MAITAGARAN & ANOR v. DANKOLI & ANOR (2020)

MAITAGARAN & ANOR v. DANKOLI & ANOR

(2020)LCN/14649(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, October 27, 2020

CA/KN/389/2019

RATIO

ACTION: MODES OF COMMENCING A CIVIL ACTION

Speaking on the modes of commencing a civil action, the Supreme Court in the case of Alfa Vs Attai (2017) LPELR 42579 (SC), per Nweze, JSC opined thus:
“Indeed, there are four broad modes of commencing civil suits namely, by (a) Writ of Summons; (b) Originating Summons; (c) Originating Motions and (d) Petitions. The first three methods are prescribed by the Rules of Courts, viz, the Rules of Court in relation to Writ of Summons; Originating Summons and Originating Motions. The latter, Originating Motions, could be categorized into two broad types, (i) Originating Motions for Prerogative Orders and (ii) Originating Motions under the Fundamental Rights (Enforcement Procedure) Rules, 1999 (made pursuant to the authorities that inhere in the Chief Justice of Nigeria). Lastly, Petitions as modes of originating actions are employed in commencing suits pursuant to express statutory provisions as shown above. Each of these is referred to as an Originating Process.”
Additionally, Order 3 Rule 1 of the Federal High Court (Civil Procedure) Rules, the applicable Rules in the lower Court, provides that civil proceedings may be begun by writ, originating summons, originating motion or petition or by any other method required by other rules of Court governing a particular subject matter. A reading of the provision of Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, in the light of the acceptable modes of commencing civil proceedings, shows that a fundamental right enforcement action can be commenced by writ of summons, originating summons, originating motion or petition. PER ABIRU, J.C.A.
MOTION: DEFINITION OF AN ORIGINATING MOTION

An Originating Motion is defined by the Oxford Reference Dictionary as “an application (motion) that commences a proceeding in a Court”. Also Order I Rule 2 Fundamental Rights (Enforcement Provision) Rules defines an Originating Application as every application other than an application in a pending cause or matter. PER ABIRU, J.C.A.

FUNDAMENTAL RIGHT: WHETHER THE MANNER IN WHICH THE COURT IS APPROACHED FOR ENFORCEMENT OF A FUNDAMENTAL RIGHT MATTERS

the law is that, even if the motion on notice filed by the Respondents did not constitute a proper originating process, so long as it sought redress for the infringement of the right guaranteed under the Constitution, the competence of the action was not affected by the form of action adopted – Attorney General, Federation Vs Abule (2005) 11 NWLR (Pt 936) 369, Abdullahi Vs Sabuwa (2015) LPELR 25954(CA), Okelu Vs Inspector General of Police (2018) LPELR 45062(CA), Climax Hotel (Nig) Ltd Vs Venitee Global (Nig) Ltd (2019) LPELR 47103(CA), Taraba State Government Vs Shaku (2019) LPELR 48130(CA). This point was succinctly made by the Supreme Court in the case of Federal Republic of Nigeria Vs Ifegwu (2003) 15 NWLR (Pt 842) 113 when it stated thus:
“The manner in which the Court is approached for enforcement of a fundamental right does not matter once it is clear that the originating Court process seeks redress for the infringement of the right so guaranteed under the Constitution. The Court process could be by the Fundamental Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons. The concerns in regard to redressing a contravention of a fundamental right have been underlined by liberalizing the type of originating process without the person affected being inhibited by the form of action he adopts. It is enough if his complaint is understood and deserves to be entertained.”
Uwaifo, JSC, stated the rationale for this position at page 184 B-E thus:
“It is the Constitution which, as the organic law of a country, declares in a formal, emphatic and binding principles the rights, liberties, powers and responsibilities of the people, both the government and the governed. It is the duty of the authorities including the judiciary, to ensure its observance. The position of the Courts is quite crucial in this regard for the purpose of safeguarding the constitutional rights of persons through effective intervention whenever, in an appropriate case, it is shown that such rights have been violated. In such a situation, the matter should be examined with close and anxious scrutiny to make sure that what is arrived at is objectively in conformity with the spirit of the constitutional guarantee. And, for the Supreme Court of Nigeria, the trend is now that whenever an aspect of personal liberty is properly raised in any proceeding, the focus on the constitutional question is intent and intensive, and a solution which projects the essence of the constitutional guarantee is proffered.” PER ABIRU, J.C.A.
JUDICIAL PRECEDENT: DOCTRINE OF JUDICIAL PRECEDENT

The doctrine of judicial precedent is also commonly referred to as the principle of stare decisis, and the words originate from the phrasing of the principle in the Latin maxim stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that Courts should generally abide by precedent and not disturb settled matters. Its meaning is that when a point of law has been once solemnly and necessarily declared by the decision of a competent Court, it will no longer be considered open to an examination, or a new ruling, by the same Court or tribunal or by those which are bound to follow its adjudications. In a hierarchical judicial arrangement, it precludes the Judges of subordinate Courts from changing what has been determined by a higher Court. In other words, they should keep the scale of justice even and steady and not liable to waver with every Judge’s opinion – Adesokan Vs Adetunji (1994) 5 NWLR (Pt 345) 540, Okeke Vs Okoli (2000) 1 NWLR (Pt 642) 641, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1.
The doctrine postulates that where the facts in a subsequent case are similar or close as facts in an earlier case that had been decided upon, judicial pronouncements in the earlier case are subsequently utilized to govern and determine the decision in the subsequent case – Nwangwu Vs Ukachukwu (2000) 6 NWLR (Pt 662) 674. Similarly, where the provisions of a statute or section of a statute are the same or similar, and the purport, meaning and effect of such similar provisions of the statute or section had been considered in a previous decision of a competent Court higher up in the judicial hierarchy, then such previous decision becomes a matter of judicial precedent and is binding on the Courts lower in the hierarchy where they are called upon to consider a provision similar to that earlier considered – Nwobodo Vs Onoh (1984) 1 SCNLR 1, University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt 1) 156 and Ngige Vs Obi (2006) 14 NWLR (Pt 999) 1.
The doctrine of judicial precedent, however, recognizes that decisions of court draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case – Anaedobe Vs Ofodile (2001) 5 NWLR (Pt 706) 365, Abubakar Vs Nasamu (No 2) (2012) 17 NWLR (Pt 1330) 523. It postulates that what is binding on a lower Court in the decision of a higher Court is the principle or principles decided and not the rules and that where the facts and circumstances in both cases are not similar or the same, the inferior Court is not bound by the principle decided in the case before the higher Court –Clement Vs Iwuanyanwu (1989) 3 NWLR (Pt.107) 39, Elebute Vs Faleke (1995) 2 NWLR (Pt 375) 82, 7up Bottling Co. Ltd Vs Abiola & Sons Ltd (1995) 3 NWLR (Pt 383) 257, Olafisoye Vs FRN (2004) 4 NWLR (Pt.864) 580, Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55.
In Ugwuanyi Vs NICON Insurance Plc (2013) 11 NWLR (Pt 1366) 546, the Supreme Court made the point thus:
“… cases remain authorities only for what they decided. Thus an earlier decision of this Court will only bind the Court and subordinate Courts in a subsequent case if the facts and the law which inform the earlier decision are the same or similar to those in the subsequent case. Where, therefore, the facts and/or the legislation which are to inform the decision in the subsequent case differ from those which informed the Court’s earlier decision, the earlier decision cannot serve as a precedent to the subsequent one.”
What the above decisions postulate is that a lower Court should not just apply the decision of a higher Court to the facts and circumstances of the case before it. It has an obligation to interrogate the decision to ensure that the facts, circumstances and the legislation relied on in that decision are the same or similar to those of the case before it. It is only when it is satisfied that the facts, circumstances and legislations are the same or similar that it should apply it, otherwise he should distinguish it from its present case – Uwaokop Vs United Bank for Africa Plc (2013) LPELR 22622, Attorney General of Lagos State Vs Eko Hotels Ltd (2017) LPELR 43713 (SC), State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522. PER ABIRU, J.C.A.

COURT PROCESS: WHO CAN COMPLAIN OF FAILURE OF SERVICE OF COURT PROCESS

It is trite law that it is the party who was not served with a Court process, where service is required, that can raise the issue and seek to have the order made against him nullified, and not a party that was duly served –Mbadinuju Vs Ezuka (1994) 8 NWLR (Pt 364) 5, Mark Vs Eze (2004) 5 NWLR (Pt 865) 54, Idisi Vs Ecodril (Nig) Ltd (2016) LPELR 40438 (SC), Guruyel Vs Bara (2018) LPELR 44399(CA). In Chime Vs Chime (2001) 3 NWLR (Pt 701) 527, the Supreme Court put the point thus:
“The Court of Appeal was perfectly right when it stated thus in the lead judgment:
‘The application for nullification of such proceedings would be at the instance of the defendant against whom an order is made without prior notification of proceedings in which the order was made for the simple reason that a condition precedent for the exercise of the Court’s jurisdiction in making the order has not been fulfilled. I am therefore clearly of the opinion that for a party to a suit to apply for the proceedings to be nullified by reason of failure of service, where service is a requirement, it must sufficiently establish that he or she has not been served in respect of the proceedings and that the order made therein affects him. It is not in my view open to every party to the proceedings to make such an officious complaint. If such complaint is sustainable, it will yield startling results. Thus, an aggrieved plaintiff, as in the instant appeal, would be enabled to appeal against a judgment against him on the technical ground that a party to the proceedings was not served some process.’” PER ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

1. ALHAJI ALI AHMAD MAITAGARAN 2. DALHATU SHEHU USMAN APPELANT(S)

And

1. HAJIYA RAKIYA SAIDU DANKOLI 2. ADAMU UMAR DANKOLI RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the Ruling of the Kano Judicial Division of the Federal High Court sitting in Kano in Suit No FHC/KN/CS/67/2018 delivered by Honorable Justice Obiora Atuegwu Egwuatu on the 27th of May, 2019.

The Respondents were the applicants in the lower Court and they commenced the suit leading to this appeal under the Fundamental Rights (Enforcement Procedure) Rules 2009. They commenced the action by way of a Motion on Notice and the original four respondents were (i) Director General State Security Service; (ii) Director, State Security Service, Kano State Command; (iii) Ali Ahmad Maitangaran; and (iv) Dalhatu Shehu Usman. The original first and second respondents were struck out and consequent on which the Respondents filed an Amended Motion on Notice and the Appellants herein became the first and second respondents to the application. The claims of the Respondents on the Amended Motion on Notice were for:
i. An order declaring the invasion of the Respondents’ shops by the operatives of the State

Security Service at the instigation of the Appellants as unlawful, unconstitutional and a violation of the Respondents’ fundamental rights to dignity of the human person and right to own property as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended).
ii. An order declaring the actions of the operatives of the State Security Service as ultra vires their statutory functions, illegal, null and void.
iii. An order restraining the Appellants and or any security agents or persons at the instance of the Appellants from further interfering with the Respondents’ peaceful possession of the shops, the subject matter of the application.
iv. An order directing the Appellants to jointly and or severally pay the sum of N2,274,000.00 to the second Respondent being the amount lost in cash and goods as a result of the acts of the Appellants.
v. An order directing the Appellants to jointly and or severally pay a sum of N10 Million to the Respondents as compensation for the breach of their fundamental rights.

The case of the Respondents on the application was that the subject matter of the suit, Shops 107 and

109 situate at the Fagge Ta Kudu Kanti Market, Kano, belonged to the first Respondent and that the first Respondent’s ownership of the two shops were confirmed by the High Court of Kano State in Suit No K/214/2011 – Rakiya Saidu Dankoli Vs Bello Sani Kwangila and Suit No K/215/2011 – Rakiya Saidu Dankoli Vs Sani Gwanda and copies of the enrolled judgments were Exhibits A and B. It was their case that consequent on the entry of the two judgments, the Deputy Sheriff of the High Court of Kano State, upon the application of the first Respondent, levied execution on the two shops and handed possession of the shops to the first Respondent; the reports of the execution levied were Exhibits C and D.

It was the case of the Respondent that shortly thereafter, the first Appellant connived with one Nazifi Haruna and Abubakar to break into Shop 109 and they then went to the High Court of Kano State to file an action in Suit No K/143/2016 and obtained a restraining order against the first Respondent. It was their case that the first Respondent challenged the competence of the action filed by the first Appellant and that upon the hearing of the preliminary

objection of the first Respondent, the High Court of Kano State struck out the Suit No K/143/2016 and the Deputy Sheriff of the High Court re-levied execution on the shop and handed its possession back to the first Respondent; copy of the order striking out Suit No K/143/2016 was Exhibit E.

It was the case of the Respondents that the first Appellant and Nazifi Haruna and Abubakar broke into the shop again and retook possession illegally and they filed an application in Suit No K/827M/2017 wherein they lodged a complaint against the Police, the Deputy Sheriff and the first Respondent, in order to legitimize their actions. It was their case that upon the hearing of the application, the High Court of Kano State found that the complaints lacked merit as the complainants had no locus to make them and it found that the actions of the first Appellant, Nazifi Haruna and Abubakar in breaking into the shop and re-taking possession amounted to criminal trespass and that they were trespassers, a copy of the order of Court was Exhibit F. It was their case that the Deputy Sheriff of the High Court of Kano State re-enforced the execution earlier levied on the shop and

once again handed possession thereof to the first Respondent.

It was the case of the Respondents that the second Respondent thereafter rented the two shops, Shops 107 and 109, from the first Respondent and was carrying on his legitimate business therein without any disturbance until the 1st of June, 2018 when the second Appellant, in company of officers from the office of the State Security Service, accosted him in the shops and directed him to follow them to the office State Security Service in Kano. It was their case that the second Respondent followed the second Appellant and the officers as directed and that on getting to the office of the State Security Service, the second Respondent was informed that the shops had been declared to belong to the first Appellant by an order of Court and they directed him to vacate the shops at once.

It was the case of the Respondents that all efforts to explain the true position of things were rebuffed by the officers at the instigation of the second Appellant and that on the 2nd of June, 2018, while he was in the shops, the second Appellant returned in the company of the officers of the State Security Service

and the officers, on the direction of the second Appellant, broke into the two shops and threw all his goods and wares outside and thereafter locked up the two shops with their padlocks and departed; photographs of the acts were attached as Exhibit G. It was their case that in the course of evicting the second Respondent from the shops, the second Appellant and the officers of the State Security Service destroyed his goods worth N486,000.00 and his cash sum of N1,788,000.00 kept in the shops got missing. It was their case that the second Respondent was harassed, intimidated and ridiculed by the officers of the State Security Service, acting on the instruction of the second Appellant, and that his customers and business associates lost confidence in his reputation as a business man.

It was the case of the Respondents that the alleged order of Court by which the Appellants instigated the officers of the State Security Service to evict the second Respondent from the two shops was said to have been obtained from the High Court of Kano State in Suit No K/450/2017 – Alhaji Ali Maitangaran Vs Hajiya Rakiya Saidu Dankoli. It was their case that upon

approaching the said High Court of Kano State by an application, the Court delivered a Ruling wherein it held that the order it made in favour of the first Appellant was in respect of only Shop 109 and it was one for maintenance of status quo and not for the eviction of anyone from the shops and it found that the order was actively manipulated by the second Appellant, as Counsel to the first Appellant, to evict the second Respondent from the shops using officers of the State Security Service. It was their case that the High Court of Kano State set aside all the orders it made in favour of the first Appellant in the said suit and directed the Deputy Sheriff to restore the second Respondent into possession of the shops and that the High Court of Kano State was to subsequently deliver another Ruling wherein it struck out the Suit No K/450/2017; copies of the two Rulings were Exhibits I and H. It was their case that the several actions of the Appellants of serially breaking into the two shops and in intimidating, harassing and ridiculing them grossly infringed their rights to personal dignity and to own property.

Upon being served with the processes of the

Respondent, the second Appellant, as Counsel, filed a counter affidavit on behalf of the first Appellant and wherein the first Appellant practically admitted breaking into and retaking possession of the shops from the first Respondent after execution was levied to enforce the judgments of the High Court of Kano State in Suits Nos. K/124/2011 and K/125/2011 and of filing the cases, Suits Nos. K/143/2015 and K/827M/17 to legitimize his actions and he deposed that he did so because he was the person from whom possession of the shops were taken when the execution of the judgments was carried out and that the execution was illegal. The first Appellant deposed that the occupation of the shops by the Respondents was also illegal and that he thus applied to the High Court of Kano State in Suit No K/450/2017 and obtained an order directing that the Respondents to restore possession of the shops to him and that when the Respondents refused to obey the order, he went back to the Court to obtain a further order directing the Nigerian Police and Department of State Security to “put hand to ensure compliance” with the order and that this was why the officers of

the State Security Service evicted the second Respondent from the shops and locked them up. It was his case that the officers of the State Security Service did not steal nor misplace the monies of the second Respondent and that it was incorrect that he infringed the fundamental rights of the Respondents in any way.

The first Appellant also filed a notice of preliminary objection wherein he challenged the competence of the action on four grounds; namely (i) that the action was commenced by way of a Motion on Notice instead of an Originating Summons; (ii) that the action was filed by the two Respondents jointly; (iii) that the originating processes were not served on the second Appellant personally, but one A. K. Paki; and (iv) that the case of the Respondents did not come within Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Respondents filed a Reply to the preliminary objection. The second Appellant did not file any process in response to the case of the Respondents.

The lower Court took arguments on the preliminary objection along with the substantive suit and it delivered a considered Ruling wherein it

dismissed the preliminary objection of the first Appellant as lacking in merits and it found that the Respondents made a credible case in support of their claim. The lower Court entered judgment in favour of the Respondents and it made an order restraining the Appellants and or any security agents or persons at the instance of the Appellants from further interfering with the Respondents’ peaceful possession of the Shops 107 and 109 situate at the Fagge Ta Kudu Kanti Market, Kano and awarded them compensation of N500,000.00 in breach of their fundamental rights as well as the costs of the action assessed at N20,000.00.

The Appellants were dissatisfied with the Ruling and the second Appellant, as Counsel to both Appellants, filed a notice of appeal dated the 27th of May, 2019 and containing six grounds of appeal against it. In arguing the appeal before this Court, the second Appellant filed a brief of arguments dated the 22nd of July, 2019 on the 23rd of July, 2019. In response, the Respondents filed a brief of arguments dated the 21st of September, 2020 and the brief of arguments was deemed properly filed and served by the Court on the 6th of

October, 2020. The second Appellant filed a Reply brief of arguments dated the 25th of September, 2020 on the 28th of September, 2020 and the Reply brief was deemed properly filed and served by the Court also on the 6th of October, 2020. At the hearing of the appeal, Counsel to the parties relied on the arguments contained in their respective briefs of arguments as their submissions in the appeal.

Counsel to the Appellants distilled six issues for determination in the appeal and these were:
i. Whether a suit can be commenced by motion on notice alone without any pending originating process/motion.
ii. Whether the Federal High Court can depart from Court of Appeal decision and make own decision over the same fact.
iii. Whether there was service on the second Appellant to legalize his trial, having served somebody else not him with the originating process and without leave of Court.
iv. Whether the trial in the instant case can legally be held when the main parties (DSS) are not parties to it.
v. Whether it is only a certified true copy of public document that can be exhibited in an affidavit.
vi. Whether the lower Court was

right in acting upon a process filed out of time.

Counsel to the Respondents adopted the six issues for determination formulated by Counsel to the Appellants. This Court will consider the appeal on the six issues for determination and it will consider them seriatim.

Issue One
Whether a suit can be commenced by motion on notice alone without any pending originating process/motion.
In arguing the first issue for determination, Counsel to the Appellants stated that Order II Rule 2 of the Fundamental Right Rules 2009 provides the mode for initiating a fundamental rights enforcement matter and it says that it may be done by any originating process acceptable by the Court. Counsel stated that a motion on notice by which the present action was commenced in the lower Court was not an originating process by which a fundamental right enforcement proceeding can be commenced and it is only suitable for an interlocutory proceeding and he referred to the case of International Finance Corporation Vs DNSL Offshore Ltd (2008) All FWLR (Pt 403) 1264 and the text, Fundamental Rights Enforcement in Nigeria 2nd Edition, by Femi Falana. Counsel stated that the

action as commenced in the lower Court was thus incompetent and he urged the Court to resolve the first issue for determination in favour of the Appellants.

In his response, Counsel to the Respondents stated that Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 provides that an application for the enforcement of fundamental right may be made by any originating process mode accepted by the Court and that this has been interpreted to mean that fundamental right enforcement action can be commenced by way of motion, originating summons, writ of summons or by any other form of commencement of action accepted by the Court and he referred to the case of First Marina Trust Limited Vs Folabi-Owolabi (2018) LPELR 46714(CA). Counsel stated that the motion filed to commence the action was accepted in the lower Court and that it thus met the requirement of the provision of the Fundamental Rights (Enforcement Procedure) Rules 2009. Counsel urged the Court to resolve the issue for determination in favour of the Respondents.

This issue was raised and argued before the lower Court and, in deliberating on it, the lower Court referred to the

provision of Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 that an application for the enforcement of fundamental right may be made by any originating process mode accepted by the Court and also to the definition of an originating application in Order I Rule 2 as every application other than an application in a pending cause or matter and stated thus:
“I have critically examined the originating process in this suit and I am satisfied that it is not an application filed in a pending matter and that the content is in substantial compliance with ‘Form No 1’ contained in the appendix to the Rules and Order 1 Rule 3 of the Rules. It does not matter that the originating process is headed ‘Motion on Notice’ since it is not an application in a pending cause or matter, but one brought pursuant to Order II Rules 1, 2, 3, and 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009.”
As rightly noted by the lower Court, Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 provides that an application for the enforcement of fundamental right may be made by any

originating process mode accepted by the Court. Speaking on the modes of commencing a civil action, the Supreme Court in the case of Alfa Vs Attai (2017) LPELR 42579 (SC), per Nweze, JSC opined thus:
“Indeed, there are four broad modes of commencing civil suits namely, by (a) Writ of Summons; (b) Originating Summons; (c) Originating Motions and (d) Petitions. The first three methods are prescribed by the Rules of Courts, viz, the Rules of Court in relation to Writ of Summons; Originating Summons and Originating Motions. The latter, Originating Motions, could be categorized into two broad types, (i) Originating Motions for Prerogative Orders and (ii) Originating Motions under the Fundamental Rights (Enforcement Procedure) Rules, 1999 (made pursuant to the authorities that inhere in the Chief Justice of Nigeria). Lastly, Petitions as modes of originating actions are employed in commencing suits pursuant to express statutory provisions as shown above. Each of these is referred to as an Originating Process.”
Additionally, Order 3 Rule 1 of the Federal High Court (Civil Procedure) Rules, the applicable Rules in the lower Court, provides that

civil proceedings may be begun by writ, originating summons, originating motion or petition or by any other method required by other rules of Court governing a particular subject matter. A reading of the provision of Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, in the light of the acceptable modes of commencing civil proceedings, shows that a fundamental right enforcement action can be commenced by writ of summons, originating summons, originating motion or petition.
An Originating Motion is defined by the Oxford Reference Dictionary as “an application (motion) that commences a proceeding in a Court”. Also Order I Rule 2 Fundamental Rights (Enforcement Provision) Rules defines an Originating Application as every application other than an application in a pending cause or matter. The Respondents commenced the proceedings in the lower Court by a motion and it is clear from the face of the motion that it was an Originating Application as it prayed for the enforcement of the fundamental rights of the Respondents, and it was not an application in a pending matter. The motion thus qualified as an Originating Motion

and is thus one of the recognized ways of commencing a fundamental right enforcement proceeding.
The above said, the law is that, even if the motion on notice filed by the Respondents did not constitute a proper originating process, so long as it sought redress for the infringement of the right guaranteed under the Constitution, the competence of the action was not affected by the form of action adopted – Attorney General, Federation Vs Abule (2005) 11 NWLR (Pt 936) 369, Abdullahi Vs Sabuwa (2015) LPELR 25954(CA), Okelu Vs Inspector General of Police (2018) LPELR 45062(CA), Climax Hotel (Nig) Ltd Vs Venitee Global (Nig) Ltd (2019) LPELR 47103(CA), Taraba State Government Vs Shaku (2019) LPELR 48130(CA). This point was succinctly made by the Supreme Court in the case of Federal Republic of Nigeria Vs Ifegwu (2003) 15 NWLR (Pt 842) 113 when it stated thus:
“The manner in which the Court is approached for enforcement of a fundamental right does not matter once it is clear that the originating Court process seeks redress for the infringement of the right so guaranteed under the Constitution. The Court process could be by the Fundamental

Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons. The concerns in regard to redressing a contravention of a fundamental right have been underlined by liberalizing the type of originating process without the person affected being inhibited by the form of action he adopts. It is enough if his complaint is understood and deserves to be entertained.”
Uwaifo, JSC, stated the rationale for this position at page 184 B-E thus:
“It is the Constitution which, as the organic law of a country, declares in a formal, emphatic and binding principles the rights, liberties, powers and responsibilities of the people, both the government and the governed. It is the duty of the authorities including the judiciary, to ensure its observance. The position of the Courts is quite crucial in this regard for the purpose of safeguarding the constitutional rights of persons through effective intervention whenever, in an appropriate case, it is shown that such rights have been violated. In such a situation, the matter should be examined with close and anxious scrutiny to make sure that what is arrived at is objectively in

conformity with the spirit of the constitutional guarantee. And, for the Supreme Court of Nigeria, the trend is now that whenever an aspect of personal liberty is properly raised in any proceeding, the focus on the constitutional question is intent and intensive, and a solution which projects the essence of the constitutional guarantee is proffered.”
Thus, whichever way, the manner by which the Respondents commenced the action in the lower Court did not in any way affect the competence of the action. The finding of the lower Court on the issue was well grounded. The first issue for determination is resolved against the Appellants.

Issue Two
Whether the Federal High Court can depart from Court of Appeal decision and make own decision over the same fact.
On the second issue for determination, Counsel to the Appellants stated that it is a standing decision of the Court of Appeal that the right to approach the Court for the enforcement of fundamental rights is an individual right and that two or more persons cannot jointly apply to enforce their fundamental right, as the Respondents did in the instant case, and that even where the

violation and the complaints of the persons are common and arise from the same event, they must bring the action separately and he referred to and quoted from the case of Kporharor Vs Yedi (2017) LPELR 42418(CA). Counsel stated that the doctrine of judicial precedent makes this decision of the Court of Appeal binding on the lower Court and that the lower Court had to submit itself to the hierarchy of the Court of Appeal and follow the decision and not depart therefrom as the lower Court. Counsel stated that the judgment of the lower Court was thus a nullity and he urged the Court to resolve the second issue for determination in favour of the Appellants.

On his part, Counsel to the Respondents contended that the lower Court duly considered the decision of the Court of Appeal in Kporharor Vs Yedi (2017) LPELR 42418(CA) and distinguished the case from the facts and circumstances of the present case on the ground that that decision was predicated on the old fundamental rights enforcement regime, which did not share the same objectives with the current law. Counsel stated that the lower Court took time to reproduce and analyse the differences between the

extant law and current law, particularly the preambles contained in the Fundamental Rights (Enforcement Procedure) Rules 2009, and cited cases law authorities of the Court of Appeal and of the Supreme Court in support of its position. Counsel stated that the lower Court referred to the provisions of the Interpretation Act in interpreting the relevant provisions of the Constitution on enforcement of fundamental rights and came to the right conclusion that the decision in Kporharor Vs Yedi (2017) LPELR 42418(CA) was not applicable in the present case. Counsel stated that moreover Order 9 Rule 1 of the Federal High Court Civil Procedure Rules allows for joint action by persons with the same interests and that Order XV Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009 allows for the applicability of the Rules of Court where there is a lacuna. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.

The records show that one of the contentions of the second Appellant on his preliminary objection before the lower Court was that the action, being a joint one by the Respondents, was incompetent as two Respondents

cannot jointly file an application for the enforcement of their fundamental rights and he cited the case of Kporharor Vs Yedi (2017) LPELR 42418(CA) in support of his position. The records show that the lower Court considered the provisions of Section 46 of the 1999 Constitution and the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 and the lower Court state that it painstakingly read the decision of the Court of Appeal in Kporharor Vs Yedi and that it noted that the decision was based on the Fundamental Rights (Enforcement Procedure) Rules 1999 which was different from Fundamental Rights (Enforcement Procedure) Rules 2009 applicable in the present case.

The lower Court expounded on the provisions of 46(1) of the Constitution, Section 14 of the Interpretation Act and of the Fundamental Rights (Enforcement Procedure) Rules 2009 and it relied on the decision of this Court in Dilly Vs IGP (2016) LPELR 41452(CA) and of the Supreme Court in the case of Amalgamated Trustees Limited Vs Associated Discount House Limited (2007) 15 NWLR (Pt 1056) 118 in coming to the conclusion that the decision of this Court in Kporharor Vs Yedi was not

applicable to the facts and circumstances of this case. The lower Court was of the view that multiple parties can file one action for the enforcement of their fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009.

Counsel to the Appellant predicated his arguments on this issue for determination on the principle of judicial precedent. Now, Nigeria is a common law country and the foundation upon which the common law system is erected is the doctrine of judicial precedent. In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a Court or other tribunal when deciding subsequent cases with similar issues or facts. The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained.
The doctrine of judicial precedent is also commonly referred to as the principle of stare decisis, and the words originate from the phrasing of the principle in the Latin maxim stare decisis et non

quieta movere: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that Courts should generally abide by precedent and not disturb settled matters. Its meaning is that when a point of law has been once solemnly and necessarily declared by the decision of a competent Court, it will no longer be considered open to an examination, or a new ruling, by the same Court or tribunal or by those which are bound to follow its adjudications. In a hierarchical judicial arrangement, it precludes the Judges of subordinate Courts from changing what has been determined by a higher Court. In other words, they should keep the scale of justice even and steady and not liable to waver with every Judge’s opinion – Adesokan Vs Adetunji (1994) 5 NWLR (Pt 345) 540, Okeke Vs Okoli (2000) 1 NWLR (Pt 642) 641, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1.
The doctrine postulates that where the facts in a subsequent case are similar or close as facts in an earlier case that had been decided upon, judicial pronouncements in the earlier case are subsequently utilized to govern and

determine the decision in the subsequent case – Nwangwu Vs Ukachukwu (2000) 6 NWLR (Pt 662) 674. Similarly, where the provisions of a statute or section of a statute are the same or similar, and the purport, meaning and effect of such similar provisions of the statute or section had been considered in a previous decision of a competent Court higher up in the judicial hierarchy, then such previous decision becomes a matter of judicial precedent and is binding on the Courts lower in the hierarchy where they are called upon to consider a provision similar to that earlier considered – Nwobodo Vs Onoh (1984) 1 SCNLR 1, University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt 1) 156 and Ngige Vs Obi (2006) 14 NWLR (Pt 999) 1.
The doctrine of judicial precedent, however, recognizes that decisions of court draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case – Anaedobe Vs Ofodile (2001) 5 NWLR

(Pt 706) 365, Abubakar Vs Nasamu (No 2) (2012) 17 NWLR (Pt 1330) 523. It postulates that what is binding on a lower Court in the decision of a higher Court is the principle or principles decided and not the rules and that where the facts and circumstances in both cases are not similar or the same, the inferior Court is not bound by the principle decided in the case before the higher Court –Clement Vs Iwuanyanwu (1989) 3 NWLR (Pt.107) 39, Elebute Vs Faleke (1995) 2 NWLR (Pt 375) 82, 7up Bottling Co. Ltd Vs Abiola & Sons Ltd (1995) 3 NWLR (Pt 383) 257, Olafisoye Vs FRN (2004) 4 NWLR (Pt.864) 580, Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55.
In Ugwuanyi Vs NICON Insurance Plc (2013) 11 NWLR (Pt 1366) 546, the Supreme Court made the point thus:
“… cases remain authorities only for what they decided. Thus an earlier decision of this Court will only bind the Court and subordinate Courts in a subsequent case if the facts and the law which inform the earlier decision are the same or similar to those in the subsequent case. Where, therefore, the facts and/or the legislation which are to inform the decision in the subsequent case

differ from those which informed the Court’s earlier decision, the earlier decision cannot serve as a precedent to the subsequent one.”
What the above decisions postulate is that a lower Court should not just apply the decision of a higher Court to the facts and circumstances of the case before it. It has an obligation to interrogate the decision to ensure that the facts, circumstances and the legislation relied on in that decision are the same or similar to those of the case before it. It is only when it is satisfied that the facts, circumstances and legislations are the same or similar that it should apply it, otherwise he should distinguish it from its present case – Uwaokop Vs United Bank for Africa Plc (2013) LPELR 22622, Attorney General of Lagos State Vs Eko Hotels Ltd (2017) LPELR 43713 (SC), State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522. It is clear as has been shown above that the lower Court undertook a painstaking and thorough process of distinguishing the facts, circumstances and the legislation applicable in the present case from those in the decision of this Court in Kporharor Vs Yedi (2017) LPELR 42418(CA) before coming to the

conclusion that the decision was not applicable in this case. This was within the power of the lower Court to do. It was not the complaint of the Appellants in this appeal that the lower Court wrongly distinguished the decision in Kporharor Vs Yedi supra and the Appellants did not interrogate the process that the lower Court used in distinguishing it. This Court thus has no business inquiring into whether or not the lower Court rightly distinguished the decision in that case.

The above said, the complaint of the Appellants before the lower Court was that the action filed before the lower Court was bad for joinder of the causes of action of the Respondents for the breach of their fundamental rights. The action was commenced under the Fundamental Rights (Enforcement Procedure) Rules 2009. There is no express provision in the Fundamental Rights (Enforcement Procedure) Rules 2009 permitting or forbidding such joinder of causes of action. Order XV Rule 4 of the Rules provides that where in the course of any Fundamental Rights proceedings, any situation arises for which there is or appears to be no adequate provision in the Rules, the Civil Procedure Rules of

the Court for the time being in force shall apply. The lower Court here is the Federal High Court.
Now, Order 9 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 provides that “All persons may be joined in one action as plaintiffs in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such plaintiffs as may be found to be entitled to relief and for such relief as he or they may be entitled to without any amendment.” The Courts have interpreted this provision as permitting persons who have rights arising from one common cause to file a joint action as co-claimants to ventilate the rights – Hyson (Nigeria) Limited Vs Ijeoma (2008) 11 NWLR (Pt 1097) 18, Fode Drilling (Nig) Ltd Vs Fabby (2017) LPELR 42822(CA), AbdulRaheem Vs Oduleye (2019) LPELR 48892(SC). Dovetailing from the above position of the law, it has been held that a joint action filed by more than one person to ventilate breach of their fundamental rights arising one and same action of a defendant or defendants is competent – Uzoukwu Vs Ezeonu II (1991) 6 NWLR (Pt 200) 708 at 761, Ihejiobi Vs Ihejiobi (2013)

LPELR 21957(CA), Ubochi Vs Ekpo (2014) LPELR 23523(CA), Orkater Vs Ekpo (2014) LPELR 23525(CA). A read through the case of the Respondents on the affidavit in support of their application shows that the rights they sought to ventilate arose from a common cause. The finding of the lower Court that the action of the Respondents was competent cannot thus be faulted. The second issue for determination is resolved in favour of the Respondents.

Issue Three
Whether there was service on the second Appellant to legalize his trial, having served somebody else not him with the originating process and without leave of Court.
In arguing this issue for determination, Counsel to the Appellants stated that service of Court processes must be personal, unless substituted service is ordered by the Court, and that in the instant case, service of the processes meant for the second Appellant was effected on one A. K. Paki by the bailiff of Court, instead of the second Appellant personally without an order for substituted service. Counsel stated that failure of the bailiff to serve the processes on the second Appellant personally robbed the lower Court of the power to

exercise jurisdiction over him and he referred to the case of Mark Vs Eze (2004) 5 MJSC 143 and Onwubuya Vs Ikegbunam (2019) NWLR (Pt 1697) 95. Counsel stated that the lower Court was expected to take judicial notice of service on the parties in the records by checking whether or not there was an affidavit of service and that it is not for the party challenging non-service to prove that he was not served. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.

In his response, Counsel to the Respondents stated that the Appellants raised the issue of service of the process for the first time in the written address in support of the preliminary objection of the first Appellant and that the issue was not raised by an affidavit and that the issue of service being one of fact is established through evidence, oral or documentary, and that written address of Counsel did not constitute evidence and he referred to the case of Okwejiminor Vs Gbakeji (2008) LPELR 2537(SC). Counsel stated that the issue, as raised by the Appellants, was one of improper service, and not non-service, and that there is a world of difference between

the two and that once a party is made aware of the proceedings, he cannot complain of lack of service and he referred to the cases of Abe Vs UBN Plc (2005) All FWLR (Pt 291) 1727 and Mmaduagwu Vs Ifeanyi (2016) LPELR 41012(CA). Counsel stated the second Appellant appeared as Counsel to the first Appellant throughout the proceedings and for himself for the bulk of the proceedings and his office prepared and filed all the processes of the Appellants before the lower Court and he cannot thus be heard to complain of improper service. Counsel urged the Court to uphold the finding of the lower Court that there was service of the processes on the second Appellant and to resolve the issue for determination in favour of the Respondents.

This issue of improper service was raised before the lower Court and the lower Court deliberated on it in the Ruling thus:
“Another point raised by the 1st respondent is the issue of non personal service of the originating process on the 2nd respondent (original 4th respondent). According to the Counsel, ‘… the 4th respondent was not personally served, but the bailiff of this Court served the process on

one A.K. Paki …’ The notice of preliminary objection is not supported with an affidavit, such that the fact of service is put before the Court. I agree with the Applicants that the issue of service is an issue of fact to be proved by evidence either orally or documentary. It is not an issue of law that can be raised in a written address. The fact as to who was served was not placed before this Court.
In any case, the 2nd Respondent is not complaining of none service. It is the 1st Respondent that is contending that the 2nd Respondent was not personally served. The 2nd Respondent is himself present in Court and conducting the case. It is on record that the 2nd Respondent (Dalhatu Shehu Usman) at various times appeared for both the 1st and 2nd Respondents … He cannot be said not to be aware of the pendency of this suit. He has not filed any application to contend that he was not served with the originating process of the Applicants.
The whole essence of service is to bring to the notice of the adverse or opposing party the existence of the suit against him in Court … In the circumstances, I resolve this point against the 1st Respondent.”

The records of appeal confirm the assertion of the lower Court that the second Appellant filed no process in this matter to complain of non-personal service or improper service of the originating processes on him. It was the first Appellant that raised the issue on his notice of preliminary objection challenging the competence of the action filed by the Respondents. It is trite law that it is the party who was not served with a Court process, where service is required, that can raise the issue and seek to have the order made against him nullified, and not a party that was duly served –Mbadinuju Vs Ezuka (1994) 8 NWLR (Pt 364) 5, Mark Vs Eze (2004) 5 NWLR (Pt 865) 54, Idisi Vs Ecodril (Nig) Ltd (2016) LPELR 40438 (SC), Guruyel Vs Bara (2018) LPELR 44399(CA). In Chime Vs Chime (2001) 3 NWLR (Pt 701) 527, the Supreme Court put the point thus:
“The Court of Appeal was perfectly right when it stated thus in the lead judgment:
‘The application for nullification of such proceedings would be at the instance of the defendant against whom an order is made without prior notification of proceedings in which the order

was made for the simple reason that a condition precedent for the exercise of the Court’s jurisdiction in making the order has not been fulfilled. I am therefore clearly of the opinion that for a party to a suit to apply for the proceedings to be nullified by reason of failure of service, where service is a requirement, it must sufficiently establish that he or she has not been served in respect of the proceedings and that the order made therein affects him. It is not in my view open to every party to the proceedings to make such an officious complaint. If such complaint is sustainable, it will yield startling results. Thus, an aggrieved plaintiff, as in the instant appeal, would be enabled to appeal against a judgment against him on the technical ground that a party to the proceedings was not served some process.’”
Thus, it did not lie in the mouth of the first Appellant to complain of non-personal service or improper service of the originating processes on the second Appellant. It was for the second Appellant to do and the second Appellant did not complain.
The records of appeal further confirm that upon being served with the

process, the second Appellant appeared in Court in person and he conducted the proceedings at different times as Counsel to the first Appellant and himself, and at no time did he raise the issue non-personal service or improper service of the originating processes on him. The law is that where the defendant or his Counsel attends Court in apparent response to the process, then the question of service ceases to be an issue, notwithstanding that the service of the processes was not effected in accordance with the provisions of the Rules of Court, and the defendant will be deemed and presumed to have been served with the processes without more, even in absence of affidavit of service. In Akande Vs General Electric Company Ltd (1979) LPELR 319(SC), Aniagolu, JSC, explained the position thus:
“The first defendants entered conditional appearance and upon their failure to get the service of the writ set aside, filed their statement of defence in which they made some admissions relating to an alleged agreement said to have been evidenced by a memorandum in writing. They must be deemed to have waived service – a course which, in law, they are

entitled to. In Pike Vs Nairn & Co Ltd (1960) Ch 553 at 560 … Cross, J, stated that ‘The service of the process of the Court is made necessary in the interests of the defendant so that orders may not be made behind his back. A defendant, therefore, has always been able to waive the necessity of service and to enter appearance to the writ as soon as he hears that it has been issued against him, although it has not been served on him …’”
In Njoemana Vs Ugboma (2014) LPELR 22494(CA), this Court made the point thus:
“… There cannot be a better proof than the appearance in Court of the person on whom the process was served. It is common knowledge that parties informed the Court of the service of a writ, subpoena, hearing notice, etc on their opponents. In such a case, without the appearance of the person allegedly served or an affidavit of service, the Court should be circumspect in such a situation. It is straining the rule of proof of service to say that a defendant who filed a statement of defence to a statement of claim was not served with the writ of summons because there was no bailiff’s

endorsement on the writ.”
In United Bank for Africa Vs Effiong (2011) LPELR 8934(CA), it was held that the best proof of service of Court process on an adverse party is the unconditional appearance, presence or representation of the person who has been served with the said Court process. Similarly, in Dongari Vs Sa’anun (2013) LPELR 22084(CA), it was held that personal appearance does appear to be the strongest means of proof of service and that where there is no affidavit of service but the person served with the Court process appears in Court not in protest, then there will be no need for the Court to insist on affidavit evidence in proof of service. See also the cases of Okesuji Vs Lawal (1991) NWLR (Pt 170) 661, Societe Generale Bank (Nig) Ltd Vs Adewunmi (2003) 10 NWLR (Pt 829) 526, International Committee of Red Cross Vs Olabode (2009) LPELR 8764(CA), Nnaji Vs Alozie (2014) LPELR 24014(CA), The MV Courageous Ace Vs Nigerdock Nigeria Plc (2016) LPELR 40223(CA), Zakirai Vs Muhammad (2017) LPELR 42349(SC), Shell Petroleum Development Company (Nig) Ltd Vs Nwagbara (2018) LPELR 43732(CA).
Moreover, Order V Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009

provides that the application for the enforcement of fundamental right must be served on all the parties directly, so long as a service duly effected on a respondent’s agent will amount to personal service on the respondent. Thus, it is not compulsory that service must be effected on a respondent personally; it is sufficient if the process is served on his agent. It was not the case of the first Appellant that the said “A. K. Paki” that was served the processes meant for the second Appellant was not the agent of the second Appellant.
The issue of non-personal service of the originating court processes on the second Appellant is thus not well founded. The finding of the lower Court thereon cannot be faulted and this issue for determination is also resolved in favour of the Respondents.

Issue Four
Whether the trial in the instant case can legally be held when the main parties (DSS) are not parties to it?
As stated in the earlier part of this judgment, the Director General State Security Service and the Director State Security Service, Kano State Command were the original first and

second respondents before the lower Court. The Respondents withdrew the case against them and they were accordingly struck out by the lower Court. The records of proceedings before the lower Court show that the Appellants did not object to the striking out of the two respondents and did not raise and/canvass the issue of their non-joinder at anytime throughout the proceeding and the lower Court did not pronounce on it in the Ruling appealed against. It is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court. An appellant cannot contest an appeal on an issue not raised in the lower Court and he cannot set up a new case on appeal; he must be consistent in stating his case – Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245, Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409, Ekweozor Vs Registered Trustees of Saviour’s Apostolic Church of Nigeria (2020) LPELR 49568(SC). This

point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus:
“It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”
The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same – Abdullahi Vs Bani (2014) 17 NWLR (Pt 1435) 1, Saliu Vs State (2018) LPELR 44064(SC), Awusa Vs Nigerian Army (2018) LPELR 44377(SC), Ibrahim Vs All Progressives Congress (2019) LPELR 48995(SC). There is nothing on the records showing that the Appellant sought for and obtained the leave of Court to raise the issue in this appeal. The issue is thus incompetent and it will be discountenanced along with the arguments

canvassed thereon by the parties.

The above said, this Court considers it important to point out that one of the most firmly established principles of judicial adjudication in our legal jurisprudence is that no cause or matter shall be allowed to be defeated by reason of misjoinder or nonjoinder of parties and that such non-joinder or misjoinder is not fatal to the proceedings. A Court is enjoined in every such cause or matter to deal with the issue in controversy so far as regards the rights and interests of the parties actually before it – Oriare Vs Government of Western Nigeria (1971) All NLR 139, Osunrinde Vs Ajamogun (1992) 6 NWLR (Pt 246) 156 at 183-184, Cross River State Newspapers Corporation Vs Oni (1995) 1 NWLR (Pt 371) 270, Bello Vs Independent National Electoral Commission (2010) 8 NWLR (Pt 1196) 342, Sapo Vs Sunmonu (2010) 11 NWLR (Pt 1205) 374, Williams Vs Williams (2018) 13 NWLR (Pt 1637) 467. Thus, even if the issue of non-joinder of the State Security Service raised by the Appellants was competent, it cannot affect the outcome of the appeal in any way.

Issue Five
Whether it is only a certified true copy of public document

that can be exhibited in an affidavit
On this issue for determination, Counsel to the Appellants stated that even though it is the requirement of admissibility of public document that it must be certified, there was no need for such certification if that document is only being exhibited or attached to an affidavit because the tendering of a document at trial is different from exhibiting same to an affidavit and he referred to and quoted from the case of B. A. T. (Nig) Ltd Vs Int. Tobacco Co Plc (2013) 2 NWLR (Pt 1339) 493. Counsel stated that the lower Court was thus in error when it found that Exhibit 2 attached to the counter affidavit of the first Appellant was worthless because it was not a certified true copy. Counsel stated further that the depositions in paragraphs 12 and 13 of the counter affidavit were not controverted by a further affidavit and that thus, even without the exhibits, the lower Court was bound to act on them and he referred to the case of Dangabar Vs FRN (2014) 12 NWLR (Pt 1422) 557. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.

In responding on the issue for determination, Counsel

to the Respondents stated that the issue of worthlessness of the exhibits attached to counter affidavit of the first Appellant on the ground of their not being certified true copies is a non-starter because, despite making the finding, the lower Court proceeded to consider them in the course of the Ruling and came to the conclusion that they did not aid the case of the Appellants. Counsel referred to and quoted the portion of the Ruling where the lower Court considered the exhibits and stated that the issue of non-certification was not a live one as it cannot affect the outcome of the appeal. Counsel stated that the crux of the findings of the lower Court was that the Appellants did not make out a good case in defence of the claims of the Respondents and that the Appellants did not appeal against this finding, showing that they were content and satisfied with it and he referred to and quoted from the cases of Jimoh Vs Akande (2009) LPELR 8087(SC) and Chukwuegbo Vs Agu (2015) LPELR 25578(CA), amongst others.

Counsel stated that the second leg of the arguments of Counsel to the Appellant on the non-denial of paragraphs 12 and 13 of the counter affidavit

were not competent under this issue for determination and that the ground of appeal from which the present issue for determination was distilled did not contain such complaint. Counsel stated that an appellant cannot argue on points not covered by a ground of appeal and issue for determination and he referred to the cases of Access Bank Plc Vs Dura Trust Contractors Ltd (2019) LPELR 48732(CA) and Unity Bank Plc Vs Akpeji (2018) LPELR 44995(CA). Counsel urged the Court to discountenance the arguments and to resolve the issue for determination in favour of the Respondents.

In dealing with the counter affidavit of the first Appellant, the lower Court stated in the Ruling thus:
“I have critically read all the processes filed in this application. While the Respondents are not substantially denying the allegations of the Applicants, the 1st Respondent in his counter affidavit justified the acts complained of by the Applicants by exhibits 1 and 2 attached to the said counter affidavit i.e. that the Respondents acted pursuant to an order of Court in exhibits 1 and 2.
I have read the said exhibits. The exhibits are purported to be Court orders and

thus public documents … Exhibits 1 and 2 being public documents and secondary evidence ought to be certified but are not certified. I cannot therefore attach any weight to the said exhibit having failed to meet the requirements of the Evidence Act to enable me attach any evidential value to the exhibits. I therefore refuse to act on the said exhibits on the facts stated herein.
Even if the Court can attach weight to the said exhibits 1 and 2, the High Court of Kano, per Ya’u J., in exhibit H attached to the affidavit of the Applicants, held that it granted the ex parte orders in exhibits 1 and 2 under a misconception of facts. The Court subsequently set aside both orders in exhibits 1 and 2 dated 16th and 23rd of May, 2018. The effect of exhibit H is that all acts done pursuant to exhibits 1 and 2 are nullities.”

It is evident from the above reproduced portion of the Ruling that, as asserted by Counsel to the Respondents, the lower Court did not stop its deliberations on the counter affidavit of the first Appellant on the finding that the exhibits attached thereto were of no evidential value. The lower Court proceeded thereafter to

consider the exhibits vis a vis the depositions in the counter affidavit and found that they did not answer the case of the Respondents. The Appellants did not appeal against or complain about the finding of the lower Court that since by Exhibit H the High Court of Kano State set aside the orders it made in Exhibits 1 and 2, the acts of the Appellants pursuant to the orders were nullities. This Court notes that in the Reply brief of arguments, Counsel to the Appellants canvassed arguments touching on this finding of the lower Court. The complaint of the Appellants under this issue for determination is about the finding of the lower Court that the exhibits attached to the counter affidavit, not being certified true copies had no probative value. The arguments in the Reply brief are outside the purview and confines of this complaint of the Appellants and they must thus be discountenanced – Mozie Vs Mbamalu (2006) LPELR 1922(SC), Unity Bank Plc Vs Akpeji (2018) LPELR 44995(CA), Ezeigbo Vs Ikechukwu (2019) LPELR 48445(CA).
As rightly stated by Counsel to the Respondents, the resolution of the complaint of the Appellants under this issue for

determination will not in anyway affect the outcome of this appeal; it is a dead issue. It is trite law that a Court has no business delving into the issues that are not crucial and which are merely theoretical and of no practical utilitarian value such that its determination makes no practical or tangible addition to the outcome of the case and pronouncing on it is an exercise in futility and cannot have any effect on the decision of the Court – Obi-Odu Vs Duke (No 2) (2005) 10 NWLR (Pt 932) 120, Agbakoba Vs Independent National Electoral Commission (2008) 18 NWLR (Pt 1119) 489, Doma Vs Independent National Electoral Commission (2012) 13 NWLR (Pt 1317) 297, Independent National Electoral Commission Vs Atuma (2013) LPELR-20589(SC). This postulation is premised on the fact that Courts of law are set up to determine live issues which will have bearing in one way or the other on the outcome of a case –Oyeneye Vs Odugbesan (1972) 4 SC 244, Bhojwani Vs Bhojwani (1996) 6 NWLR (Pt 457) 663, Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478, State Vs Azeez (2008) 14 NWLR (Pt 1108) 348, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt

1165) 417. Considering and pronouncing on this issue for determination will be a wasteful exercise in the circumstances of this appeal and this Court thus declines to do so.

Issue Six
Whether the lower Court was right in acting upon a process filed out of time.
On this issue for determination, Counsel to the Appellants referred to the case ofNAF Vs Shekete (2003) 1 MJSC 63 in asserting that when leave is required for doing any act, failure to obtain that leave renders the act done a nullity and stated that the first Appellant served his notice of preliminary objection on the Respondents on the 15th of October, 2018, as confirmed by the records of the lower Court, and they did not file their response thereto until the 21st of March, 2019, clearly outside the time allowed by the Rules of Court. Counsel stated that Order 26 Rule 5 of the Federal High Court Civil Procedure Rules gave the Respondents seven days to file their response and that having failed to do so within the time allowed, the lower Court was wrong to have relied on same. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.

Counsel to the Respondents conceded in his response that the reply of the Respondents to the preliminary objection was indeed filed out of time, but stated that the Appellants merely raised the issue of the lateness in filing the reply without proving same before the lower Court by showing the endorsement of the date service of the preliminary objection was effected on the Respondents. Counsel stated further the reliance placed by the lower Court on the reply, despite the lateness in its filing, did not occasion any miscarriage of justice as the entire contents of the reply was on law, and not facts, and the lower Court was obliged to consider the viability of the preliminary objection on the applicable laws. Counsel referred to the case of INEC Vs Asuquo (2018) LPELR 43885(SC) in reiterating the power of the Court to judicial notice of laws and that it is immaterial that their reply relied upon by the lower Court was filed out of time because it contained arguments on law and the Court must always be guided by law, whether presented to it by the parties or not, in reaching its decision and he referred to the case of Akpan Vs State (2014) LPELR 22740(CA). Counsel stated that

what is important is whether the lower Court correctly applied the extant law to resolve the issues, irrespective of the source of the law, and he urged the Court to resolve the issue for determination in favour of the Respondents.

The issue of the lateness of the Respondents in filing their reply to the preliminary objection of the first Appellant was raised before the lower Court and the lower Court resolved it thus:
“… But before treating the preliminary objection, let me first of all resolve the issue whether the Applicants’ reply to the preliminary objection was filed out of time and without the leave of Court.
I have painstakingly perused the record of the Court but cannot find any proof of service of the 1st Respondent’s Notice of preliminary objection on the Applicants so as to ascertain when the Applicants were served. The 1st Respondent’s Counsel did not draw the attention of the Court to any such proof. No affidavit was filed by the 1st respondent stating the facts of service.
Issue of service is an issue of fact and it is trite that he who asserts must prove. Having not satisfied the Court with any

proof as to the date of service of the 1st Respondent’s notice of preliminary objection on the Applicants, the Court cannot act on an unproved fact. Accordingly, the presumption of regularity comes in aid of the Applicants.”

Now, while the position stated by the lower Court in the above excerpt of the Ruling sounds logical, plausible and reasonable, it was not applicable in the circumstances of this case. The records of appeal show that when this matter came up before the lower Court on the 5th of October, 2018, Counsel to the Appellants referred to the notice of preliminary objection of the first Appellant and Counsel to the Respondents countered that they had not been served with the process. The records show that Counsel to the Appellants there and then served a copy of the process on Counsel to the Respondents in the open Court and Counsel to the Respondents acknowledged receipt. Thus, the proof of service of the notice of preliminary objection, indicating the date of service, was on the face of the records of the lower Court and Courts are allowed to refer to their records to resolve issues before them – Sommer Vs Federal Housing Authority

(1992) 1 NWLR (Pt 219) 548, Agbaisi Vs Ebikorefe (1997) 4 NWLR (Pt 502) 630. It was incorrect for the lower Court to have stated that it had no proof of service of the process before it.

Order II Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules gives a respondent to an application five days to file a response thereto. The Respondent reply to the notice of preliminary objection was filed on the 22nd of March, 2019, long after the time allowed had expired. However, Order IX Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules provides thus: “Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings …” In other words, the late filing of the reply to the preliminary objection was an irregularity.
The law is that it is not every irregularity that automatically nullifies an entire proceeding, particularly where the irregularity did not in any way materially affect the

merits of the case, or occasion a miscarriage of justice. An irregularity is not a factor justifying the setting aside of a verdict or decision unless it is established that there has been a miscarriage of justice by the Court’s decision – Emedo Vs State (2002) 15 NWLR (Pt 789) 196, Famfa Oil Ltd Vs Attorney General, Federation (2003) LPELR 1239(SC), Auwalu Vs Federal Republic of Nigeria (2016) LPELR 41171(CA). The Appellants did not allude to or show any miscarriage of justice that they suffered by the reliance placed by lower Court on the reply of the Respondents to the notice of preliminary objection of the first Appellant. The reliance placed by lower Court on the reply of the Respondents does not thus justify this Court tampering with the decision of the lower Court. This issue for determination is also resolved in favour of the Respondents.

In conclusion, this Court finds that this appeal is totally devoid of merit and it is hereby dismissed. The decision contained in the Ruling of the Kano Judicial Division of the Federal High Court sitting in Kano in Suit No FHC/KN/CS/67/2018 delivered by Honorable Justice Obiora Atuegwu Egwuatu on the 27th

of May, 2019 is affirmed. The Respondents are awarded the costs of this appeal assessed at N100,000.00. These shall be the orders of the Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I had the privilege of reading in advance, the leading Judgment of my learned brother Abiru JCA just delivered and I am in complete agreement with his reasoning and conclusion that this appeal is without any merit. I too dismiss it and I abide by the order as to costs.

AMINA AUDI WAMBAI, J.C.A.: I had a preview of the judgment just delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA and I am in agreement with his reasoning and conclusion that the appeal is devoid of any merit. I abide his conclusion dismissing the appeal and the consequential order therein. I have nothing to add.

Appearances:

I. Umar, with him, N. A. Uba, Hafsat Sani Kabara and Auwal M. Tukur For Appellant(s)

L. Garba, with him, Z. A. Tata and A. T. Nanuya For Respondent(s)