MR. FRANCIS OJUKWUISIANA v. MR. OKOLIAGU ABUNIKE & ANOR
(2019)LCN/12765(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/L/607/2016
RATIO
JURISDICTION: JURISDICTION OF THE COURT TO ENFORCE FUNDAMENTAL RIGHT
“However, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly invoked or exercised as the Court will be incompetent to do so See also ADEKUNLE Vs. A.G., OGUN STATE (2014) LPELR-22569 (CA) Pg. 42-43, Paras. E – G; JIMOH Vs. JIMOH (2018) LPELR-43793 (CA) Pg. 21-24, Paras. C & F and PRINCESS Vs. GOVERNOR OF OGUN STATE & ORS (2018) LPELR-44986 (CA) Pg. 49-57, Paras. D & D where this Court reiterated this settled position of the law that: for an application for the Enforcement of any of the Fundamental Rights entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to be grounded, it must be shown by the Applicant that, the breach of the Fundamental right is the main claim…” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MR FRANCIS OJUKWUISIANA Appellant(s)
AND
1. MR. OKOLIAGU ABUNIKE
2. DIVISIONAL POLICE OFFICER, OJO POLICE STATION Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This appeal emanates from the two Rulings of the Federal High Court sitting in the Lagos Judicial Division delivered by I. N. BUBA J. The first Ruling was delivered on the 17th day of November, 2014 in Suit No: FHC/L/CS/597/2014 and is contained at pages 94 – 99 of the Records of Appeal while the second Ruling was delivered on the 25th day of January, 2016 as contained at pages 266 – 280 of the Records of Appeal. In the first Ruling, the learned trial Judge granted the reliefs sought by the 1st Respondent/Applicant in the Originating Motion filed on the 28th day of April, 2014.
It is expedient to appraise the genesis of the instant appeal from the lower Court which as presented by the parties is that the Appellant, sometimes in September, 2012 purchased one Acura MDX Jeep with registration number AKD 96 S from one Prince Cletus Ogbu through a middle man – one Mr. Mike for One Million, Seven Hundred Thousand Naira. The vehicle documents and particulars however had the name of the 1st Respondent; the Appellant stated that he inquired from Prince Cletus Ogbu and he was told that the vehicle was recovered from the 1st Respondent who defrauded Prince Cletus Ogbu’s company of some huge sums of money. However, after about a year of purchasing and using the said Acura MDX Jeep, the Appellant received a letter dated 28th November, 2013 from the 1st Respondent’s Solicitor which demanded that the Appellant returned the said Acura MDX Jeep to the 1st Respondent.
Consequently, the Appellant, on the 3rd day of December, 2013 lodged a complaint at the Ojo Police Station; on the 13th day of December, 2013 the Appellant and the 1st Respondent met at the Police Station upon invitation by the 2nd Respondent; and the 1st Respondent was made to write an undertaking not to further threaten the life of the Appellant. Thereafter, the 1st Respondent commenced an action by way of fundamental rights enforcement application, against the Appellant and the 2nd at the Court below alleging that his fundamental rights were violated. The suit resulted in the Ruling delivered on the 17th day of November, 2014 wherein the lower Court granted all the reliefs sought by the 1st Respondent.
Aggrieved by the decision of the lower Court in the Ruling of 17th day of November, 2014, the Appellant filed a Notice of Appeal on the 25th day of November, 2014 as contained at pages 109 – 110 of the Records of Appeal. The Appellant also filed before the trial Court an ‘Originating Application’ and its supporting process as contained at pages 139 – 187 of the Records of Appeal asking the lower Court to set aside its entire proceedings including the Ruling delivered on the 17th day of November, 2014. In opposition, the 1st Respondent filed a Counter-Affidavit and Written Address contained at pages 191 – 228 of the Records of Appeal. The Appellant filed a Further and Better Affidavit as well as a Reply on Points of Law in Support of the said ‘Originating Application’ as contained at pages 229 – 231 and 235 – 239 of the Records of Appeal; while the 1st Respondent filed a further Counter-Affidavit contained at pages 241 – 261 of the Records of Appeal. In the second Ruling which was delivered on the 25th day of January, 2016 and contained at pages 266 – 280 of the Records of Appeal, the lower Court refused and dismissed the Appellant’s ‘Originating Application’ seeking to set aside the proceedings and Ruling delivered on the 17th day of November, 2014.
In reaction, on the 27th day of January, 2016 the Appellant then filed a fresh Notice of Appeal found at pages 281 – 285 of the Records of Appeal against the two Rulings; that is, the Ruling delivered on the 17th day of November, 2014 and the Ruling on the 25th of January, 2016. The Appellant further filed a Notice of Motion dated 6th May, 2016 before this Court seeking the order of this Court for the Stay of Execution of the Rulings of 17th November, 2014 and 25th January, 2016 respectively pending the hearing and determination of this appeal; the Appellant also sought the order of this Court for leave to withdraw the Notice of Appeal dated 24th of November, 2014 and substitute same with the Notice of Appeal dated 27th January, 2016; the Appellant’s Notice of Motion and the accompanying Affidavit and Written Address is contained at pages 434 – 489 of the Records of Appeal.
‘The Appellant’s Brief of Argument was filed by learned Counsel Iheanyi Eme on the 11th day of October, 2018. The 1st Respondent’s Brief on the other hand was filed by learned Counsel Olukoya Ogungbeje on the 15th day of November, 2018. The 2nd Respondent did not file any Brief of argument and the Appellant did not file a Reply Brief. The Appellant distilled three issues for determination as follows:
1. The learned Trial Judge erred in law when he failed and refused to make a pronouncement or finding on the defense set up by the Appellant, that is the Counter-Affidavit and Written Address duly filed by the Appellant and set up a good defense to the 1st Respondent’s frivolous suit.
2. The learned Trial Judge erred in law and in fact when he refused to make a pronouncement and a finding on the totality of evidence before him bordering on the breach or otherwise of the 1st Respondent’s fundamental human rights.
3. The learned Trial Judge erred in law when he refused or glossed over the service and joinder of PRINCE CLETUS OGBU, a necessary party to the resolution of all issues arising in the suit despite his order of 8th of October, 2014 that PRINCE CLETUS OGBU be served and heard.
Learned counsel for the 1st Respondent on the other hand formulated a sole issue for determination as follows:
Whether the learned trial Judge rightly condemned the action of the Appellant and the 2nd Respondent in resorting to self-help by using a Notary Public Affidavit for the confiscation, sale and transfer of the 1st Respondent property/Acura MDX Jeep without any Court order and while there was still a pending case in a Court of law.
1st RESPONDENT’S PRELIMINARY OBJECTION
Learned counsel for the 1st Respondent challenged the competence of this appeal by referring to a Notice of Preliminary Objection dated 1st day of August, 2016 pursuant to Order 10 Rules 1, 2 and 3 of the Court of Appeal Rules; counsel relied on DAKOLO Vs. REWANE-DAKOLO [2011] 16 NWLR (Pt. 1272) Pg. 22 at 41, Paras. D – E and AGURA Vs. OROBIYI (2012) LPELR-7975 (CA) to submit that incorporating the Notice of Preliminary Objection in the 1st Respondent’s Brief is competent. The Notice of Preliminary Objection is predicated on 9 (nine) grounds and the relief sought therein is for an order of this Court striking ought this Appeal because the grounds of appeal are incompetent.
Learned counsel referred to ETUBOM ASUQUO ANI Vs. EKPENYONG EFFIOK [2017] 8 NWLR (Pt. 1567) Pg. 281 at 301, Paras. A – B to submit that a Notice of Appeal is the spinal cord of an appeal; and that in the instant case, the Appellant filed a Motion on Notice on the 23rd of October, 2017 withdrawing the Notice of Appeal filed on the 25th November, 2014 and in replacement, filed another Notice of Appeal dated 27th January, 2016. Counsel contended that the instant appeal was founded on the withdrawn Notice of Appeal filed on the 25th of November, 2014 and therefore, having withdrawn the Notice of Appeal, the appeal has no leg on which to stand.
Learned counsel submitted that a Notice of Appeal cannot be deemed as having been properly filed; and that a Notice of Appeal already filed before leave is granted cannot be deemed or substituted, but a party is expected to file a fresh Notice of Appeal being an Originating process to invoke the jurisdiction of this Court. Counsel argued that the Notice of Appeal dated and filed on the 27th of January, 2016 by the Appellant against the Judgment/Ruling delivered on the 17th of November, 2014 is incompetent.
Learned counsel submitted that any material defect in the Notice of Appeal renders the Notice of Appeal incompetent and therefore incapable of activating the jurisdiction of this Court, to hear and determine the appeal. Counsel urged this Court to dismiss the Notice of Appeal. The Appellant did not file a Reply to this preliminary objection.
RESOLUTION OF PRELIMINARY OBJECTION
While it is not in doubt that the arguments in support of a Notice of Preliminary objection may be validly raised in the Respondent’s Brief to question the competence of an appeal, such Notice of Preliminary Objection must be raised and moved before the hearing of this appeal or any stage thereafter. Having failed to do so, the arguments in support of the 1st Respondent’s Preliminary Objection will be disregarded and discountenanced. See BEN Vs. STATE (2006) 16 NWLR (Pt. 1006) 582; (2006) LPELR-770 (SC) Pg. 18, Paras. A – F where the Supreme Court held that: although the Notice of Preliminary Objection can be given in the respondent’s brief, a party filing it in the said brief, must ask the Court for leave to move the said notice before the oral hearing of the appeal commences, otherwise, it will be deemed to have been waived and therefore, abandoned. See also OPOBIYI & ANOR Vs. MUNIRU (2011) LPELR-8232 (SC) Pg. 21-22, Paras. G – A; NIGERIAN LABORATORY CORPORATION & ANOR Vs. PACIFIC MERCHANT BANK LTD (2012) LPELR-7859 (SC) Pg. 16, Paras. D – F; OWENA MASS TRANSPORTATION COMPANY LTD Vs. ENTERPRISES BANK LTD (2014) LPELR-22100 (CA) Pg. 16-17, Paras. G – B; MAZI UDUCHE & ORS Vs. JOHN UDUCHE & ANOR (2017) LPELR-42884 (CA) Pg. 21, Paras. B – E and LEADERSHIP NEWSPAPER GROUP LTD Vs. MOHAMMED (2017) LPELR-42871 (CA) Pg. 6-7, Paras. F & B. The failure of the 1st Respondent to move the preliminary objection before the hearing of this appeal must be deemed as abandonment or a waiver of the said preliminary objection. Therefore, without hesitation, I hereby discountenance the preliminary objection and the arguments canvassed in support. I shall now proceed to consider and determine the substantive appeal.
SUBMISSIONS OF COUNSEL FOR THE APPELLANT
ISSUES ONE & TWO
Learned counsel for the Appellant consolidated the submissions on issues one and two; counsel referred to the findings of the lower Court at page 95 of the Records of Appeal to submit that the learned trial Judge failed to consider the Appellant?s Counter Affidavit and Written Address filed in opposition to the 1st Respondent?s Originating Processes. Counsel further submitted that the findings of the lower Court that the Appellant (1st Respondent at the lower Court) is not aware of the circumstances under which he got the Acura Jeep is an invention by the lower Court as no such submission or statement was contained in the Appellant’s Counter-Affidavit at pages 26 ? 28 of the Records of Appeal. Learned counsel relied on DANIEL USHIE Vs. ASOQUO EDET & ANOR [2010] 6 NWLR (Pt. 1190) Pg. 386 at 405, Paras. A – C to submit that it is a fundamental principle of adjudication that at every material stage of the proceedings, both parties to a dispute must be heard before the Court gives a ruling/judgment one way or the other; and that a Court cannot be fair unless it considers both sides of the case as presented by the parties.
Learned counsel submitted that the Appellant by his Counter-Affidavit denied violating the 1st Respondent’s fundamental human rights and stated how he bought the Acura MDX Jeep in an open market contrary to the 1st Respondent’s claim in the Originating processes; counsel argued that the trial Court ought to have called for oral evidence because of the conflict in the Affidavit of the parties. Counsel submitted that the trial Court failed to consider the Appellant’s defense as contained in the Counter-Affidavit at pages 26 – 28 of the Records of Appeal thereby violating the Appellant’s constitutional right to fair hearing as contained in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Learned counsel relied on PATIENCE OKORO EYE Vs. FRN [2016] 15 NWLR (Pt. 1534) Pg. 1 at 127, Paras. F -G; EFCC Vs. AKINGBOLA [2015] 14 NWLR (Pt. 1478) Pg. 1 at 39, Paras. E – F; Pg. 44, Paras. F – H; CHITRA KNITTING AND WEAVING MANUFACTURING CO. LTD Vs. G.O. AKINGBADE [2016] 14 NWLR (Pt. 1533) Pg. 487 at 512, Paras. F – H; SAMUEL OKEDARE Vs. OBA AHMADU ADEBARA & ORS [1994] 6 NWLR (Pt. 349) Pg. 157 at 188 and CHIEF UDENSI Vs. DR. F.K. ODUSOTE & ORS [2003] 6 NWLR (Pt. 817) Pg. 545 at 557 to submit that the consequence of the violation of the Appellant’s constitutional right to fair hearing is that the decision reached by the lower Court amounts to a complete nullity and therefore liable to be set aside.
Learned counsel further cited UZUDA Vs. EBIGAH [2009] 15 NWLR (Pt. 1163) Pg. 1 at 19, Paras. E – H, Pg. 21, Paras. F – H; AMADI Vs. THOMAS APLIN CO LTD [1972] 1 All NLR (Pt. 1) Pg. 409; NWOKORO Vs. ONUMA [1990] 3 NWLR (Pt. 136) Pg. 22 at 32-33 and OKONJI Vs. NJOKANMA [1991] 7 NWLR (Pt. 202) Pg. 131 to argue that in a fundamental human rights enforcement application which is conducted based on the affidavits of the Applicant and Respondent; it is essential that the affidavits of both parties be considered by the trial Court before a decision is arrived at and where there is failure to so do; this Court is bound to intervene and set aside such unfair decision or conclusion. Counsel relied on STATE Vs. HASSAN [1972] 1 NWLR (Pt. 2) Pg. 197-111, Paras. A – F to urge this Court to intervene by re-evaluating the evidence placed before the trial Court and set aside the Ruling/Judgment of the lower Court, having occasioned a miscarriage of justice against the Appellant.
ISSUE THREE
Learned counsel for the Appellant referred to the order of the lower Court directing that one Prince Cletus Ogbu be served and heard in the instant case as contained at pages 77 – 78 of the Records of Appeal. Counsel referred to pages 6 – 9 and 26 – 29 of the Records of Appeal to argue that the Order was predicated on the fact that the said Prince Cletus Ogbu was the focal point in the Affidavits of both the Applicant (1st Respondent) and the Respondents (including the Appellant) which is in consonance with the provisions of Order V Rule 9 of the Fundamental Rights (Enforcement Procedure) Rules 2009. Learned counsel further submitted that there is a sworn affidavit by Prince Cletus Ogbu at page 37 of the Records of Appeal where he affirmed that he sold and transferred ownership of his Acura MDX Jeep to the Appellant herein. Counsel submitted that contrary to the order made by the lower Court, the said Prince Cletus Ogbu was neither served nor heard; but that the 1st Respondent as Applicant filed a separate sui against Prince Cletus Ogbu in Suit No. FHC/L/CS/538/2014 which was assigned to the same learned trial Judge as the instant case wherein the 1st Respondent was granted the same relief as in the instant appeal which the said Prince Cletus Ogbu filed in ‘ Appeal No. CA/L/620/2016 ‘ pending before this Court.
Learned counsel referred to CHIEF MAXI OKWU & ORS Vs. CHIEF VICTOR UMEH & ORS [2016] 1 SC (Pt. 1) Pg. 60; GREEN Vs. GREEN [1987] 7 SC (Pt. 11) 108 and AKPAMGBO-OKADIGBO & 4 ORS Vs. CHIDI & 18 ORS (No. 1) [2015] 3-4 SC (Pt. 11) 48 and contended that the purpose of Order V Rule 9 of the Fundamental Rights (Enforcement Procedure) Rules 2009 is that the party be served, and that the necessary parties to the resolution of the issue(s) between the Applicant and the Respondent(s) be served, they must be brought to Court and be heard to enable the Court come to a conclusion on all the issues between the parties. Counsel argued that in the instant case, the necessary party Prince Cletus Ogbu was not served as ordered by the trial Court and the trial Court did not find out why its order was breached; instead the trial Court gave two Rulings/Judgments on the same subject matter to the 1st Respondent. Learned counsel submitted that in the circumstances, the joinder and hearing of Prince Cletus Ogbu was absolutely necessary; counsel urged this Court to set aside the entire Ruling/Judgment having occasioned great injustice on the Appellant.
SUBMISSIONS OF COUNSEL FOR THE 1st RESPONDENT
Learned counsel for the 1st Respondent contended that the learned trial Judge rightly granted the reliefs sought by the 1st Respondent against the Appellant and 2nd Respondent. Counsel argued that the 1st Respondent?s suit was predicated on the fact that he was arrested, tortured and detained and that his Acura MDX Jeep was forcefully confiscated, sold and transferred without any Court Order but with an affidavit deposed to before a Notary Public; counsel referred to the said Affidavit at page 37 of the Records of Appeal and the findings of the learned trial Judge thereon at page 94 and 116 of the Records of Appeal. Learned counsel referred to pages 10 – 14 of the Records of Appeal to argue that the particulars and documents of the said Acura MDX Jeep bear the name of the 1st Respondent and that the said Acura MDX Jeep was forcefully taken from him and sold to the Appellant while there was a pending case before the Court using an affidavit sworn to before a Notary Public.
Citing NKPA Vs. NKUME [2001] 6 NWLR (Pt. 710) Pg. 543; OKOMU OIL PALM COMPANY Vs. HASSAN TAJUDEEN [2016] 3 NWLR (Pt. 1499) Pg. 284 at 312-313, Paras. H & B; THE REGISTERED TRUSTEES OF APOSTOLIC CHURCH Vs. OLOWOLENI [1990] 6 NWLR (Pt. 158) Pg. 537 and GOVERNOR OF LAGOS STATE Vs. OJUKWU [1986] 1 NWLR (Pt. 18) Pg. 636, learned counsel submitted that parties should under no circumstance resort to self-help once a matter is before the Court. Counsel further submitted that in the instant case, the Appellant who was represented by counsel did not complain about the joinder of Prince Cletus Ogbu and that the said Prince Cletus Ogbu was neither a party in the proceedings before the lower Court nor in the instant appeal. Learned counsel for the 1st Respondent referred to page 139 – 175 of the Records of Appeal to argue that the new counsel engaged by the Appellant wanted the proceedings to start again by filing a process tagged ‘ORIGINATING APPLICATION’ after judgment had been delivered, and that the learned trial Judge, at pages 450 – 464 of the Records of Appeal heard and rightly dismissed the said Appellant’s Application.
Learned counsel contended that although Prince Cletus Ogbu was not a party to the suit at the lower Court, the learned trial Judge at page 464 of the Records of Appeal confirmed that Prince Cletus Ogbu was served with hearing Notice as directed by the lower Court. Counsel further submitted that the Appellant cannot predicate his appeal on a party that was not a party to the suit and proceedings before the lower Court and that this Court cannot be asked to disturb the findings of the lower Court on the basis of a party who is not a party before this Court. Counsel argued that neither the Appellant nor his counsel at the lower Court sought for the joinder of the said Prince Cletus Ogbu as a party to the suit; and that the complaint of the Appellant in this Appeal is that someone who was not a party to the suit and proceedings before the Court below was not heard. Counsel relied on NYAKO Vs. ADAMAWA STATE HOUSE OF ASSEMBLY [2017] 6 NWLR (Pt. 1562) Pg. 374 at PG. 393-394, Paras. A – F to submit that the actions of a counsel properly briefed and engaged by a litigant is binding on that litigant.
Learned counsel referred to ACCESS BANK PLC Vs. ADEWUSI [2017] All FWLR (Pt. 883) Pg. 1373 at 1401, Paras. A – F to contend that the principles of fair hearing apply to both parties and that both the Appellant and Respondent have equal right to fair hearing. Counsel further argued that the Appellant resorted to hide under the cover of fair hearing not for himself; but for a party that is not a party to the suit before the lower Court. Learned counsel submitted that there is no reason at all to disturb the findings of the lower Court because the lower Court considered all the issues brought before it by all the parties before arriving at a decision. It was further submitted that the learned trial Judge rightly condemned the unlawful action and resort to self-help by the Appellant and 2nd Respondent while there was a pending case in Court. Learned counsel urged this Court to dismiss this appeal.
At this stage it is proper to state that the Appellant did not file any reply brief, and that the second Respondent in this appeal did not file 2nd Respondents brief of argument.
RESOLUTION
In this appeal, the Appellant submitted three issues while the 1st Respondent submitted a sole issue for determination. I shall adopt and consider the three issues distilled by the Appellant for the purpose of determining this appeal. The Appellant’s issue No. 1 is that: ‘The learned Trial Judge erred in law when he failed and refused to make a pronouncement or finding on the defense set up by the Appellant, that is the Counter-Affidavit and Written Address duly filed by the Appellant and set up a good defense to the 1st Respondent’s frivolous suit?; while the issue No. 2 is that: ‘The learned Trial Judge erred in law and in fact when he refused to make a pronouncement and a finding on the totality of evidence before him bordering on the breach or otherwise of the 1st Respondent’s fundamental human rights.’On these issues, the Appellant argued that the learned trial Judge failed to consider his Counter Affidavit and Written Address filed in opposition to the 1st Respondent’s Originating Processes; that the trial’
Court failed to consider his defense as contained in the Counter-Affidavit at pages 26 – 28 of the Records of Appeal thereby violating his constitutional right to fair hearing as contained in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); that the consequence of the violation of his constitutional right to fair hearing is that the decision reached by the lower Court amounts to a complete nullity and therefore liable to be set aside. The Appellant further argued that it is imperative that the affidavits of both parties be considered by the trial Court before a decision is arrived at and where there is a failure to so do; this Court is bound to intervene and set aside such unfair decision. The 1st Respondent on the other hand contended that learned trial Judge rightly granted the reliefs sought against the Appellant and 2nd Respondent; that the suit was predicated on the fact that he was arrested, tortured and detained and that his Acura MDX Jeep whose particulars and documents bear his name was forcefully confiscated, sold and transferred without any Court Order but with an affidavit from a Notary Public while there was a pending case before the Court.
I carefully considered the Originating Motion filed by the 1st Respondent in this suit on the 28th day of April, 2014 and the reliefs sought by the 1st Respondent therein at pages 1 – 2 of the Records of Appeal. The said Originating Motion was brought pursuant to Sections 33, 34, 35, 36 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and Order II, Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and the reliefs sought by the 1st Respondent and granted by the learned trial Judge in the Ruling dated 17th November, 2014. A careful consideration of the said reliefs and the constitutional provisions under which they were sought leaves no doubt that the allegations made by the 1st Respondent are that his Fundamental Rights as enshrined under Sections 33, 34, 35, 36, 41, 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) have been violated by the 2nd Respondent’s agents at the instance of the 1st Respondent. In support of his Application, the 1st Respondent deposed to a 43 paragraph Affidavit contained at pages 6 – 9 of the Records of Appeal. The Appellant and 2nd Respondent filed separate Counter-Affidavits to the said Application; the Appellant, on the 13th of June, 2014 filed a Counter-Affidavit and Written Address in opposition to the 1st Respondent’s Application as contained at pages 26 – 34 of the Records of Appeal; the 2nd Respondent also filed a Counter-Affidavit against the 1st Respondent’s application on the 8th of August, 2014 as contained at pages 44 – 67 of the Records of Appeal which was regularized by an application for extension of time; and the Appellant equally filed a further and better affidavit and reply on points of law contained at pages 35 – 43 of the Records of Appeal.
The grievance of the Appellant under issues No. 1 and 2 is that the trial Court failed to consider his defense to the allegations made by the 1st Respondent in coming to a conclusion before granting the reliefs sought against him and that the trial Court erred in its findings that according to the Appellant, he is not aware of the circumstances under which he got the Acura Jeep. Having considered the processes filed by all the parties before the lower Court and juxtaposing same with the Ruling of the lower Court contained at pages 94 – 99 of the Records of Appeal, I am of the opinion that the learned trial Judge indeed did not fully discharge the responsibility of considering the submissions and evidence of the parties before him. While it was the 1st Respondent’s submission that he was arrested and detained for 22 days and that his Car was forcefully taken away from him; the Appellant and 2nd Respondents denied these allegations and gave differing evidence of how the 1st Respondent came into possession of the Acura Jeep. The lower Court wrongly concluded that: ‘According to the 1st Respondent he is not even aware of the circumstance under which he got the Acura Jeep.’
In DURU Vs. NWOSU (1989) 4 NWLR (Pt. 113) 24; (1989) LPELR-968 (SC) Pg. 10, Paras. C – G the Supreme Court highlighted what a proper judgment should entail where NNAMANI JSC (of blessed memory) stated that:
‘What is really important is that at the end of the day the judgment contains what a proper judgment ought to contain, and more important, that in writing, the learned trial Judge must discharge that responsibility which will enable what he produces to be properly called a judgment. A fair and just verdict on the case put up by two or more contending parties. To discharge that responsibility, the learned trial Judge has to fully consider the evidence proffered by all the parties before him, ascribe probative value to it, weigh the evidence by both sides in the imaginary scale of justice, make definite findings of fact, apply the relevant law and come to some conclusion on the case before him.’
In N.I.I.T ZARIA Vs. DANGE (2008) 9 NWLR (Pt. 1091); (2008) LPELR-8666 (CA) Pg. 25-26, Paras. F ? D, this Court, per OKORO, JCA (as he then was) held that: ?I agree that judgment writing is matter of style of individual judges. But there are certain essential and mandatory components which a good judgment must contain This Court further relied on the decision of OPUTA, JSC (of blessed memory) in ADEYEYE Vs. AJIBOYE (1987) 3 NWLR (Pt. 61) 342 at 451 where his Lordship said as follows and I quote:
The proper approach for any trial Court is to first set out the claims, then the pleadings, then the issues arising from those pleadings. Having decided on the issues in dispute, the trial judge will then consider the evidence in proof of each issue; and then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this, the trial judge will then record his logical and consequential findings of fact. It is after such finding that the trial Court can then discuss the applicable law against the background of his findings of facts. See also ABEJE Vs. APEKE & ANOR (2013) LPELR-20675 (CA) Pg. 21-22, Paras. B – D; TSOKWA & ORS Vs. MIJINYAWA & ORS (2014) LPELR-24200 (CA) Pg. 32-33, Paras. A – C; and RUKUJE Vs. DEBA (2018) LPELR-44422 (CA) Pg. 19-20; Paras. F – B & Pg. 29-30, Paras. F – D where this Court, stated that: ‘The lower Court did not state any reason for overruling the contention of the Counsel to the Appellant on the issue; it merely ignored the contention. This was very wrong of the lower Court. It is imperative on every Court to Tribunal to give reasons for any finding of fact or holding.
In order to construct effective appreciation of the grievance of the Appellant in this appeal, I think it will be proper and prudent on my part to take the pain to reproduce the Ruling subject matter of this appeal, perhaps so doing by this Court will show whether the lower Court made efforts to satisfy the requirements of the law in erecting its decisions. The Ruling delivered by the lower Court on the 17th day of November 2014 is at page 94-98 of the records of appeal and is reproduced as follows:
RULING
The Applicant’s jeep was forcefully taken away from him by the police. In one breath the Police said the items taken from the Applicant will be tendered in Court in which the Applicant is being prosecuted in the Magistrates Court.
Suddenly the Police started singing another song in the affidavit of CPL Abdullahi of 8/8/14. This Court is amazed at how the 1st Respondent purports to buy a Car using an affidavit from a notary public.
The second Respondent who attached the affidavit of the Applicant in suit NO. FHC/L/CS/538/14 completely forgot the facts of that case to which the deponent was copiously named. This Court agrees entirely with the arguments of the Applicant that his jeep was illegally taken and it was illegally sold to the 1st Respondent. The Applicant was not found guilty by any Court of law. The 2nd Respondent who attached the affidavit of the Applicant Exhibit B shall stand and fall with it.
According to the 1st Respondent he is not even aware of the circumstance under which he got the Acura Jeep.
This Court has no difficulty in upholding the submissions of the Applicant and hereby grant reliefs 1-6 on the face of the motion dated 24/4/14.
To wit:
a. A DECLARATION, that the arrest, torture and detention of the Applicant by the agents of the Respondents at the prompting of the 1st Respondent for twenty-two (22) days from the 17th of January 2014 to the 8th of February 2014 without bail and being charged to Court is illegal, wrongful, unlawful, unconstitutional as it violates the Applicants fundamental rights as guaranteed under Sections 33,35,36 and 41 of the Constitution of the Federal Republic of Nigeria.
b. A DECLARATION, that the forceful seizure and confiscation of the Applicant Acura MDX Jeep with Registration No. AKD 96 and Chassis No. 2HNYD 18954H533490 Engine J35A52036123 by the agents of the Respondents at the prompting of the 1st Respondent without any order of the Court is wrongful, illegal, unlawful, unconstitutional, null and void as it violates the Applicants fundamental rights as enshrined under Sections 36, 43, and 44 of the 1999 Constitution of the Federal Republic of Nigeria.
c. A DECLARATION, that the threat to arrest and continuous threat of arrest and incarceration, harassment and intimidation of the Applicant by the Respondent without lawful excuse is wrongful, illegal, unlawful, unconstitutional, null and void as it violates the Applicants fundamental rights as enshrined under Sections 33, 34, 35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria.
d. AN ORDER compelling the 1st Respondent to immediately release and return unconditionally to the Applicant Acura MDX Jeep with Registration No. AKD 96 and Chassis No. 2HNYD 18954H33490 Engine No. J35A52036123.
e. AN ORDER, Compelling the Respondents jointly and severally to tender a public apology to the Applicant and to pay the sum of N10.000.000.00 (Ten Million Naira) to the Applicant as general and exemplary damages.
f. AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents whether by themselves, their agents, officers, servants or privies or anybody deriving authority from them by whatever name called from further harassing, intimidating, arresting, detain, seizing, or taking any untoward action against the Applicant on any fact connected with or related to the facts in issue,
Cost of N50,000.00 is awarded in favour of the applicant.
HON JUSTICE I. N. BUBA
JUDGE
17/11/14
Ruling read and delivered in open Court?
In this case as can be seen clearly from the Ruling delivered by the learned trial Judge, the lower Court made no findings on the allegations that the 1st Respondent was arrested and detained by the 2nd Respondent?s agents at the prompting and/or instigation of the Appellant; such facts have not featured in the Ruling, instead, the learned trial Judge, just found that: ‘According to the 1st Respondent he is not even aware of the circumstance under which he got the Acura Jeep.’
In my opinion the lower Court failed to dispassionately evaluate/consider the evidence of the parties before it before arriving at the conclusion and granting the reliefs which were not established; the declarations and orders made by the lower Court did not arise from the facts put before the lower Court by the parties. The conclusion reached by the learned trial Judge is obviously perverse and arose from apparent misapprehension of the facts, the lower Court has a duty to show how it arrives at a decision, and where parties put forward certain issues, the Court has obligation to accord attention to the issues and resolve them.
In an application seeking to enforce the fundamental rights of an applicant, the lower Court gave priority and focused more on the issue of ownership of the Acura Jeep in dispute, being a fundamental human rights enforcement application, the trial Court ought not dabble into and preoccupy itself with the determination of ownership of a property, that is, the Acura Jeep, the lower Court ought to have concentrated on and determined the issue of infringement of fundamental rights of the 1st Respondent, which is the task of the trial Court in the circumstance. In FRANCIS IGWE Vs. GODOY EZEANOCHIE & ORS (2009) LPELR-11885 (CA) Pg. 26-29, Paras. G – A, this Court per ARIWOOLA JCA (as he then was) pronounced on the application of the Fundamental Rights (Enforcement Rules) and the jurisdiction of the Court over Applications brought under the Rules. My Lord held as follows and I quote:
‘Whenever the Court is confronted with an application brought under the Fundamental Right (Enforcement Procedure) Rules, it is imperative that the Court should critically examine the reliefs sought by the Applicant, the grounds for seeking the reliefs and the facts contained in the Statement accompanying the application and relied on for the reliefs sought. Where the facts relied on disclose infringement of the fundamental right of the applicant as the main basis of the claim, then it is a clear case for the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules’
However, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly invoked or exercised as the Court will be incompetent to do so See also ADEKUNLE Vs. A.G., OGUN STATE (2014) LPELR-22569 (CA) Pg. 42-43, Paras. E – G; JIMOH Vs. JIMOH (2018) LPELR-43793 (CA) Pg. 21-24, Paras. C & F and PRINCESS Vs. GOVERNOR OF OGUN STATE & ORS (2018) LPELR-44986 (CA) Pg. 49-57, Paras. D & D where this Court reiterated this settled position of the law that: for an application for the Enforcement of any of the Fundamental Rights entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to be grounded, it must be shown by the Applicant that, the breach of the Fundamental right is the main claim
‘The Appellant contended that he purchased the said Acura MDX Jeep and laid claim to the ownership of the said Acura Jeep, the need to determine the party with the better right of ownership arose thereby disqualifying the 1st Respondent’s claim from coming under Fundamental Rights enforcement claim. That being the case, the issue clearly falls outside the confines of Chapter IV of the Constitution of the Federal Republic of Nigeria to which the Fundamental Rights (Enforcement Procedure) Rules 2009 would apply.
With respect to the 1st Respondent’s allegation of arrest and detention by the agents of the 2nd Respondent at the instigation and prompting of the Appellant, the law is trite that where a party alleges that he was arrested and detained and his arrest and detention was unlawful, he must lead credible evidence to establish that he was indeed arrested unlawfully or illegally and where he alleges that a certain party instigated or facilitated his arrest, evidence must be led to establish same. See SPDC & ANOR Vs. PESSU (2014) LPELR-23325 (CA) Pg. 78, Paras. B – G where it was held by this Court that: The position of the law is that it is not enough for a plaintiff in a claim for unlawful arrest and detention or false imprisonment to plead and provide evidence that the defendant merely made a report against him, he must also plead and establish that there was no reasonable and probable cause for making the report. The plaintiff has the legal burden of showing that the report made by the defendant is false, frivolous and without legal foundation
In the instant case, the 1st Respondent did not lead any evidence to establish that his arrest was unlawful and illegal. The only piece of evidence on record from which inference could have been drawn that the 1st Respondent was arrested is the Statement of the 1st Respondent’s mother which was not tendered or referred to by the 1st Respondent who alleged he was arrested and detained illegally by the 2nd Respondent at the instigation of the Appellant. In the said Statement which was tendered by the 2nd Respondent and contained at pages 53 -54 of the Records of Appeal, the 1st Respondent’s mother stated that:
On the 17/09/2012, my son was involved in a case of stealing the sum of N19, 000,000.00 from sales he made through misappropriate of account and was arrested by his boss and handed over to the police at Ojo Police Station, after much investigation he was transferred to State Command, Ikeja Lagos. The foregoing elicited from the evidence tendered by the 2nd Respondent can only establish that the 1st Respondent was indeed arrested on the allegation of stealing the sum of N19, 000,000.00 (Nineteen Million Naira) purportedly belonging to his former employer, Etus Group of Companies. The 1st Respondent on whom the onus of proof lies failed to establish that his arrest was illegal and unlawful especially in the face of allegations of stealing the sum of N19, 000,000.00 (Nineteen Million Naira).
In JIMOH Vs. JIMOH (Supra) at Pg. 27-28, Paras. B – E this Court reiterated the duty of an Applicant who alleges that he was unlawfully arrested and detained at the prompting of another party in the following words:
where an Applicant for the enforcement of Fundamental Rights alleges that he was unlawfully arrested and detained in breach of his Fundamental Right to personal liberty, he has the onus to adduce credible evidence to show that he was arrested and detained and that the arrest and detention was illegal or unlawful. Where, as in the instant case, it is alleged that the arrest and detention was at the instigation of the Respondent(s), credible evidence must also be adduced to show that the arrest and detention was as a result of the instigation of the Respondent. It is after the Applicant has led such evidence that the onus will shift to the Respondent to show that the arrest and detention was lawful
The 1st Respondent (Applicant) did not lead any jot of evidence to establish that he was arrested and detained by the agents of the 2nd Respondent as alleged and that his arrest and detention was unlawful and illegal and instigated by the Appellant as alleged. It is only after this burden has been discharged by the 1st Respondent that the onus would shift to the Appellant to establish that there was reasonable and probable reason for making a report to the office of the 2nd Respondent, and then the onus would thereafter shift to the 2nd Respondent to establish that the arrest and detention of the 1st Respondent was lawful.
In the light of the foregoing, it is my considered opinion that the 1st Respondent failed to establish his entitlement to the reliefs sought before the lower Court and that the learned trial Court failed to discharge its duty of dispassionately considering the pleadings and evidence led by the parties, weighing and ascribing probative value to them and arriving at a conclusion in line with the settled position of the law. I agree with the Appellant’s counsel that the learned trial Judge erred in law when he failed to make a pronouncement or findings on the totality of evidence before the Court. Issues No. 1 and 2 are therefore resolved in favour of the Appellant and against the Respondent.
Having resolved issues 1 and 2 in favour of the Appellant against the 1st Respondent, I am of the opinion that any further discourse on the second Ruling will amount to a wasteful dissipation of judicial energy and time. In the same vein, a consideration and determination of the Appellant’s issue No. 3 is unnecessary and therefore academic. The law is trite that the business of the Court does not include dissipating energy on issues which have no real relevance or effect on the outcome of the dispute before the Court. See ODOM & ORS Vs. PDP & ORS (2015) LPELR-24351 (SC) Pg. 56, Paras. F – G where the Supreme Court per OGUNBIYI, JSC held that: When a particular point is said to be academic, it principally means that it has no real relevance or effect. In other words, the act has been spent and is no longer of any benefit or value and it is therefore not worth spending precious time or dissipating energy thereon.
The issue whether or not Prince Cletus Ogbu was joined as a party is of no relevance having considered and determined issues No. 1 and 2 against the 1st Respondent. The Supreme Court of Nigeria in ODOM & ORS Vs. PDP & ORS (Supra) whatever is the decision of this Court on issue No. 3 will not be of ?any benefit or value and it is therefore not worth spending precious time or dissipating energy thereon.? In the circumstances therefore, having resolved issues No. 1 and 2 in favour of the Appellant and against the 1st Respondent, I hold the view that Appellants appeal is richly meritorious and deserves to be and is hereby allowed by me. The Ruling of the lower Court delivered by BUBA J. on the 17th day of November, 2014, in Suit No. FHC/L/CS/597/2014, is hereby set aside. In consequence of setting aside the Ruling of 17th November 2014, the Ruling delivered on the25th day of January, 2016 refusing to set aside the Ruling of 17th November 2016 is also set aside.
Parties in this appeal shall bear their respective costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA in this appeal. I agree with the succinctly delivered reasoning and conclusion thereat.
I also hold that the appeal is meritorious and it is accordingly allowed.
I abide by the consequential orders in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance a draft copy of the lead judgment just delivered by my learned brother TIJJANI ABUBAKAR and I adopt the judgment as mine with nothing to add.
Appearances:
Appellant AbsentFor Appellant(s)
O. E. Ogungbeje for the 1st Respondent.
Emmanuel Eze for the 2nd Respondent For Respondent(s)
