IGP & ORS v. ESSIEN (2022)

IGP & ORS v. ESSIEN

(2022)LCN/16846(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, January 31, 2022

CA/K/228/2017

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

1. INSPECTOR-GENERAL OF POLICE 2. NIGERIA POLICE SERVICE COMMISSION 3. SP. MOSES ADUROJA (Former DPO, Sabongari Police Station, Katsina) 4. DSP JAYE DADIYA APPELANT(S)

And

BARR. BASIL ESSIEN RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE THE JURISDICTION OF A COURT IN RESPECT OF A CAUSE IS OUSTED

The foregoing are the arguments put forward by the parties in support of and in opposition to the preliminary objection, which is aimed at torpedoing the ship of this appeal in limine for want of jurisdiction. The pre-eminent status or statute of jurisdiction in the scheme of legal proceedings is well ingrained in our jurisprudence, and it is merely restating the obvious that jurisdiction is the first test in the legal authority of a Court or Tribunal, whether at first instance or on appeal, and its absence disqualifies the Court or Tribunal from determining the substantive issues submitted to it for adjudication. Jurisdiction is a threshold matter and the very lifeline of judicial power and judicialism without which the entire proceedings, trial, findings, orders and pronouncements are futile, invalid, null and void ab initio however brilliantly they may have been conducted. Once the jurisdiction of a Court in respect of a cause or matter is ousted, the Court will lack the competence to entertain and determine that cause or matter. See the leading case of MADUKOLU v NKEMDILIM (1962) 1 ALL NLR 587 at 595 – per Bairamian FJ, ROSSEK v ACB LIMITED [1993] 8 NWLR (PT. 312) 382 at 437 & 487; ATTORNEY-GENERAL, LAGOS v DOSUNMU [1989] 3 NWLR (PT. 111) 552, MATARI v DANGALADIMA [1993] 3 NWLR (PT. 281) 266, OLOBA v AKEREJA [1988] 3 NWLR (PT. 84) 508 and OKE v OKE [2006] 17 NWLR (PT. 1008) 224 among a host of other cases.

Owing to its fundamental and intrinsic nature and effect in judicial administration, it is neither too early nor too late in the day to raise the issue of jurisdiction, nor is the Court finicky or fussy about the manner in which it may be raised. It can be raised viva voce [see PETROJESSICA ENTERPRISES LIMITED v LEVENTIS TRADING COMPANY LIMITED [1992] 5 NWLR (PT. 244) 675 at 678], or on the basis of the evidence received [see NDIC v CBN [2002] 7 NWLR (PT. 766) 272], or for the first time on appeal without any restraints as to leave or otherwise. See WESTERN STEEL WORKS LTD & ANOR v IRON STEEL WORKERS LTD [1987] 2 NWLR (PT. 179) 188, MAGARI v MATARI [2000] 8 NWLR (PT 670) 722 at 735, ADERIBIGBE v ABIDOYE [2009] 10 NWLR (PT. 1150) 592, 615, AKEGBE v ATAGA [1998] 1 NWLR (PT 534) 459 at 465, STATE v ONAGORUWA (1992) 2 SCNJ 1 and ATTORNEY-GENERAL, LAGOS v DOSUMU supra. PER AFFEN, J.C.A.

THE IMPLICATION OF A LIMITATION OF ACTION ON THE ISSUE OF JURISDICTION

Limitation of action implicates the issue of jurisdiction, which is determined by reference to the claimant’s demand but not the defendant’s answer which merely disputes the existence of the claim but does not alter or affect its nature [see C.G.G. (NIG) LTD v OGU [2005] 8 NWLR (PT 927) 366, ABIA STATE TRANSPORT CORP. v QUORUM CONSORTIUM LTD [2004] 1 NWLR (PT 855) 601 at 621 and ANIGBORO v SEA TRUCKS (NIG) LTD. [1995] 6 NWLR (PT. 399) 35]; even as the objector must be taken to have admitted the correctness of the averments in the originating processes, and any fact introduced aliunde cannot be relied upon. See IBRAHIM v OSIM [1988] 3 NWLR (PT. 82) 257, [1988] 1 NNSC 1184 at 1197, SHELL B.P. PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD v ONASANYA (1976) 6 SC 89 at 94 and CHEVRON (NIG.) LIMITED v LONESTAR DRILLING (NIG.) LIMITED [2007] 16 NWLR (PT. 1059) 168 at 179. Limitation of action is the principle of law requiring a claimant to, as a matter of obligation, seek prompt remedy for the breach of his right in a Court of law within the time limited by law, otherwise, his right/cause of action becomes unenforceable at the expiration of the period allowed by law for commencing the action. This principle is deployed as a defence in actions in tort and contract amongst other actions. See Halsbury Laws of England (Vol 28), 4th ed., p. 408. Thus, where a statute provides for the institution of an action within a prescribed period, no proceedings shall be commenced after the time prescribed by such statute; and any action brought after the prescribed period is said to be statute barred. See NATIONAL REVENUE MOBILISATION ALLOCATION AND FISCAL COMMISSION v JOHNSON [2019] 2 NWLR (PT. 1656) 247 at 270, SANDA v KUKAWA LOCAL GOVT (1991) 2 NWLR (PT 174) 379, EKEOGU v ALIRI (1991) 3 NWLR (PT 179) 258, EBOIGBE v NNPC [1994] 5 NWLR (PT. 346) 649 at 659 and P. N. UDDOH TRADING CO LTD v SUNDAY ABERE (2001) 11 NWLR (PT 723) 114, (2001) 24 WRN 1. PER AFFEN, J.C.A.

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction
The Respondent is a legal practitioner based in Katsina State. He visited Sabongari Police Station, Katsina on 28/3/14 to arrange for the bail of a client, but the 3rd and 4th Respondent, being the Divisional Police Officer (DPO) and Divisional Crime Officer (DCO) thereat, allegedly, not only brutalised, tortured, humiliated and subjected the Respondent to inhuman and degrading treatment, including but not limited to spraying toxic chemical substance into his eyes leading to partial blindness and loss of sight in his left eye; he was equally detained, initially at Sabongari Police Station and subsequently at State CID Katsina contrary to constitutional guarantees. The Respondent therefore initiated an action for enforcement of fundamental right claiming declaratory, injunctive and monetary reliefs as well as an apology as contained in his Amended Originating Motion dated 14/10/15 but filed on 9/11/15. In a considered judgment delivered on 30/6/16 (which lies at pp. 808-836 in Volume 2 of the records), the High Court of Katsina State (coram: Abdullahi Yusuf, Chief Judge) found in favour of the Respondent.

Being dissatisfied with the judgment, the Appellants filed an initial Notice of Appeal dated 4/7/16, which was subsequently amended with the leave of this Court. The Amended Notice of Appeal filed on 30/6/17 was deemed properly filed on 17/1/18. Briefs were filed and duly exchanged. The Appellant’s Brief filed on 19/3/18 was deemed properly filed on 2/5/18; the Respondent’s Brief was filed on 31/5/18; whilst the Appellant’s Reply Brief was filed on 31/1/20. The Respondent raised a preliminary objection challenging the competence of the appeal as constituted and incorporated arguments in support thereof in the Respondent’s Brief, to which the Appellant reacted in the Appellant’s Reply Brief. At the hearing of the appeal on 3/11/21, the preliminary objection was argued and opposed by learned counsel for the parties who equally adopted their respective briefs of argument. Learned counsel for the Respondent urged the Court to strike out or discountenance the Appellant’s Reply Brief for introducing a fresh issue in para. 7.0 and thereby deviating from the proper role of a reply brief. We shall attend to the Respondent’s anxiety in due course, but let us do first things first by grappling with the preliminary objection.

Preliminary Objection
The sole ground of the preliminary objection dated 31/5/18 is that “there is no competent or valid notice of appeal before this honourable Court upon which it can exercise its jurisdiction to hear and determine this appeal”. The Respondent contends that whereas a notice of appeal is the foundation and sine qua non for the competence of an appeal, the original notice of appeal by which the Appellants commenced this appeal (as contained in pp. 837-843 of the records) was only prepared and dated but not filed at the Registry of the lower Court, and the appellate jurisdiction of this Court was not validly invoked, citing KENTE v ISHAKU [2017] 15 NWLR (PT. 1587) 94 at 118 (SC), OKPE v FAN MILK PLC [2017] 2 NWLR (PT. 1549) 282 at 298-299 (SC), FRN v DAIRO [2015] ALL FWLR (PT. 776) 486 at 506-507 and ADERIBIGBE v ABIDOYE [2009] 10 NWLR (PT. 1150) 592 at 614. They maintained that the notice of appeal does not bear any assessment by the relevant Court official, date of filing or endorsement as to payment of filing fee, citing OGWE v IGP [2015] ALL FWLR (PT. 779) 1055 at 1067 and 7UP BOTTLING COMPANY LTD v YAHAYA [2001] 4 NWLR (PT. 702) 47 at 53; and that even if it is assumed without conceding that the notice of appeal was filed at the lower Court, it is still incompetent as the 3rd and 4th Appellants do not fall within the category of persons exempted from paying filing fee, citing 7UP BOTTLING COMPANY LTD v YAHAYA supra at 55; and that the subsequent amendment of the notice of appeal did not cure the defect in the original notice of appeal because an incompetent originating process cannot be regularised, calling in aid the cases of OKWOSA v GOMWALK [2017] 9 NWLR (PT. 1670) 259 at 281-282, IDEGWU v THE STATE [2015] 6 NWLR (PT. 1455) 286 at 305-307, PETGAS RESOURCES LTD v MBANEFO [2018] 1 NWLR (PT. 1601) 442 at 470 and OKAFOR v B. D. U., JOS BRANCH [2017] 5 NWLR (PT. 1559) 385 at 438. The Court was urged to decline jurisdiction and strike out this appeal for being incompetent with substantial costs.

Opposing the preliminary objection, the Appellant contends (in paragraphs 3.1-3.7 of the Reply Brief) that the objection is misconceived and unfounded in law because the notice of appeal was properly filed at the Registry of the lower Court on 25/8/16, endorsed with the inscription “official”, duly stamped and dated as shown in the Additional Records deemed transmitted on 29/1/20 and this appeal cannot be said to be incompetent; that the Registry of the lower Court inadvertently used an unendorsed, unstamped and undated copy of the notice of appeal in compiling the records, and the law does not make a practice of visiting the sins of the lower Court’s Registry on innocent litigants, citing CHUKWUMA IGWE v I. G. P. & 2 ORS [2015] ALL FWLR (PT. 779) at 1067 and COOPERATIVE & COMMERCIAL BANK (NIG) PLC v ATTORNEY-GENERAL, ANAMBRA [1992] 8 NWLR (PT. 261) 523. The Appellant maintained that Order 12 Rules 1 and 2 of the Court of Appeal Rules as well as the rules/practice of the lower Court provide for waiver of filing fees for agencies/agents of the Federal Government, thus not only the 1st and 2nd Appellants are exempted from paying filing fee (as conceded by the Respondent) but the 3rd and 4th Appellants as well, citing 7UP BOTTLING COMPANY LTD v YAHAYA supra at 53; that even if the 3rd and 4th Appellants are not exempted from paying filing fee as contended by the Respondent, the remedy lies not in striking out the appeal but ordering them to pay. It is contended that the Respondent who joined the 1st and 2nd Appellants in his application for enforcement of fundamental right on the ground that the 3rd and 4th Appellants acted in official capacity as their agents cannot approbate and reprobate. The Court was urged to dismiss the preliminary objection.

Resolution of Preliminary Objection
The foregoing are the arguments put forward by the parties in support of and in opposition to the preliminary objection, which is aimed at torpedoing the ship of this appeal in limine for want of jurisdiction. The pre-eminent status or statute of jurisdiction in the scheme of legal proceedings is well ingrained in our jurisprudence, and it is merely restating the obvious that jurisdiction is the first test in the legal authority of a Court or Tribunal, whether at first instance or on appeal, and its absence disqualifies the Court or Tribunal from determining the substantive issues submitted to it for adjudication. Jurisdiction is a threshold matter and the very lifeline of judicial power and judicialism without which the entire proceedings, trial, findings, orders and pronouncements are futile, invalid, null and void ab initio however brilliantly they may have been conducted. Once the jurisdiction of a Court in respect of a cause or matter is ousted, the Court will lack the competence to entertain and determine that cause or matter. See the leading case of MADUKOLU v NKEMDILIM (1962) 1 ALL NLR 587 at 595 – per Bairamian FJ, ROSSEK v ACB LIMITED [1993] 8 NWLR (PT. 312) 382 at 437 & 487; ATTORNEY-GENERAL, LAGOS v DOSUNMU [1989] 3 NWLR (PT. 111) 552, MATARI v DANGALADIMA [1993] 3 NWLR (PT. 281) 266, OLOBA v AKEREJA [1988] 3 NWLR (PT. 84) 508 and OKE v OKE [2006] 17 NWLR (PT. 1008) 224 among a host of other cases.

In the peculiar scheme of legal proceedings, a Court is invested with jurisdiction to entertain and determine an objection challenging its jurisdiction. See BARCLAYS BANK OF NIG. LTD v CENTRAL BANK OF NIGERIA (1976) 6 SC 175 at 188 -189, IWUAGOLU v AZYKA [2007] 5 NWLR (PT. 1028) 613 at 630 and WILKINSON v BANKING CORPORATION (1948) 1 KB 721 at 724. It is therefore imperative for this Court to be reasonably assured that its jurisdiction to entertain and determine the present appeal is not impaired in any way.

The rather narrow point of objection raised by the Respondent is that the original notice of appeal by which the Appellants initiated this appeal as contained in the record of appeal was not filed and bears no assessment, endorsement, stamp or date of filing, as such the jurisdiction of this Court has not been properly invoked. An examination of the said notice of appeal (which lies at pp. 837-843 of the records) tend to vindicate the Respondent’s contention. However, the Additional Record (deemed by this Court as properly compiled and transmitted on 29/1/20) contains the self-same notice of appeal dated 4th July 2016 showing that it was duly filed at the registry of the lower Court on 25/8/16: the notice of appeal is clearly endorsed and stamped with the inscription “official”, indicating waiver of filing fee. The notice of appeal contained in the additional records has all the trappings of a properly filed notice of appeal and renders the preliminary objection otiose. I take the considered view therefore that the Appellants have legitimately invoked the appellate jurisdiction of this Court.

The law will certainly not visit on the Appellants the obvious inadvertence on the part of the registry of the lower Court in utilising an unsigned, unendorsed and unstamped copy of the notice of appeal to compile the main record of appeal. Litigants and/or their counsel do not exert any supervisory control or influence over Registry Staff, and the Courts have through the years taken a stance that a case/appeal is deemed as having been commenced once it is shown that a litigant has done everything required of him. See ALAWODE v SEMOH (1950) 4 FSC 27, NICHOLS v GENERAL MANAGER 14 NLR 87, IBRAHIM SAUDE v HALIRU ABDULAHI [1988] 4 NWLR (PT. 116) 387 at 494–495 –per Uwais, JSC (as he then was, later CJN), FAMFA OIL LIMITED v ATTORNEY GENERAL, FEDERATION [2003] 51 WRN 1 at 8 –per Belgore, JSC (as he then was, later CJN) and OGBUNYIYA v OKUDO [1990] 4 NWLR (PT. 146) 551 at 571.

The other point of objection taken by the Respondent is that even if the notice of appeal was properly filed, it is still incompetent in that the 3rd and 4th Appellants did not pay any filing fee, insisting that only the 1st and 2nd Appellants are exempted from paying filing fee. Without much ado, this ground of objection is overly misconceived.

There is clear provision in the rules of Court exempting government departments and their officials from the obligation of paying filing fee. See Order 12 Rule 2 of the Court of Appeal Rules 2021. It cannot escape notice that in Ground 5 of the amended statement in support of originating motion for enforcement of fundamental right at the lower Court, the Respondent described the 3rd and 4th Appellants as agents of the 1st and 2nd Appellants who acted in official capacity at all material times. That was the basis for joining the 1st and 2nd Defendants as parties to the suit. It is therefore incongruous for the Respondent to contend by way of preliminary objection on appeal that only the 1st and 2nd Appellants are exempted from paying filing fee. Even if arguendo, the 3rd and 4th Appellants are obliged to pay filing fee (and I have held to the contrary), the remedy lies in directing the registry of the lower Court to assess the amount payable to enable them pay the shortfall rather than declining jurisdiction on that score. The preliminary objection fails and it will be and is hereby dismissed. And with the strictures introduced by the Respondent’s objection having been removed, we shift attention presently to the substantive appeal.

Issues for determination
From the five grounds of appeal contained in the Amended Notice of Appeal, the Appellant distilled four issues for determination (which were adopted without modification by the Respondent) as follows:
i. Whether having regard (sic) to the provisions of Section 2(a) of the Public Officers’ Protection Act Cap 14 LFN 2004 and the evidence at the disposal of the trial Hon. Chief Judge at the trial of Suit No. KTH/104/M/2015 the trial Hon. Chief Judge was right when he overruled the preliminary objection raised by the Appellants that the Respondent’s suit was statute barred same having been commenced outside the mandatory three months required by the Act (ground one).
ii. Whether having regards (sic) to the provisions of Sections 251 (1) (r) of the Constitution of Nigeria 1999 as amended, 2(a) of the Public Officers Protection Act Cap 14 LFN 2004, Order 5 Rule 1 and Order 6 Rule 8 of Katsina State High Court (Civil Procedure) Rules, Cap 60, Laws of Katsina State 1991 as is incorporated under Order 15 Rule 4 of the Fundamental Right (Enforcement Procedure) Rules 2009, the trial Hon. Chief Judge was right when he assumed jurisdiction during the trial of Suit No. KTH/104/M/2015 subject of this appeal (ground two)
iii. Whether considering the manner in which the trial Hon. Chief Judge treated the material evidence available and argument presented before him by the appellants, can the appellants be said to have been given fair hearing in Suit No. KTH/104/M/2015 (ground three).
iv. Whether the evidence adduced by the respondent at the trial of Suit No. KTH/104/M/2015 were cogent, convincing, compelling and/or satisfactory enough to warrant granting the reliefs granted by the trial Hon. Chief Judge (arising from grounds four and five).

Issues One and Two
The Appellants contend that their status as public officers in the public service of the Federation (as defined in Section 318 of the 1999 Constitution as well as Section 18 of the interpretation Act) entitle them to the protection of Section 2(a) of the Public Officers (Protection) Act Cap 14 LFN 2004 (“POPA”). They maintain that the 3rd and 4th Appellants (who are the alleged architects of the Respondent’s ordeal) acted in execution of public duty or authority vested in them under Section 4 of the Police Act enabled by Section 214 of the 1999 Constitution, insisting that the Respondent was arrested for misconduct at Sabon-gari Police Station in Katsina amounting to offences under the Penal Code which the Appellants were duty bound to enforce, citing FELIX ANOZIE v AGF & 4 OTHERS [2008] 10 NWLR (PT. 1095) 278, IBRAHIM v JSC [1998] 14 NWLR (PT. 584) 32, ONAGORUWA v IGP (1991) 5 NWLR (PT 193)593 and EGBE v ADEFARASIN (1987) 1 NSCC 1. Calling in aid the case of WILLIAMS v WILLIAMS [2008] 10 NWLR (PT 1095) 364 at 385 (SC) on the imperative of examining the claim before the Court in order to determine whether or not an action is statute-barred, the Appellants pointed out that the originating motion and supporting affidavit reveal that the actions constituting the alleged infraction of the Respondent’s fundamental rights occurred on 28/3/14 whilst the suit was filed on 16/3/15: a period outside three months; and that since equity only aids the vigilant but not the indolent, even if it is assumed without conceding that the Respondent’s rights were violated, the Respondent could no longer enforce them and the Learned Chief Judge erred in overruling their plea of statute bar. On Issue Two, the Appellants argued that the subject matter and parties in the Respondent’s suit fall outside the remit of the lower Court by virtue of Section 251(1)(r) of the 1999 Constitution and the learned trial Chief Judge erred in assuming jurisdiction to entertain the Respondent’s suit, insisting that the Appellants are officers of the Nigeria Police Force (being a security agency of the Federal Government), and the alleged arrest, torture and detention of the Respondent by the Appellants are “the exercise of executive actions as imbued by the Police Act” which cannot be entertained by the High Court of Katsina State, placing reliance on ADETONA v IGELE GENERAL ENTERPRISES LTD [2011] 7 NWLR (PT. 1247) 535 at 563, ANIAKOR v NIGERIA POLICE FORCE & 3 OTHERS (2014) 15 NWLR (PT. 1429) 155 at 170-172 and UNIVERSAL TRUST BANK LTD v UKPABIO & OTHERS [2000] 8 NWLR (PT. 670) 570 at 579; and that this Court has construed Section 46 of the 1999 Constitution (which opens with the words “subject to the provisions of this Constitution”) as subservient and subordinate to Section 251(1)(r) of the 1999 Constitution (which proclaims “Notwithstanding anything to the contrary in this Constitution”) in IGP & ORS v ALHAJI UMAR ABDULLAHI TSAURI (TATA) (unreported, Appeal No. CA/K/411/2015 delivered on 30/11/16 –per Wambai, JCA). The Appellants further referred to pp. 1-16, 96-102 in Vol. 1 and 515-520 in Vol. 2 of the records, as well as Order 5 Rule 1 and Order 6 Rule 8 of the Katsina High Court (Civil Procedure) Rules 1991 and contended that the originating motion (which qualifies as a writ of summons or originating summons by virtue of Section 5 of the Sherriff and Civil Process Act) is invalid for not being issued by the Registrar or other officer of the trial Court authorised to sign summonses and the trial Chief Judge ought to have set it aside, calling in aid the cases of KIDA v OGUNMOLA [2008] ALL FWLR (PT 327) 402 at 416 E-F (SC), OYEWOPO v ARANSIOLA [2014] ALL FWLR (PT 719) 1192 at 1202 D-F & 1203 8-G (G-A) and UWAOKOP v U.B.A. [2013] ALL FWLR (PT. 890) 1316 at 1347-1348 E-A (CA). This Court was urged to hold that the judgment of the lower Court was nothing but a nullity, citing MADUKOLU v NKEMDILIM (1962) 2 SCNLR 341 at 348.

The Respondent’s reaction is that Section 2 POPA does not apply to the suit before the lower Court, which is one for enforcement of fundamental right, placing reliance on Order III Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 (“FREP Rules”), FRN v IFEGWU [2003] 27 WRN 27 at 69 and EL-RUFAI v SENATE OF THE NATIONAL ASSEMBLY [2016] 1 NWLR (PT. 1494) 504. The Respondent maintained that S. 46(1) of the Constitution and Order II Rule 1 of the FREP Rules confer concurrent jurisdiction on both the Federal High Court and State High Court over actions for the enforcement of fundamental right, calling in aid GRACE JACK v UNIVERSITY OF AGRICULTURE [2004] ALL FWLR (PT. 2000) 1506 at 1521, F. U. T., MINNA & ORS v OLUTAYO [2017] LPELR- 43827(SC) at 27-32, JIM JAJA v C.O.P., RIVERS STATE [2013] 6 NWLR (PT. 1350) 225 at 244, MUSE v EFCC [2015] 2 NWLR (PT. 1443 237 at 262-263, ZAKARI v IGP [2000] 8 NWLR (PT 670) 666 at 682, NNABUCHI v I.G.P. [2007] ALL FWLR (PT. 368) 1158 at 1163, NIGERIAN ARMY v GARRICK [2006] 4 NWLR (PT. 969) 69 at 105, EFCC & ORS v CHUKWURAH (2018) LPELR-43972(CA), SEEDVEST MICRO FINANCE BANK PLC v OGUNSINA & ORS (2016) LPELR-41346(CA) and KOLO v NPF & ORS (2018) LPELR-43635(CA); and that the fact alone that the Federal Government or any of its agencies is a party in litigation does not automatically vest jurisdiction in the Federal High Court to the exclusion of the lower Court, insisting that jurisdiction is donated by the claim before the Court. The cases of NABORE PROPERTIES LTD v PEACE COVER NIG LTD [2015] 2 NWLR (PT. 1443) 286 at 316 and ESSI v NIGERIA PORTS AUTHORITY [2018] 2 NWLR (PT. 1604) 361 at 390 are relied upon. The further submission of the Respondent is that the Appellant’s insistence that the originating motion is incompetent for not having been issued by the Registrar is a fresh issue that can only be raised with the leave of this Court, citing GROUP LTD v ONI [2008] 11 NWLR (PT. 1097) 84 at 105-106; and that even if no leave is required to raise it, the contention is misconceived as the provisions of the lower Court’s Rules relied upon relate to writ of summons and originating summons, whereas this suit was initiated by way of originating motion for which neither the Rules of the lower Court, nor the FREP Rules or the Sheriffs and Civil Process Act make any provision for issuance by the registrar. This Court was urged to resolve Issues two and three against the Appellants.

Now, the proceedings that generated the present appeal is one for the enforcement of fundamental rights. The Appellants (as respondents in the lower Court) had, by way of preliminary objection, raised a plea of statute bar under Section 2(a) POPA, as well as insisted that Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria 1999 (“CFRN”) denudes the lower Court of the requisite jurisdiction to entertain actions against the Federal Government or its agencies, which objection was overruled by the trial Honourable Chief Judge.

A cause of action is time barred if legal proceedings can no longer be validly brought or maintained because the period laid down by applicable limitation law has lapsed.

A claimant’s cause of action to seek redress for wrong allegedly suffered as a result of the defendant’s action is to be distinguished from a right of action, which is a remedial right: the warrant to enforce presently a cause of action. A statute of limitation however removes the right and leaves the claimant with a barren and empty cause of action that cannot be enforced. See EGBE v ADEFARASIN [1987] 1 NWLR (PT. 47) 1. The effect of time bar is that the action would be dismissed. See NPA v LOTUSPLASTIC LTD (2005) 12 SCNJ 165 and LAMINA v IKEJA LOCAL GOVERNMENT [1993] 8 NWLR (PT. 314) 758 at 771.

The provision of Section 2(a) POPA is: “Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or any public duty or authority, the following provisions shall have effect: (a) The action, prosecution, or other proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or a continuance of damage or injury within three months next after the ceasing thereof…”. As a general rule, the above provision limits the period for commencing legal proceedings against a public officer to three months. However, the law recognises certain factors such as abuse of office, bad faith or mala fides, or acting without legal justification, the existence of which would deprive a person of the protection to which he would otherwise be entitled. See OFFORBOCHE v OGOJA LOCAL GOVERNMENT & ANOR [2001] 36 WRN 1 at 14 (per Ayoola, JSC) and INSPECTOR GENERAL OF POLICE v OLATUNJI 21 NLR 52. In this regard, it bears emphasizing that the categories of bad faith are not closed. The Supreme Court (per Brett, JSC) held in NWAKWERE v ADEWUNMI (1966) 1 All NLR 129 at 133-134 that the law is designed to protect the public officer who is acting in good faith and does not apply to any act done in abuse of office and with no semblance of legal justification. Similarly, His Lordship Adetokunbo Ademola, CJN held in LAGOS CITY COUNCIL v. OGUNBIYI (1969) 1 All NLR 296 at 299 that: “…the Act necessarily will not apply if it is established that the defendant had abused his position for purposes of acting maliciously. In that case, he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavouring to carry it out. In such a state of facts, he has bused his position for the purpose of doing wrong, and the protection of this Act, of course, never could apply in such a case”. And in IBRAHIM v JUDICIAL SERVICE COMMITTEE supra at 32 D-F, Iguh JSC intoned: “It can therefore be said that Section 2 of the Public Officers (Protection) Law 1963 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step out of the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law”. Crucially, it has been held that “a public officer who has contravened the provisions of the Constitution, particularly as they relate to the Fundamental Rights enshrined therein in the execution of his public duty cannot claim protection under the [Public Officers Protection] Act…” See MUHAMMED v AHMADU BELLO UNIVERSITY, ZARIA [2014] 7 NWLR (PT. 1407) 500 at 533]; as well as F. U. T., MINNA v OLUTAYO supra at 196 –per Ejembi Eko, JSC which donates the proposition that the right “specially vested” under Section 46(1) CFRN “to enforce fundamental rights stands above the ordinary laws, including Section 2(a) of POPA, which in my firm view is inapplicable in the circumstance”.

It is quite intriguing that the two issues considered by the Supreme Court in F. U. T., MINNA v OLUTAYO supra, namely: “1. Whether the lower Court had jurisdiction to entertain an appeal from a case that was instituted against a Federal Government agency in a State High Court; and 2. Whether the lower Court had jurisdiction to entertain an appeal from a case that was instituted against Public Officers well outside the 3 months statutory period” – are the very same issues raised by the Appellants at the lower Court as well as on appeal before this Court. Needless to say that the decision of the Supreme Court in F.U.T., MINNA v OLUTAYO supra remains forcefully binding under the inflexible doctrine of stare decisis. A public officer who has contravened the Constitution certainly cannot take refuge under the Public Officers (Protection) Act. It seems to me overly misconceived for the Appellants to contend that the torture and detention of the Respondent by officers of the Nigeria Police Force are “the exercise of executive actions as imbued by the Police Act” not cognisable by the High Court of Katsina State. The provision of Section 251(1)(r) CFRN upon which the Appellants have strenuously relied in contending that the High Court of Katsina State is bereft of jurisdiction to entertain the Respondent’s fundamental right enforcement action against them does not have the effect ascribed to it. The proceedings before the lower Court had absolutely nothing to do with the validity of any executive or administrative action or decision, which is what Section 251(1)(r) CFRN is concerned with. There is therefore no legal or factual basis for contending that the trial Court erred in overruling the Appellants’ objection and assuming jurisdiction. The point to vigorously underscore is that it is not all actions or proceedings for a declaration or injunction touching upon an executive or administrative action or decision of the Federal Government or any of its agencies that is exclusively cognisable by the Federal High Court under Section 251(1)(r) CFRN. Quite the contrary, the proceedings must have a bearing on the validity of such executive or administrative action or decision of the Federal Government or any of its agencies before the jurisdiction of the State High Court can be ousted. I reckon that if the Constitution intended to confer exclusive jurisdiction on the Federal High Court over all executive or administrative actions or decisions of the Federal Government or its agencies, Paragraph (r) of Section 251(1) would simply have read: ‘any action or proceeding for a declaration or injunction affecting any executive or administrative action or decision by the Federal Government or any of its agencies’ without any qualification whatsoever. But it is the wisdom of the Constitution to confer the Federal High Court with exclusive jurisdiction only in respect of proceedings for declaration or injunction “affecting the validity of” executive or administrative actions or decisions by the Federal Government or its agencies. In KOLAWOLE v ALBERTO [1989] 1 NWLR (PT. 98) 382, the Supreme Court [per Nnaemeka-Agu, JSC] quoted with approval the dictum of Viscount Simon in HILL v WILLIAM HILL (PARKLANE) LIMITED (1949) A.C. 530 at 546-547 to the effect that: “When the legislature enacts a particular phrase in a statute, the presumption is that it is saying something which has not been said immediately before. The rule that meaning should, if possible, be given to every word in the statute implies that unless there is good reason to the contrary, the words add something which would not be there if the words were left out”. The relevant enquiry therefore is as to the proper meaning of the word ‘validity’ in the context of Section 251(1)(r) of the 1999 Constitution (as amended), bearing in mind that in interpreting a statute, including the Constitution, the cardinal canon the Court should always turn to before all others is that it “must presume that a legislature says in a statute what it means and means in a statute what it says there” [see CONNECTICUT NAT’L BANK v GERMAIN, 112 S. Ct. 1146 at 1149 (1992)], and “when the words of a statute are unambiguous, then this first canon is also the last: judicial enquiry is complete” as the legislature “is presumed to act intentionally and purposely when it includes language in one section but omits it in another”. See ESTATE OF BELL v COMMISSIONER, 928 F.2d 901 at 904 (9th Cir. 1991).
Now, the term ‘validity’ is an abstract noun and derivative of ‘valid’ which is defined as “binding, possessing legal force or strength, legally sufficient”. See West’s Encyclopedia of American Law, 2nd edn., The Gale Group Inc., 2008. Similarly, the Black’s Law Dictionary, 8th ed., p. 1586 defines it as “legally sufficient, binding”. Validity signifies legal sufficiency in contradistinction to mere regularity. It would seem therefore that an ‘action or proceeding affecting the validity of any administrative action or decision of the Federal Government or any of its agencies in the context of Section 251(1)(r) CFRN must be one that transcends mere irregularity or wrongfulness of the executive or administrative action or decision complained of. The legal force, binding-ness or legal sufficiency of the executive or administrative action or decision, or the legal competence, capacity or authority of the Federal Government or its agency to take the executive or administrative action or make the executive or administrative decision must be a front-burner issue in an action or proceeding before it can be said to affect the validity of any such executive or administrative action or decision. It occurs to me, for instance, that the judicial decision [or judgment] of a Court of competent jurisdiction may be challenged for being wrong in law or fact notwithstanding that it is otherwise legally valid. That is to say, it is not every proceeding against the judicial decision of a Court of law that necessarily affects or touches upon the validity vel non of that decision. Thus, where the essential legal validity or competence of an executive or administrative action or decision of the Federal Government or any of its agencies is not the primary focus or main plank of the proceedings, it cannot be said that the State High Court is divested of jurisdiction to entertain the matter. See the decision of this Court (per Agim JCA, as he then was) in EFCC v WOLFANG REINL [Appeal No. CA/A/392/2016, delivered on 26th January 2018, unreported], which was affirmed by the Supreme Court in EFCC v WOLFANG REINL [2020] 9 NWLR (PT. 1730) 489, re-echoing the rule in GRACE JACK v UNIVERSITY OF AGRICULTURE, MAKURDI supra to the effect that Section 46 (1) invests both Federal and State High Courts with concurrent jurisdiction over fundamental rights enforcement proceedings, and it is of no moment that the federal government or any of its agencies is a party. The rule of jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior Court save that which specially appears to be so [see ANAKWENZE v ANEKE & ORS [1985] 16 NSCC (PT. II) 798 at 803 and MOBIL v LASEPA [2003] 1 MJSC 112 at 127 –per Ayoola JSC]; and “the Courts have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given as the one or the other would be treason of the Constitution”. See COHEN v VIRGINIA (1821) 19 US 264 at 404 –per John Marshal, CJ.

The Appellant’s further contention that the originating motion by which the Respondent commenced the action is invalid for not being issued by the Registrar or other officer of the trial Court is equally misconceived. An originating motion as a mode of initiating action in Court is separate and distinct from other modes such as writ of summons or originating summons, and the Appellants are certainly not at liberty to import the prescriptions of the Rules of Court relating to these other modes of commencing action into originating motion. In the absence of any provision in the Rules of Court for an originating motion to be issued by the registrar or other officer of the Court, it suffices that the originating motion by which the Respondent initiated this action was duly assessed at the Registry of the lower Court and appropriate filing fee paid therefor (as conceded in the Appellants’ Reply Brief). Issues One and two are resolved in favour of the Respondent against the Appellants.

Issues three and Four
The Appellants contend that the trial Chief Judge ignored and/or failed to properly evaluate their further affidavit and reply on points of law and thereby denied them fair hearing, citing AGBITI v THE NIGERIAN NAVY (2011) 2 SCNJ 1 at 30 and WAPPAH v MOURAH [2006] 18 NWLR (PT 1010) 18 at 48-49 (on what fair hearing entails and the effect of its denial); and that having not given them the opportunity to be heard on 19/3/15 when the lower Court granted an order of interim injunction restraining them from having anything to do with the Respondent, including his prosecution for offences said to have been committed at Sabon-gari Police Station, this Court ought to hold that they were denied fair hearing, citing AGBITI v THE NIGERIAN NAVY supra at 28. I am afraid, the record of appeal does not vindicate Appellants’ contention. Notwithstanding that the learned trial Chief Judge’s finding that the lawyer’s stamp affixed on the Appellant’s amended processes was not that of Mr J. I. Kpandegh of counsel, and that he failed or neglected to regularise the said processes as admonished in YAKI & ANOR v BAGUDU (2015) LPELR-SC.722/2015, his lordship bent over backwards to accommodate the Appellants thus: “I will however continue and determine the suit based on what the parties argued in their various addresses supported by their affidavit evidence”… “I have decided to go ahead and consider the suit as argued by the parties based on their affidavit evidence and written address” (see pp. 832–833 of the records). I fail to see how this constitutes denial of fair hearing or failure to evaluate the Appellant’s defence. Quite the contrary, the records reveal that the Appellants were not only afforded the opportunity to present their defence, their counter-affidavits and written submissions were given due consideration, notwithstanding the apparent irregularity, if not incompetence, of their processes. The Appellants’ further contention that the lower Court did not hear them before granting an ex parte order of injunction on 19/3/15 restraining them from prosecuting the Respondent for offences allegedly committed by him at Sabon-Gari Police Station clearly misconceives the nature of ex parte proceedings. Order IV Rule 3 of the FREP Rules 2009 allows for the grant of such ex parte orders, even as it cannot escape notice that there is no appeal against the said order. It is hardly necessary to state that an adverse party has no right of audience at the hearing of an ex parte application for interim injunction and no breach of constitutional right to fair hearing arises thereby. See 7UP BOTTLING CO LTD v ABIOLA [1995] 3 NWLR (PT. 383) 257, (1995) 3 SCNJ 37. This being so, not hearing the Appellants before granting the ex parte order of injunction certainly does not infract upon their right to fair hearing as alleged or at all.

The Appellants have further urged this Court to allow the appeal and set aside the judgment of the lower Court on the ground that neither the Respondent’s affidavit nor the exhibits attached thereto established any link between them and the Respondent’s ordeal; that there was no cogent, convincing, compelling and/or satisfactory evidence to support the decision of the trial Chief Judge; that the Appellants not only denied assaulting the Respondent but maintained that he came to the station already assaulted and looked like someone who came to lodge a complaint of assault on his person; and that the medical evidence did not establish that the Appellants were responsible for the Respondent’s battered eye, lips and chips, as such the reliefs granted including the damages awarded against Appellants have no foundation in law and bound to collapse. But an examination of the records shows that the lower Court evaluated the affidavit evidence before it and found that the Respondent established a veritable case of infraction of his fundamental rights. At pp. 834 – 836 of the records, the lower Court held thus:
“The exhibits accompanying the affidavit has said it all. I refer to exhibit ‘B’ and ‘B1’ complaint to the Nigeria Bar Association and the Commissioner of Police. Exhibit ‘C’ is the photograph of the applicant with battered face, swollen lips, reddish eye and swollen left eye as a result of overnight discharging from the eyes. Exhibit ‘D’ and ‘D1’ are Medical Report and Cash Receipt. The patient reference Hospital Card is exhibit ‘E’. There is also drugs prescription sheet from Federal Medical Centre Katsina as exhibit ‘E1’, reference hospital card from general hospital Katsina is exhibit ‘F, medical report from general hospital Katsina exhibit ‘G’. Referral slip to Dr. Agarwal’s Eye Institute Kaduna exhibit ‘H’. Petition written to the 1st respondent dated 10th April, 2014 exhibit ‘1’. A copy of scan at Aminu Kano Teaching Hospital which corroborated previous Medical Reports are in exhibit ‘J’ and ‘J1’. Newspaper publication of Daily Sun Newspaper of Monday 12th May 2014 Vol. 10 No. 2879 at p. 17 exhibit ‘K’.
In view of the above and the learned counsel for the applicant’s submission in the amended written address, I am of the firm view that the applicant has made a case against the respondents. I am further of the view that the applicant has made out a case against the respondents’ general averments covering the four respondents. The affidavit in support as well as the respondents has (sic) failed to convince this Court that what the applicant presented before this Court did not happen. The submission of counsel to the respondents on the right to dignity of human person [is that] “the right is only available to a person whose conduct in the circumstance leading to his complaint is unquestionable”. It is counsel’s submission that the applicant’s conduct when he visited Sabon-gari police station Katsina on the day of the incident was questionable, the only thing done to him was that he was kept behind counter and later transferred to State CID Katsina for him to account for his misconduct for violation of Sections 397, 148, 399, 265 and 392 of the Penal Code.”
This is not a satisfactory defence or answer to the litany of abuses and maltreatment suffered by the applicant going by the affidavit evidence and the exhibits attached thereto. I am satisfied that the applicant’s counsel has made out a case against the respondents jointly and severally and is entitled to the reliefs sought as contained on the motion paper with slight variation in the quantum of damages prayed by the applicant.”

The lower Court found ample evidence that the Respondent (who visited Sabon-gari Police Station on 28/3/14 in the course of plying his trade as a legal practitioner) was battered, tortured and brutalised by the 3rd and 4th Respondents, leading to damage of his left eye. Exhibit C is a photograph of the Respondent’s battered face with swollen lips, reddish eyes and swollen left eye, whilst Exhibits D and D1 are medical report and cash receipts. The evidence paints a rather gory picture of police brutality which has become all too rampant in this country: they sprayed toxic substance into the Respondent’s battered eyes and detained him initially at Sabongari Police Station where he was locked up in a cell with hardened criminals who were ordered to beat him up whilst the 3rd and 4th Appellants watched in amusement, before he was subsequently transferred to State CID where his ordeal continued. The exhibits attached to the supporting affidavit corroborate the depositions. The lower Court did not accept the Appellants’ insistence that the only thing they did to the Respondent was to keep him behind the counter at Sabongari Police Station before he was subsequently transferred to State CID Katsina to account for his misconduct. It is not plausible that a person who had already been brutalized elsewhere in the manner shown in Exhibit C would still be in a position to misconduct himself at Sabongari Police Station. Quite clearly, the Appellants are striving so hard to convince this Court that they are such civil, even saintly, officers who extended to the Respondent all the Courtesies that befits a gentleman notwithstanding that he had misconducted himself to such an extent that they deemed it necessary to escalate the matter to State CID for him to account for his misconduct! That is a fairy-tale meant for the marines, but not a Court of law.

The infringement of a fundamental right is largely a question of fact: it is the facts presented by an applicant that will disclose if his fundamental rights have been contravened or otherwise dealt with in a manner inconsistent with constitutional guarantees. See OYEWOLE SUNDAY v ADAMU SHEHU [1995] 8 NWLR (PT. 414) 484 and DONGTOE v CIVIL SERVICE COMMISSION, PLATEAU STATE [2001] 9 NWLR (PT. 717) 132. The learned trial Chief Judge carefully examined the facts presented and reached the conclusion that the Respondent suffered a “litany of abuses and maltreatment” meted to him by the Appellants in flagrant violation of his fundamental rights. The Appellants have not seduced me enough to disturb those findings.

It is contended in the Appellant’s Reply that even if the Respondent’s originating motion was properly issued, the lower Court lacked the jurisdiction to hear the suit because no pre-action notice was served on the 2nd Appellant pursuant to Section 20(3) of the Police Service Commission (Establishment) Act 2001, citing EZE v OKECHUKWU & ORS (2002) LPELR-1194(SC) NTIERO v NPA (2008) LPELR-2073(SC), NDCL v ASWB (2008) 8 MJSC 118 at 147 and SAUDE v ABDULLAHI [1989] 4 NWLR (PT. 116) 387 AT 422, and insisting that the issue of jurisdiction is fundamental and cannot be waived vide AGBITI v NIGERIAN NAVY (2011) 2 SCNJ 1 at 22–23. The Appellants maintained that “there was no single evidence which suggested that they were responsible for the allegations of the Respondent to have given rise for the trial Court awarding the outrageous sum of One hundred and fifty million Naira (N150,000,000) amongst other reliefs against the Appellants jointly and severally”; and that assuming without conceding that there was any such evidence “the trial Court did not show any justification for award of such huge amount of money as damages. No reason(s) were given”. The Court was urged to either set aside the damages awarded or exercise its powers to reduce the damages to accord with the weak evidence (if any) adduced by the Respondent.

It is hardly necessary to state that a Reply Brief is hardly the avenue for raising non-service of pre-action notice. The proper role of a reply brief is to “deal with all new points and points of preliminary objection or any challenge to the appeal raised and argued in the Respondent’s brief”. See Order 19 Rule 5(1) of the Court of Appeal Rules 2021 and the cases of LONGE v FIRST BANK OF NIGERIA PLC (2010) 2-3 SC 61 and CAMEROON AIRLINES v OTUTUIZU (2011) LPELR-827(SC).

But since it is a jurisdictional issue and the Court is usually not finicky or fussy about the manner it is raised, I will consider the issue of non-service of pre-action notice for all it is worth, even though the contention that a jurisdictional issue cannot be waived clearly loses sight of the fact that the law on waiver of right involving an issue of jurisdiction is not watertight. There are species of jurisdictional issues that can be waived (such as non-service of statutory pre-action notice before commencing an action: see MOBIL v LASEPA [2003] 1 MJSC 112 at 128, 130 and KATSINA LOCAL GOVERNMENT AUTHORITY v MAKUDAWA [1971] 7 NSCC 119 at 123-124), whilst issues bordering on especially subject matter or territorial jurisdiction can neither be waived, abandoned or acquiesced in by the parties owing to their fundamental and intrinsic nature in the schema of legal proceedings. See TUKUR v GOVERNMENT OF GONGOLA STATE supra. In this regard, rather than espouse a blanket principle of law applicable across board in all cases affecting or relating to jurisdiction, the Court adopts the cautious approach of taking each case on its own merit. See F & F FARMS (NIG) LTD v NNPC [2009] 12 NWLR (PT. 1155) 387 at 402-403 –per Niki Tobi, JSC.

The point to underscore is that notwithstanding the mandatory and foundational status of the requirement of pre-action notice, it can be waived by the party entitled to receive it, particularly as it is not a public right but a special privilege intended for the benefit of the concerned statutory body or government department alone and not anybody else. See MOBIL v LASEPA supra at 127 and ARIORI v ELEMO (1983) 1 SCNLR 1 at 24. Thus, a defendant who fails or neglects to plead non-service of pre-action notice at the trial Court is precluded from raising the plea for the first time on appeal: he is deemed to have waived the privilege. See EZE v OKECHUKWU supra (cited by the Appellant), KATSINA LOCAL AUTHORITY v MAKUDAWA supra at 125, as well as ETIOSA LOCAL GOVERNMENT v JEGEDE [2007] 10 NWLR (PT. 1043) 537 at 554–555 wherein it was strenuously contended on appeal that the action was incompetent ab initio as no pre-action notice was served before the action was commenced. Rejecting that contention, this Court (per Dongbam-Mensem JCA, now PCA) held that the appellant was presumed to have waived the requirement as it cannot ignore the processes of a Court of trial and come to the appellate Court to fly the kite of want of jurisdiction for non-compliance with pre-action notice which is a mere procedural requirement. The jurisdictional issue raised by Appellants herein belongs in the waivable category and they are deemed to have waived non-service of pre-action notice, I entertain no reluctance whatsoever in discountenancing it.

The other issue raised by the Appellants in their Reply Brief is that the lower Court did not give any reasons or “show any justification” for awarding the huge sum of N150m as damages amongst other reliefs against the Appellants jointly and severally; and that this Court should “either set aside the damages awarded or exercise its powers to reduce the damages to accord with the weak evidence (if any) adduced by the Respondent”. At the hearing, learned counsel for the Respondent protested the introduction of this fresh issue in para. 7.0 of the Appellant’s Reply Brief for the first time and urged this Court to strike out or discountenance the Reply Brief for deviating from the proper roles of a reply brief. I agree without reservation. The Appellants are not at liberty so to do. I accordingly discountenance this fresh issue raised in the Appellants’ Reply Brief.

Conclusion
Fundamental rights stand above the ordinary laws of the land: the factum of their enshrinement in the Constitution confers on these rights a preeminent status or position over and above other human rights. See UZOUKWU & ORS v EZEONU II & ORS. [1991] 6 NWLR (PT. 200) 700 at 761. They constitute ‘the basic minimum standard for civilised humanity’ enshrined in the Constitution so that they could be inalienable and immutable to the extent of the non-immutability of the Constitution itself. See RANSOME-KUTI v A-G, FEDERATION [1985] 7 NWLR (PT. 6) 211 at 231 –per Eso, JSC. The violation of fundamental rights by especially the police, which is the foremost law enforcing agency, is particularly egregious and scandalous; more so, when the victim is a legal practitioner. The Court’s position, as the ultimate custodian of the rule of law, is crucial for the purpose of safeguarding constitutional rights through effective intervention whenever, in an appropriate case, it is shown that fundamental rights have been violated. See FRN v IFEGWU [2003] 15 NWLR (PT. 842) 113 at 184-185. Law enforcers, saddled with an onerous statutory responsibility as they are, must scrupulously maintain the delicate balance between law enforcement on the one hand, and according due regard and recognition to human rights on the other hand. See ODOGU v A-G, FEDERATION [1996] 6 NWLR (PT. 456) 508. In order to make law enforcement more effective and effectual, law enforcers must conduct their investigative activities and operations within the confines of the Constitution and other laws they are required to enforce. That is to say, law enforcers must observe and ensure the observance of “the law behind the law’ by demonstrating a moral commitment to the very laws they are required to enforce, for without such moral commitment to the law, ‘who will guard the guard, and who will police the police’. See P. O. Affen, The Principles of Fair Hearing and Powers of Arrest and Sanctions by Law Enforcing Agencies in Nigeria, (2009) 2 NJPL 258.

This appeal is destitute of merit and the proper thing to do is to record an order dismissing it without further assurance. I so order. The judgment of the High Court of Katsina State in Suit No. KTH/104M/2015 delivered on 30th June 2016 is accordingly affirmed. The costs of this appeal are assessed at N500,000 (Five Hundred Thousand Naira) only in favour of the Respondent against the Appellants.

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

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft, the lead judgment of my learned brother, Peter Oyinkenimiemi Affen JCA, where the facts and issues in contention have been set out.

I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.