MR. NICHOLAS IGBOKWE v. CHRISTIAN EDOM & ORS (2015)

MR. NICHOLAS IGBOKWE v. CHRISTIAN EDOM & ORS

(2015)LCN/7985(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of August, 2015

CA/PH/613/2008

RATIO

APPEAL: GROUND OF APPEAL; WHAT A GROUND OF APPEAL MUST CONTAIN

There are many decided authorities which caution Counsel against verbosity and other defects in the framing of grounds of appeal and issues therefrom, that the same must not be vague, verbose, argumentative, narrative, repetitive or general in terms. See Order 6 Rule 2 (3) and Rule 3 of the Court of Appeal Rules, 2011 and Kalu Vs Uzor (2006) 8 NWLR (pt.981) 66, where this Court (Per Rowland JCA, as he then was) said:
“… I am of the strong view that a ground of appeal should contain precise, clear, unequivocal and direct statement of the decision being attacked. It must, in other words, give the exact particulars of the mistake, error or misdirection complained about, and a ground of appeal, without particulars, save the general or omnibus grounds, is defective and incompetent. A ground of Appeal must not be argumentative, or narrative, in compliance with the Provision of Order 3 Rule 2 of the Court of Appeal Rules, 2002, (now Order 6 Rule 2 (3) of the Court of Appeal Rules, 2007). If it is, it ceases to be a ground of appeal but an argument or a narrative, which rightful place is in proceedings before the tribunal at the hearing of the appeal… Any ground of appeal which is argumentative, unnecessarily lengthy, elaborate, vague and which contains detailed reasoning may be struck out.” See also NNPC Vs Aminu (2014) ALL FWLR (pt. 716) 527; (2013) LPELR – 21396 (CA); Olufeagbu Vs Abdu-Raheem (2009) 18 NWLR (pt.1173) 384. per. ITA GEORGE MBABA, J.C.A.

APPEAL: APPEAL AGAINST AN INTERLOCUTORY DECISION OF A COURT; WHETHER AN APPELLANT REQUIRE ANY LEAVE OF COURT TO RAISE THAT ISSUE OR GROUND OF APPEAL WHEN APPEALING AGAINST THE FINAL DECISION OF THE TRIAL COURT WHEN AT THE TIME OF THE FINAL DECISION OF THE TRIAL COURT, THE ISSUE RELATING TO THE INTERLOCUTORY DECISION OF THE TRIAL COURT REMAINS A LIVE ISSUE

The decided authorities on this is replete, but the law also stipulates that where Appellant appeals against an interlocutory decision of a Court, reached in the course of the trial and which decision does not form part and parcel of the final decision of the trial Court, Appellant must seek the leave of the Lower Court or of the Court of Appeal to raise such appeal, belatedly, especially, where the ground of appeal is not a question of law, alone. That means, when, at the time of the final decision of the trial Court, the issue relating to the interlocutory decision of the trial Court remains a live issue, Appellant does not require any leave of Court to raise that issue or ground of appeal when appealing against the final decision of the trial Court.
For instance, I think an interlocutory decision against admission of exhibit remains a live issue in the case, at the final decision and a ground of appeal against the use of the said Exhibit would not require the leave of Court to raise it, since the offending exhibit was made part of the final decision, having been relied upon to reach the final decision. See the case of Adeyinka Ajiboye Vs FRN (2013) 17 WRN 127
“Sometimes, a little patience and tact, on the part of Counsel, would suggest lying low and marking down what could have been a point of interlocutory appeal, and opting to take it up at the end of the trial, if the issue for interlocutory appeal would not cease to be a live issue in the final Judgment of the trial Court. Thus, where a party has cause to disagree with an interlocutory ruling of the trial Court over an issue, which the party will not be foreclosed to raise at the final judgment of the substantive matter, I think the party (or his Counsel) should not rush to the Court of Appeal on the issue and stall the trial of the case at the Lower Court…”
See also Nwana Vs UBN PLC (2013) LPELR – 21823 (CA); Garba Vs Ummuani (2013) 12 WRN 76, where it was held:
“Since the Order made by the Lower Court evinces an interlocutory decision, the law compels the appellants to seek and obtain leave of Court before appealing against it. In the eye of the law, leave simply connotes permission. The law insists that where the leave of Court is required before doing an act and it is not obtained, the act is rendered null and void.”
See Section 14(1) of the Court of Appeal Rules, 2011, Out Vs ACB Int’l Bank Ltd (2008) 3 NWLR (pt.1073) 179; BBN Ltd vs Olayiwola & Sons Ltd (2005) 3 NWLR (pt.912) 434; Nwaolisah Vs Nwabfoh (2011) 14 NWLR (pt.1268) 600. See also Kwazo Vs Railway Property Co. Ltd & Ors (2014) LPELR – 23737 CA. per. ITA GEORGE MBABA, J.C.A.

APPEAL:GROUND OF APPEAL: WHETHER A SINGLE GROUND OF APPEAL CAN GIVE BIRTH TO MORE THAN ONE ISSUE FOR DETERMINATION

In the case of Emeruche Kalu Nto & Anor. Vs Global Soap & Detergent Ind. Ltd (2012) LPELR – 7997 CA, this Court held:
“A single ground of Appeal cannot give birth to more than one Issue for determination, whereas a single issue can come from a combination of two or more grounds of appeal… Issues raised in the brief of argument must relate and flow from grounds of appeal before the Court to be competent… Thus, Issue 2, which the Appellants distilled from ground 3 of the Appeal (after having combined the same ground 3 with 1 and 2, to frame Issue 1) is incompetent and is accordingly struck out…” per. ITA GEORGE MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

MR. NICHOLAS IGBOKWE Appellant(s)

AND

1. CHRISTIAN EDOM
2. ASSISTANT INSPECTOR-GENERAL OF POLICE (AIG), ZONE 9, UMUAHIA
3. COMMISSIONER OF POLICE, IMO STATE Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Imo State High Court in Suit No. HME/18/2006 delivered by Hon. Justice F.I. Duroha-Igwe on 14/11/2006, wherein the trial Court gave Judgment to 1st Respondent, holding that his fundamental rights had been violated by the Appellant (who was the 3rd Respondent in the Suit) and 2nd and 3rd Respondents herein. The trial Court had held and ordered, as follows:
“(a) That the harassment, intimidation and threat of arrest and detention of the Appellant by the Respondents is unlawful and an infringement of Applicant’s Fundamental Right guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria 1999.
(b) That the seizure and detention of Applicant’s two vehicles, Peugeot 505 vehicle with Registration No. BJ 324 PHC and Concorde Mercedes Benz (unregistered) since 23/2/2006 by the Respondents is an infringement of the Applicant’s Fundamental Right to movable property guaranteed under Section 44 of the Constitution of Federal Republic of Nigeria, 1999.
(c) The Respondents are hereby restrained from further arresting or harassing or otherwise infringing or the liberty of the Applicant.
(d) Court award (sic) the sum of N2,000,000.00 (Two Million Naira) to the Applicant against the 3rd Respondent being damages for the unlawful seizure and detention of the Applicant and the Applicant’s vehicles and violation of his Constitution Rights.
(e) The Respondents are hereby ordered to release the said vehicles forthwith to the Applicant.
(f) Court assesses cost and out of pocket expenses at N2,000.00 (Two Thousand Naira) to the Applicant against the Respondents.” (See pages 50 and 51 of the Records).

Appellant filed this appeal on 1/2/2007, being dissatisfied with the above decision of the trial Court, and disclosed six (6) grounds of appeal, as per the Amended Notice of appeal, filed with the leave of this Court, granted on 18/10/10. Appellant filed his brief of argument and formulated two (2) Issues for the determination of the appeal, as follows:
(1) Whether, in the circumstances of this Case, the first Respondent’s Application for Enforcement of Fundamental Rights and the Service of the Application by means of substituted service on the Appellant were not vitiated by non-compliance with the Imo State High Court (Civil Procedure) Rules and Section 97 of the Sheriffs and Civil Process Act. (Grounds 4, 2 and 3).
(2) Whether the learned trial Judge was right in hearing and determining the application for the Enforcement of Fundamental Rights against Appellant, without services of the relevant originating processes on the Appellant and without an Affidavit of service of the Application or the Appellant filed by the 1st Respondent. (Grounds 5 and 6)

The 1st Respondent filed a Notice of Preliminary Objection, on 7/4/2011, to the hearing of the appeal, on the following grounds:
“(1) That the Notice and grounds of Appeal (as Amended) is incompetent for non compliance with order 6 Rules 2(2) (3) and 3 of the Court of Appeal Rules 2007 in that all the grounds of appeal are argumentative, vague, in the narrative and contain both Error in Law and misdirection at the same time.
(2) That Ground Nos. 1 and 6 of the Notice of Appeal (as Amended) is a complaint against interlocutory decisions and requires leave of Court.
(3) The Respondents aforesaid shall pray that the notice of appeal be struck out.”

The 1st Respondent filed his brief of argument on 7/4/11, which was deemed duly filed on 11/4/13. He argued the Preliminary Objection on pages 11 to 17 of the 1st Respondent’s brief. The Respondent, in the alternative, adopted the two issues by the Appellant for the determination of the appeal.

The 2nd and 3rd Respondents filed no brief, and when this appeal was heard on 21/5/15, the 1st Respondent’s Counsel adopted their brief and urged this Court, accordingly. Appellant’s brief was deemed duly argued as his Counsel was absent. The 2nd and 3rd Respondents did not contest the appeal. I have not also seen any Reply brief by the Appellant to the Preliminary Objection.

As usual, we have to start with the Preliminary Objection, being a threshold issue. The 1st Respondent’s complaint was that the Notice and grounds of Appeal did not comply with Order 6 Rules 2(2)(3) and 3 of the Court of Appeal Rules, 2007, in that all the grounds are argumentative, vague in the narrative and contain both Error in Law and Misdirection. He also said that grounds 1 and 6 are complaints against interlocutory decisions and required leave of Court to appeal.

In his argument, the 1st Respondent said:
(i) Ground 4 of the appeal alleges both error in law and misdirection at the same time and is therefore incompetent.
(ii) Grounds 1 and 6 of the Appeal are complaints against interlocutory decision for which leave is required and appellant is out of time to appeal against those decisions.
(iii) Grounds 2, 3, 4 and 5 of the Appeal are vague in general terms and contain arguments.

He relied on Order 6 Rule 2(2) of the Court of Appeal RuleS, 2007 (now 2011) which says:
“Where a ground of appeal alleges misdirection or error in law, the particulars of the misdirection or the error must be clearly stated.”

He argued that a ground of appeal which contains both errors in law and misdirection, at the same time, is incompetent and ought to be struck out. He relied on the cases of Nwadike Vs Ibekwe (1987) 4 NWLR (pt.67) 718 at 744; Lesser Idaayor and Anor. Vs Chief Sampson Tigidam (1995) 2 NWLR (pt.377) 359; Godwin Loke Vs IGP & Anor. (1997) 11 NWLR (pt.527) 57; Olatumbosun Rotimi Vs Richard Adebayo Faforji & Ors (1999) 6 NWLR (pt.606) 305 at 317 – 318, to the effect that a ground of appeal which is based on error in law and misdirection at the same time is incompetent, as one ground of appeal cannot be the two!

Counsel called our attention to ground 4, which said:
“The learned trial judge erred in law and misdirected himself, when he heard the 1st Respondent’s action for enforcement of fundamental rights and delivered Judgment, awarding the sum N2,000,000. (Two Million Naira) damages against appellant, in the appellant’s absence, without service of the originating processes on the appellant who is resident outside the Jurisdiction of the trial Court.”

I have looked at the ground 4 of the appeal and the particulars thereof. I do not think the same alleges both error in law and misdirection of the facts, stricto censo, as alleged by the Respondent, to imply two grounds of appeal in one, which the law abhors, as per the authorities cited by learned Counsel for the 1st Respondent. I think the ground 4 herein simply alleges that the error in law by the trial Judge made him to misdirect himself in the conclusion he reached. It does not suggest error in law and misdirection of the facts, which the authorities in the case of Lesser Idaayor Vs Tigideam (supra) and Loke Vs IGP (supra) etc were about.

The 1st Respondent also argued that grounds 2, 3 and 5 are argumentative, narrative, vague and general in terms. Grounds 2, 3 and 5 of the appeal (without their particulars) are:
“(2) The learned trial Judge erred in law when it entertained (heard) an action and gave Judgment against Appellant who is resident outside Jurisdiction in a suit whose processes were not endorsed as provided by Section 97 of the Sheriffs and Civil Process Act.
(3) The Judgment of the learned trial Judge, including the award of damages etc delivered on 14th day of November, 2006, in Suit No. HME/18/2006 CHRISTIAN EDOM AND ASSISTANT INSPECTOR-GENERAL OF POLICE ZONE 9 UMUAHIA & 2 ORS are a nullity in that same was made in violation of mandatory provision of the law.
(5) The learned trial Judge erred in law when in an action under Fundamental Rights Enforcement Procedure Rules, he proceeded to hear same without an Affidavit by the first Respondent stating and confirming service of the Fundamental Rights and other processes of Court on the Appellant being filed in Court by the first Respondent.”

An X-ray of the above three grounds of Appeal can reveal that they were quite “wordy” and detailed, despite the fact that each had particulars, (which appeared unnecessary, in the light of the detailed nature of the couching of those grounds). I think the grounds 2, 3 and 5 were indeed argumentative and narrative, though not vague. A close study of the grounds 2 and 3 can also reveal that they were repetitive of the substance of the ground 4.

I therefore strike out the grounds 2, 3 and 5, for incompetence.

On grounds 1 and 6, Respondent’s Counsel argued that the same complained against and challenged interlocutory decisions of the trial Court, which decisions can only be appealed against with the leave of Court and within 14 days of the decisions; that Appellant did not obtain leave to appeal against those decisions. He argued that the decision appealed against in ground 1 was made on 15/3/2006, while the one appealed in ground 6 was made on 25/7/06; that Appellant’s notice of this appeal was filed on 1/2/2007, after about 11 months and 7 months, respectively, of the two decisions appealed against in grounds 1 and 6. He urged us to strike out the said grounds of appeal for being incompetent. Counsel relied again on the case of Godwin Loke Vs IGP (supra) to the effect that Issues formulated based on incompetent grounds of appeal are also incompetent, and that, where an incompetent ground of appeal is based on issue within a competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issue based on the competent ground of appeal impotent and incompetent.

It can be appreciated that this appeal is one against the final decision of the trial Court, reached on 14/11/2006, which by law, is appealable as of right, pursuant to Section 241(1)(a) of the 1999 Constitution, as Amended.
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases —
(a) Final decisions in any Civil or Criminal Proceedings before the Federal High Court or a High Court sitting at first instance…”
The decided authorities on this is replete, but the law also stipulates that where Appellant appeals against an interlocutory decision of a Court, reached in the course of the trial and which decision does not form part and parcel of the final decision of the trial Court, Appellant must seek the leave of the Lower Court or of the Court of Appeal to raise such appeal, belatedly, especially, where the ground of appeal is not a question of law, alone. That means, when, at the time of the final decision of the trial Court, the issue relating to the interlocutory decision of the trial Court remains a live issue, Appellant does not require any leave of Court to raise that issue or ground of appeal when appealing against the final decision of the trial Court.
For instance, I think an interlocutory decision against admission of exhibit remains a live issue in the case, at the final decision and a ground of appeal against the use of the said Exhibit would not require the leave of Court to raise it, since the offending exhibit was made part of the final decision, having been relied upon to reach the final decision. See the case of Adeyinka Ajiboye Vs FRN (2013) 17 WRN 127
“Sometimes, a little patience and tact, on the part of Counsel, would suggest lying low and marking down what could have been a point of interlocutory appeal, and opting to take it up at the end of the trial, if the issue for interlocutory appeal would not cease to be a live issue in the final Judgment of the trial Court. Thus, where a party has cause to disagree with an interlocutory ruling of the trial Court over an issue, which the party will not be foreclosed to raise at the final judgment of the substantive matter, I think the party (or his Counsel) should not rush to the Court of Appeal on the issue and stall the trial of the case at the Lower Court…”
See also Nwana Vs UBN PLC (2013) LPELR – 21823 (CA); Garba Vs Ummuani (2013) 12 WRN 76, where it was held:
“Since the Order made by the Lower Court evinces an interlocutory decision, the law compels the appellants to seek and obtain leave of Court before appealing against it. In the eye of the law, leave simply connotes permission. The law insists that where the leave of Court is required before doing an act and it is not obtained, the act is rendered null and void.”
See Section 14(1) of the Court of Appeal Rules, 2011, Out Vs ACB Int’l Bank Ltd (2008) 3 NWLR (pt.1073) 179; BBN Ltd vs Olayiwola & Sons Ltd (2005) 3 NWLR (pt.912) 434; Nwaolisah Vs Nwabfoh (2011) 14 NWLR (pt.1268) 600. See also Kwazo Vs Railway Property Co. Ltd & Ors (2014) LPELR – 23737 CA.

I think the Appellant needed to invoke the Jurisdiction of this Court to entertain the ground 6 of the appeal, since it was predicated on a decision of the trial Court, reached 7 months before the final decision on 14/11/2007 and the said interlocutory decision ceased to be live issues at the final determination of the suit appealed against.

In respect of ground 1, which quarreled against interlocutory decision of the trial Court, which ordered for substituted service of the processes on the Appellant (as 3rd Respondent in the suit), the said ground, in my opinion, would not require any leave of Court, since that decision remained live at the final determination of the suit. This is because, that decision formed the basis of the Jurisdiction of the trial Court over the 3rd Respondent (now Appellant).

But the next problem would be, whether Appellant can appeal against a decision of the trial Court, made on an ex-parte application (touching purely on the exercise of its discretion)? This issue was what was considered, extensively in the case of Nwana Vs UBN Plc (2015) 1 NWLR (pt.1439) 79, where Appellant had appealed against a purely discretional decision of the Lower Court, sending a suit back to the general cause list for hearing and determination. It was held:
“Apart from the provisions of the Constitution of the Federal Republic of Nigeria, 1999, (as Amended) which bars an appeal against a decision of the Federal High Court or any High Court granting unconditional leave to defend an action, an appellant lacks credible basis to question the exercise of such discretionary powers by a trial Court where the discretion was exercised judicially and judiciously (Military Gov. of Lagos State Vs Adeyiga (2012) 5 NWLR (pt.293) 291 referred to).
Section 14(1) of the Court of Appeal Act 2004, says:
“Where, in the exercise by the High Court of a State, or as the case may be, the Federal High Court, of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex-parte, or by consent of the parties or relating only to costs.” (Underlining mine)
See also the case of SPDC VS Registrar of Business Premises, Abia State (2015) 3 CAR 433; (2015) LPELR – 24285 pages (23-24), where it was held:
“It should also be appreciated that the trial Court, having heard the motion ex-parte and granted leave for the Respondent to apply for the prerogative writ of order of mandamus, the Appellant cannot raise the issue on appeal, that the suit is not one for application for that form of relief – Order of mandamus, as that would amount to an appeal against the ex-parte decision and a challenge to the discretion of the Lower Court. See Section 14 (1) of the Court of Appeal Act, 2004, which bars right of appeal against ex-parte decision of the High Court. See also Oceanic Bank Plc Vs Oladepo & Anor (2012) LPELR – 19670 CA; (2013) 3 WRN 74; Project Nineteen Ltd. & Anor Vs Aziz/Stacons & Associates (2014) LPELR – 23736 (CA), where it was held that “… by law, Appellants cannot raise appeal against an ex-parte order of the trial Court…”Thus, apart from the Appellant trying to preempt the Respondent’s case by raising that issue, it also lacks power to raise the complaint as that would be an attempt to fault an ex-parte order of the trial Court, or appeal against it, contrary to Section 14(1) of the Court of Appeal Act, 2004.

The decision of the trial Court to serve the 3rd Respondent (Appellant) by substituted means was an ex-parte Order and so, by the above law, Appellant cannot appeal against it.

I therefore uphold the preliminary objection in respect of grounds 1, 2, 3, 5 and 6 of the appeal. The said grounds of appeal are hereby struck out.

What is left is the ground 4 of the appeal, but even that cannot be used to argue the appeal, the same also being argumentative, and having been made by Appellant to, jointly with grounds 2 and 3, give birth to issue one upon which Counsel argued the appeal. I have already referred to the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (pt.527) 57, where this Court held:
“Also where an incompetent ground of appeal is based on issue within a competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issue based on the competent ground of appeal impotent and incompetent.”
See also Obosi Vs NIPOST & ORS (2013) LPELR – 21397 (CA); Ossai Vs FRN (2013) 13 WRN 87. See also the case of SPDC Vs Registrar of Bus. Premises, Abia State (2015) 3 CAR 433 at 448; (2015) LPELR – 24285.

Of course, where a defective ground of appeal is combined with a valid ground to distill an issue for determination, the defective ground of appeal soils and contaminates the valid ground and the result is that the issue is infected by that virus.

The preliminary objection is therefore up-held and so this Appeal is rendered incompetent.

In the event that we have to consider the appeal on its merits, this being the penultimate Court, I think Appellant’s first issue will suffer the same fate, earlier stated in this Judgment, about appeal against ex-parte Orders of Court.

The issue was whether, in the circumstances of this case, the first Respondent’s application for Enforcement of Fundamental Rights and service of the Application by means of substituted service on the Appellant were not vitiated by non-compliance with the Imo State High Court (Civil Procedure) Rules and Section 97 of the Sheriffs and Civil Process Act.

Appellant’s Counsel had argued, strongly, that the Respondent’s motion for Enforcement of Fundamental Rights was filed and served without regard to the provisions of the Imo State High Court (Civil Procedure) Rules, Order 12 rule 13(6) and (8), as well as Section 97 of the Sheriff and Civil process Act, Cap 407 Laws of the Federation 1990; that the Appellant lived in the United States of America; that the Respondent needed to have sought and obtained the leave of Court to serve the Appellant out of jurisdiction, and failure to do that robbed the trial Court of jurisdiction to hear the case. He argued further that rather than comply with the above rules of Court and law, the Respondent made contradictory deposition in an ex-parte application to serve the Appellant by substituted means, to the effect that Appellant lived in his residential house at Umuakirika, Umungwua, Obowo in Imo State.

Of course, Appellant was not contesting the service of the process of Court on him, as he had admitted that the “1st Respondent’s motion for Enforcement of Fundamental Rights was filed and served, without regard to the Provision of Order 12 rule 13(6) and (8)…” (See paragraph 4.15 of the Appellants’ brief).

Can Appellant appeal against the ex-parte order of the trial Court to serve him with the processes of Court by substituted means? The answer is No!
I have earlier cited the case of SPDC Vs Registrar of Business Premises, Abia State (2015) 3 CAR 433; (2015) LPELR – 24285 CA, where we held, thus:
“It should be appreciated that the trial Court, having heard the motion ex-parte and granted leave for the Respondent to apply for the prerogative writ… Appellant cannot raise the issue on appeal, that the suit is not one for application for that form of relief… as that would amount to appeal against the ex-parte decision and a challenge to the discretion of the Lower Court. See Section 14(1) of the Court of Appeal Act 2004, which bars a right of appeal against an ex-parte decision of the High Court. See also Oceanic Bank Plc Vs Oladepo & Anor. (2012) LPELR – 1960 CA; (2013) 3 WRN 74; Project Nineteen Ltd & Anor. Vs Aziz/Stacons & Associates (2014) LPELR – 23736 CA, where it was held that by law, Appellants cannot raise appeal against an ex-parte order of the Trial Court. Thus, apart from the Appellant trying to preempt the Respondent’s case by raising that issue, it also lack power to raise the complaint as that would be an attempt to fault an ex-parte order of the trial Court, or appeal against it, contrary to Section 14(1) of the Court of Appeal Act, 2004.”

It must also be pointed out that Appellant cannot rely on the Provision of Order 12 Rule 13(6) and (8) of the Imo State High Court (Civil Procedure) Rules and Section 97 of the Sheriffs and Civil Process Act to defeat the decision in this case, since the case was purely a fundamental rights matter which has its distinct rules of Procedure. It has been held, several times, that Fundamental Rights Enforcement Procedure Rules are sufficient law and rules to govern claims on enforcement of fundamental right matters, the same being sui generis, without need of other rules of Civil Procedure. See Jude Agbaso Vs Iwunze & Ors (2014) LPELR – 24108 CA; Ezeadukwa Vs Maduka (1997) 8 NWLR (pt.518) 635; See also Chukwuogor Vs Chukwuogor (2006) 7 NWLR (pt.979) 302; (2005) LPELR – 12894 (CA), where it was held:
“I agree with Respondents that the Provision of Order 2 rules 1(3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules, has been considered judicially in a plethora of cases. Firstly, in Ezeadukwa vs Maduka (1997) 8 NWLR (pt.518) 635, Ubaezonu, JCA, stated as follows: “The Fundamental Rights (Enforcement Procedure) Rules are rules made by the Chief Justice of Nigeria in exercise of his power pursuant to the Constitution of the Federal Republic of Nigeria. They are peculiar rules restricted to the enforcement by a citizen of his right under Chapter IV of the said Constitution. It makes no provision for the importation of any other rules of Court for the enforcement of such rights. It is therefore clearly wrong for the Lower Court to fall back to the High Court rules and purport to derive its power to extend time therefrom.”

On Issue 2, Appellant asked whether the trial Court was right to hear the case without service of the relevant originating Processes on the Appellant, and without affidavit of service filed by the Respondent. Apparently, in his argument, Appellant admitted the filing and service of the processes, as earlier observed in this Judgment, but seemed to argue that the order for substituted service was not effected or implemented as the Court directed – by pasting same on the door of Appellants house at Umuakirika, Umungwa Obowo LGA, Imo State. He argued that the affidavit of service by the Bailiff said he served by “Pasting at Umuakirika, Umungwa, Obowo LGA.”; that he did not state which place at Umuakirika Village he pasted the process; he also said the affidavit of service of the hearing notice was insufficient and the trial Court should not have placed reliance on it.

On the filing of the affidavit of service by the Respondent, Appellant said:
“Although the 1st Respondent deposed to and filed an affidavit stating the date, place and manner of service on the 2nd and 3rd Respondents, he failed to file any affidavit stating that the Appellant was served… Perhaps the trial Lower Court appreciated the necessity of the 1st Respondent filing affidavit confirming service on all the respondents at the Lower Court, when it erroneously stated that the 1st Respondent filed an affidavit of confirming service of the said motion of Appellant.” (See lines 7 – 8 on page39 of the Records.) – Paragraph 4.11 of the Appellant’s brief.

Counsel for the Respondent, in his brief, said the Appellant’s issue 2 was even misleading; that the complaint – “whether the learned trial Judge was right in hearing and determining the application for enforcement of fundamental right against Appellant without service of the relevant originating processes on Appellant” was not covered by any of the grounds of appeal.

I think the Respondent was right! I had earlier reproduced grounds 5 and 6 whereof the Appellant founded the Issue 2. While ground 5 alleged that the Respondent did not file Affidavit of service confirming service of the Motion on Notice on the Appellant, ground 6 complained that the trial Court proceeded to foreclose hearing the Appellant and entered Judgment against him, when the hearing notice was not served on the Appellant as earlier ordered by the trial Court.

As can be seen above, the only relevant part of Appellant’s Issue 2 was the bit complaining that the Respondent did not file affidavit of service of the application on the Appellant. Even on that, Appellant has argued that the trial Court had held that the Respondent had filed affidavit of service. See paragraph 4.11 of Appellant’s brief.

On page 39 of the Records of Appeal, the trial Judge said:
“All the Respondents in this matter were personally served, except the 3rd Respondent, who was served by substituted service by order of Court issued on 15/3/06. Affidavits of service on all the Respondents were duly filed by the Applicant.”

That findings by the trial Court was never challenged in this appeal, as there is no appeal against it. Rather, Appellant’s Counsel seems to want us to elevate his address, on the issue, to evidence and/or appeal against that clear findings. Of course, we cannot accord any value to such address, seeking to impeach the findings of the trial Court, without any appeal against the findings! By law, a finding of Court not appealed against, remains conclusive and binding. Nnaji Vs Alozie (2014) LPELR – 24014 CA; Ojeabuo Vs FRN (2014) LPELR – 22555; Amale Vs Sokoto LG (2012) 5 NWLR (pt.1292) 181.

Also Counsel’s address, no matter how brilliant, cannot become evidence to persuade or swerve the mind of the Court. Takuma & Anor. Vs Liman & Ors (2009) LPELR – 5000 CA; Okuloye Vs Adesanya & Anor. (2014) LPELR – 23021 (SC).

Appellant had not complained about the Judgment of the trial Court, that is, the decision and the award made. He was rather belaboring over the ex-parte order, which originated the Suit, and that it was not proper to serve him by substituted means. He also asked whether the trial Court was right to hold for the Respondent in his absence. I think he (Appellant) elected to be absent at the trial, as the Respondent had complied with all due process. I resolve the issues against the Appellant.

I do not therefore see any merit in the appeal and dismiss it.

On the whole, apart from holding that the appeal is incompetent for the reasons earlier stated in the Judgment and should be struck out, I hold that even on considering it, on the merit, the appeal is devoid of merit and should be dismissed. It is so ordered. Appellant shall pay the cost of this appeal assessed at N50,000.00 to the 1st Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the very illuminating judgment of my learned brother I.G. MBABA, JCA and dismissing the Appellant’s Appeal for want of merit.

Viewed from all ramifications, the Appellant’s Appeal is devoid of any merit and I also dismiss same with N50,000.00 costs in favour of the Respondent.

PETER OLABISI IGE, J.C.A.: I have read in advance the judgment just delivered by my Lord, ITA G. MBABA, JCA, and I agree with the reasoning and conclusion therein. I agree with the order on costs made therein.

Appearances

D. U. Nwagwa EsqFor Appellant

AND

A. C. Okoroafor Esq for 1st RespondentFor Respondent