defendants.

Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing seven (7) grounds of Appeal in this Court on 2/6/2014.

THE MAIN APPEAL
The relevant briefs of Argument for the main appeal are as follows:
1. Appellants’ brief of Argument dated 18/8/2014 and filed on 21/8/2014. It is settled by Chief PSC AGADA Esq.
2. 1st – 4th Respondents brief of argument which was filed on 6/2/2017 but deemed filed on 20/2/2017. It is settled by Eno Edet Esq.
3. Appellants Reply brief of Argument dated 3/3/2017 was filed on 6/5/2017. It is settled by B. M. ENYI, Esq.

Learned counsel for the Appellants nominated five (5) issues for the determination of the Appeal. They are:
1. Whether the statement on oath (Affidavit Evidence) of a military commander who was

maintaining radio communication and giving orders and directives to a subordinate officer in a military operation and receiving reactions and responses from the subordinate amount to hearsay evidence in Court to warrant a trial Court declaring such evidence contrary to the rules of evidence on hearsay and liable to be struck out.
2. Whether the operation cordon and search conducted in the Respondents community where arms and some substantial quantities of ammunitions were recovered from members of the community was not in aid to civil authority as provided by Section 217(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999.
3. Whether the trial Court did not misdirect itself when it refused to consider the defence of the Appellants particularly Exhibit NA 4 contains the Report of the Military Operation carried out in the Respondents community.
4. Whether by the very nature of the military operation carried out in the Respondents community by the agents of the Appellants, the defence provided by Section 239 of the Armed Forces Act, 2004 does not avail the Appellants.
5. Whether the Appellants can be vicariously held liable for

the death of late Mr. Efenji Odep Ochikiri when there was no post mortem examination performed on the body to ascertain the cause of his death.

Learned counsel for the 1st – 4th Respondents adopted the five issues nominated for determination of the Appeal by the Appellants with modifications as follows:
1. Whether the trial Court was right in striking out certain aspect of the evidence of the Appellants sole witness for being hearsay, legal argument and conclusions?
2. Whether the way and manner the operation cordon and search was conducted in the 1st – 4th Respondents’ community by the Appellants was constitutional and in aid to civil authority as provided for in Section 217(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?
3. Whether the trial Court was right to disregard Exhibit NA4 which contained the report of the military operation carried out in the 1st – 4th Respondents’ community particularly as it had nothing to do with the 1st – 4th Respondents?
4. Whether by the very nature of the military operations carried out in the 1st – 4th Respondents’

community by the agents of the Appellants, the defence provided by Section 239 of the Armed Forces Act, 2004 does not avail the Appellants.
5. Whether the Appellants can be vicariously held liable for the death of late Mr. Efenji Odep Ochikiri when there was no post mortem examination performed on the body to ascertain the cause of his death.

On Issue No. 1, learned counsel for the Appellants submitted that the trial Court did not only err in law, but also misdirected itself when it held that the evidence of the only witness for the Appellants was not only deficient, contrary to the provisions of Sections 76, 77, 86, 87, 88, and 89 of the Evidence Act, but went ahead to strike out paragraphs 7-14, 15, 18, 19, 20 and 22 to prepare the ground to resolve that matter in favour of the 1st – 4th Respondents Plaintiffs.

He submitted, the only witness for the Appellants, DW1 Major M. I. Falana told the Court when he appeared before it on the 5th day of July, 2011 (at cross examination) that even though the cordon and search operation was divided into three (3) teams, that is to say teams A, B, and C of which he headed Team B that “the teams

operated simultaneously on the said day. I was in Afrike 2. I was not there at Afrike 1 but monitoring on radio…..”

He submitted that the provisions of Section 76, 77, 86, 87, 88 and 89 of the Evidence Act, 2004 by which the learned trial judge struck out paragraphs 7-14, 15, 18, 19, 20 and 22 of the Appellants DW1 Statement on Oath is not only an old and obsolete law but was repealed by the Evidence Act, Cap. E14 of 2011 Laws of the Federation of Nigeria. He added that when a Court based its decision on a repealed law, that decision goes to nothing and therefore null and void.

Appellants’ counsel defined “hearsay evidence” through the case of OKPALA v. STATE (2009) ALL FWLR (Pt. 494) 1538 @ 1545 submitted that the evidence of a military commander in an operation who maintained radio monitoring is not hearsay evidence and urged us to hold that the testimony of DW1 does not amount to hearsay evidence particularly that Captain Bulama who led Team A to the Respondents community died before the matter was decided.

In response to Appellants’ Issue No. 1, learned counsel for the Respondent submitted that a witness

Written Statement on Oath is in the form of affidavit evidence and must therefore strictly comply with the provisions of the Evidence Act. He referred to the decision of ONNOGHEN JSC in the case of BUHARI v. INEC (2009) ALL FWLR (Pt. 459) 419 @ 484.

He submitted that the testimony of DW1, Major M. I. Falana at the trial Court offended the provisions of Sections 77, 115, 125 and 126 of the Evidence Act which are similar to those of Sections 76, 77, 86, 87, 88 and 89 of the Evidence Act 2004 relied upon by the trial Court as the applicable law at the time of filing pleadings and that the offending paragraphs were properly struck out by the trial Court.

He submitted that the combined reading of Sections 115, 125 and 126 of the Evidence Act, 2011 (as amended) (76, 77, 87, 88 and 89 of Evidence Act 2004) is that a deposition in an affidavit is an evidence of fact in issue and such deposition must be direct. Where the evidence is derived from some other person, such person and the circumstances of the knowledge which he believes must be stated so that the Court and all other parties deposing to contrary evidence can confirm or ascertain the truth.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel for the 1st – 4th Respondents referred to the case ofABIODUN v. CJ, KWARA STATE (2007) 18 NWLR (Pt. 1065) 105 @ 119 and submitted further that there is no paragraph of the affidavit in the entire evidence of the Appellants sole witness at pages 174-177 of the Record where the witness stated that he maintained radio communication and giving orders and directives to a subordinate officer in a military operation and receiving reactions and responses.

He submitted that the fact of radio communication between the teams operating in different communities is a material fact which ought to have been pleaded. That the fact of radio communication can only be found in the address of counsel and at page 181 of the Record, during cross examination of DW1. 1st – 4th Respondents counsel referred to the cases of WUYAH v. JAMA’A LOCAL GOVERNMENT AREA, KAFANCHAN (2013) ALL FWLR (Pt. 659) 1171 @ pp. 1193 – 1194; AKOMOLAFE v. GUARDIAN PRESS LTD. (2010) ALL FWLR (Pt. 517) 1728, (2010) 3 NWLR (Pt. 1181) 338 @ 351 to say that evidence elicited during cross examination on facts not pleaded go to no issue. And, further relied on the case

of INEC v. AC (2009) ALL FWLR (Pt. 480) 732 @ 796 and said that the entire testimony of DW1 at the trial Court amounted to hearsay and was therefore properly struck out by the trial judge.

He submitted DW1 Written Statement on Oath was filed on the 5th day of July, 2011. DW1 testified on the 5th day of July, 2011. The Evidence Act, 2011 (amended) came into effect on the 22nd day of July, 2011, the applicable law at the time was the Evidence Act, 2004. The reference to the 2004 Act, does not in any way remedy the defects in the affidavit of DW1 nor does it render the inadmissible hearsay evidence of DW1 admissible. The provisions relied upon under the 2004 Act are the same as those under the 2011 Act which are reproduced in Sections 115, 125 and 126 of the Evidence Act, 2011 (as amended). Assuming but not conceding that reference was made to a wrong law, we submit with due respect that reference to a wrong law does not in any way cure the defects in the affidavit of DW1 since the affidavit is in breach of a known and existing law. The argument by the Appellants counsel at page 9 of his brief that the reference and reliance on the provisions of Sections 76, 77, 86, 87, 88, and 89 were based on an old

and obsolete law is misconceived. He referred to the case of FALOBI v. FALOBI (1976) 9 – 10 SC, where the Supreme Court held thus:
If a relief or remedy is provided by any written law (or by the common law or in equity for that matter) that relief or remedy. If properly claimed by the party seeking it cannot be denied the applicant. Simply because he has applied for it under the wrong law. To do so will be perfectly unjust.

I do not think it lies well in the mouth of the learned counsel for the Appellants to say in respect of Issue No.1 that the learned trial judge was wrong to have struck out the offending paragraphs of DW1’s Statement on Oath and/or that the evidence of DW1 as to radio monitoring which was not pleaded ought to be admitted in evidence. This is to talk less of his views that the provisions of Sections 76, 77, 86, 87, 88 and 89 of the Evidence Act 2004 which are reproduced in Sections 115, 125 and 126 of the Evidence Act 2011 are old and obsolete. Paragraphs 7-14, 15, 18, 19, 20 and 22 of the DW1’s Statement on Oath are reproduced hereunder:
7 We did not invade the

Plaintiff’s community on 22nd day of October, 2006 as alleged, but rather we carried out an operation in the Plaintiff’s community for the purpose of retrieving arms and ammunitions stock piled by Plaintiffs in their community as ordered by the appropriate superior authorities.
8. When we carried out the said operation in the Plaintiff community particularly Efrike 1 (Egurude) was not under siege. We did not receive any orders from the 1st and 2nd Defendants to terrorize, dehumanize, humiliate and or infuse timidity into the Plaintiffs. During the said operation, no properties or personal effects of the Plaintiffs or other indigenes of the community were destroyed by the soldiers.
9. The said operation was not based on spurious and malicious security or intelligence reports as alleged, but was based on credible military intelligence report which yielded positive results during the operation as arms and ammunitions were really stockpiled in the said community by the Plaintiffs and other members of the same community.
10. We did not break into houses of the Plaintiffs by destroying their doors and windows as alleged. The soldiers did

not destroy any household properties and personal effects during the said operation. We however, in the course of the operation recovered alarming quantities of arms and ammunitions.
11. During the said cordon and search operation we did not abduct, rough handle or beat anybody with booth of rifles or any other weapon. Machetes are not weapons of soldiers of the Nigerian Army and so no soldier carried machete during the said operation. During the operation some four (4) single barrel guns and some quantities of cartridges were recovered from the Plaintiff’s husband who was believed to be the leader of those stockpiling arms and ammunitions in the community.
12. The cause of the death of the 1st Plaintiff’s husband is still unknown as the soldiers did not beat or torture the late Mr. Ochikiri to death during the operation.
13. We were not responsible and by extension the 1st and 2nd Defendants were not responsible for the death of the late Mr. Ochikiri and therefore the Defendants did not deny anybody the access to his corpse.
14. The 1st Plaintiff’s husband was not killed by the soldiers who participated in the said

operation. The Plaintiffs were not abducted, beaten or tied to palm trees, but were only arrested for stockpiling of arms and ammunitions in their community of which the arms and ammunitions recovered from each of them were properly recorded against their names.
15. The taking of 2nd, 3rd, 4th and 5th Plaintiffs to Army Barracks and Police Stations was not an abduction of their persons, but was to make them account for the arms and ammunitions found in their possession.
18. To the best of my knowledge, the Plaintiffs are not law abiding citizens of Nigeria as they illegally had in their possessions the quantities of arms and ammunitions listed in paragraph 17 (a) – (g) above.
19. The recovery of a G3 Rifle magazine, an AK 47 magazine and 120 rounds of 7.62mm special ammunition which are all military items from the Plaintiffs by us during the said operation goes to show that the Plaintiffs were actually stockpiling weapons illegally. The rifles and magazines recovered were hidden in the Plaintiffs community. It is believed that the Plaintiffs are still hiding more military weapons and ammunitions in their community.
20. During the said

operation, we did not violate the rights of the Plaintiff as alleged as the said operation was carried out in aid to civil authority which is part of the routine job of the Nigerian Army. The Plaintiffs were not exposed to any loss or damage as all the personal effects recovered from the Plaintiffs were not only accounted for but were duly handed over to the State Security Service (SSS) when the Plaintiffs were turned over.
21. The 1st and 2nd Defendants did not do anything wrong or commit any wrongful act against the Plaintiffs to warrant the declaration of the said act unconstitutional because cordon and search as a military operation is routine operation to restore sanity and security in trouble spots. Since the 1st and 2nd Defendants did not infringe on the Plaintiffs rights, this Honourable Court should not grant the prayers sought by the Plaintiffs.

Indeed, when the above paragraphs of DW1’s Statement on Oath are juxtaposed with the provisions of Sections 115, 125 and 126 of the Evidence Act 2011 which replaced Sections 76, 77, 86, 87, 88 and 89 of the Evidence Act, 2011, it would be seen that the affidavit evidence of DW1 are replete

with statement of facts and circumstances not within his own personal knowledge or from information which he believes to be true; and also with legal arguments and conclusions.

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In the instant case, DW1’s affidavit evidence is not only deficient and irregular in content but largely hearsay as it offends the provisions of Sections 115, 125 and 126 of the Evidence Act, 2011 which replaced

Sections 76, 77, 86, 87, 88 and 89 of the Evidence Act, 2004. Furthermore, there was nothing in the said Statement on Oath of DW1 that deposes to the fact that he was radio monitoring activities in Afrike 1 as he was only Team Commander of Team B in Afrike 2.

The learned trial judge was right to have struck out the offending paragraphs of DW1’s affidavit evidence as contrary to the rules of evidence and being largely hearsay evidence.
Issue No. 1 is resolved against the Appellants.

On Issue No. 2, learned counsel for the Appellants submitted that the learned trial judge erred in law when he held that the Appellants cannot rely on the provisions of Section 217(2)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to conduct operation cordon and search. That the trial Court was wrong when it held first, that:
Applying all known cannons of statutory interpretation in law in its aid, Section 217(2)(c) of the CFRN 1999 will not avail the Defendants in the present circumstances. Neither have they adduced credible evidence before the Court to support their case at TRIAL.

And further held that:
There is nothing emanating from the President of the Federal Republic of Nigeria or on his behalf or an Act of National Assembly with conditions contemplated under the said constitutional provision in respect of this military operation pursuant to this constitutional provision.
Neither is there any evidence of insurrection in that part of Cross River State TO WHICH Bekwarra Local Government belongs upon which the Government of Cross River State requested assistance from the President of the Federal Republic of Nigeria to enable order be restored.
This section is applicable only to state where there is Emergency, strike or riots requiring the intervention of the Federal Government through the President and the National Assembly.

He submitted that the trial Court failed to give proper interpretation to the provision of Section 217(2)(c) of the CFRN, 1999 or better still, that his decision was a narrow interpretation of the provision of Section 217(2)(c) as it is not all times that the President and Commander-in-Chief of the Armed Forces of Nigeria will make orders for the operational use of Armed Forces of Nigeria as such functions has been delegated to

the Service Chiefs of the Armed Forces.

He reproduced Section 8 of the Armed Forces Act, Cap. A20 Laws of the Federation of Nigeria inter alia thus:
The President shall determine the operational use of the Armed Forces, but may under general or special directives delegate his responsibility for the day to day operational use:
(a) Of the Armed Forces, to the Chief of Defence Staff
(b) Of the Army, to the Chief of Army Staff
(c) Of the Navy, to the Chief of Naval Staff
(d) Of the Air Force, to the Chief of Air Staff.
Subsection (3)
In this Section, “Operational use of the Armed Forces” include the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order.

He submitted that stock piling of arms and ammunitions in any community without authorization or even the mere possession of arms and ammunitions is not only unlawful, but is punishable by our penal laws. And, that though the trial was not a criminal trial, it is nevertheless unlawful for person or group of persons to be found in possession of firearms and ammunitions without a valid license.

That the trial Court brushed aside the Appellants references to Section 3, 4, 5, 9, and 28 of the Firearms Act, Laws of the Federation of Nigeria, 2004 and Section 3 (1) and (2) of the Robbery and Firearms (Special Provisions) Act, LFN 2004.

He submitted that the officers and men of the Appellants did not plant the guns and other military weapons as listed Exhibit NA4, page 122-127 of Records, but were found and recovered in the course of performing their constitutional role to the country.

He urged us to hold that the provision of Section 217(2)(c) CFRN, 1999, and Section 8 (1) and (3) of the Armed Forces Act Cap. A20 LFN 2004 avail the Appellants and resolve Issue No. 2 in favour of the Appellants.

Learned counsel for the 1st – 4th Respondents started off on Issue No. 2 by reproducing the provision of Section 217(2)(c) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended) as follows:
Section 217(2)(c) – Suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly.

He referred to the provisions of Sections 217 and 218 of the CFRN 1999 (as amended) and submitted that the Nigerian Army is a creation of the Constitution of the Federal Republic of Nigeria under the control of the Federal Government of Nigeria, with the President as its Commander in Chief. The Nigerian Army is not under the direction and control of the Cross River State Government.

He added that the provisions of Section 217(2)(c) of the 1999 Constitution (as amended) are clear and unambiguous, and referred to the case of AMADI v. INEC (2012) ALL FWLR (Pt. 621) pp. 1453 – 1454 that in interpreting provisions of the Constitution, Courts are to adopt a liberal approach and ensure that they do not defeat what the provisions say in the guise of interpretation.

He submitted that through the entire pleadings of the Appellants and the evidence of its sole witness at the trial Court, no reference was made to either the President and or the National Assembly. There was no evidence to show that the operation cordon and search was under the instruction of the President as envisaged by Section 217(2)(c) CFRN 1999 (as amended).

He further submitted that even if the Appellants had led evidence to show that the instruction came from the President which they did not, Section 217(2)(c) CFRN 1999 (as amended) does not even envisage the President acting unilaterally, the powers of the President under the said Section are however subject to such conditions as may be prescribed by an act of the National Assembly.

He concluded that Section 8 of the Armed Forces Act. Cap. A. 20 does not help the Appellants case, more so, where the 1st Appellant have denied ever giving such directives.

In relation to Issue No. 2, it is clear that the provision of Section 217(2)(c) of the Constitution of the Federal Republic of Nigeria (CFRN) (as amended) could not have avail the Appellants. Indeed, there was not an iota of evidence in the trial Court that the Appellants were called upon to suppress any insurrection or to act in aid of civil authorities to restore orders.
Section 217(2)(c) reads as follows:
217 (2) The Federation shall, subject to an act of the National Assembly made in that behalf, equip and maintain the Armed Forces of the Federation as may be established by an Act of the National Assembly.

(c) Suppressing insurrection and acting in aid of civil authorities to restore orders when called upon to do so by the President but subject to such conditions as may be prescribed by an Act of the National Assembly and ……
The learned trial judge was then right when he held at pages 249-250 of the Record of Appeal that:
Blacks Law Dictionary and Section 318(1) of Amended CFRN 1999 define the following words:
Insurrection: A violent revolt against an oppressive authority, usu. a government.
Authority: – includes government
Applying all known canons of statutory interpretation in Law in its aid, Section 217(2)(c) of the CFRN 1999 will not avail the Defendants in the present circumstances. Neither have they adduced credible evidence before the Court to support their case at TRIAL.
There is nothing emanating from the President of Federal Republic of Nigeria or on his behalf or An Act of National Assembly with conditions contemplated under the said constitutional provision in respect of this military operation pursuant to this constitutional provision.
Neither is there any evidence of

insurrection in that part of Cross River State to which Bekwarra Local Government belongs upon which the Government of Cross River State requested assistance from the President of the Federal Republic of Nigeria to enable order be restored.
This Section is applicable only to states where there is emergency, Strikes or Riots requiring the intervention of the Federal Government through the President and the National Assembly.
In conclusion on Issue No. 2, neither the provision of Section 217(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and or Section 8 (1) and (3) of the Armed Forces Act Cap. A.20 LFN could in the circumstance avail the Appellants.
Issue No. 2 is resolved against the Appellants.

The complaint of the Appellants under Issue No. 3 is first to be found in the following extracts from the judgment of the trial Court. That at page 246 of the Record, the learned trial judge held thus:
DW1’s witness statements are deficient while paragraphs 15 and 22 are conclusions and legal arguments which contravene Section 87 of the Evidence Act respectively. Accordingly, paragraphs 7 – 14, 15, 18,

19, 20 and 22 are hereby struck out by this Court.

And also that at page 247 of the Record of Appeal, the Court further held:
With the above mentioned paragraphs struck out there is no evidence to support the 1st and 2nd Defendants pleadings in this suit, which are deemed abandoned. Neither does Exhibit NA4 avail the Defendants.

Learned counsel for the Appellants submitted that though the report of DW1 was admitted in evidence, the learned trial judge did not act on same. That the refusal of the trial Court to act on the contents of Exhibit NA4 occasioned a miscarriage of justice. He referred to the cases of EKANG v. STATE (2001) FWLR (Pt. 68) p. 1123 @ PP. 1152-1153; UKWUNNENYI v. STATE (1989) 4 NWLR (Pt. 114) 131; OPAYEMI v. STATE (1985) 2 NWLR (Pt. 5) 101 and OLADIPUPO v. STATE (1993) 6 SCNJ 233 @ 239 amongst others to say that the Court has a duty to consider every defence no matter how weak it may be.

He concluded on Issue No. 3, relying in the cases of OLAWEPO v. SARAKI (2009) ALL FWLR (Pt. 498) p. 256 @ p. 310; EZEWUSIN v. OKORO (1993) 5 NWLR (Pt. 294) p. 478; KODILINYE v. ODU (1933) 2 WACA 336; ABAYE v. OFILI (1986) SC 231 and

ONIBUDO v. AKIBU (1982) 7 SC 60 that the trial Court ought to have allowed the Plaintiffs to succeed on the strength of their own case and not on the weakness of the Defence.
He urged us to resolve Issue No. 3 in favour of the Appellants.

Learned counsel for the 1st – 4th Respondents introduced Issue No. 3 through Exhibit NA4. He said Exhibit NA4 is the Report of the cordon and search operation carried out at Bekwarra Local Government Area on 22nd October, 2006. It is at pages 179-184 of the Record. That it will also not be out of place to correct the impression created by the Appellants counsel that, the trial Court did not consider the defence of the Appellants particularly Exhibit NA4.

He submitted that the trial Court considered the defence of the Appellants and the said Exhibit NA4 and it came to the conclusion that Exhibit NA4 did not avail the Appellants. That in fact, the trial Court carried out a proper evaluation and thorough analysis of Exhibit NA4 at pages 247 – 248 and came to the conclusion at page 248 of the Record thus:
However, it is the Court’s opinion that Exhibit NA4 tendered by DW1 is not conclusive

on the issue for the following reasons:
(i) DW1’s evidence in this Court particularly paragraph 17 of his Written Statement on Oath is at variance with Exhibit NA4, Annexure 3.
(ii) The identity of the other suspects and where they came from are uncertain in the light of PW1, PW2, PW3 and DW1’s evidence at trial.

He submitted that since the above finding was based on evidence on Record, the appellate Court will not ordinarily interfere with these findings. He referred to the cases of AROWOLO v. OLOWOOKERE (2011) 18 NWLR (Pt. 1278) 280 @ pp. 306-307, per Adekeye JSC; STATE v. SALAWU (2011) 18 NWLR (Pt. 1279) 883 @ 921; WACHUKWU v. OWUNWANNE (2011) 14 NWLR (Pt. 1266) pp. 22-32.

Learned counsel for the 1st – 4th Respondents submitted further that in the instant case as rightly pointed out by the trial Court at page 248 of the Record, what the Appellants wanted the trial Court to do was to speculate or embark on a fruitless voyage of discovery. That in paragraph 17 of DW1’s Statement on Oath which is at page 119 of the Record, DW1 stated thus:
Paragraph 17: The arms and ammunition recovered from the Plaintiffs are:

(a) Quantity 10 x Single barrel guns;
(b) Quantity 1 x G3 Rifle magazine;
(c) Quantity 1 x AK 47 Rifle magazine;
(d) Quantity 120 x 7.62 mini (special);
(e) Quantity 1 x locally made short pistol
(f) Quantity 124 x single barrel gun Cartridges;
(g) Quantity 1 x double barrel gun.

He submitted that as rightly noted by the learned trial judge, these averments are at variance with Exhibit NA4, Annexure 3 which is at page 127 of the Record. That in Exhibit NA4, Annexure 3, which is the distribution of the alleged arms recovered:
(1) Mr. Simon Egbung (2nd Plaintiff) – Nil.
(2) Mr. Igbaji Idoko (3rd Plaintiff) – Nil.
(3) Mr. Ezekiel Egbung (4th Plaintiff) – Nil.
(4) Mr. Francis Ota (5th Plaintiff) – Nil.

The 1st Plaintiff is the wife of the deceased, her name is not even in Exhibit NA4, Annexure 3. He submitted that, where the other suspects in Exhibit NA4, Annexure 3 are/or where they come from are uncertain and not before the trial Court. No evidence was led by the Appellants in this regard. It was not in dispute at the trial Court that operation “cordon and

search” carried out by the Defendants was carried out in three different communities namely: Afrike 1, Afrike 11 and Ogoja Main Town, it was also an established fact that Team A which operated in Afrike 1, which is the Plaintiffs’ community was led by OCMP, Captain I. S. Bulama.

Learned counsel for the 1st – 4th Respondents reasoned that the trial Court rightly rejected the invitation of the Appellants to speculate. Indeed, that any decision based on speculation will be visited by miscarriage of justice. After referring on the above to the case of UWAJEH v. UWAJEH (2009) ALL FWLR (Pt. 458) 287 @ 290, 1st – 4th Respondents counsel noted pertinently that all through the trial, the Appellants did not tender any of the alleged guns recovered by them during the operation cordon and search or link any of the alleged guns recovered to any of the Plaintiffs. The Plaintiffs succeeded at the trial Court on the strength of their case and not on the weakness of the defence. The Plaintiffs at the trial Court called three witnesses and tendered 4 Exhibits numbered as Exhibits AE001, 002, 003A and NE003B respectively. The testimonies of PW1, PW2,

PW3 and PW4 were neither challenged nor contradicted during cross examination, their testimonies remained unshaken like a rock of Gibraltar and the trial Court rightly accepted and acted on it. He referred to the cases of AMADI v. NWOSU (1992) 5 NWLR (Pt. 241) 273; BIJOU (NIG.) LTD. v. OSIDAROHWO (1992) 6 NWLR (Pt. 249) 643.
He reviewed the evidence of the Respondents thus:
It was the testimony of PW1, that on the 22nd day of October, 2006, the Defendants callously invaded their community carrying guns and machete, broke into their houses, breaking their doors and windows, ransacked their homes, destroying household properties and personal effects in the process under the pretext of searching for non-existent arms and ammunition.

It was also the unrebutted testimony of PW1 that Mr. Efenji Odep Ochikiri and others were callously thrown into the vehicle and were made to lie face down, it was also his unrebutted testimony that as at that time, the late Mr. Efenji Odep Ochikiri was bleeding through his mouth, nose and ear. When PW2 testified on 9th day of November, 2010, she stated that the Defendants smashed their doors and windows and

forcefully gained entry, destroying everything in sight. That her husband was brutally beaten with booths of their rifles and back of machete. That the late Mr. Efenji Odep Ochikiri was bleeding through his mouth and nostrils and was screaming the name of PW2, when she tried to intervene, the soldiers pushed her and she fell with her five (5) months old baby, she was slapped severally and hit with a gun.

Again, that it was the testimony of PW2 that late Mr. Efenji Odep Ochikiri was made to dig some places including a grave while he was still being beaten. After digging all those places and they saw nothing, they tied him to a tree and continued with the beating, people were openly wailing and crying about the brutish way they were handling the late Mr. Efenji Odep Ochikiri and others. Finally PW1 testified that when they untied him, he could not stand let alone walk and was thrown roughly to the back of their vehicle and driven away, that was the last time PW2 saw her husband.

He submitted that all these pieces of evidence of PW1 and PW2 highlighted above were not contradicted or unpinged during cross examination and PW1 and PW2 testimonies remained

unshaken during cross examination, PW1 and PW2 testified consistently throughout. That it is a well settled principle of law that where facts are pleaded, and evidence is led on every aspect of the pleaded facts, and the facts are not punctured by proper cross examination, the facts are deemed admitted and require no further proof. He referred to the case of WEST AFRICAN EXAMINATION COUNCIL v. OSHIONEBO (2007) ALL FWLR (Pt. 370) 1501 @ 1505, Held 4.
He urged us to resolve Issue No. 3 in favour of the 1st – 4th Respondents.

First, I adopt my resolution of Issue No. 1 in my decision on Issue No. 3. The main grouse of the Appellants on issue No. 3 is their belief that the learned trial judge did not utilise Exhibit NA4 despite the fact that the said Exhibit was admitted in evidence. Meanwhile, learned counsel for the 1st – 4th Respondents has adequately demonstrated through the Records that the learned trial judge indeed evaluated and analysed Exhibit NA4 in coming to the conclusion that it does not help the case of the Appellants. Let us come to think of it, the major defence of the Appellants in the trial Court was that their cordon and

search operation was covered by the provision of Section 217(2)(c) of the 1999 Constitution and or Section 8 of the Armed Forces Act.

Meanwhile, as a matter of law, there was no credible evidence from the Appellants or indeed evidence at all which permit the idea that any such cordon and search operation was carried out on the directives, authorization or instruction of the President and Commander in Chief of the Armed Forces nay authorization by the National Assembly as required by the Constitution which is the grundnorm. In effect, the hierarchy of authorization of the cordon and search operation carried out by the Appellants ended on the table of the 1st and 2nd Appellants.

Clearly therefore, Exhibit NA4 could not have helped or mend the case of the Appellants in any possible way. Even here on appeal, I have closely examined Exhibit NA4 with its attachments on pages 122-127 of the Record of Appeal and the said Exhibit if anything diminished rather than strengthen the case of the Appellants. For example and as rightly pointed out by the learned counsel to the 1st – 4th Respondents, the Annexure to Exhibit NA4 titled “Distribution of the

Guns According to Suspects” did not attribute any wrong to any of the 1st – 4th Respondents Plaintiffs.

In the circumstance, the learned trial judge was right in considering Exhibit NA4 to hold at pages 248 – 249 as follows:
There is no dispute Arms and Ammunitions were recovered by 1st and 2nd Defendant’s officers in the company of the 3rd Defendant’s officers in the light of DW1’s evidence and Exhibit NA4.
However, it is the Court’s opinion that Exhibit NA4 tendered by DW1 is not conclusive on the issue for the following reasons:
i. DW1’s evidence in this Court particularly paragraph 17 of his Written Statement under Oath is at variance with Exhibit NA4, Annexure 3.
ii. The identity of the other suspects and where they came from are uncertain in the light of PW1, PW2, PW3 and DW1’s Evidence at Trial.
iii. This Court will not speculate or embark on a voyage of discovery. See EMEJE v. POSITIVE (2009) ALL FWLR (Pt. 452) 1056 @ 1061, H-J; UWAJEH v. UWAJEH (2009) ALL FWLR (Pt. 458) 287 @ 290, H4.
The same principle also applies to paragraphs 8: 6 of 1st and 2nd

Defendant’s counsel’s final written address as there is no such evidence before this Court. See OHUABUNWA v. DURU (2009) ALL FWLR (Pt. 450) 651.
Issue No. 3 is resolved against the Appellants.

In Issue No. 4, learned counsel for the Appellants submitted that the trial Court was wrong not upholding their argument that the Appellants were immune or indemnified by the provision of Section 239 of the Armed Forces Act Cap. A.20 LFN 2004, by the very fact that the duty the agents of the Appellants performed was in aid to civil authority, but that this defence was disregarded by the Court.

He submitted that the point had earlier on been made that Section 8 of the Armed Forces Act empowers the President to delegate his duties to the Service Chief. The Commander, 13 Brigade, Nigerian Army, Calabar, also derive his authority from the orders handed down by the Chief of Army Staff.

He urged us to resolve Issue No. 4 in favour of the Appellants.

Learned counsel for the 1st – 4th Respondents submitted that from whatever angle the provisions of Section 239 of the Armed Forces Act 2004 are looked at, the Section does not apply in the instant case.

He submitted that the purport of Section 239 of the Armed Forces Act, 2004 is that actions cannot be brought against persons subject to the Act in their personal capacities where such acts are done in aid to civil authority or in the execution of military rules. In any event, that the cordon and search carried out in the 1st – 4th Respondents community was not done in aid to civil authority as stipulated under Section 217(2) of the Constitution of the Federal Republic of Nigeria.

Learned counsel for the 1st – 4th Respondents submitted there is no evidence on record as to why the 1st – 4th Respondents community was invaded, there was also no evidence on record to show who gave the orders. The situation, he said is even more perplexing where the 1st Appellant has denied giving such orders. He referred to paragraph 2 of the Statement of Defence at page 75 of the Records thus:
The 1st Defendant deny paragraph 2 of the Statement of Claim and aver that he is not a Minister in the Government of the 3rd Defendant and that the 3rd Defendant is not a Government but an agency of Government of the Federal Republic of Nigeria.

The 2nd Defendant admit the fact that he is the Chief of Army Staff but the 1st and 2nd Defendants deny the claim that they gave the directives to cause the alleged harms to the Plaintiffs on 22nd day of October, 2006.

Learned counsel for the 1st – 4th Respondents said the question that needs to be answered is whether the killing of the 1st Respondent’s husband by the Appellants was constitutionally justified bearing in mind Section 33 (1) of the Constitution and whether the manner in which the said cordon and search was carried out was not a flagrant abuse of the powers of the Appellants and a violation of the 1st – 4th Respondents’ rights as enshrined in the Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples Rights.

He referred to the provision of Section 33(1) of the 1999 Constitution of the Federal Republic of Nigeria. He added that the Appellants led no credible evidence linking the 1st Respondent’s husband with possession of arms, neither was there any evidence to show that he was violent or attempted to escape or that his life was taken for the defence of any person from

unlawful violence or in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, or for the purpose of suppressing a riot, insurrection or mutiny under Section 33 (2) (a) – (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

It is pertinent to reproduce the provision of Section 239 of the Armed Forces Act, 2004 in deciding Issue No. 4.
Section 239. No action, Prosecution or Other proceedings shall lie against a person subject to service law under this Act for an act done in pursuance or execution or intended execution of this Act or any regulation, service duty or authority or in respect of an alleged neglect or default in the execution of this Act, Regulation, duty or authority, if it is done in aid to civil authority or in execution of military rules.
Clearly, and as pointed out by the learned counsel for the 1st – 4th Respondents, the rights of the 1st – 4th Respondents to ventilate their grievances are guaranteed under the Constitution of the Federal Republic of Nigeria and no service law or regulation can take away such right.
I further agree with the learned

counsel for the 1st – 4th Respondents that the purport of Section 239 of the Armed Forces Act 2004 is to protect personal prosecution of persons subject to service law for acts done in lawful execution if the act were done in aid to civil authority or execution of Military Rules.
The provisions of Section 239 of the Armed Forces Act, 2004 are indeed unambiguous and are in line with common law principles of principal and agents.
When the wordings of a statute are clear and unambiguous as in the instant case, the duty of the Courts is simply to interpret the law or constitution as made by the Legislature. See A. A. D. ENT. LTD. v. M.V. NORTHERN REEFER (2009) 12 NWLR (Pt. 1155) 255 @ 261; K. S. I. E. C. v. PDP. (2005) 6 NWLR (Pt. 920) 39; EHUWA v. ONDO STATE I. E. C. & ORS (2006) 10 NWLR (Pt. 1012) 544 @ 588; YUSUF v. OBASANJO (2005) 18 NWLR 119. In the instant case, the Appellants cannot be availed with the provision of Section 239 of the Armed Forces Act, 2004.
The learned trial judge was right when he held at page 251 of the Record of Appeal thus:
From this Court’s construction and interpretation of the provisions of

Section 239 of the Armed Forces Act as well as its earlier findings on Issues 1 and 2 hereinbefore, the Act or conduct of the 1st and 2nd Defendants soldiers who conducted the cordon and search operation can be challenged as they neither conducted or acted pursuant to Section 217(2)(c) of the CFRN 1999 and Section 239 of the Armed Forces Act (AFA) Cap. A20, LFN 2004.
From the foregoing paragraphs of this judgment, Issues 1, 2, and 3 are hereby resolved in favour of the Plaintiffs in this suit.
Issue No. 4 is resolved against the Appellants.

The crux of the Appellants complaint in Issue No. 5 is that the trial judge was unfair to arrive at the decision that the Appellants agents or better still, officers and men were responsible for the death of the 1st Plaintiff’s husband when as a matter of fact, the cause of death was neither established by oral evidence nor documentary evidence, particularly Post Mortem Report as to the cause of death in the course of the trial of the suit.

He submitted that it is the principle of our penal laws that where there is no direct proof of cause of death, it must be proved by medical examinations.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In this respect, learned counsel for the Appellants referred to a host of cases including EBONG v. STATE (2012) ALL FWLR (Pt. 633) p. 1945 @ p. 1969; AHMED v. STATE (2001) FWLR (Pt. 34) p. 438, (2001) 18 NWLR (Pt. 746) 622; UYO v. ATTORNEY GENERAL, BENDEL STATE (1986) NWLR (Pt. 17) 418; IDOWU v. STATE (2000) FWLR (Pt. 16) 2671, (2000) 12 NWLR (Pt. 680) 48; AZU v. STATE (1993) 6 NWLR (Pt. 299) p. 303; AKPUENYA v. STATE (1976) 11 SC 269; LORI v. STATE (1980) 8-11 SC 81; IDEMUDIA v. STATE (1999) 7 NWLR (Pt. 610) p. 202, (1999) 69 LRCN 1043; OFORLETE v. STATE (2000) FWLR (Pt. 12) 2081, (2000) 12 NWLR (Pt. 681) 415; AMAYO v. STATE (2001) 18 NWLR (Pt. 745) 251 (2002) FWLR (Pt. 91) 1571; OKOEBOR v. POLICE COUNCIL (2003) FWLR (Pt. 164) 189; OKAFOR v. STATE (1990) 1 NWLR (Pt. 128) 614; ONWUMERE v. STATE (1991) 4 NWLR (Pt. 186) 428.

He concluded that the Appellants cannot be held vicariously liable for the alleged act of their agents when as a matter of law and facts, there was no post mortem examination to establish the cause of death of the 1st Plaintiff’s husband or any cogent evidence to pin same to them.

Learned counsel for the 1st to 4th

Respondents reviewed the testimony of PW1 as contained at pages 92-95 of the Record. He said that the pieces of evidence on the events leading to the death of the 1st Respondent’s husband were corroborated by the unchallenged testimony of PW1 and 2nd Respondent. He emphasized that the evidence of PW1 and PW2 on the death of Mr. Odep Ochikiri were neither contradicted nor impugned during cross examination and the trial Court rightly acted on it. He referred to the cases of MABAMIJE v. OTTO (2016) 13 NWLR (Pt. 1529) 171 @ 203; OFORLETE v. STATE (2000) 12 NWLR (Pt. 681) 415 @ 436; MONKOM v. ODILI (2010) 2 NWLR (Pt. 1179) 419 @ 442.

He reminded the learned counsel for the Appellants that this is not a criminal appeal and second is that, there is direct evidence of the cause of death of the late Odep Ochikiri, there is also unchallenged an unrebutted evidence directly linking the Appellants to his death. He submitted that the case of EBONG v. STATE (2012) ALL FWLR (Pt. 633) (supra) and others cited and relied on by the Appellants actually support the contention of the 1st – 4th Respondents.

Since medical evidence is not sine qua non, cause of

death can be established by sufficient evidence which shows beyond reasonable doubt that death resulted from the particular unlawful act of the accused person or the manner of death of the deceased. He referred to EBONG v. STATE (supra).

On the doctrine of vicarious liability, learned counsel for the 1st – 4th Respondents submitted that the Appellants have never denied the officers who carried out the operation cordon and search in the 1st – 4th Respondents community, they have also not contended that the officers were not their servant and that they did not act in the course of their employment with them. He referred to the case of NANDE v. SIMON (2014) ALL FWLR (Pt. 753) 1878 @ 1898 and concluded that operation cordon and search was a wrongful act authorized by the Appellants and that its agents carried out an authorized instruction from the Appellants in a wrongful and unauthorized manner.

I think learned counsel for the 1st – 4th Respondents has provided adequate answers in reply to Appellants Issue No. 5.

In the first place, the evidence of PW1 and PW2 directly and unequivocally establish the cause of death of late Odep

Efenji Ochikiri and even if it were a criminal appeal, no medical evidence would further be required. This is because, in homicide cases, where the cause of death is obvious, as in the instant case, medical evidence ceases to be of practical necessity. See BEN v. STATE (2006) 16 NWLR (Pt. 1006) 582 SC; AIGUOREGHIAN v. STATE (2004) 1 NWLR (Pt. 888) 315 SC; UGURU v. STATE (2002) 9 NWLR (Pt. 771) 90 SC; ALARAPE v. THE STATE (2001) L.R.C.N 634 SC; BABUGA v. THE STATE (1996) 7 NWLR (Pt. 450) 279.
Moreover, in the instant case, the Appellants would still be held responsible for the death of late Odep Efenji Ochikiri by the doctrine of “last seen” by which the law presumes that the person last seen with a deceased bears full responsibility for his death. See IGABELE v. STATE (2006) 6 NWLR (Pt. 975) 100 SC.

In relation to the Appellants being vicariously liable, learned counsel for the Respondents has shown that the Appellants have never denied the officers who carried out the operation cordon and search in the 1st – 4th Respondents community, they have also not contended that the officers were not their servant and that they did not act in

the course of their employment with them.

Having resolved the five (5) issues in this appeal against the Appellants, the appeal lacks merit and it is accordingly dismissed.

THE CROSS APPEAL
It would be recalled that the 5th – 7th Respondents in the main appeal filed a Notice of Intention not to contest the main appeal in this Court on 11th October, 2017.

The same 2nd set of Respondents in the main appeal also filed a Cross – Appeal in this Court pursuant to leave of Court on 29th January, 2018.
The relevant briefs for the Cross-Appeal are:
i. Cross – Appellants Joint Brief of Argument filed on 29th January, 2018 but deemed filed on 29th November, 2018. It is settled by Oyin Koleosho, Esq. Attorney-General’s Office Ministry of Justice, Abuja.

3rd – 6th Cross-Respondents Amended Brief of Argument filed on 25th June, 2020 but deemed filed on 8th September, 2020. It is settled by Eta L. Akpama.
iii. Cross-Appellants Amended Reply Brief of Argument which was filed on 7th October, 2020. It is settled by Oyin Koleosho Esq., Attorney-General’s Chambers, Ministry of Justice, Abuja.

Learned counsel for the Cross-Appellants nominated seven (7) issues for the determination of the Cross-Appeal as follows:
1. Whether the 3rd – 6th Cross-Respondents’ case before the trial Court is tortious in nature, and if so, whether the trial Federal High Court is seized of jurisdiction to adjudicate upon the subject matter of the case. (Settled from Ground 1 of the Notice of Cross-Appeal).
2. Whether the 3rd – 6th Cross-Respondents’ suit as constituted before the Trial Court was competent, regards being had to the provisions of Sections 46(1) & 251 (1) of the 1999 Constitution (as amended). ORDER 1 RULE 2 (2 & 3) of the Fundamental Rights Enforcement Procedure Rules 1979, and whether the Trial Court validly exercised jurisdiction over the suit. (Settled from Ground 2

of the Notice of Cross-Appeal).
3. Whether the 3rd -6th Cross-Respondents can validly institute a joint action for Enforcement of Fundamental Rights. (Settled from Ground 3 of the Notice of Cross-Appeal).
4. Whether the Trial Court had jurisdiction to adjudicate upon the 3rd – 6th Cross-Respondents’ case in the absence of valid issuance and service of the originating and other processes thereby occasioning a violation of Cross-Appellants’ right to fair hearing (Settled from Ground 4 of the Notice of Cross-Appeal).
5. Whether the 3rd – 6th Cross-Respondents’ originating process is competent having not been signed by a Legal Practitioner. (Settled from Ground 5 of the Notice of Cross-Appeal).
6. Whether the 3rd – 6th Cross-Respondents discharged the onus of proof on them to justify the award of N150 Million as damages in their favour by the trial Court in view of available evidence and legal provisions. (Settled from Ground 6 of the Notice of Cross-Appeal).
7. Whether the proceedings before the Trial Court was competent in the absence of issuance and service of the requisite pre-action notice on the

Appellant. (Settled from Ground 7 of the Notice of Cross-Appeal).

Learned counsel for the 3rd to 6th Cross-Respondents adopted the Seven (7) issues formulated by the Cross-Appellants with modifications as follows:
1) Whether the 3rd – 6th Cross-Respondents’ case before the trial Court is tortuous in nature and if so, whether the trial Court is seized with the jurisdiction to adjudicate upon the subject matter of the case.
2) Whether the 3rd – 6th Cross-Respondent’s suit as constituted before the trial Court was competent, regards being had to the provisions of Section 46 (1) and 251 (1) of the 1999 Constitution (as amended), Order 1 Rule 2 (2) and (3) of the Fundamental Rights Enforcement Procedure Rules 1979 and whether the trial Court validly exercised jurisdiction over the Suit?
3) Whether the 3rd – 6th Cross-Respondents can validly institute a joint action for enforcement of fundamental rights?
4. Whether the trial Court had jurisdiction to adjudicate upon the 3rd – 6th Cross-Respondents’ case in the absence of valid issuance and service of the originating and other processes thereby

occasioning a violation of Cross-Appellants’ rights to fair hearing?
5. Whether the 3rd – 6th Cross-Respondents originating process is competent having not been signed by a legal practitioner?
6. Whether the 3rd – 6th Cross-Respondents discharged the onus of proof on them to justify the award of N150 Million as damages in their favour by the trial Court in view of available evidence and legal provisions?
7. Whether the proceeding before the trial Court was competent in the absence of issuance and service of the requisite pre-action notice on the Appellants?

On issue No. 1, learned counsel for the Cross-Appellants submitted that cases or claims bordering on tortious acts of person to property etc., cannot be subsumed under any of the items that falls within the jurisdiction of the Federal High Court as provided for under Section 251 (1) of the 1999 Constitution (as amended). He argued that the main claim or the declaratory relief before the trial Court is anchored on words like brutalize, torture, detention of corpse, etc. which are all tortuous in nature. Similarly, that the Witness Statements on Oath deposed to the trio of

PW1, PW2 and PW3 are replete with reportage of tortious acts, such as assault, trespass, destruction of property, etc.

He added that the learned trial judge also used expressions which reveal the tortuous nature of the case. Expressions, such as:
“Resulted in tortuous acts to persons of the said community …“
“… vicarious liable for the unlawful killing of Mr. Efenji Odep Ochikiri …“
“… damages is to compensate the victims of a tort for the injuries, loss of life, destruction of properties, pains etc…“

He submitted that the foregoing further corroborates the Cross-Appellants position that this case is about seeking compensation for tortuous acts and not for enforcement of fundamental rights, more so, holding the Cross-Appellants vicariously liable in the circumstances is also indicative of tort. He submitted further that since the case dwells on tortuous violations as well as general damages arising there from, the trial Court lacked the requisite jurisdiction to adjudicate upon it.

He submitted that the 3rd – 6th Cross-Respondents alleged that their rights were breached by way

of tortuous (trespass to person and property etc) and criminal (murder, bodily harm, vandalization of property, etc) joint acts.

He submitted that the trial Court had no jurisdiction to delve into issues of tort and crime of murder etc; hence, the trial Court was not in a position to determine how the rights were breached because their complaints were rooted in issues that are outside the ambit of Section 251 of the 1999 Constitution. He referred to the cases of GSK (NIG.) LTD. & ANOR. VS. OBEN (2016) LPELR – 40351 (CA); SOCIETY BIC SA & ORS. VS. CHARZIN INDUSTRIES LTD. (2014) LPELR – 22256 (SC); GAFAR VS. KWARA STATE GOVT. [2007] 29 NSCQR Pg. 34.

Learned counsel for the Cross-Appellants further submitted that aside the fact that the acts complained of by the 3rd – 6th Cross-Respondents are not administrative or executive decisions of the Federal Government or its agencies, the Cross-Appellants did not authorize the said acts, therefore those who perpetrated the acts cannot be said to have acted as agents of the Cross–Appellants. He referred to the case of EGBUONU VS. BORNU RAIDO TELEVISION CORPORATION (1997) LPELR –

1040 (SC) and submitted that since the subject matter of the main or principal relief before the Court below relates to tort and crimes of which the trial Court cannot adjudicate upon, it also follows that the trial Court cannot consider the other ancillary reliefs.

Learned counsel for the Cross-Appellants further relied on the case of TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 at 546 – 547 and urged us to resolve issue No. 1 in favour of the Cross-Appellants.

In response to issue No. 1 learned counsel for the 3rd – 6th Cross-Respondents submitted that in determining whether or not a Court is seized with the subject matter jurisdiction in any proceeding, it is the case or claim of the Plaintiff that will be looked into. And, that as rightly pointed out by the Cross-Appellants where its ancillary or incidental or accessory claim or claims are so inextricably tied to or bound up with the main claims before the Court in a suit, a Court cannot adjudicate over them where it has no jurisdiction to entertain the main claims.

After referring on the above to the case of GAFAR VS. GOVERNMENT, KWARA STATE (2007) ALL FWLR

(pt. 360) 1415 at 1440, learned counsel for the Cross-Respondents submitted that a cursory look at the claims of the Plaintiff endorsed in their Writ of Summons and Statement of Claim show that the complaint of the Plaintiff at the trial Court was the Constitutionality or otherwise of the “Cordon and Search operation” carried out in the Plaintiffs’ community by the agents of the Cross-Appellants and the 1st and 2nd Cross-Respondents who were all Defendants at the trial Court.

Learned counsel for the 3rd – 6th Cross-Respondents reproduced the 3rd – 6th Cross-Respondents claim as contained on pages 6 – 7 and 12 – 13 of the Records. He contended that it is only the Federal High Court which has the jurisdiction to question the constitutionality or otherwise of the “Cordon and Search Operation”. He reproduced the provision of Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended) and submitted that it is the Federal High Court that is vested with the requisite Jurisdiction to adjudicate on the claim of the Plaintiffs 3rd – 6th Cross-Respondents.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel for the 3rd – 6th Cross-Respondents referred to and reproduced the provision of Section 8 of the Armed Force Act, Cap. A 20 LFN and insisted that the case of the 3rd – 6th Cross-Respondents was a direct challenge on the validity of the “Cordon and Search Operation” carried out by the officers and men of the Cross-Appellants and the 1st and 2nd Cross-Respondents which are all Federal Government Agency squarely within the ambit of Section 251 (1) (r ) of the Constitution of Federal Republic of Nigeria (CFRN), 1999 (as amended). It is only the Federal High Court to the exclusion of other Court which has the power to question the validity or otherwise of any executive or administrative action or decision by the Federal Government or any of its agencies. He referred to the case of UNIVERSITY OF CALABAR VS. SOCKET WORKS LTD. (2014) ALL FWLR (pt. 743) page 1947 at 1975; N. B. C. B. VS. TUKUR (2014) ALL FWLR (pt. 714) page 190 at 197 – 198.

Learned counsel for the 3rd – 6th Cross-Respondent rounded up on issue No. 1 by reminding the Cross-Appellants also of the proviso to Section 251 (1) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended)

which stipulates that:
“Provided that nothing in the provisions of paragraph (p) (q) and (r ) of this Subsection shall prevent a person for seeking redress against the Federal Government or any of its agencies in an action for damages injunction or specific performance where the action is based on any enactment, law or equity.”

He finally referred to the case of DESTRA INVESTMENT LTD. VS. FRN (2018) 8 NWLR (pt. 1621) 335 at 343 on the above and urge us to resolve issue No. 1 in favour of the 3rd – 6th Cross-Respondents. The claims of the 3rd – 6th Cross Respondents as Plaintiffs in the trial Court are reproduced here under:
i. A DECLARATION that the action of the Defendants in using men and officers of the Nigerian Army in a non-aggressive and non-combatant situation to “Cordon and Search” the Plaintiffs community and brutalize, tortured and dehumanized the Plaintiffs, who are innocent law abiding citizens; and in the continuous detention of the corpse of Mr. Efenji Odep Ochikiri, tortured to death by the joint operation force of men and officers of the

Nigerian Army and Nigeria Security and Civil Defence Corps (NSCDC), is unconstitutional, illegal, inhuman, barbaric, brutish and a violent infringement of the Plaintiffs’ right as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 and the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. A9 Laws of the Federation of Nigeria, 2004.
ii. AN ORDER DIRECTING the Defendants, particularly the 1st and 2nd Defendants, to forthwith release the corpse of Mr. Efenji Odep Ochikiri to the 1st Plaintiff and other members of his family for a decent burial in accordance with the customs and tradition of the people of Afrike 1 (Egurude) Community of Bekwara Local Government Area of Cross River State of Nigeria.
iii. AN ORDER DIRECTING the Defendants to pay to the Plaintiffs the sum of One Hundred and Fifty Million Naira (N150,000,000.00) only as compensation and damages for their unlawful and unconstitutional infringement of their rights, the destructions of their properties and for the unlawful killing of Mr. Efenji Odep Ochikiri.” See pages 6 – 7 and pages 12 – 13 of the record of appeal.

It is pertinent to start a discussion on issue No. 1 by the legal truism enunciated by the learned counsel for the 3rd – 6th Cross-Respondents that in considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it by critically looking at the Writ of Summons and the Statement of Claim. See GAFAR VS. GOVT. KWARA STATE (2007) 4 NWLR (pt. 1024) 375 SC; ONUORAH VS. K. R. P. C. (2005) 6 NWLR (pt. 921) 393 SC; TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (pt. 117) 517 SC; NKUMA VS. ODILI (2006) 6 NWLR (pt. 977) 587 SC.

In the instant case, it may well be that the circumstances and or consequences of the actions of the Cross-Appellants and the 1st and 2nd Cross-Respondents doubled up as tortuous actions or ancillary matters we cannot run away from the fact that indeed the main claim of the 3rd – 6th Cross-Respondents in this case is a challenge on the validity of the “Cordon and Search Operation” carried out by the officers and men of the Cross-Appellants and the 1st and 2nd Cross-Respondents which are all Federal Government Agency squarely within the ambit of Section 251 (1) (r)

and the proviso to Section 251(1) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended).
By the provisions of Section 251 (1) (p) (q) (r) and (s) of the 1999 Constitution, what determines the jurisdiction of the Federal High Court is not only the parties but also the subject matter of the claim. For the Federal High Court to have jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must arise from the operation and interpretation of the Constitution, or must arise from any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. All these in addition to the proviso to Section 251 (1) CFRN 1999 (as amended) that nothing shall prevent a person from seeking redress against the Federal Government or any or its agencies in an action for damages injunction or specific performance where the action is based on any enactment, law or equity.

Still on issue No. 1, learned counsel for the

Cross-Appellants in his Reply brief referred to the cases of NDIC VS. JACKSON DEVOS LTD. (2014) LPELR – 23378 (CA); NIGERIAN AGIP OIL CO. LTD. VS. UZOKA & ANOR. (2019) LPELR – 49030 (CA); RAHMAN BROTHERS LTD. VS. NPA (2019) LPELR – 46415 (SC); NIGERIAN NAVY & ORS. VS. GARRICK (2005) LPELR – 7555 (CA) to further emphasize that the Federal High Court has no jurisdiction to award damages for “tortuous acts.” As a general rule, that may well nigh be true, but each case would depend on its own claims. Each case will depend on its own facts. This is more so as damages could also be awarded for breaches of the Fundamental Human Rights of citizens and litigants.

Indeed, one major difference between the instant case and the cases, referred to in the Reply brief of the learned counsel for the Cross-Appellants is that the Cross-Appellants did not deny the “Cordon and Search” Operation in the 3rd – 6th Cross-Respondents community, the Cross-Appellants in fact defended the constitutionality of the “Cordon and Search” Operation but said they did not instruct their men to brutalize, maim or kill etc.

I am of the considered opinion that the admission and authorization of the “Cordon and Search” Operation by the Cross-Appellants singles out the instant case from the ones that are cited and from the ones we have seen.

In the instant case, the Federal High Court has the parties and the subject matter jurisdiction to entertain the Claims of the 3rd – 6th Cross-Respondents/Plaintiffs.
Issue No. 1 is resolved against the Cross-Appellants.

On issue No. 2, Learned Counsel for the Cross-Appellants stated from the onset that the 3rd – 6th Cross-Respondents did not in their claims before the trial Court identify any relevant Section of the 1999 Constitution or Article of the Africa Charter on Human and Peoples Right that was infringed upon.

He submitted that the suit brought by the 3rd – 6th Cross-Respondents is more about the offence of criminal assault, murder, constitutionality/legality of the cordon and search operation, tort of trespass to person and chattel, etc. than enforcement of fundamental rights. He noted that the Federal High Court is a Court of limited jurisdiction which cannot entertain

fundamental rights which are not connected with or related to matters listed under Section 251 (1) of the 1999 Constitution (as amended).

He submitted that the Supreme Court has emphasized that the jurisdiction of the Federal High Court is the combination of Parties and Subject Matter of Litigation, these two factors must co-exist.

He submitted that since the jurisdiction conferred by Section 42 (2) of the Constitution is a special jurisdiction and made subject to the provisions of the Constitution, the enforcement of Fundamental rights in matters outside the jurisdiction of the Federal High Court is not within and cannot be in the contemplation of the Section. He referred generally to the cases OBIUWEUBI VS. CBN (2011) 7 NWLR (pt. 1247) 465 at 507; MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR pg. 341; ABDULHAMID VS. AKAR (2006) 13 NWLR (pt. 996) 127 at 150; DOSUMU VS. N.N.P.C (2014) 6 NWLR (pt. 1403) 282 at 290- 291; TUKUR VS. GOVT. OF GONGOLA STATE (1989) 3 ACLC 274 at 302; ADETONA VS. I.G. ENT. LTD. (2011) 7 NWLR (pt. 1247) 535 at 564.

On issue No. 2, learned counsel for the Cross-Appellants concluded that the trial Court lacked the jurisdiction to

entertain the case placed before it which was not having fundamental rights enforcement as a principal relief.

Learned counsel for the Cross-Appellant proceeded to issue No. 3. He submitted that the 3rd – 6th Cross-Respondents cannot validly bring an application for the enforcement of their Fundamental Rights in a joint capacity. He argued that it is clear from the provision of Section 46 of the 1999 Constitution (as amended) that a person may only apply for the enforcement of his Fundamental Rights as it relates to him. It means that the right to enforce one’s Fundamental Right in Court is a personal or individual right and not a joint or group right. He referred to the cases of THE REGISTERED TRUSTEES, F.T.C.C.N. VS. IKWE CHEGH (2000) 13 NWLR (pt. 683) 1; OKECHUKWU VS. ETUKOKWU (1998) 8 NWLR (pt. 562) 511 at 532; OPARA VS. S.P.D.C.N. LTD. (2015) 14 NWLR (pt. 1479) 307 at 348 – 349.

He reasoned that in applying the above cases the complaints of the 3rd – 6th Cross-Respondents differ, they did not suffer the same injury and not all of them lost a relative, therefore, they cannot jointly claim compensation or damages for the

unlawful killing of Mr. Efenji Odep Ochikiri.

He urged us to hold that the 3rd – 6th Cross-Respondents cannot jointly maintain this suit and to resolve issues Nos. 2 and 3 in favour of the Cross-Appellants.

Learned counsel for the 3rd – 6th Cross-Respondents argued issues 2 and 3 together. He submitted that the 3rd to 6th Cross-Respondents/Claimants commenced this action by way of Writ of Summons dated and filed on 22nd day of January, 2007 pursuant to the Federal High Court (Civil procedure) Rule, 2000.

He argued that there is a clear distinction between actions commenced by ordinary Writ of Summons under the Federal High Court (Civil Procedure) Rules and one commenced under the Fundamental Right (Enforcement Procedure) Rules.

He contended that an infraction can give rise to several civil wrongs and well as a breach of a person’s fundamental human rights. Such a party is at liberty to ventilate whichever he/she desires. This, he said, not been a case for the enforcement procedure of Fundamental Rights, all the arguments canvassed under issues two and three, he said are superfluous. All the legal authorities cited and

relied upon by learned counsel represent the true state of the law but not applicable to the instant case not being a case for the enforcement of Fundament Rights. He urged us to resolve issues 2 and 3 in favour of the 3rd to 6th Respondents.

Issues 2 and 3 are concerned with the relationship in the application of Order 1 Rule 2 (2 & 3) of the Fundamental Rights Enforcement Procedure Rules 1979 to the Provisions of Section 46 (1) and 251 (1) of the 1999 Constitution (as amended).
It would be recalled that over the years, the controversy that had bogged down the enforcement of fundamental human rights is the Court of first instance to resort to; the Federal High Court or the High Court, in circumstances of infraction. Section 42 (1) of the 1979 Constitution and later Section 46 (1) of the Constitution makes a special jurisdiction that any person who alleges that these rights have being, is being or likely to be contravened may apply to the High Court in that State for redress. The procedure to achieve the enforcement of these rights is encapsulated in the Fundamental Rights (Enforcement Procedure) Rules, 1979 made by the Chief Justice of Nigeria

pursuant to Section 42 (3) of the 1979 Constitution, now Section 46 (3) of the 1999 Constitution.
It goes without saying that both the High Courts of Sates and the Federal High Court have concurrent jurisdiction in the special jurisdiction provided for in the enforcement of fundamental rights under Section 42 (2) of the 1979 Constitution, now Section 46 (1) of the 1999 Constitution. It is also true that the jurisdiction of the Federal High Court in the enforcement of fundamental rights is limited to its general jurisdiction under the provision of Section 251 (1) of the said Constitution. See BRONIK MOTORS LTD. VS. WEMA BANK LTD. (1983) 1 SCNLR 296; TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (pt. 117) 517 at 547.

Issues 2 and 3 in this appeal are not directly concerned with the question I earlier answered in the resolution of issue 1 that the claims of the 3rd – 6th Cross-Respondents/Claimants are within the ambit of the provisions of Section 251 (1) (p) (q)(r ) and (s) as well as the proviso to Section 251 (1) of the CFRN, 1999 (as amended).

The more important part of issue 2 and 3 is whether a party who institutes a civil proceeding

by Writ of Summons involving the enforcement of fundamental human rights must necessarily be bound by the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the provisions of Section 42 now Section 46 of the Constitution. The answer as rightly supplied by the learned counsel for the 3rd to 6th Cross-Respondents is in the negative.
In other words, the discretion of the choice of the form of action to be adopted is entirely at the discretion of the Plaintiff. See AGADA VS. KADUNA STATE DEV. AND PROPERTY CO. LTD. (2007) ALL FWLR (pt. 364) 375 and 385.
In ILIYASU VS. RIJAU (2019) 16 NWLR (pt. 1697) 1 at 22 the apex Court held per Kekere – Ekun, JSC thus:
“It was held in JULIUS BERGER NIG. PLC. VS. R.I. OMOGUI (2001) 15 NWLR (pt. 736) 401 at 417 – 419 H. A, (2001) LPELR – 1638 SC at 19 – 22, F – A, that there may be more than one good and effective cause of action arising out of the same transaction …“
As rightly pointed out by the learned counsel for the 3rd to 6th Cross-Respondents, the cases of OKECHUKWU VS. ETUKOKWU (1998) 8 NWLR (pt. 562) 511 at 532; THE REGISTERED TRUSTEES, F.T.C.C.N. VS. IKWECHEGH (2000) 13 NWLR (pt. 683) 1 at

8 and OPARA VS. S.P.D.C.N. LTD. (2015) 14 NWLR (pt. 1479) 307 at 348 – 349 relied upon by the learned counsel for the Cross-Appellants particularly in support of issue 3 were cases decided under the Fundamental Rights (Enforcement Procedure) Rules rather than by way of Writ of Summons.
In the instant case, the 3rd – 6th Cross-Respondents/Claimants were at liberty to ventilate their grievances which include the validity of actions/decisions of the Cross-Respondents and 1st and 2nd Cross-Respondents breaches of fundamental rights and damages by way of Writ of Summons as infractions of their rights and claims as civil wrongs before the Federal High Court.
Issues 2 and 3 are resolved against the Cross-Appellants.

On issue 4, learned counsel for the Cross-Appellants submitted that the issuance and service of the unendorsed originating processes (Writ of Summons and Statement of Claim) on the Cross-Appellants in Abuja, a place outside the jurisdiction of the trial Court, without the leave of Court renders the issuance and service of the originating processes invalid by virtue of the

provisions of Order 6 Rule 13 (g), Rule 14 (1) and Rule 16 Federal High Court (Civil Procedure) Rules 2009 and Sections 96 and 97 of the Sheriffs and Civil Process Act (Cap. 56) LFN 2004.

He submitted that there is nothing on record to show that the 3rd – 6th Cross-Respondents sought for and duly obtained the leave of Court and made the requisite endorsements before the originating processes were issued and served out of jurisdiction. He reproduced the provisions of Order 6 Rule 13 (g), Rule 14 (1), Rule 16 of the Federal High Court (Civil Procedure) Rules 2009 and Sections 96 and 97 of the Sheriffs and Civil Process Act (Cap. 56) LFN 2004.

He submitted that those provisions as mentioned are conditions precedent for the invocation of the jurisdiction of the trial Court in that the 3rd – 6th Cross-Respondents must first obtain leave to issue and serve the originating processes on the Cross-Appellants and the originating processes (particularly the Writ of Summons) must also be endorsed for service outside jurisdiction. He referred on this to the cases of AGIP (NIG) LTD. VS. AGIP PETROLI INT’L & ORS. (2010) 5 NWLR (pt. 1187) 348

at 423 – 424; THE OWNERS OF THE MV”MSC AGATA” & ANOR. VS. NESTLE NIGERIA PLC & ANOR. (2012) LPELR – 9851 (CA); SKEN CONSULT (NIG. LTD.) VS. UKEY (1981) 1 S.C. 4 pp. 14 – 16; FAMFA OIL LTD. VS. ATTORNEY GENERAL OF THE FEDERATION (2003) 18 NWLR (pt. 852) 453.

He reiterated that Rules of Court and indeed statutory provisions regulating the commencement of an action must be obeyed. He referred to the cases of MV “ARABELLA” VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (pt. 1097) 182 at 205 – 206; OYEGUN VS. NZERIBE (2010) 7 NWLR (pt. 1194) 577.

He urged us to hold that the non-compliance with Sections 95, 96 and 97 therefore renders the issuance and service of the 3rd and 6th Cross-Respondents Writ of summons and Statement of Claim a nullity and same ought to be set aside.

Learned counsel for the Cross-Appellants further contended that the Affidavit of service and the Hearing Notices included in the Record of Appeal cannot be regarded as evidence of sufficient service on the Cross-Appellants more so as the Record of Appeal was not properly certified.

He concluded that the

defective issuance and service of the 3rd – 6th Cross-Respondents processes as well as non-service of hearing notices before the trial Court robbed the Cross-Appellants of fair hearing and the proceedings amounts to a nullity.

Learned counsel for the 3rd to 6th Cross-Respondents submitted that the issuance and service of processes, be it originating or otherwise is regulated by Order 6 Rule 5, Rule 11 (1) & (2) and Rule 12 (1) & (2) of the Federal High Court (Civil Procedure) Rules 2000 which is the applicable rules to this case. That, Order 6 Rule (5) states:
5. “For the purposes of service of a Writ of summons or for serving any other processes relating to an action in the Court, the whole Federation is within the jurisdiction of the Court.”
12 (1) “No Writ which or notice of which is to be served out of the jurisdiction shall be issued without leave of the Court.”

Learned counsel for the 3rd – 6th Cross-Respondents further referred to the provision of Order 13 Rule 31 of the Federal High Court Rules to the effect that:
31. “In this order ‘out of jurisdiction’ means out of the

Federal Republic of Nigeria.”

He submitted that the provision of Order 13 Rule 31 of the Federal High Court Rules have been given judicial interpretation in cases such as AKEREDOLU VS. ABRAHAM (2018) 10 NWLR (pt. 1628) 510 at 536; BIEM VS. SDP (2019) 12 NWLR (pt. 1687) 377 at pp. 405 – 406; OMAJALI VS. DAVID (2019) 17 NWLR (pt. 1702) 439 at 459 in all of which cases, the Courts have held that “out of jurisdiction” under the Federal High Court Rules means “out of the Federal Republic of Nigeria.”

He noted that the 1st Respondent in the case of AGIP NIG. LTD. VS. AGIP PERTOLI INT’L & ORS. (2010) 5 NLWR (pt. 1187) 348 at pp. 423 – 424 heavily relied on by the learned counsel for the Cross-Appellants was a company which has its registered office in Amsterdam, outside the jurisdiction of the Federal High Court.

On the applicability of the provisions of Sections 96, 97 and 98 of the Sheriffs and Civil Process Act, learned counsel for the 3rd – 6th Cross-Respondents submitted that the provisions deal with service of Writ of Summons in any part of the Federation and is applicable to State High

Court and the High Court of the Federal Capital Territory but not the Federal High Court.

That the Supreme Court effectively overruled its earlier decisions including OWNERS OF THE MV ARABELLA VS. NAIC (2008) LPELR – 2848, which tend to suggest that the provisions of the Sheriffs and Civil Process Act are applicable to the Federal High Court in the case of BIEM VS. SDP (supra).

Learned counsel for the 3rd – 6th Cross-Respondents contended further that even if Sections 96, 97 and 98 of the Sheriffs and Civil Process Act were to be applicable to the Federal High Court in the execution and service of process within jurisdiction, the Cross-Appellants are not in a position to complain having waived their right to do so. He submitted that a violation of Section 96 and 97 of the Sheriff and Civil Processes Act and Order 6 Rule 13 (g) Order 6, Rule 14 (1), Order 6 rule 16 of the Federal High Court (Civil Procedure) Rules, 2009 makes the said originating processes voidable not void. These, he said are procedural issues of non-compliance which do not affect the substantive jurisdiction of the Court and it is wrong to raise the objection for the

first time on appeal. He referred to the cases of MOBIL PRODUCING (NIG.) UNLIMITED VS. LASEPA (2002) 18 NWLR (pt. 798) 1; DAVANDY FINANCE AND SECURITIES LTD. & ORS. VS. AKI & ORS. (2015) LPELR 24495; ODU’A INVESTMENT COMPANY LIMITED VS. JOSEPH TAIWO TALABI (1997) 10 NWLR (pt. 523) 1 at 51; ZAKIRAI VS. MUHAMMAD (2017) 17 NWLR (pt. 1594) 181 at 229 – 230; PDP VS. INEC (2018) 12 NWLR (pt. 1634) 533 at 548, 554.

On the second, perhaps third leg of issue No. 4, that is the contention by the Cross-Appellants that the Affidavit of service and Hearing Notices included in the record of Appeal cannot be regarded as evidence of sufficient service on the Cross-Appellants; Learned counsel for the 3rd -6th Cross-Respondents submitted that the 1st and 2nd Cross-Appellants were duly served, entered appearance and indeed took part in the proceedings as highlighted on pages 47 to 50, 51 to 52, 89 and 131 of the record of Appeal. That the 3rd Cross-Appellant was served with the originating processes at its Head Office on 9th March, 2017 (pages 19, 42 43, 44, 45, 46, and 170 and pages 4 to 13 of the additional record of appeal).

On the allegation of insufficiency of Hearing Notices and non-certification of record of Appeal, the 3rd – 6th Cross-Respondents submitted that the affidavits of service as contained in the record of appeal was compiled by the Cross-Appellants. That the 3rd to 6th Respondents have nothing to do with the record of appeal. It is not the duty of the 3rd – 6th Cross-Respondents to certify any document and the Cross-Appellants cannot challenge their own record of appeal.

He contended that the Cross-Appellants knew of the existence of this suit, and fully participated in it while the 3rd Cross-Appellant refused to participate despite service of processes and hearing notice and can therefore not complain of fair hearing.

He submitted that the trench stone for determining the observance of fair hearing is the question whether an opportunity of hearing was afforded to parties entitled to be heard. He referred to the cases of A-G KWARA STATE VS. ABOLAJI (2009) 7 NWLR (pt. 1139) 199 at 203; LATISCO PET (NIG) LTD. VS. U.B.N. PLC (2009) NWLR (pt. 1127) 22 at 29; OGUNTAYO VS. ADELAJA (2009) 15 NWLR (pt. 1163) 150 at 157.

He submitted that the attitude of the

Cross-Appellants particularly the 3rd Cross-Appellant is captured by the latin maxim “nemo ex delicto moliorem suam conditionem facere potest” meaning “no one can improve his position by his own wrong doing.” He concluded referring to the cases of ENEKWE VS. IMB (NIG) LTD. (2009) 19 NWLR (pt. 1013) 146 at 156; ADEDEJI VS. NATIONAL BANK OF NIG. LTD. (1989) 1 NWLR (pt. 86) 212 at 226 – 227; BUSWEL VS. GOODWILLS (1971) ALL NLR (418) at 421 that the issue be resolved against the 1st and 2nd Cross-Appellants.

There are three (3) legs to the resolution of Cross-Appellants issue No. 4. The first is the proper meaning of “outside jurisdiction” within the ambit of the provision of Order 6 Rule 5 and 12 (1) and Order 13 Rule 31 of the Federal High Court (Civil Procedure) Rules 2009. The second is the question whether the provisions of Sections 96 and 97 of the Sheriffs and Civil Process Act are applicable to the Federal High Court. The third is whether the Cross-Appellants in this case indeed suffered lack of fair hearing on their non-specific allegation of insufficient service of hearing notice.

On the first and second

questions, the cases of AKEREDOLU VS. ABRAHAM (2018) 10 NWLR (pt. 1628) 510 at 536; BIEM VS. SDP 12 NWLR (pt. 1687) 377 at pp. 405 – 406; BOKO VS. NUNGWA (2019) ALL FWLR (PT. 1000) 617 at 679 – 685 AND OMAJALI VS. DAVID (2019) 17 NWLR (pt. 1702) 439 at p. 459 have jointly and severally settled any lingering doubts as to the fact that the words “out of jurisdiction” in the ambit of the Federal High Court Rules means “out of the Federal Republic of Nigeria.”

Indeed, and perhaps for ease of reference, the case of AGIP (NIG) LTD. VS. AGIP PETROLI INT’L & ORS. (supra) heavily relied on by the learned counsel to the Cross-Appellants to state the general rule that leave and endorsement are required for service outside jurisdiction concerns 1st Respondent whose registered office was in Amsterdam. That case is thus not authority for the proposition that service of jurisdiction under the Federal High Court Rules means service within the Federation.

Second, and as rightly pointed out by the learned counsel for the 3rd – 6th Cross-Respondents, the same set of aforementioned cases especially the decision of Mary

Odili JSC in BOKO VS. NUNGWA (2019) ALL FWLR (pt. 1000) 617 pp. 679 – 685 and later that of AKAAH’S JSC IN BIEM VS. SDP (2019) 12 NWLR (pt. 1687) 377 at 405 – 406 have settled the earlier misgivings in earlier decisions in cases such as OWNERS OF THE MV. ARABELLA VS. NAIC (2008) LPELR – 2848; IZEZE VS. INEC (2018) 11 NWLR (pt. 1629) 110 and have come out boldly to say that in fact the provisions of Sections 96 and 97 of the Sheriffs and Civil Process Act are not applicable to the Federal High Court. Odili, JSC said in the case of BOKO VS. NUNGWA (supra) for example that:
“… I agree with counsel for the Appellant that … the Federal High Court was not contemplated by the lawmakers when the Act was enacted ….“
And in BIEM VS. SDP (supra) Akaah’s, JSC at pages 405 – 406 observed inter alia that:
“ The power vested in the Chief Judge of the Federal High Court to make rules of Court are not derived from the Sheriffs and Civil Process Act but from Sections 254 of the Constitution and 44 of the Federal High Court Act ….“
and also that:
“ I am of the considered view that

the originating summons issued by the Federal High Court, Makurdi which is to be served in Abuja cannot be considered to be service outside the jurisdiction and therefore does not require to be endorsed as a concurrent writ …”
For this same reason, the originating processes issued by the Federal High Court, Calabar and served in the instance case in Abuja are valid and competent processes.

In any event, learned counsel for the 3rd – 6th Cross-Respondents submitted rightly too that the 1st – 2nd Cross-Appellants could not be heard to complain on the issue of service of process for the first time on appeal having waived their right by fully participating at trial. And, that the 3rd Cross-Appellant could not also be heard to complain of service of processes having opted on record not to participate in the proceedings after being duly served with processes.
The reason for this is not farfetched. A distinction must be drawn between two types of jurisdictions, namely: jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer

jurisdiction on the Court where the Constitution or a statute or any provision of common law says that the Court does not have jurisdiction. A litigant may submit to the procedural jurisdiction of the Court for instance where a writ has been served outside jurisdiction and without leave. See NDAYAKO VS. DANTORO (2004) 13 NWLR (pt. 889) 187 SC; MOBIL PRODUCING (NIG) UNLIMITED VS. LASEPA (2002) 18 NWLR (pt. 798) 1; DAVANDY FINANCE AND SECURITIES LTD. & ORS. VS. AKI & ORS. (2015) LPELR 24495; SAUDE VS. ABDULLAHI (1989) 3 NLWR (pt. 116) 387 at 405; ODU’A INVESTMENT COMPANY LIMITED VS. JOSEPH TAIWO TALABI (1997) 10 NWLR (pt. 523) 1 at 51; ZAKIRAI VS. MUHAMMAD (2017) 17 NWLR (pt. 1594) 181 at pp. 229 – 230.

The last segment of Cross-Appellants issue No. 4 is their unspecified unlabelled and unidentified allegation of lack of fair hearing for reason of “insufficient hearing notice”. I agree with the learned counsel for the 3rd – 6th Cross-Respondents that the Cross-Appellants ought not to raise such complaints. The 1st and 2nd Cross-Appellants took part in the entire proceedings while the 3rd Cross-Appellant, who even though

served with the originating processes and was aware of the pendency of the suit, did nothing.

Truly, a party or counsel cannot be heard to complain of a breach of fair hearing when they fail to use the opportunity provided to them to put forward their case. See A-G KWARA STATE VS. ABOLAJI (2009) 7 NWLR (pt. 1139) 199 at 203; LATISCO PET (NIG) LTD. VS. U.B.N. PLC (2009) NWLR (pt. 1127) 22 at 29; OGUNTAYO VS. ADELAJA (2009) 15 NWLR (pt. 1163) 150 at 157.

In the instant case, the trial Court had jurisdiction to the 3rd – 6th Cross-Respondents having issued and served valid originating and other processes and the Cross-Appellants did not establish any basis for breach of their fair hearing.
Issue No. 4 is resolved against the Cross-Appellants.

On issue No. 5, learned counsel for the Cross-Appellants alleged that the Writ of Summons before the trial Court was issued by Mba E. Ukweni, Esq; however that he did not sign the Writ of Summons. Learned counsel for the Cross-Appellants considered the omission by the counsel that issued the Writ as jurisdictional and that it bothers on the competence of the suit. He referred to the cases of

BURAIMOH VS. ALEJO (2014) LPELR – 23203 (CA) at P.14; BUHARI & ANOR. VS. ADEBAYO & ORS. (2014) LPELR – 22521 (CA) pp. 22- 23.

He urged us to hold that the trial Court lacked the jurisdiction to adjudicate over the 3rd – 6th Cross Respondents case as same was not initiated by due process of law having not been signed by a legal practitioner as stipulated in the mandatory provisions of Section 2 (1) and 24 of the Legal Practitioners Act Cap. 207, LFN 1990.

Learned counsel for the 3rd – 6th Respondents submitted on issue No. 5 that the 3rd – 6th Cross-Respondents commenced the case by way of writ of summons. The said writ was issued on 22nd January, 2007 under the Federal High Court (Civil Procedure) Rules, 2000. Under the provisions of the 2000 Rules, the Writ of Summons was issued by the Registrar or any other officer of the Court empowered to issue summons on application. It was therefore not the duty of the legal practitioner to issue a writ of summon under the said rules. Order 6 Rule 1 (1) provides thus:
1 (1) “A writ of summons shall be issued by the Registrar or other officer of the Court

empowered to issue summons on application.”

He submitted that the role of the legal practitioner under the 2000 rules is provided in Order 6 Rule 2 of the rules, which provides thus:
“(2) The application shall ordinarily be made in writing by the Plaintiff’s solicitor by completing form 1 in Appendix 6 to these rules, but the Registrar or other officers empowered to do so may where the applicant for a writ of summons is illiterate, or has no solicitor, disposed with a written application and instead himself record full particulars of an oral application and on that record a writ of summons may be prepared, signed and issued.”

He submitted further that under the 2000 rules applicable to this case, where the Plaintiff sues by a legal practitioner then the provisions of Order 10 (1) shall apply. Order 6 Rule 10 (1) provides:
“Where a Plaintiff sues by a legal practitioner, the writ shall be endorsed with the Plaintiff’s address and the legal practitioner’s name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and

business address of his principal.”
That also by Order 6 Rule 6 (1),
“Every writ shall be in Form 1, 2, 3 or 4 in Appendix 6 to these Rules or forms to the like effect in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.”

He submitted that by Order 6 Rule 10 (1) and Order 6 Rule 6 (1), the only requirements of a legal practitioners are the legal practitioners’ name or firm and a business address within jurisdiction. In the instant case, the legal practitioner name and business address are clearly endorsed on the writ of summons filed on 22nd January, 2007 which is at page 5 of the record as acknowledged the Cross-Appellants. See further form 1, 2, 3 and 4 in Appendix 6 of the 2000 Rules. All other processes including the Statement of Claim were duly signed by the legal practitioner as required by the rules.

Learned counsel for 3rd – 6th Respondents submitted that under the Federal High Court (Civil Procedure) Rule, 2000 issue of a writ takes place upon its being signed by a judge in chambers this is the purport of Order 6 Rule 13 of the Federal High Court (Civil Procedure) Rules, 2000

which provides:
13. “Issue of a writ takes place upon its being signed by a judge in chambers.”

It is therefore evident from the provision of the rules, said counsel, that there is no provision for signing of the writ by a legal practitioner but by a judge in chambers. It is also not correct that under the 2000 rules the writ is issued by the legal practitioner as erroneously argued by the Cross-Appellants.

He submitted that, the writ was signed by the judge as required by the rules. He referred to SPDCN VS. GBENEYEI (2019) 13 NWLR (pt. 1689) 272, pp. 293 – 294, paras. G- B, where the Court of Appeal while interpreting Order 6(1) of the Federal High Court (Civil Procedure) Rules, 2000 stated the correct position thus:
“The contention of the Appellants was that the writ of summons ought to have been signed by the Claimant’ solicitor at the lower Court. I am however unable to find the rule of Court which supports the contention of the Appellant. Order 6 Rule 1 and Order 26 Rule 4 (3) of the Federal High Court Rules, 2000 were relied upon by the Appellant Order 6 Rule 1 of the Federal High Court Rules

state thus:
“1. Writ of summons shall be issued by the registrar, or other officer of the Court empowered to issue summons on application.
2. The application shall ordinarily be made in writing by the Plaintiff’s solicitor by completing form 1 in Appendix 6 to these rules by the registrar or other officer empowered to do so may, where the applicant for a writ of summons is illiterate or has no solicitor, dispense with a written application and instead himself record full particulars of an oral application made on that record a writ of summons may be prepared and signed and issued.”
By Order 6 Rule 1 of the Federal High Court Rules, a registrar or other Court official is to issue summons on application. The solicitor or his client is to apply for the issuance of the writ of summons. It is the duty of the registrar or other officer of the Court to prepare, sign and issue the Writ of Summons. See Order 6 Rule 1 of the Federal High Court Rules 2000.
However, by virtue of Order 26 Rule 4 (3) of the same Rules, pleadings shall be signed by a legal practitioner or a party. It has not been posited that

the statement of claim filed by the Respondent was not signed by either him or his practitioner.
The writ of summons was signed by the judge (see page 12 of the record of appeal, and was not to be issued by a legal practitioner. See FADA VS. NAOMI (2002) 4 NWLR (pt. 757) 318; FAMFA OIL LTD. VS. AG FEDERATION (2003) 18 NWLR (pt. 852) 453. What is being contended is that the Writ of Summons itself was not signed by legal practitioner. There is a difference between the writ of summons and the application. The rule of Court is clear. The application for writ of summons under the 2000 Rules of Federal High Court was to be originated by a legal practitioner or the Plaintiff. But the writ was to be prepared, signed and issued by the Registrar. See Order 6 Rule 1 of the Federal High Court Rules, 2000.
The failure of the Plaintiff’s legal practitioner to sign the writ of summons at the lower Court is of no effect. It does not vitiate the proceedings. I resolve this issue in favour of the Respondent in the circumstance.”

Learned counsel for the 3rd – 6th Cross-Respondents further submitted that where a statute provides a procedure for

doing something, that procedure and no other shall be followed.

He reasoned that the law does not require the doing of the impossible. This as expressed in Latin maxim “Lex Non Cogit Ad impossibilia.”

He submitted the authorities of OMEGA BANK NIG. PLC VS. OBC LTD. (supra); AREGBESOLA VS. OYINLOLA (2011) 9 NWLR (pt. 1253) 458 at 609 – 610; ODEY OYAMA & ANOR. VS. AGBIJI MBEH (supra) cited by the learned counsel for the Cross-Appellants have been misapplied. The writ under consideration was signed by the judge who issued it. It is therefore not correct to say that the writ was unsigned.

He concluded that the 3rd – 6th Cross-Respondents fully complied with the provisions of the rules. The 2000 Federal High Court rules did not require signing of the Writ of Summons by a legal practitioner.
He urged us to resolve the issue in favour of the 3rd – 6th Cross-Respondents.

The decided cases more especially from the apex Court have said that the validity of an originating process in a proceeding before a Court is fundamental and the competence of the proceedings is condition sine qua non to the legitimacy of any

suit. Therefore, the failure to commence proceeding with valid Writ of Summons goes to the root of the case and any order emanating from such proceeding is liable to as incompetent and a nullity. See SLB CONSORTIUM LTD. VS. NNPC [2011] ALL FWLR (pt. 583) 1902 at 1903; MINISTRY OF WORKS & TRANSPORT ADAMAWA STATE VS. YAKUBU [2013] ALL FWLR (pt. 694) 23 at 25.

The Supreme Court has even gone further to restate in concrete terms how processes filed in Court by a legal practitioner should be signed as to vest the Court with the requisite jurisdiction. See e.g. ALAWIYE VS. OGUNSANYA [2013] ALL FWLR (pt. 668) 800 at 808 – 809.
However, in following the above cited decisions by the apex Court, we must recognize the sometimes subtle differences in the applicable rules of Court. It is good to say that a legal practitioner must sign originating processes to ignite the jurisdiction of a Court, but it would not be right to say that originating process is not valid or is incompetent where a legal practitioner is not even expected or required as a matter of law to sign it.
In such a case, as pointed out by the learned counsel for the 3rd – 6th

Cross-Respondents in this case, the law does not mandate the impossible – “Lex Non Cogit Ad Impossibilia.” There are some Rules of Court, many of them the older Rules where an application to issue a Writ is made by a legal practitioner and then the actual issuing of the Writ is done by the Registrar or the Judge. In such a case, a legal practitioner who does not have such a statutory role to play in the issuance of a Writ will logically not provide an answer for the absence of his signature on the Writ of Summons. This thus provides a difference from situations where a legal practitioner is required to sign the Writ and he did not sign thereby failing as it were to ignite the jurisdiction of the Court by not signing the originating process.
It is for these reasons that I agree with the learned counsel for the 3rd – 6th Cross-Respondents that the cases relied on by the learned counsel for the Cross-Appellants on non-signing of Writ by a legal practitioner are not applicable in the instant case which is governed by the provision of Order 6 Rule 1 of the Federal High Court (Civil Procedure) Rule, 2000.

In the case of SPDCN VS. GBENEYEI (2019) 13 NWLR (pt. 1689) 272, pp. 293 – 294, the Court of Appeal held that there is a difference between the Writ of Summons and the application —- The application for Writ of Summons under the 2000 Rules of Federal High Court was to be originated by a legal practitioner or the Plaintiff. But the Writ was to be prepared, signed and issued by the Registrar. See Order 6 Rule 1 of the Federal High Court Rules, 2000.
Indeed, the only requirements of a legal practitioner by Order 6 Rule 10 (1) and Order 6 Rule 6 (1) of the Federal High Court 2000 Rule are that the legal practitioners’ name or firm and a business address within jurisdiction be endorsed on the Writ of Summons.
In the instant case, the Federal High Court 2000 Rules did not require signing of the Writ of Summons by a legal practitioner. Issue no. 5 is resolved in favour of the 3rd – 6th Cross-Respondents.

On issue No. 6, learned counsel for the Cross-Appellants submitted that a party claiming a relief from the Court has to prove his entitlement to it. He referred to the provision of Sections 131 (1 & 2) 132 & 133 (1) of the Evidence Act Cap. E14 2011

and the case of VEEPEE IND. LTD. VS. COCOA IND. LTD. [2008] 13 NWLR (pt. 1105) 486 at 508.

He submitted that a review of the evidence led during trial reveals that the 3rd – 6th Cross-Respondents did not discharge the burden of proof under Section 131 of the Evidence Act 2011 which would have entitled them to the reliefs sought (especially the declaratory and monetary reliefs). That a substantial number of the averments in the statement of claim (particularly on injuries suffered or damages to properties) were not proved. He referred to the cases of REMALO LTD. VS. NBN LTD. [2003] 16 NWLR (pt. 846) 235 at 246; AFROTEC TECHNICAL SERVICES (NIG) LTD. VS. MIA & SONS LTD. [2000] 15 NWLR (pt. 692) 730 and invited us to note the following in the evidence before the trial Court:
a) There was no evidence to show that the Cross-Appellants authorized or approved the cordon and search operation.
b) There was no evidence of any autopsy test conducted on the body of Mr. Efenji Odep Ochikiri to determine the cause of his death or to ascertain whether he died from the actions of the Cross-Appellants.
c) There was no evidence from Moniaya

Hospital, Ogoja to corroborate the deposition of the 3rd Cross-Respondent (PW1) under paragraph 20 of her Witness Statement on Oath or to confirm that the body of Mr. Efenji Odey Ochikiri was deposited there or to show that the Cross-Appellants were the ones that deposited his body there.
d) There was no evidence of either a traditional or statutory marriage or existence of children between the 3rd Cross-Respondent and Mr. Efenji Odep Ochikiri. The 3rd – 6th Cross-Respondents did not establish a basis for claiming compensation in respect of the death of Mr. Efenji Odep Ochikiri.
e) The 3rd Cross-Respondent’s testimony under paragraphs 4, 6, 9, and 10 of her Witness Statement on Oath indicted only soldiers and not the Cross-Appellants.
f) There was no medical report or any other credible compelling evidence to show that the 3rd – 6th Cross-Respondents suffered or were treated for any injury sustained from the actions of the Cross-Appellants.
g) It is a matter of public knowledge that the 3rd Cross-Appellant was not an arms-bearing agency until a presidential approval was granted in that regards sometimes in 2011.

It is therefore impossible for the officers of the 3rd Cross-Appellant to have attacked or injured the 3rd – 6th Cross-Respondents with guns in 2006 as alleged.
h) There was equally no evidence of destruction of the 3rd – 6th Cross-Respondents’ properties by the Cross-Appellants, no such properties were itemized before the trial Court. There was no evidence to show that the 3rd – 6th Cross-Respondents owned the properties that were allegedly destroyed, there was also no valuation of such properties on the basis of which the trial Court would have validly ascribed appropriate compensation to them.
i) The evidence by Mr. Cornelius Idu Odi totally amounts to hearsay evidence which is inadmissible. He did not disclose the basis, source or time of his alleged findings. His sources in the military barracks or Appellant’s Command are unknown and there is nothing before the Court to show that he indeed visited the 13 Amphibious Brigade or the 3rd Cross-Appellant’s State Command. The reports he referred to were not tendered before the Court. There was no way he could have personal knowledge of all the events he narrated in his

deposition because he did not leave his house during the incidence therefore he could not have known what transpired in the houses of the 3rd – 6th Cross-Respondents or the affected communities of Afrike 1, Afrike 11, Afrike 111. The pertinent question to ask why was he not part of those who were attacked or injured? This also corroborates the fact he was neither present not privy to the events of 22nd October, 2006. He was basically narrating what happened to others who must have in turn informed him. His evidence is simply hearsay and unreliable. We refer your lordships to: LADOJA VS. AJIMOBI [2016] 10 NWLR (pt. 1519) pg. 87 at p. 146-147, paras G-A; OKEREKE VS. UMAHI [supra] at p. 489, paras. F-G.
j) In the same vein, the Witness Statement of Oath of the 2nd Cross-Respondent equally did not provide evidence of injury suffered by him or property destroyed by any known or named officer of the Cross-Appellants.
k) A Court of law is not a father Christmas as to grant what was not proved before it, hence, the award of N150 Million as compensation and damages is without evidential basis and legal backing, it is therefore excessive and

unsustainable, on account of the review and analysis in the preceding paragraphs to the effect that:
i. No single or specific right of the 3rd – 6th Cross-Respondents either under the Constitution or African Charter has been shown to have been infringed upon by the Cross-Appellants. The violated rights cannot just be at large.
ii. The ownership, destruction and value of the properties in question was not established.
iii. The cause of death of Mr. Efenji Odey Ochikiri was neither established nor linked with the Cross-Appellants.
iv. No evidence was led to show that the injuries or losses suffered by the 3rd – 6th Cross-Respondents on account of the alleged violation of their rights or destruction of properties or loss or income due to the 1st Cross-Respondent’s family on account of the death of Mr. Efenji Odey Ochikiri was worth the awarded sum of N150 million.
l) It is also obvious that the documents in the 3rd – 6th Cross-Respondents’ list of Exhibits inclusive of EXHIBIT NA 4 before the trial Court are all public documents which ought not to be admitted and acted upon in the absence of certification.

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This Honourable Court is inherently empowered to expunge inadmissible evidence that has been wrongly admitted and we urge your Lordships to so do. The fact that the Cross-Appellants did not object to the admissibility of the documents at the trial stage does will not constitute a barrier to raising the objection on appeal on the ground that the admission of the documents are subject to the fulfillment of legal conditions (in Section 104 and 105 of the Evidence Act, 2011). We refer this Honourable Court to: B. MANFAG (NIG) LTD. VS. M/S O. I. LTD. [2007] 14 NWLR (pt. 1053) pg 109 at pp. 139 -140 paras. G-B.

He submitted that the learned trial judge made the following findings at page 18 of the judgment thus:
“This Court also accepts the overwhelming and uncontradicted evidence of 1st Plaintiff, the wife of late Efenji Odey Ochikiri, on 9th November, 2010 that she saw her husband beaten and eventually killed by soldiers under the 1st and 2nd Defendants employment or authority…
From 1st Exhibits AE 001A, B, 2, and NA 4 tendered by the Plaintiffs and 1st and 2nd Defendants respectively at Trial, the latter are vicariously liable for the

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unlawful killing of Mr. Efenji Odey Ochikiri.”

He submitted that whilst the learned trial judge made no findings against the Cross-Appellants or its officers on the killing of Mr. Efenji Odey Ochikiri yet his Lordship still proceeded to make an award of N150 Million against the Cross-Appellants for the unlawful killing of Mr. Efenji Odey Ochikiri. Damages cannot be awarded against a party who has not been found to have violated an aggrieved party’s right.

In view of the findings by the trial judge as highlighted above, he submitted that the Cross-Appellants herein cannot be held to be vicariously liable for the acts that have been alleged by the 3rd – 6th Cross-Respondents.

He reasoned that the institutions or agencies of the Federal Government are creation of statute having their distinct legal personality and function. It is not the statutory responsibility of these institutions to carry out the wrongdoings (which were not proved) alleged by the 3rd – 6th Cross-Respondents. Assuming the allegations raised by the 3rd – 6th Cross-Respondents are genuine, the Cross-Appellants cannot be legally held responsible for

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any act done without their authorization or acts done outside the confines of the law rather the respective officers involved would be personally and directly liable for their actions. The Cross-Appellants can only be vicariously liable if:
a. There is proof of direct and positive evidence showing agency or authorization to carry out the acts complained of. See HEALTH CARE PRODUCTS (NIG) LTD. VS. ALHAJI BAZZA (2003) FWLR [pt. 162] 1937 @ 1956 -7.
b. The actions complained about were done while discharging their statutory duties or doing what the Cross-Appellants authorized. See MURI NIRCHANDANI & ANOR. VS. BABATUNDE PINHEIRO (2001) FWLR [pt. 48] 1307 @ 1323; IFEANYI-CHUKWU (OSONDU) CO. LTD. VS. SOLEH BONEH NIG. LTD. (2000) 5 NWLR (pt. 656) pg. 322 at 345; IYERE VS. BFFM LTD. (2008) 18 NWLR (pt. 1119) pg. 300 at pg. 322 paras. B-E.

He concluded that assuming without conceding that there is agency relationship between the Cross-Appellants and the concerned officers, the agency cannot operate in the circumstances in view of the criminal nature of the allegations (murder, causing grievous bodily harm, criminal assault, wounding etc). This is

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because there is no agency or vicarious liability in crime. He relied on APC VS. PDP [2015] 15 NWLR (pt.1481) pg. 1 at p. 73, paras. G-H.

He urged us to set aside the award of N150 Million against the Cross-Appellants and resolve issue No. 6 in favour of the Cross-Appellants.

In response to Cross-Appellants issue No. 6, learned counsel for the 3rd to 6th Cross-Respondents submitted that the 4th Cross-Respondent who testified as PW2 at the trial gave evidence of the events leading to her husband’s death. That she testified in part at pages 92-95 of the record thus:
6. “The next thing we heard was the smashing of our door and windows by these soldiers.
7. As soon as they forcefully gained entry to our house, they started pulling apart our furniture, they destroyed everything in sight while some of them were destroying our properties, some got hold of my husband.
8. They started shooting questions at him which they never gave him the opportunity to answer.
9. My husband was dragged out of the house by the soldiers and with the booths of their riffles and back of machetes they continued beating him up.
10. My husband

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was bleeding through his mouth and nostril while he was screaming my name. I tried to rush to him, but the Soldiers pushed me roughly away and I fell down with my five months old baby whom I was carrying in my arms. They slapped me by my face several times and hit me by my back with the gun.
11. They took my husband out of the compound but I followed from a distance. He was made to dig some places which they pointed to him. One of such places was a grave. While he was digging they were still beating him up.
12. After digging about four of such places and they discovered nothing, they tied him to a tree and continued with the beating.
13. People were openly wailing and crying about the brutish way they were handling my husband and some others.
14. When they untied my husband, he could not stand, let alone walk and was thrown roughly to the back of their vehicle and drove away.”

He submitted that the above pieces of evidence on the events leading to the death of 3rd Cross-Respondents’ husband were corroborated by the unchallenged testimony of PW1 and 5th Cross-Respondents thus:

After several hours of searching and

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beating, I and several others were tied to palm trees.
11. We were eventually untied and roughly thrown into the back of their vehicle and were heading to the Army Barracks at Ogoja.
12. It was then we discovered that Mr. Efenji Ochikiri who had all this while been bleeding through his mouth, ears and nostrils and was no longer moving.
13. I drew the attention of one of the Army Officers to this fact and when they discovered that Mr. Ochikiri was no longer breathing and was in fact, dead, they took him to Monaiya Hospital in Ogoja, where he was confirmed dead.
14. We were still in the car with two of the soldiers standing guard. The ones that took Mr. Ochikiri’s corpse into the hospital came back and in a very callous manner told us that he was dead. We wept and feared for our own lives.

Counsel submitted that the above pieces of evidence before the trial Court on the death of Mr. Odep Ochikiri and the manner the Cordon and Search was actually carried out were neither contradicted nor impugned during cross-examination and that the trial Court rightly acted on it. He referred to the cases of MABAMIJE VS. OTTO (2016) 13 NWLR

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(pt. 1529) 171 at 203; OFORLETE VS. STATE (2000) 12 NWLR (pt. 681) 415 at 436; MONKOM VS. ODILI (2010) 2 NWLR (pt. 1179) 419 at 442.

He noted that it took an order of the trial Court made on 5th may, 2008 for the body of the late Odep Ochikiri to be released for burial, ten (10) months after he was brutally killed by the Cross-Appellants.

He submitted that all through the trial, the 1st and 2nd Cross-Appellants have never denied the officers who carried out the operation Cordon and Search in 3rd – 6th Cross-Respondents community. They have also not contended that the officers were not their servant and that they did not act in the course of their employment with them. He referred to the case of NANDE VS. SIMON (2014) ALL FWLR (pt. 753) 1878 at 1898, for the view that in cases of vicarious liability there must be clear evidence that the acts of the employee complained of was carried out in the course of the employees’ employment.

He submitted that general damages are such that the law will presume to be the direct and natural consequences of the act complained of. That personal experience of pain can never be measured in money. And, that

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it is an established principle of law that once a claim succeeds, the granting of reliefs goes along with the success of the matter. He referred to the cases of ELF PETROLEUM NIG. LTD. VS. UMAH (2006) ALL FWLR (pt. 343) 1761 at 1765; ZOBAMS COMPANY NIGERIA LIMITED VS. TOFA GENERAL ENTERPRISES LIMITED (2006) ALL FWLR (pt. 317) 515 at 517; UAC (NIG) PLC VS. SOBODU (2006) ALL FWLR (PT. 329) 877 at 880; CHUKWU VS. MAKINDE (2009) 6 NWLR (pt. 1137) 237 at 258.

He concluded that since the wrongs done to the 3rd – 6th Cross-Respondents, particularly the 3rd Cross-Respondent, are aggravated by circumstances or violence, oppression malice, wanton and wicked conduct on the part of the Cross-Appellants, the 3rd – 6th Cross-Respondents were therefore entitled to all the damages awarded by the trial Court and even more. He referred to the case of S. B. N. PLC VS. C. B. N. (2009) 6 NWLR (pt. 1137) 237 at 238 and urged us to resolve issue No. 6 in favour of the 3rd – 6th Cross-Respondents.

There are two significant points to be considered in the treatment of issue No. 6 and perhaps as they run through the cross-appeal itself.

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The first is the fact that the Cross-Appellants clearly admitted the authorization of the “Cordon and Search” operation in the 3rd -6th Cross-Respondents community. They (Cross-Appellants) however tried in vain in the Court below to defend the constitutionality of the said “Cordon and Search” operation. The Cross-Appellants however denied the fact that they authorized their men to brutalize, maim, kill people etc. The implication of these facts is that we can safely say that the acts of brutalization by the joint operation team of the Cross-Appellants is that the team acted in excess of the authority granted to them by the Cross-Appellants. However and as rightly pointed out by the learned counsel for the 3rd – 6th Cross-Respondents, the 1st – 2nd Cross-Appellants have never denied the officers who carried out the operation Cordon and Search in 3rd – 6th Cross-Respondents community. They have also not contended that the officers were not their servant and that they did not act in the course of their employment with them.

Incidentally, from the facts of this case, even though the parties and the Court have necessarily,

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unavoidably and inevitably use words and concepts such as “vicarious liability” the actions of the Cross-Appellants are indeed public wrongs rather than private wrongs and more in the nature of abuses and breaches of the Fundamental Rights of the 3rd – 6th Cross-Respondents and perhaps others not sufficiently opportuned to file suits against them.

The second significant point is the undeniable fact that the evidence offered by the 3rd – 6th Cross-Respondents in this case was unchallenged and uncontradicted. There are of course legion of cases to support the proposition that a Court of law ought to act on evidence that is unchallenged and uncontradicted. See e.g. ZUBAIRU VS. STATE (2015) 16 NWLR (pt. 1486) 504 SC; C. B. N. VS. OKOJIE (2015) 14 NWLR (pt. 1479) 231 SC; FEBSON FITNESS CENTRE VS. CAPPA H. LTD. (2015) 6 NWLR (pt. 1455) 263 CA; KAYILI VS. YILBUK (2015) 7 NWLR (pt. 1459) 628 SC; MTN NIG. COMMS. LTD. VS. A. C. F. S. LTD. (2016) 1 NWLR (pt. 1493) 339 CA; I. G.P. VS. IKPILA (2016) 9 NWLR (pt. 1517) 236 CA.

The 3rd – 6th Cross-Respondents have proved their entitlements to the reliefs and damages awarded by the trial

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Court. Issue No. 6 is resolved in favour of the 3rd – 6th Cross-Respondents.

It is common ground between the parties that the Cross-Appellants have abandoned the issue No. 7 nominated by them for the determination of this appeal. In the circumstance, having resolved the six (6) issues in this cross-appeal against the Cross-Appellants, the cross-appeal lacks merit and it is accordingly dismissed.

CONCLUSION
This is an appeal and a cross appeal. Both the appeal and the cross-appeal are dismissed. There shall be costs of N50,000 awarded to the 1st – 4th Respondents in the main appeal and another costs of N50,000 is awarded to the 3rd – 6th Cross-Respondents in the cross-appeal.

HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read in draft the judgment just delivered by my learned brother Mojeed Adekunle Owoade, J.C.A. I agree with the erudite reasons advanced in arriving at the inescapable conclusion that the appeal and the cross appeal be dismissed for reasons ably marshaled in the lead judgment.

Having also read and studied the record of appeal and the briefs filed and exchanged, vis-a-vis the lead decision

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brilliantly and exhaustively pronounced on the issues elicited by the parties, I cannot but concur with the decision reached in the main appeal as well as the Cross Appeal and thereby affirm the decision of the Court below. I endorse all orders made in the lead judgment inclusive of the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Mojeed A. Owoade, J.C.A.

My noble Lord has comprehensively dealt with all the issues nominated in the main appeal and the cross-appeal. I agree with the reasonings and conclusions thereby reached. I also dismiss the moribund appeal and cross-appeal. I abide by all the consequential orders including the order as to costs contained in the lead judgment.

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Appearances:

M. ENYI, ESQ. holding the brief for PSC AGADA For Appellant(s)

L. AKPAMA, ESQ. – For the 1st – 4th Respondents and the 4th – 7th Cross Respondents
V. U. OHABUGHIRO – For 5th – 7th Respondents/Cross Appellants For Respondent(s)

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