LT. COL. ERIC OSENI (RTD) v. DELE OLOJE ESQ. & ANOR
(2014)LCN/7089(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of April, 2014
CA/K/110/2009
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLAMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
LT. COL. ERIC OSENI (RTD) Appellant(s)
AND
1. DELE OLOJE ESQ.
2. THE COMMISSIONER OF POLICE, KADUNA STATE Respondent(s)
RATIO
DUTY OF A LEGAL COUNSEL IN A MATTER
It is very sad to note that Counsel could do anything to suggest a deliberate distortion of facts in Court to gain undue advantage, whereas, as a priest on the temple of justice, every counsel is expected to guide and assist the Court to see and know the truth and do justice, by putting all the cards on the table, even where the fact disclosed or exposed may not work in the interest of his client. See the case of Nwegbu v. Agwu (2012) LPELR-9586 (CA); Sudan Interior Mission v. Adewunmi (2012) LPELR-19916 (CA); Okoni v. Onwusanya & Ors (2014) LPELR-22191 (CA). PER MBABA, J.C.A.
FILING OF AFFIDAVIT OF SERVICE UNDER FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES
Ordinarily, the Courts rely on affidavit of service filed by the Bailiff of Court to ascertain service of process of Court on parties (See the case of Afribank Plc v. Yelwa (2011) 12 NWLR (Pt. 1261) 287 ratios 1 & 3). But under Fundamental Rights (Enforcement Procedure) Rules, Order 2 Rule 1 (4) makes room for affidavit of service to be filed by the Applicant. See the case of Chukwuogor v. Chukwuogor (2007) All FWLR (Pt. 349) 1154, where it was held that filing of affidavit of service by the Applicant was mandatory.But it would be absurd, in my opinion, to hold that filing of affidavit of service by the Bailiff of Court, in addition to that filed by the Applicant in a fundamental rights enforcement matter, would be a deservice to the cause, rather that a plus. If anything, it goes to doubly establish that the service was in fact effected especially where, as in this case, the Respondent took active part in the case, after being served with the originating processes. That is, he filed a counter-affidavit and/or engaged a Counsel to defend the action! PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Kaduna State High Court in suit No. KDH/KAD/486/2006, delivered by Hon. Justice M. Ladan on 12/5/2008, wherein the Court held for the 1st Respondent, who was the Applicant in the Fundamental Rights Enforcement Proceeding.
The 1st Respondent had filed an action for the enforcement of his fundamental rights under Fundamental Rights (Enforcement Procedure) Rules, 1979 and his claims were predicated on the action of 2nd Respondent, and of Appellant, who had lodged a complaint in writing with 2nd Respondent against the 1st Respondent. The complaint was that the 1st Respondent (who had earlier been Counsel of the Appellant) made him (Appellant) to buy a plot of land from one Mr. Bashiru Bello at the cost of N350,000.00, when he (1st Respondent) did not properly conduct investigation into the title of Mr. Bello; that it turned out that the land belonged to the Nigerian Railway Property Ltd. Upon receipt of the Appellant’s complaint, the 2nd Respondent (Commissioner of Police) invited the 1st Respondent for questioning and the 2nd Respondent directed the 1st Respondent to report back after issuing threats. The 1st Respondent in the bid to avoid the infringement of his fundamental rights filed the action to secure the protection of his rights. At the conclusion of evidsence and in a considered ruling, the trial Court granted the relief sought and awarded damages in the sum of N500,000.00 against the Appellant to the 1st Respondent.
That is the judgment Appellant appealed against and filed his Notice of Appeal on 30/6/2008, disclosing 2 grounds of Appeal, as per the last 3 pages of the main Records of Appeal. The grounds of appeal were:
“Ground One:
The learned trial Judge erred in law when he held that the 1st Respondent’s affidavit of service, dated 2nd May, 2007, was in compliance with the requirements of Order 2, Rule (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, when that affidavit is not an affidavit of service.
PARTICULARS
(i) The 1st Respondent deposed to the said affidavit of service that he personally effected service of the originating processes on the Appellant through his Counsel, Z. Oche & Co.
(ii) The Court Bailiff, Mal. Garba Mohammed sworn (sic) to an affidavit dated 1st November, 2006 that he served the Appellant with the originating processes on 31st October, 2006 at about 3.10 pm.
(iii) The originating processes are usually served by Court Bailiffs on the party affected personally.
(iv) The Law Firm of Z. Oche & Co. did not at any time undertake to receive the originating processes on behalf of the Appellant.
“Ground Two:
The decision of the learned trial Judge is against the weight of the affidavit evidence before him.”
Appellant filed his brief of argument, dated 24/11/2009 and the same was deemed duly filed on 29/6/10. He distilled two issues for determination:
“(i) Whether the facts and circumstances of Motion for enforcement of the 1st Respondent’s Fundamental Rights was not incompetent.
(ii) Whether on the available evidence at the lower Court, the 1st Respondent established his case for the grant of all the relief claimed.”
The 1st Respondent filed his brief on 19/10/2011, which was deemed duly filed on 7/02/12. He adopted the issues as distilled by the Appellant for the determination of the Appeal. The appeal was heard on 26/2/14 when the parties adopted their briefs and moved us accordingly.
On issue 1, Appellant’s Counsel, Z. Oche Esq., submitted that the 1st Respondent did not comply with the rules stipulated in Fundamental Rights (Enforcement Procedure) Rules 1979, with regards to filing and service of Affidavit of service; that two affidavits of service were deposed to in this case, one by the Bailiff of Court and the other by the 1st Respondent. He referred us to pages 1 to 6 of the Supplementary Records and pages 63 and 310 of the main Records of Appeal, respectively. He submitted that while affidavit of service at page 63 of the Records is to the effect that the 1st Respondent, personally, served the Appellant at No. 53 Yakwo Street, Barnawa, Kaduna, the Appellant’s address is No. T.3 Yakwo Street, Barnawa, Kaduna; that on the other hand, paragraphs 3 and 4 of the affidavit of service at page 130 of the Records, deposed to by the 1st Respondent, are to the effect that the Appellant was personally served on 16/4/2007 but through his Counsel – Z. Oche & Co; that there was no order at any time for substituted service, and the law firm of Z. Oche & Co was not at anytime the Appellant’s Counsel. He relied on the case of Chukwuogor v. Chukwuogor (2007) All FWLR (Pt. 349) 1154 at 1167; Abia State University, Uturu v. Chima Anyaibe (1996) 1 NWLR (Pt. 439) 646, on the peculiarity of the rules of the Fundamental Rights (Enforcement Procedure) Rules and the fact that same has to be followed, strictly, and failure to comply with it is not a mere technical defect but goes to the root of the case. He also relied on EFCC v. Ekeocha (2009) All FWLR (Pt. 458) 310 at 324; Ogwuche & Ors v. Mba (1994) 4 NWLR (Pt. 336) 75 at 87.
Counsel also specifically relied on the holding of Omokri, J.C.A. (of blessed Memory) in the case of Chukwuogor v. Chukwuogor (Supra), that the content of the affidavit of service must be supplied by the applicant or deposed to by him.
He said that none of the affidavits of service sworn to by the 1st Respondent contained any paragraph showing that the fact deposed to were based on information given to the deponent; or that they were deposed to on the personal knowledge of the deponent. He submitted that the two affidavits of service were false and 1st Respondent never effected service on Appellant. He urged us to strike out the two affidavits of service saying that a false affidavit is vitiated by falsehood and liable to be struck out. He urged us to allow the appeal.
On issue 2, Counsel submitted that the burden of proof was on 1st Respondent to establish the reliefs he claimed. He relied on section 137 of the Evidence Act, and on the case of Adebayo v. Adusei (2005) All FWLR (Pt. 240) 152 at 176.
In particular, Counsel submitted that the 1st Respondent must prove that the transaction which gave rise to his application was, as between himself and the Appellant, a civil one, that is, the employment of his services as a professional to verify title to enable his client purchase the plot was a civil transaction and cannot give rise to a criminal complaint by Appellant to the 2nd Respondent, which gave rise to the action on pages 93 – 99 of the Records. He also referred to Exhibit B (statement by a witness) on page 99 of the Records, where the witness stated that he told the lawyer (1st Respondent) to advise his client not to buy the land. He submitted that all the facts therein were ignored by 1st Respondent who still advised Appellant to buy the land and drew up the deed of assignment for the purchase; he submitted that the acts of the 1st Respondent took the case away from being a civil one as it had criminal coloration, hence the report to the Police by the Appellant! He asserted that the report was not for the recovery of money. He also said that it was not a case of negligence; that the contention in the supporting affidavit of 1st Respondent did not clear the issues raised in the Counter affidavit, particularly Exhibit B, to entitle the 1st Respondent to the reliefs. He relied on the case of A. G. Anambra State v. A.G. Federation & 35 Ors (2005) All FWLR (Pt. 268) 557 at 667. He argued that 1st Respondent used the Court trial as a shield from prosecution and it should not be allowed. He relied on the case of A.G. Anambra State v. Uba (2005) All FWLR (Pt. 227) 909 at 925 – 926.
He urged us to allow the appeal.
Responding, learned Counsel for the 1st Respondent, Muritala Abdul-Rasheed Esq., submitted that 1st Respondent had complied with the Fundamental Rights (Enforcement Procedure) Rules, 1979, with regards to the affidavit of service. He added that the purpose of service is to put the opponent on notice of the case; that the service was also deposed to by the Bailiff of the Court.
Counsel submitted that the 1st Respondent did not rely on any other Rule of Court to move the Court in this case and so the cases cited by Appellant on the exclusion of other Rules of Court for the enforcement of Fundamental Rights did not arise.
Counsel asserted that 1st Respondent had complied with Rules relating to service and filing of affidavit of service; that Applicant is only required to file affidavit of service stating that service has bee effected; the address of service and how it was done. He relied on the case of In Re-Apollos Udo (1987) 4 NWLR (Pt. 63) 120. He restated that both the 1st Respondent and the Bailiff that accompanied him to effect the service, deposed to affidavit of service of the processes on the Appellant; that there was no contradiction in the two affidavits and that the trial Court based it decision on the affidavit of service by the Applicant (1st Respondent) and that of the Bailiff was supplusage.
On issue 2, Counsel submitted that the 1st Respondent had proved his claims to him to judgment. He relied on section 137 of the Evidence Act. He submitted that in the discharge of his duties to Appellant, as Counsel, that 1st Respondent was answerable in negligence, if he had failed in his duties to Appellant, under section 9(1) of the Legal Practitioners Act, and that the relationship between Appellant and the 1st Respondent was contractual in nature and had no room for Criminal responsibility, to warrant Appellant’s Complaint to the Police against 1st Respondent; that Appellant in the Complaint, had alleged offences of criminal conspiracy, forgery and extortion against 1st Respondent, and so had a duty to prove the same, but failed; that as a mark of good faith and honesty, the 1st Respondent had even prepared an indemnity agreement, which was signed by the Vendor (Mr. Bashir Bello) in favour of the Appellant and that alone was enough, evidence of absence of conspiracy with the seller of the land.
Counsel said there was nothing in the Records to show that 1st Respondent ought to have known that the title of the Vendor was not genuine; that he had conducted all necessary searches and had believed in the claims of the Vendor and had cause to do so. He submitted that the trial Court was right in its decision. He urged us to dismiss the appeal.
RESOLUTION OF ISSUES
I think the two issues for determination by Appellants can be considered together as hereunder rephrased:
“Was the trial Court right in holding that 1st Respondent had filed affidavit of service in the case and that Appellant was liable for breach of the fundamental rights of the 1st Respondent?”
I have to observed that both Appellant’s Brief and Respondent’s brief carried suit No. FHC/KD/CS/496/06 as the suit appealed against. That was wrong as it conflicted with the suit number on the Records of Appeal, which was FHC/KD/CS/486/06. The same agrees with the number on the Judgment page, and on the Notice of Appeal (See pages 204 to 223 of the Records of Appeal). We shall act on the suit No. on the Notice of Appeal.
The main contention of Appellant in this appeal is that the 1st Respondent did not comply with the Rules of Fundamental Rights (Enforcement Procedure) Rules, 1979, with regards to filing of affidavit of service, pursuant to Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement Procedure) Rules. But he (Appellant) was not arguing that 1st Respondent did not file affidavit of service! Rather, he quarreled that two affidavits of services were filed – one by the 1st Respondent, (who said he served the Appellant, personally) (See page 63 of the Records), and another by the Bailiff of Court, one Garba Mohammed, who also claimed to have served the Appellant, personally, at No. 53 Yakwo Street, Barnawa, Kaduna. (See page 1 of the Supplementary Records).
According to the Appellant, the two affidavits of service deposed to by 1st Respondent and the Bailiff are contradictory, one to the other, materially. He had tried to rely on another affidavit of service filed by 1st Respondent on 2/5/2007 in respect of another process (See page 130 of the Records), to confuse the original affidavit of service, filed on 9/11/2000 by the 1st Respondent upon obtaining the leave of Court to file the Fundamental Rights proceedings. See page 63 of the Records, where 1st Respondent deposed that he served the 1st Respondent (Now Appellant) personally, on 31/10/2006 and also served the 2nd Respondent on 30/10/06! (See paragraph 3 of affidavit of 29/11/2006).
The affidavit of service on page 130, related to another matter which 1st Respondent deposed that he served Appellant on 16/4/2007, personally, and served the 2nd Respondent on the same date. (See paragraph 3 of the affidavit of 2/5/07).
Of course, the Appellant knew that the two affidavits deposed to by 1st Respondent did not relate to the same process, and yet Counsel argued, strongly (and dishonestly) to import conflict, in order to defeat the affidavit of service. It is very sad to note that Counsel could do anything to suggest a deliberate distortion of facts in Court to gain undue advantage, whereas, as a priest on the temple of justice, every counsel is expected to guide and assist the Court to see and know the truth and do justice, by putting all the cards on the table, even where the fact disclosed or exposed may not work in the interest of his client. See the case of Nwegbu v. Agwu (2012) LPELR-9586 (CA); Sudan Interior Mission v. Adewunmi (2012) LPELR-19916 (CA); Okoni v. Onwusanya & Ors (2014) LPELR-22191 (CA).
The 1st Respondent had argued that the Bailiff of Court had accompanied him to serve the originating processes on the Appellant and was there when the same were served on the Appellant that that was why both of them filed affidavits of service.
Ordinarily, the Courts rely on affidavit of service filed by the Bailiff of Court to ascertain service of process of Court on parties (See the case of Afribank Plc v. Yelwa (2011) 12 NWLR (Pt. 1261) 287 ratios 1 & 3). But under Fundamental Rights (Enforcement Procedure) Rules, Order 2 Rule 1 (4) makes room for affidavit of service to be filed by the Applicant. See the case of Chukwuogor v. Chukwuogor (2007) All FWLR (Pt. 349) 1154, where it was held that filing of affidavit of service by the Applicant was mandatory.But it would be absurd, in my opinion, to hold that filing of affidavit of service by the Bailiff of Court, in addition to that filed by the Applicant in a fundamental rights enforcement matter, would be a deservice to the cause, rather that a plus. If anything, it goes to doubly establish that the service was in fact effected especially where, as in this case, the Respondent took active part in the case, after being served with the originating processes. That is, he filed a counter-affidavit and/or engaged a Counsel to defend the action!
This point was made recently by this Court in the case of Zaria Local Government Council and Anor v. Alh. Salihu Ali Kwastan: CA/K/151/2009, delivered on 17/1/2014, where we held:
“For me, it sounds ridiculous as it beats every sense of logic and sound reasoning, for a man, who has been served with the process of Court and for which he responded by entering his appearance and filing processes in his defence to contest the case, and at the end of the case, to turn round and seek to nullify the judgment, on the grounds that there was no due service of the originating process on him, particularly that no affidavit of service was deposed to by the Plaintiff, that he had been served with the process of court that originated the case. That is pondering to ridiculous level of use of technicalities to frustrate justice! Having come to court and taken part in the proceedings, without complaint of any sort, I believe the Appellants cannot, in good conscience, raise any issue of non-compliance with Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, since their appearance and taking part in the case were conclusive evidence of compliance with the law relating to service. After all, the purpose of that provision of the law was to ensure that a respondent is duly served with the process of court, before a court can hear the applicant.”
The above ruling appears to fit properly with this case, in which the Appellant, as in the above case, had taken full and active part in defending the fundamental rights application, without any complaint about service or filing of affidavit of service. Appellant cannot be heard to complain, on appeal, that affidavit of service was not properly filed or was not filed!
It is too late in the day to do so. I do not think order 2 Rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules was meant to serve as a stumbling bloc or a trap against applicants, to frustrate the hearing of their claims, where they fail to swear to affidavit of service, personally, even when the respondent had filed counter affidavit and taken active part in defending the case. See the case of Zaria Local Govt. Council v. Alh. Salihu Ali Kwanstan (supra).
On the substance of the claim of the 1st Respondent, at the lower Court, there was evidence, as per Exhibit A attached to the counter affidavit of 2nd Respondent (page 93 of the Records) that Appellant wrote a petition against the 1st Respondent to the 2nd Respondent (Commissioner of Police), alleging conspiracy, forgery, extortion and breach of trust against him, thereby setting in motion a process for his investigation by the Police, and the Police invited him for that purpose. When viewed from the background that Appellant’s complaint arose from the professional services which 1st Respondent rendered to the Appellant, which, if not satisfactory or if flawed, Appellant had a right of remedy in civil claims, for negligence or breach of contract, the allegations and complaints against 1st Respondent by the Appellant to the Police, can not be justified, as it was, obviously, ill motivated and meant to unleach the Police on the 1st Respondent to interfere with the fundamental rights of 1st Respondent, relating to his liberty.
1st Respondent had sought a declaration that the threat to arrest and detain him by the Police at the instance of the Appellant constituted gross violation of his fundamental rights under sections 35 and 41 of the Constitution of Nigeria, 1999. Appellant did not deny lodging the offending report against the 1st Respondent. In fact, Appellant admitted making the complaint and acknowledged the criminal import of the complaint, even in his argument of this appeal, when his Counsel argued:
“It is our contention that the acts of the 1st Respondent as stated above took the case away from being a civil one. It has criminal coloration. The report lodged with the 2nd Respondent is therefore not for the recovery of money… We submit that the 1st Respondent used the Court trial as a shield from prosecution. It should not be allowed.” (See paragraphs 5.8 and 5.10 of the Appellant’s Brief).
It is rather difficult to understand why Appellant elected the harassment of the 1st Respondent by the Police, and seeking his arrest, detention and/or prosecution for criminal conspiracy, forgery, extortion and breach of trust, if his real complaint against him (his lawyer) was that he advised and caused him to buy a land without conducting proper search, and the land turned out to belong to a 3rd party! See paragraphs 13 to 16 of Appellant’s Counter affidavit on pages 65 and 66 of the Records, where Appellant expressed that he had thought that 1st Respondent was God-fearing, because of his penchant to pray, especially when he (1st Respondent) handled his (Appellant) divorce case; that he believed 1st Respondent to conduct searches into the title document of the plot he (Appellant) wanted to buy!
As earlier stated in this Judgment, if Appellant was not satisfied with the professional services rendered to him by 1st Respondent, he had a right of remedy in Civil claims for negligence or breach of contract. See section 9(1) of the Legal Practitioners Act Cap. L11, Laws of the Federation 2004. Certainly, Appellants’ resort to the use of the Police against 1st Respondent, in the circumstances, was ill advised and had infringed against 1st Respondent’s fundamental rights.
I cannot therefore see any merit on this appeal and so resolve the issue against the Appellant and dismiss the appeal.
Appellant shall pay the cost of this appeal, assessed at Thirty Thousand Naira (N30,000.00) to the 1st Respondent.
ABDU ABOKI, J.C.A.: I agree with the reasoning and conclusion reached by my learned brother Ita George Mbaba, JCA, in the lead judgment delivered by him that this appeal is unmeritorious and should be dismissed. It is accordingly dismissed by me. I abide by the consequential orders as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Ita George Mbaba, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
Appearances
Z. Oche Esq.For Appellant
AND
Muritala Abdul-Rasheed Esq.For Respondent
