MR. ONUOHA UKEH (DSI) v. MRS. GRACE OKORIE & ORS
(2018)LCN/12034(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of August, 2018
CA/OW/41/2017
RATIO
COURT AND PROCEDURE: SPECIFIC FINDINGS OF THE LOWER COURT
“It is imperative to note that the above vital and specific findings of the lower Court was not appealed against in the instant appeal. Thus, the said findings of the lower are deemed admitted. See the cases of Awote v. Owodunni (No. 1) (1986) 5 NWLR (Pt. 46) 941; Onafowokan & Ors. v. Wema Bank Plc. (2011) LPELR 2665 and Obi v. INEC (2007) 11 NWLR (Pt. 1046) 436. In the instant case, the appellant did not bother to appeal against the specific findings of the lower Court as espoused above. Thus, I have no option than to deem the appellant as having admitted the above specific findings of fact. Therefore, the 1st respondent is deemed to have proved that she was assaulted by the appellant, while the appellant was on official duty as an agent of the Federal Government.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
COURT AND PROCEDURE: THE SERVICE OF ORIGINATING PROCESS
“The service of originating process is very fundamental and important in an adjudicating proceeding. This is because no suit can be validly entertained and determined, unless it has been ascertained that the originating process has been properly served on the adverse or opposing party. Thus, service of originating process is one of the condition precedent to the valid exercise of Court’s jurisdiction over a matter. See the cases of Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 397and Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) 337.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
CONTRACT: CONCEPT OF WAIVER
“Also, the Supreme Court, per Oguntade, JSC, in the case of Auto Import Export v. Adebayo (2005) 19 NWLR (Pt. 959) 44, LPELR 624, at pg. 26 described the concept of waiver as follows: ‘The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both.’ PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
MR. ONUOHA UKEH (DSI) – Appellant(s)
AND
1. MRS. GRACE OKORIE
2. COMPTROLLER GENERAL OF IMMIGRATION ABUJA
3. COMPTROLLER GENERAL OF IMMIGRATION ABIA STATE – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the Federal High Court of Nigeria, sitting at Umuahia, Coram: Hon. Justice D. E. Osiagor J., (hereinafter referred to as the lower Court and learned trial judge, respectively).
The suit from where this appeal emanated, was commenced by way of a motion on notice and other accompanying processes, filed on the 16th day of December 2014, wherein the applicant/1st respondent (hereinafter referred to as the 1st respondent) in a bid to seek redress for the breach of her fundamental rights sought for the grant of the following reliefs:
(A) A declaration that the arrest, assault, causing grevious harm, and use of gun butt on the Applicant and shooting of gun to frighten the applicant at Isi-ama AfaraIbeku in Umuahia North Local Government Area of Abia State, at about 11 am, on 29th day of January, 2013, by the respondents is illegal, unlawful, unconstitutional and gross violation of the applicant’s rights as provided in Section 34 (1)(a), 35 (6) of the 1999 Constitution of the Federal Republic of Nigeria as amended and guaranteed in Articles 3, 4, 5, 6 and 28 of the African Charter on Human and Peoples’ Rights.
(B) An order for the refund of the sum N75,600,00 (Seventy Five Thousand Six Hundred Naira) only forcibly collected from the Applicant, money meant for purchase of Recharge cards, food stuffs and soft drinks by the 3rd Respondent.
(C) An order awarding special damages in the sum of N31,030.00 (Thirty One Thousand and Thirty Naira) against the respondents being the cost of Medical bills for the gross violation and infringement of the applicants in the manner aforesaid
(D) An order awarding exemplary damages against the 3rd respondent for violation of the applicant’s fundamental rights
(E) An order for apology to the applicant through the media i.e the Broadcasting Corporation of Abia State by the respondents.
(F) An order of the Court awarding the sum of N200,000,000.00 (Two Hundred Million Naira) jointly and/or severally against the respondents as general damages for gross violation and infringement on the applicant’s fundamental rights in the manner aforesaid.
The 1st respondent’s case was that the 3rd respondent/appellant (hereinafter referred to as the appellant) on the 29th day of January, 2013 at about 10:30 am parked his car in front of her shop thereby blocked the entrance. The 1st respondent stated that when she approached the appellant and requested that he should repark his car, she was greeted with insults and threats. She further stated that one of the bystanders who witnessed the rain of insults on her intervened and pleaded on her behalf, but the appellant rather than stop the rain of insults, directed the same to the bystander. The bystander in turn returned back the insults. The appellant in rage/fury proceeded and slapped the bystander, the bystander retaliated in a similar manner. The appellant feeling insulted by the return of the slap, requested for back up from the 2nd & 3rd respondents/respondents (hereinafter referred to as the 2nd & 3rd respondents), which they promptly provided.
However, before the back upcould arrive, the said bystander has left, and being frustrated, the appellant ordered the five back up armed officers from the Immigration Office, Abia State (2nd respondent’s office), to arrest the 1st respondent. In the bid to arrest the 1st respondent, they handcuffed, assaulted and or beat her with their belts, gun butts and at the same time released several gun shots into the air to frighten her and ward off anybody that may tend to exhibit chivalry and to assist the 1st respondent. The 1st respondent stated that her saving grace was the arrival of news crew from the Broadcasting Corporation of Abia State. The 1st respondent stated that when the appellant and the men with him noticed that the news crew were recording the unfolding scenario with video camera, they abandoned the 1st respondent and ran away. The 1st respondent stated that the incident was later broadcasted by the Broad casting Corporation of Abia State during their 5pm and 7pm news sessions. The 1st respondent stated that though the 2nd & 3rd respondents through their officers sympathized with her by visiting her, but they failed to fulfil their promises to make good her items lost during the incident of her arrest and settle her medical bills. Hence, after waiting for several months without seeing any positive sign of fulfilment from the 2nd & 3rd respondents, she brought this action to seek redress for the wrong done to her.
In response, the appellant filed his counter affidavit and written address in support thereof together with a notice of preliminary objection, wherein he challenged the jurisdiction of the lower Court to entertain the 1st respondent’s case. His objections were centered on the ground that he was not properly served with the 1st respondent’s originating process and that the subject matter of the 1st respondent?s complaint does not fall within the matter in respect of which the lower Court can exercise its jurisdiction. The 2nd & 3rd respondents on their own part, filed only their counter affidavit and written address in support thereof. The 1st respondent in reply to the preliminary objection, filed her written response and also filed her further affidavit in response to the appellant and 2nd & 3rd respondent’ counter affidavits.
In a reserved judgment, the learned trial judge after the giving of due considerations to the series of affidavit evidence adduced by the parties before him; dismissed the appellant?s preliminary objection for lacking in merit.
He also held that the 1st respondent has established her case in accordance with the law, and thereby entered judgment in her favour, in the following terms:
”The Court finds the respondents liable in damages for the N75,600 sum lost as a consequent of the breach, the sum of N31,030 Medical bills proved as well as the sum of N6,000,000 general damages for the physical assault, psychological trauma and desecration of the applicant widow publicly without regard for motherhood nor the Rule of law. She deserves public apology.
In totality applicant’s reliefs, A, B, C and E succeed, Reliefs (E and F) succeed only for the sum of N6,000,000 totalling therefore N6,031,030.00 awarded in favour of applicant against the respondents jointly and severally. Whilst N75,600 is awarded against the 3rd respondent personally. Respondents to write applicant apologizing for all the infractions.”
Not being satisfied with the decision of the lower Court referred to above, the appellant has now appealed to this Court. The appellant’s vexes against the decision were contained in his amended notice of appeal deemed as properly filed and served on the 5th day of July, 2017.
In accordance and compliance with the rules of this Court, the record of appeal was deemed to have been duly compiled and transmitted to this Court. The said record of appeal was also deemed as having been duly served on the parties. Consequently, the parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument was prepared by D.O. Agbo Esq. The said appellant’s brief was filed on the 24th day of August, 2017 but it was deemed by this Court as having been properly filed and served on the 27th day of September, 2017. The 1st respondent’s brief of argument on the other hand was prepared by N. C. Okeh Esq. The said 1st respondent’s brief was filed on the 12th day of September, 2017. It was also deemed as properly filed and served by the order of this Court made on the 27th day of September, 2017.
The 2nd and 3rd respondents on their own neither put up appearance in this Court nor filed any brief of argument in respect of this appeal. Thus, they would be deemed to have accepted any decision emanating from this appeal.
Towards the determination of this appeal, the learned counsel for the appellant formulated two issues for resolution and subsequent determination, while the learned 1st respondent’s counsel distilled three issues for the same purpose. The issues donated by the learned appellant’s counsel are reproduced below as follows:
1. Whether the Court was right to have entertained the action which arose outside the enumerated subject-matters in Section 251 of the Constitution (As Amended), and when the principal relief sought by the 1st respondent before the lower Court is not related to enforcement of fundamental rights or securing of the enforcement of a fundamental right. (Grounds 1 and 2 of the Grounds of Appeal).
2. Whether the fact of the appellant, filing Notice of Preliminary objection to the competence of the action along with his counter affidavit as required by law, amounts to waiver of the issue of non-service of the originating processes filed by the 1st respondent on him as required by law. (Ground 2 of the appeal).
The issues distilled by the learned counsel for the 1st respondent are reproduced below as follows:
1. Whether the breach of the fundamental rights complained of arose out of part of the items enumerated under S. 251 of the Constitution (sic) of 1999 Constitution of the Federal Republic of Nigeria (as amended) and other matters which the Federal High Court has jurisdiction on. (Distilled from ground 1).
2. Whether the mode of service of the originating processes on the appellant was proper and regular in the circumstances. (Distilled from ground 2).
3. Whether the cause of action in issue herein is one that is maintainable under the fundamental rights enforcement procedure. (Distilled from ground 3).
Having carefully examined the issues donated by the learned counsel for the parties, vis-a-vis the judgment appealed against, I am of the firm opinion that the issues framed by the learned appellant’s counsel are comprehensive enough and have sufficiently subsumed the issues identified by the learned counsel for the 1st respondent. Thus, the said issues are adopted by me for resolution and the determination of this appeal.
ARGUMENT ON ISSUES: ISSUE 1.
The learned counsel for the appellant set out by submitting that the law is trite, that every citizen of Nigeria by virtue of the provision of Section 46(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as the Constitution), where a person?s fundamental right is breached, being breached or about to be breached, that person has the right to apply to the State High Court or Judicial Division of the Federal High Court in the State in which his right was breached, to seek redress. However, the application can only be made to the Federal High Court only if the subject matter or the wrong done must have arisen and falls within the ambit of matters enumerated in Section 251 of the Constitution which provides for the jurisdictional coverage of the Federal High Court. He supported his submission with the case of Adetona v. I. G. Ent. Ltd. (2011) 7 NWLR (Pt. 1247) 535 at 564.
He submitted further that the fact that the parties (or a party) involved is a federal government agent or agency(s) is not enough to clothe the Federal High Court with jurisdiction, if the subject matter of the action does not fall within the ambit of matters in respect of which the Federal High Court ordinarily has jurisdiction.
He referred to the cases of Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172 at 236 – 237and James v. INEC (2015) 12 NWLR (Pt. 1474) 538 at 587.
The learned counsel for the appellant contended, that ‘the principal reliefs in the proceedings before the lower Court is arrest, assault causing grievous harm, use of gun butt to frighten the applicant’ and the same are not connected with or arose in respect of matters within the jurisdiction of the Federal High Court. He argued, that from the facts of the case, it is not disputable that the incident that allegedly occurred between the appellant and 1st respondent did not occur in the course of the appellant’s official duty. He stated that the learned trial judge was merely carried away by the fact that the appellant, 2nd& 3rd respondents are all officers of Nigerian Immigration Service.
In addition, the learned counsel for the appellant contended, that a calm and dispassionate examination of the 1st respondent’s principal relief (that is, relief A) would reveal, that ?the claim is tortous in nature which ought to be brought by way of a writ of summons to ventilate the claim of the 1st respondent.
A case of assault, causing grevious harm and use of gun butt and shooting of gun to frighten a person cannot constitute a breach of fundamental right as envisaged under Section 46(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The fact that the applicant couched the relief as one of fundamental right does not make it one. The Court was bound to carefully examine the reliefs claimed to see what the claim is all about.
He referred us to the cases of WAEC v. Akinwunmi (2008) 9 NWLR (Pt. 1091) 151 at 169 and Gafar v. Govt.,Kwara State (2007) 4 NWLR (Pt. 1024) 375 at 398. The learned appellant’s counsel further contended, that the 1st respondent’s principal claim or relief fell short of the requirement of Section 251 of the Constitution, and the other ancillary reliefs cannot sustain the lower Court’s jurisdiction. He referred us to the cases of WAEC v. Adeyanju (2008) 9 NWLR (Pt. 1092) 270 at 295; Nwanunna v. Nwaebili (2011) 4 NWLR (Pt. 1237) 290;Egbuonu v. B. R.T. C. (1997) 12 NWLR (Pt. 531) 29 and Tukur v. Govt. of Gongola State (No. 2) (1989) 4 NWLR (Pt. 117) 517.
The learned counsel for the appellant thereby urged this Court to hold that the lower Court erred, when it assumed jurisdiction, entertained and determined this matter. We were urged to resolve this issue in favour of the appellant.
In reply, the learned counsel for the 1st respondent submitted, that the lower Court was right when it assumed jurisdiction over this case. He stated, that the wrongful acts of the appellant which breached the 1st respondent’s fundamental right occurred in the course of the exercise of the appellant’s and 2nd & 3rd respondents’ official acts and in the exercise of their administrative/executive actions and decisions as agents of the Federal Government of Nigeria. The learned counsel went ahead to reproduce the relevant portions of the 1st respondent and 2nd & 3rd respondents’ affidavit and counter affidavit, respectively to drive home his argument. The learned counsel for the 1st respondent herein then argued, that ‘if the appellant was not in his official duty at the time of the incident as argued by learned counsel for appellant, why did he have to telephone his office for back up? Why was he in his official uniform?
Why did the 3rd respondent – the Abia State Comptroller of Immigration have to be contacted for directives before he ordered the men to go to his rescue He concluded and submitted that considering the generality of the facts of this case, the learned trial judge was right in his holding, that the alleged wrongful acts committed against the 1st respondent were carried out by the appellant and his cohorts in the course of their official duty and the lower Court was right when it assumed jurisdiction, entertained and determined this case as it did. He thereby urged this Court to resolve this issue in favour of the 1st respondent.
On the contention that the 1st respondent’s case is tortous in nature and should have been pursued by the filing of writ of summons instead of an action for the enforcement of fundamental rights, the learned counsel for the 1st respondent submitted, that the main issue herein is the violation of the right to the dignity of the human person committed against the 1st respondent by the appellant and the 2nd & 3rd respondents (especially the appellant). He argued that the 1st respondent’s action clearly falls within the provision of Section 34(1) (a) of the Constitution. He maintained that the main claim herein is the violation of the 1st respondent’s right to dignity and all other claims are merely ancillary to the said main or principal claim.
Also, the learned counsel for the 1st respondent submitted, that ‘a set of facts may disclose multiple causes of action, and that the applicant or plaintiff may pursue his case by way of enforcement of his fundamental right or through the law of torts or even through criminal laws prosecution for redress.’
He referred us to the case of Sokoto L. G. A. v. Amale (2001) 12 WRN 103. He argued that even though the facts of this case revealed two likely causes of action, the 1st respondent is at liberty to pursue any line of actions he so desires. He maintained that the 1st respondent is empowered by the provision of Section 46 (1) of the Constitution to approach the lower Court for redress with regard to the breach of her fundamental right, and the Court is obliged to grant her application, once, she has successfully established her case. He cited the case of A.C.B. v. Okonkwo (1997) 1 NWLR (Pt. 440) 194 in support thereof. Thus, he urged this Court to resolve this issue in favour of the 1st respondent.
The appellant’s counsel in respect of this issue had earlier pointed out that the lower Court, and/or the learned trial judge while resolving this issue made some specific finding with the conclusion to wit:
”From the above paragraphs, the respondents are being sued for their infractions in the course of their official duties as Immigration Officers.” (See page 98 of the record of appeal).
The learned trial judge before making the above finding thoroughly evaluated the parties’ affidavit evidence with particular emphasis on the depositions at paragraphs 15 – 17 of 1st respondent’s affidavit in support of the application to enforce her fundamental right whereat it was deposed, that the appellant requested for officers as back up from his office (that is, Nigeria Immigration Service, Umuahia, Abia State Division) and the same was provided for him. The learned trial judge also found as duly established, the fact that the appellant ordered for the arrest of the 1st respondent, which resulted in the assault and humiliation meted to her. The learned trial judge in addition to other reasons, held that the appellant acted in his official capacity when he and his colleagues assaulted the 1st respondent.
It is imperative to note that the above vital and specific findings of the lower Court was not appealed against in the instant appeal. Thus, the said findings of the lower are deemed admitted. See the cases of Awote v. Owodunni (No. 1) (1986) 5 NWLR (Pt. 46) 941; Onafowokan & Ors. v. Wema Bank Plc. (2011) LPELR 2665 and Obi v. INEC (2007) 11 NWLR (Pt. 1046) 436. In the instant case, the appellant did not bother to appeal against the specific findings of the lower Court as espoused above. Thus, I have no option than to deem the appellant as having admitted the above specific findings of fact. Therefore, the 1st respondent is deemed to have proved that she was assaulted by the appellant, while the appellant was on official duty as an agent of the Federal Government.
Also, I have carefully examined the parties’ affidavit evidence in this case, and I also agree with the learned trial judge that the appellant was discharging his official duties when the 1st respondent was assaulted, particularly when due consideration is given to the admission made by the 2nd & 3rd respondents in paragraph 13 (1) of their counter affidavit, where they admitted that the incident that occurred or ensued between the appellant and 1st respondent happened in the course of the appellant’s official duty. Thus, by relying on the provision of Section 251 (1),(5) of the Constitution, I do agree with the lower Court that it had jurisdiction to entertain the 1st respondent’s case, as the subject matter of the case falls within the ambit of the matters in respect of which the lower Court ordinarily had constitutional powers and or jurisdiction to entertain and determine.
With regard to the mode of commencing this action, it is trite position of our law that where a set of facts discloses multiple causes of action, a litigant is at liberty to institute different actions on each of the causes of action. When the actions are instituted differently, he can apply for them to be consolidated, if they are initiated at the same Court. That is, where a set of facts discloses an action liable in fundamental right enforcement proceedings and tort actionable by writ of summons, the claimant has the liberty to institute different actions through fundamental right enforcement proceeding and writ of summons to seek redress under the different heads of causes of action. And where both actions are instituted at the same Court, he can apply for them to be consolidated, but where they are instituted at different Courts, they can competently be maintained and/or pursued differently. See the case of Egbuonu v. Bornu Radio Television Corporation (1997) 12 NWLR (Pt. 531) 29.
In the instant case, the appellant’s acts of battering the 1st respondent could be taken up as a tortous act, while at the same time it cannot be denied that the acts also violated the 1st respondent’s dignity. Thus, while the whole of the facts can be held to have disclosed a tortous action, it can also be conveniently classified as a breach of the 1st respondent’s fundamental human rights. And the 1st respondent was within her right when she pursued the fundamental rights enforcement part of her case. This issue is hereby resolved against the appellant.
ISSUE 2.
The learned counsel for the appellant set out by repeating the settled position of the law, that originating process in respect of an action is required to be served personally on an opposing party, except where the Court has ordered for service by means of substituted service. He referred us to the cases of Dickson v. Oko (2003) 16 NWLR (Pt. 486) 397and Fatokun v. Somade (2003) 1 NWLR (Pt. 802) 431. He contended, that the appellant was neither served personally nor the originating process served on the appellant’s senior officer as required by the provision of Order V Rule 8 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, (hereinafter referred to as the Rules). He argued that the affidavit of service deposed to by the lower Court’s bailiff did not disclose that the processes were personally served on the appellant nor served on his senior officer for onward transmission of the processes, as required by the Rules.
Also, the learned counsel for the appellant argued, that the fact that the appellant filed his notice of preliminary objection along side his counter affidavit to the main case and that doing so does not amount to waiver, because the Rules required both processes to be filed together in respect of fundamental right enforcement actions. The learned counsel for the appellant maintained that, ”if the lower Court had appreciated the requirement of the law, it would have known that the fact that the appellant filed his counter affidavit to the main application along with the notice of preliminary objection and engaged the services of counsel to press home the point, does not by any means an indication that he has abandoned the issue of non-service of the originating process on him.”
The learned counsel for the appellant further argued, that the learned trial judge having misunderstood the position of the law as to the nature of filing preliminary objection in fundamental right enforcement action, he came to the wrong decision that the appellant had waived his right to complain about improper service, simply because the appellant filed his notice of preliminary objection along side his counter affidavit. He referred us to the cases of Ajibola v. Sogeke (2003) 9 NWLR (Pt. 826) 494 at 530; Fasade v. Babalola (2003) 11 NWLR (Pt. 830) 26 at 47; SPDCN Ltd. v. Azukaeme (2011) 9 NWLR (Pt. 1252) 360 at 374 – 375 and P.W.T.H. AG v. Ceddi Corporation Ltd. (2012) 2 NWLR (Pt. 1285) 465at 493, among others. He thereby urged this Court to resolve this issue in favour of the appellant.
In his reply, the learned counsel for the 1st respondent submitted, that the appellant was properly served with the originating process in accordance with the rules of the lower Court. He referred us to Order VRules 8 of the Rules. He stated that the appellant was served by the bailiff of the lower Court who also deposed to an affidavit of service. He argued, that there is no counter affidavit disputing the fact that the appellant and all other parties were served with the originating process, thus, the facts contained in the said affidavit of service are deemed admitted. He referred us to the case of Folarin v. Ayanrinola (2012) ALL FWLR (Pt. 632) 1812.
The learned counsel also submitted, that the purpose of serving a process on a party is to inform him that a suit has been filed against him, so as to enable him defend it. And the appearance of the appellant together with that of his counsel has fulfilled that purpose.
Thus, it was his submission, that the appellant cannot be heard before this Court to complain about improper service. He called in aid the cases of Ewinstel Nigeria Ltd. v. Abia (2012) ALL FWLR (Pt. 643) 1942; Amika v. Ironbar (2012) ALL FWLR (Pt. 640) 1379; Mohammed v. Mustapha (1993) 5 NWLR (Pt. 292) 222 and Olly v. Tunji (2012) ALL FWLR (Pt. 654) 53.
Finally, the learned counsel for the 1st respondent argued, that the appellant was properly served through the 3rd respondent who was a senior officer to the appellant and by virtue of such service, the appellant has been properly served as required by the rules of the lower Court. He once again referred us to the provision of Order V Rule 6 of the Federal High Court (Civil Procedure) Rules, 2009 with the submission, that ”where a party to a proceeding such as in the instant case is in the employ or service of a department of government such as the appellant herein, it is proper service if the process to be served is left with any senior officer of the department where he works.” Thus, he urged this Court to resolve this issue in favour of the 1st respondent.
The service of originating process is very fundamental and important in an adjudicating proceeding. This is because no suit can be validly entertained and determined, unless it has been ascertained that the originating process has been properly served on the adverse or opposing party. Thus, service of originating process is one of the condition precedent to the valid exercise of Court’s jurisdiction over a matter. See the cases of Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 397and Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) 337.
It should also be noted that the mode of service and indeed the rules governing issuance and service of Court’s processes are mostly governed by the rules of the Court where the action was instituted. In the instant case, the extant rules governing the service of process are the Fundamental Rights (Enforcement Procedure) Rules, 2009 and the Federal High Court (Civil Procedure) Rules, 2009. In the case of the appellant, the operating rules are the provision of Order V Rule 8 of the Fundamental Rights (Enforcement Procedure) Rules and or Order 6 Rule 6 of the Federal High Court (Civil Procedure) Rules. For purpose of clarification, and since both provisions are in pari materia the provisions of the former rules are reproduced below:
Order V Rule 8 of the Fundamental Rights (Enforcement Procedure) Rules:
”When a party to be served is in the service of any Ministry or Extra Ministerial Department of Government or of a Local Government, the Court may transmit the document to be served and a copy thereof to any senior officer of the Department of Government in the Judicial Division or place where the party to be served works or resides or of the Local Government in whose service the party to be served is, and such senior officer, or Local Government shall cause the same to be served on the proper party accordingly.”
The question to be answered in this issue is whether the appellant was served in accordance with the above specified procedure? In answer to this poser, the 1st respondent compiled and transmitted additional record of appeal containing the affidavit of service of the originating process on the appellant and 2nd – 3rd respondents. The affidavit of service was deposed to by one Eke Joseph, the lower Court’s bailiff, in the said affidavit, the bailiff deposed and I quote as follows: Para. C & I served upon 1st – 3rd Respondents Motion on Notice, Affidavit in support, statement, written address, a true copy whereof is hereunto annexed issued out of this Court at Federal High Court upon the complaint of the applicant by delivering the same personally to office of the Comptroller of Immigration, Umuahia.
It is not in doubt that the Comptroller of Immigration, at Umuahia Division, Abia State is senior in rank to the appellant. The said Comptroller (3rd respondent), has also not denied that the said processes were served on him. The purpose of this rule regarding service through officers of government ministries, is to avoid a situation whereby an officer of the ministries will attempt to escape justice or evade service of Court processes, and to also ensure that the processes to be served are adequately transmitted to the affected officer. In the instant case, the originating process was not only properly served on the appellant, but also the purpose of the service was also achieved by the appearance and participation of all the parties in this case.
Also, the Supreme Court, per Oguntade, JSC, in the case of Auto Import Export v. Adebayo (2005) 19 NWLR (Pt. 959) 44, LPELR 624, at pg. 26 described the concept of waiver as follows:
”The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both.”
In the instant case, can it be said that the appellant had waived his right to complain about the alleged improper service of the originating process on him? I think not. The appellant in response to the 1st respondent’s application filed a notice of preliminary objection challenging the jurisdiction of the lower Court to entertain the 1st respondent’s application at the earliest opportunity. Among the grounds of his objections is that he was not properly served.
Though, the notice of preliminary objection was filed along with his counter affidavit in response to the main case, this does not however imply that he had chosen to waive his right. By virtue of the combined provisions of Order VIII Rules 1 – 6 of the Fundamental Rights (Enforcement Procedure) Rules, a respondent to an application by a party in an action for the enforcement of his right; who has an objection or who intends to challenge the Court’s jurisdiction to hear the application, is required to file his objection along with his counter-affidavit. This procedure is required to ensure speedy disposal of the application, because filing all the processes together will enable the trial Court to give his ruling on the preliminary objection, and in the event the objection fails, the substantive matter can be determined immediately and or simultaneously.
Thus, the fact that the appellant filed his objection along side his counter affidavit can not be held to amount to waiver of his right to complain about the alleged improper service of the originating process on him, as the procedure undertaken by him was done in compliance with inter alia, the extant rules of the lower Court. Thus, the learned trial judge erred when he held otherwise. However, having earlier found, that the appellant was properly served with the originating process, the issue of waiver is no longer of any availing relevance. Thus, this issue too is resolved against the appellant and in favour of the 1st respondent. The concomitant and or necessary implication of resolving the issues formulated for the determination of this appeal and as adopted in the manner stated above, is that, this appeal is unmeritorious and it is accordingly dismissed by me. Thus, the judgment of the lower Court delivered on the 26th day of April, 2016 in Suit No: FHC/UM/CS/119/2014 and the consequential orders made therein are affirmed by me. Costs in the sum of N50,000.00 is awarded against the appellant, and in favour of the 1st respondent.
ITA GEORGE MBABA, J.C.A.: I agree
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree
Appearances:
D. O. Agbo, Esq. with him, C. C. Amadi Esq. and Miss. A. J. Nwankwo-UkehFor Appellant(s)
UcheIgwe Esq. with him, G. U. Eboh Esq. -For 1st Respondent.
2nd and 3rd Respondents were absent but duly served with requisite court processes.For Respondent(s)
