ITAM v. ITAM & ORS (2021)

ITAM v. ITAM & ORS

(2021)LCN/15131(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/175/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

IKOI IKPI ITAM APPELANT(S)

And

IKPI OKOI ITAM 2. UBI OKOI ITAM 3. ECONOMIC AND FINANCIAL CRIMES COMMISSION 4. GARBA DUGUM, ZONAL HEAD EFCC, UYO. RESPONDENT(S)

RATIO

ATTITUDE OF THE COURT REGARDING PRELIMINARY OBJECTION THAT CANNOT TERMINATE AN APPEAL IF UPHELD

A preliminary objection is intended to terminate an appeal at the outset. The preliminary objection of the 1st and 2nd Respondents if upheld cannot terminate the appeal. The preliminary objection is therefore incompetent and should be struck out. See Mohammed v. I.G.P. & Ors. (2019)4 NWLR (pt. 1663) 492 at 507. PER JAMES SHEHU ABIRIYI, J.C.A.

EFFECT OF THE EVIDENCE THAT A PARTY HAS BEEN SERVED HEARING NOTICE

It is trite law that the evidence that a party has been served hearing notice is an affidavit of service. The mode of service is immaterial. PER JAMES SHEHU ABIRIYI, J.C.A.

CIRCUMSTANCE WHEN A DECLARATORY RELIEF WILL BE GRANTED

It is the practice that a declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. See Chukwumah v. S.P.D.C (Nig) Ltd (1993) LPELR – 864 SC p.64-65. That is to say that it will not be granted as a matter of course but only when credible evidence has been led by the person seeking the declaratory relief. See Anyanru v. Mandilas Ltd (2007)4 SCNJ 258. PER JAMES SHEHU ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling delivered on 4th May, 2020 in Federal High Court, Uyo Judicial Division, holden at Uyo.

In the Federal High Court (the Court below), the Appellant was the Applicant while the Respondents were the Respondents.

In the Court below the Appellant applied for the enforcement of his fundamental rights guaranteed under Sections 34(1) (a) and 36(5) of the 1999 Constitution FRN.

The application was brought upon the following grounds:
1. That on the 14th February, 2020, men of the 3rd Respondent in her Zonal Office at 3, Akparawa Crescent, off Edet Akpan, Uyo, harassed and embarrassed the Applicant/Petitioner by asking him to fill certain forms which have no bearing whatsoever with the subject matter of the petition as well as taking annotated photographs of the Applicant which painted him in a very negative, undignified, prejudicial and scandalous light namely: the 3rd Respondent caused photographs of the Applicant to be taken with a board bearing the inscription “Obtaining Money by False Pretense/Fraud” without first charging

him to Court.
2. That the actions of the Respondents on the Applicant amounted to gross violation of his human and fundamental rights.

In the affidavit in support of his allegations against the Respondents, the Appellant stated that he was invited for interview by men of the 3rd Respondents on the strength of a petition by the 1st and 2nd Respondents. Those men of the 3rd Respondent harassed him by asking him to fill certain forms. That they also took annotated photograph of him with the inscription “obtaining money by false pretense/fraud.”

In their counter affidavit, the 1st and 2nd Respondents stated that they merely complained about the alleged criminal act of the Appellant to the 3rd Respondent.

In their counter affidavit the 3rd and 4th Respondents stated that they received a petition bothering on criminal breach of trust, criminal conversion and forgery against the Appellant. They commenced investigation by interviewing the complainants and other persons relevant to the investigation. In the course of investigation, the Appellant was invited in order to hear his own side of the petition against him. That the Appellant

was never harassed but only requested to fill assets declaration form of the 3rd Respondent. That the Appellant was only being profiled and documented as a matter of routine and procedure. That the Appellant was not treated in an inhumane manner.

The Court below considered the affidavit evidence and written addresses of the learned counsel and dismissed the application.

The Appellant immediately filed a notice of appeal on 24th June, 2020 against the decision of the Court below. The notice of appeal contains three grounds of appeal. From the three grounds of appeal, the Appellant presented the following issues for determination:
i. Whether the Appellant was denied fair hearing and what should be the effect of such denial on the judgment of the trial Court. (Gleaned from ground 1).
ii. Whether the Court below was not bound to act on an unchallenged/ uncontroverted piece of evidence having so found that such evidence was unchallenged/uncontroverted? (Gleaned from grounds 2 and 3).

The 1st and 2nd Respondents raised a preliminary objection to their being joined as parties to the action but submitted the following issues for

determination:
a. Whether the Appellant’s right to fair hearing was breached or deprived in the hearing and determination of the Application before the lower Court. (Distilled from Ground one of the Appeal).
b. Whether the finding and conclusion in the judgment of the Court below was right having regards to the evidence adduced in proof of the allegation of breach of fundamental right. (Distilled from Ground two of the Appeal).

The 3rd and 4th Respondents formulated the following issues for determination:
1) Whether given the totality of the proceedings before the lower Court, the Appellant was denied fair hearing at any stage of the hearing/proceedings.
2) Whether the judgment delivered by the lower Court supports the weight of evidence presented by the parties.

Appellant filed a reply brief on 14th September, 2020 which was deemed duly filed and served on 11th February, 2020.

The preliminary objection raised by the 1st and 2nd Respondents is on the basis that there is no reasonable cause of action against the 1st and 2nd Respondents and that the 1st and 2nd Respondents are not proper parties in the

suit at the lower Court and in this appeal.

In reply, the learned counsel for the Appellant submitted that the 1st and 2nd Respondents admitted in their counter affidavit that it was their complaint to the 3rd Respondent that led to the invitation of the Appellant by the 3rd Respondent. In the circumstances, the Appellant had disclosed a reasonable cause of action against the 1st and 2nd Respondents, it was submitted.

I agree entirely with learned counsel for the Appellant that on whether or not there is a cause of action, it is to the originating process that the Court should turn, in this case the application of the Appellant before the Court below. But that is not the function of a preliminary objection.

Now I turn to the main appeal. On

Issue 1, learned counsel for the Appellant contended that the Appellant was denied fair hearing by the Court below because when the Court below adjourned the matter from 1st April, 2020 to 4th May, 2020 no hearing notice was issued to the Appellant.

Learned counsel for the 1st and 2nd Respondents argued that there was service of hearing notice on the Appellant by text message against the 4th May, 2020 when judgment was delivered.

Learned counsel for the 1st and 2nd Respondents referred the Court to page 118 of the record of appeal.

On Issue 1, learned counsel for the 3rd and 4th Respondents submitted that the Appellant cannot complain that he was denied fair hearing merely because he was not served hearing notice against the date fixed for judgment.

Learned counsel stated that on the 4th May, 2020 when judgment was delivered, the Court below enquired from the registrar whether parties were informed of the date and the Court below was informed in Open Court that text messages were sent to counsel before the Court proceeded to deliver judgment. It was submitted that text messages and phone calls to counsel are valid hearing notices. The

Court was referred to E. N. L. Consortium Ltd. v. S.S. (Nig) Ltd (2018)11 NWLR (pt.1630).

It was submitted that even if the Appellant was not served with hearing notice against the date fixed for judgment, same would not amount to a denial of fair hearing. The Court was referred to Chime v. Chime (2001) 3 NWLR (pt.701).

In Chime v. Chime (2001) 3 NWLR (pt.701) 527 at 546 Wali, J.S.C. stated thus:
“I am yet to come across a provision of any of our laws which provides that where a judgment is delivered without due notice of the delivery date to a party involved in consequence of which he is absent in Court when judgment is delivered, the judgment so delivered is null and void. Its delivery is neither without jurisdiction, nor is it null and void. It may amount to a mere irregularity which has no effect on the substance of the judgment or jurisdiction of the Court.”

The proceedings of the Court below to which learned counsel for the Respondents point to as showing that the Appellant was served hearing notice against the 4th May, 2020 fixed for judgment are very short. They are reproduced immediately hereunder:

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“Parties absent
Appearances
S. I. Yaryasa for 3rd and 4th Respondents
Clerk (Akpan) I sent out message
Court: Judgment delivered.”

It is trite law that the evidence that a party has been served hearing notice is an affidavit of service. The mode of service is immaterial. There is nothing in the proceedings of 4th May, 2020 to show that the Court below was satisfied that service had been effected on the Appellant. This the Court could have done by confirming from either the affidavit of service or some other proof of service shown to it. There is therefore no evidence that the Appellant was served hearing notice against 4th May, 2020 when the judgment was delivered. The failure to serve the Appellant hearing notice in the circumstance was a mere irregularity. It did not affect the substance of the judgment or the jurisdiction of the Court. It did not amount to denial of fair hearing.

Issue 1 is therefore resolved against the Appellant and in favour of the Respondents.

On issue 2, learned counsel for the Appellant contended that the Respondents did not deny the depositions on page 5 of the record.

He submitted that the Court is bound to rely on any unchallenged and uncontroverted piece of evidence unless such evidence is totally senseless. That is to say, the Court below was bound to rely on the uncontroverted and unchallenged evidence of the Appellant. The Court was referred to Section 123 of the Evidence Act, 2011; Arum v. Nwobodo (2013) 54 (pt.2) NSCQR 866 at 910 and Inegbedion v. Seloojemen (2013)53 (pt.2) NSCQR 59.

On issue 2, learned counsel for the 1st and 2nd Respondents argued that all the Respondents denied and challenged the allegation in paragraph 9 of the affidavit in support of the originating motion. The Court was referred to paragraphs 8, 10 and 11 of the counter affidavit of the 1st and 2nd Respondents at pages 17 and 18 of the record of appeal.

It was submitted that the onus was on the Appellant to prove that his fundamental right had been breached by reason of a photograph taken of him with the inscription “obtaining money by false pretense/fraud”

The Court below, it was argued, acknowledged: that the 3rd and 4th Respondents denied and challenged the allegation of denial of fundamental right in their counter

affidavit. That the Court further reiterated that the Appellant had the onus of proving the allegation. The Court was referred to pages 152 and 153 of the record of appeal.

It was further contended that there was no cogent fact before the Court below to prove that the 1st and 2nd Respondents did anything outside the law to infringe on the rights of the Appellant. That the Court below rightly found that the 1st and 2nd Respondents only acted within their rights under the law. The Court was referred to the judgment of the Court below at pages 154 and 155 of the record of appeal.

It was submitted that the Appellant was specifically mentioned in the petition to the 3rd and 4th Respondents and the actions taken by the 3rd and 4th Respondents did not amount to breach of the Appellant’s fundamental right.

Learned counsel for the 3rd and 4th Respondents on issue 2, pointed out that the 3rd and 4th Respondents responded to paragraph 9 of the affidavit in support of the Appellant’s application in their paragraph 17. It was submitted that the Court below considered the affidavit evidence before it. The Court was referred to pages 151 and 152

of the record of appeal.

It was submitted by learned counsel for the 3rd and 4th Respondents that the mere fact that an unchallenged piece of evidence is deemed admitted does not mean that the Court below was bound to enter judgment in favour of the Appellant. What is important, it was submitted, is that the Court would have considered the evidence before it along with issues raised by the parties. The Court was referred to M. Ojogbue & Anor v. Nnubia & Ors (1972)1 All N.L.R (pt.2) 226. The Court below, it was argued, held that the mere taking of photographs of the Appellant without same being published to the outside world by the 3rd and 4th Respondents will not ordinarily amount to infringement of the Appellants rights. The Court was referred to page 153 of the record of appeal.

It was submitted that there is nothing in the judgment of the Court below to suggest that it did not consider the evidence put forward by the Appellants. The Court was referred to the judgment of the Court below at page 119 to 157 of the record of appeal.

It should be noted that the main relief sought by the Appellant is declaratory. It is the practice that

a declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. See Chukwumah v. S.P.D.C (Nig) Ltd (1993) LPELR – 864 SC p.64-65. That is to say that it will not be granted as a matter of course but only when credible evidence has been led by the person seeking the declaratory relief. See Anyanru v. Mandilas Ltd (2007)4 SCNJ 258.

Section 123 of the Evidence Act under which the Appellant contends he was entitled to judgment provides as follows:
“123. No fact need be proved in any civil proceedings which the parties to the proceedings or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

The depositions which the Appellant claims were not controverted at page 5 were denied by the Respondents. The 1st and 2nd Respondents deposed in paragraph 5 of their counter

affidavit that they merely reported a criminal act of the Appellant to the 3rd Respondent. The 3rd and 4th Respondents in paragraphs 16, 17 and 18 denied portraying the Appellant in a negative, undignified and scandalous manner by causing the Appellant’s photograph to be taken with the inscription “obtaining money by false pretense/fraud.” This the 3rd and 4th Respondents called profiling and documenting as a matter of routine and procedure. See paragraph 17 of the counter affidavit of the 3rd and 4th Respondents. That allegation in any case is grounded in tort. It is not a fundamental rights matter.

The 3rd and 4th Respondents denied harassing or embarrassing the Appellant as they merely requested him to fill the Asset Declaration Form of the 3rd Respondent.
The 3rd and 4th Respondents also denied treating the Appellant in an inhuman manner.

See paragraphs 16 and 18 of the counter affidavit of the 3rd and 4th Respondents.

It is clear from the foregoing that no facts were admitted by the Respondents to entitle the Appellant to judgment. Section 123 of the Evidence Act is therefore not useful to the Appellant.

Issue 2 is also resolved against the Appellant and in favour of the Respondents. The appeal is hereby dismissed.
Parties to bear their respective costs of the appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother JAMES S. ABIRIYI, J.C.A.

My learned brother has carefully considered the Respondent’s preliminary objection and the two issues nominated for the determination of the appeal.

I agree that the 1st and Respondents preliminary objection is incompetent and liable to be struck out.

I also agree that the appeal lacks merit and I too dismiss the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, JAMES S. ABIRIYI, J.C.A.

He dealt decisively with all the issues raised in this appeal, and I have nothing to add. I adopt his reasoning and conclusion. I also dismiss the moribund appeal.

Appearances:

Nsikak Ikpeme Esq. For Appellant(s)

Ini-Obong Udo Esq., for 1st and 2nd Respondents.
Adebayo Soares Esq., for the 3rd and 4th Respondents. For Respondent(s)