NCS BOARD & ORS v. SUNDAY
(2022)LCN/17187(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, January 06, 2022
CA/IB/345/2020
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
1. NIGERIA CUSTOMS SERVICE BOARD 2. NIGERIA CUSTOMS SERVICE BOARD IDIROKO BORDER COMMAND IDIROKO, OGUN STATE 3. COMPTROLLER GENERAL OF CUSTOMS NIGERIA CUSTOMS SERVICE BOARD APPELANT(S)
And
MR. OLAYINKA SUNDAY RESPONDENT(S)
RATIO
WHETHER OR NOT THERE IS A VESTED RIGHT IN ANY COURSE OF PROCEDURE
It is trite law that there is no vested right in any course of procedure, a litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner. In this regard, the rudimentary principle of law is that the adjectival law governing proceedings is the rule of procedure in force at the time of the proceedings, unless there is a provision to the contrary: OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 13, OMIRINDE vs. FRN (2017) LPELR (44971) 1 at 39-40, IWUNZE vs. FRN (2014) LPELR (22254) 1 at 14, NWORA vs. NWABUEZE (2013) LPELR (20587) 1 at 18-19 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 20. PER OGAKWU, J.C.A.
THE POSITION OF LAW ON THE CONSEQUENCES OF WHERE A NOTICE OF APPEAL HAS NOT BEEN SERVED ON A RESPONDENT
The affidavit of non-service clearly establishes that the Notice of Appeal was not served on the Respondent. Being the originating process for the appeal, the law is settled beyond peradventure that it is fatal where the Notice of Appeal has not been served as the jurisdiction of the appellate Court is as a result not activated. See ADEGBOLA vs. OSIYI (2017) LPELR (42471) 1 at 14-15, HARRY vs. MENAKAYA (2017) LPELR (42363) 1 at 38-39 and ODEY vs. ALAGA (2021) LPELR (53408) 1 at 19-27 and 71-75. Since the Notice of Appeal was not served, the concomitance is that the first branch of the preliminary objection on non-service of the Notice of Appeal succeeds. The consequence of the non-service of the Notice of Appeal is that the jurisdiction of this Court to entertain the appeal has not been activated. The appeal is therefore incompetent and will have to be struck out for want of jurisdiction: ODEY vs. ALAGA (supra), BUNI vs. OZOBO (2020) LPELR (52282) 1 at 25-40, APC vs. OZOBO (2020) LPELR (52283) 1 at 10-24, NCSU vs. EKASA (2021) LPELR (54752) 1 at 6-7 and ANWAKOBE vs. ESUMEI (2018) LPELR (47255) 1 at 13-17. PER OGAKWU, J.C.A.
THE POSITION OF LAW ON THE IMPORTANCE OF A NOTICE OF APPEAL
It is hornbook law that a notice of appeal in the process of an appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed is a question which touches on the jurisdiction of the appellate Court. If no proper notice of appeal has been filed, then there is no appeal for the Court to entertain. See OLANREWAJU vs. BON LTD (1994) 8 NWLR (PT 364) 622 and FIRST BANK vs. T. S. A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 49. In aliis verbis, a competent notice of appeal is the foundation and substratum of every appeal. Any defects thereto will render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to entertain the appeal: UWAZURIKE vs. A-G FEDERATION (2007) LPELR (3448) 1 at 14 and ADELEKAN vs. ECU-LINE N.V. (2006) LPELR (113) 1 at 26-27. PER OGAKWU, J.C.A.
THE YARDSTICK FOR THE CLASSIFICATION OF A GROUND OF APPEAL
Now, oftentimes, it is a very thin line that separates a ground of law simpliciter from a ground of mixed law and facts. Happily, the apex Court has laid down the marker on how to ascertain whether a ground of appeal is of law alone, of fact or mixed law and fact. In the words of Eso, JSC in OGBECHIE vs. ONOCHIE (1986) LPELR (2278) 1 at 8:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
Equally, in giving the classification of a ground of appeal in FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTRIES LTD (supra) at 55-56, Adekeye, JSC stated as follows:
“The important yardstick for the classification of a ground of appeal is not in form of the question it raises but for instance –
(a) Where the grounds of appeal shows that the trial Court or appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law.
(b) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact.
(c) Where the question which the Court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.
(d) Where the question is one that will require questioning the evaluation of facts by the trial Court before application of the law, it is a ground of mixed law and fact.
(e) Where the ground of appeal questions the exercise of discretion by a trial Court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.
(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.
(g) A ground of appeal complaining of failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it is a question of law.
(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.”
See also OLABOMI vs. OYEWINLE (2013) LPELR (20969) 1 at 11-12, IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (supra) and UWAK vs. EKPENYONG (supra). PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is related to APPEAL NO. CA/IB/344/2020, the judgment of which was delivered this morning. The facts on which the cause of action in both matters were ventilated are the same. Indeed, the lower Court in its judgment in this matter adopted the judgment it gave in the said related matter. The Respondent herein was the Applicant at the Federal High Court, Abeokuta Division in an application for the enforcement of fundamental rights. The facts of the matter as presented by the Respondent in the processes filed at the lower Court disclose that on or about the 25th day of January 2019, the officers of the Appellants herein, Respondents at the lower Court, carried out an anti-smuggling operation at the Owode Area of Ogun State. In the course of the operation, the officers allegedly ransacked the shops of the traders in the area, including that of the Respondent’s deceased brother, Olabode Sunday, who was alleged to have been shot dead in the course of the operation and his corpse was taken to the State Hospital, Ota, by Police Officers.
The case of the Appellants, as Respondents at the lower Court was a denial of the allegations as to what allegedly transpired on 25th January 2019. They however asserted that they carried out an operation on 21st January 2019 at the Celestial Church of Christ, Owode, in order to seize smuggled foreign parboiled rice which intelligence reports disclosed were loaded in about 50 vehicles coming to Owode from Ado Odo Creek. It is their case that upon arrival at Celestial Church of Christ, Owode, some hoodlums who were armed with dangerous weapons attacked them and that in consequence, their officers fired shots in the air to disperse the crowd of attackers. They maintain that nobody was injured or killed as a result of the shots that they fired in the air.
It is premised on these set of facts that the Respondent instituted proceedings before the lower Court in SUIT NO. FHC/AB/FHR/3/2020: MR. OLAYINKA SUNDAY (Suing as Applicant and Next of Kin on behalf of Olabode Sunday, The Deceased) vs. NIGERIA CUSTOMS SERVICE BOARD & ORS. The Respondent claimed the following reliefs:
(a) A DECLARATION that the arrest, torture and extra-judicial killing of the Applicant’s deceased brother (late Olabode Sunday) by the Customs Officers attached to Idiroko Area Command of Ogun State agents of the Respondents on the 25th of January 2019 at Owode Area of Ogun State without any Court order is illegal, unlawful, unconstitutional and a gross violation of the Applicant’s deceased brother constitutional right to life, dignity of human person and fair hearing as enshrined under Section 33, 34 and 36 of the 1999 Constitution of the Federal Republic of Nigeria and the African Charter and the Universal Declaration of Human Rights.
(b) AN ORDER DIRECTING the IMMEDIATE PROSECUTION of the culpable Customs officers attached to the Idiroko Area Command for the unlawful and extra-judicial killing of the Applicant’s deceased brother (late Olabode Sunday) on the 25th of January 2019 at Owode Area of Ogun State without any order of Court.
(c) AN ORDER compelling the Respondents to jointly and severally issue a Public Apology in Three (3) widely circulated Newspaper publications and to pay the sum of N500,000,000.00 (Five Hundred Million Naira) only as GENERAL and EXEMPLARY DAMAGES in favour of the Applicant and his family for the unlawful and extra-judicial killing of the Applicant’s deceased brother (late Olabode Sunday) without any order of the Court.
(d) AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents jointly and severally whether by themselves, their agents, officers, officials, privies, servants or anyone else claiming or deriving authority from them from harassing, intimidating, inviting, arresting, detaining or disturbing the Applicant in connection with the facts of this case.
The application was heard on the affidavit evidence and other processes filed and exchanged by the parties. The lower Court in its judgment, which was delivered on 16th July 2020, struck out the name of the 2nd Appellant from the action and entered judgment against the 1st Appellant only in terms of reliefs (a) and (d) and further awarded the sum of N40 million as damages against the 1st Appellant. The Appellants were dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 22nd July 2020. The judgment of the lower Court is at pages 74-108 of the Records, while the Notice of Appeal is at pages 109-110A of the Records.
In prosecution of the appeal, the Records of Appeal was compiled and transmitted on 13th October 2020, but deemed as properly transmitted on 25th November 2021. The parties thereafter filed and exchanged briefs of argument. The Appellants filed their brief of argument on 24th November 2020 and their Reply Brief on 30th June 2021. On his part, the Respondent filed his brief of argument on 16th June 2021. All the briefs were deemed as properly filed on 25th November, 2021. The Respondents also filed a Notice of Preliminary Objection which was argued in the Respondent’s brief of argument. At the hearing of the appeal on 25th November, 2021, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the matter.
THE PRELIMINARY OBJECTION
It is the Respondent’s preliminary objection which is threshold in nature and seeks to scuttle in limine the hearing and determination of the appeal on the merits that will first captivate our attention. The preliminary objection is predicated on the following grounds:
“1. That the appeal herein is grossly incompetent and improperly constituted.
2. That the Appellants Notice of Appeal was NOT served on the Respondent herein.
3. That the non-service or failure to serve the Appellants Notice of Appeal on the Respondent or his counsel robs this Court of jurisdiction to hear this instant appeal.
4. That the Appellants’ one (1) ground of appeal as contained in the Notice of Appeal is one of mixed law and facts wherein leave of Court was not sought and obtained by the Appellants.
5. The one (1) ground Notice of Appeal is solely grounded in mixed law and fact and clearly incompetent to enable this Court properly exercise it [sic] jurisdiction to hear this appeal.
6. The jurisdiction of this Court has NOT been properly activated by the Appellants.
7. It is in the interest of justice to dismiss and/or strike out this instant appeal for being grossly incompetent.”
The Respondent submits that the Notice of Appeal is the originating process and spinal cord of an appeal vide ANI vs. EFFIOK (2017) 8 NWLR (PT 1567) 281 at 301 and that the failure to serve the Respondent with the Notice of Appeal is a fundamental defect which affects the jurisdiction of the Court to entertain the appeal.
The affidavit of non-service of the Notice of Appeal deposed to by the bailiff of the lower Court was referred to and it was opined that even the attempted service was not made at the address for service of the Respondent’s counsel on record. The Court was accordingly urged to strike out the appeal since the Notice of Appeal was not served.
It is the further contention of the Respondent that the Appellants’ sole ground of appeal was a ground of mixed law and fact which requires leave of Court, and that the Appellants having failed to seek and obtain leave of Court in respect of the said ground of appeal rendered the appeal incompetent. The case of FBN PLC vs. A-G FEDERATION (2018) 7 NWLR (PT 1617) 121 at 151 was relied upon.
In opposing the preliminary objection, the Appellants submit that from the affidavit of non-service, it was clear that the Respondent’s counsel refused to accept service of the process and used abusive words on the bailiff. It was stated that by Order 6 Rule 26 of the Federal High Court (Civil Procedure) Rules, 2019, it sufficed in such circumstances if the person to be served is told the nature of the process.
This, it was posited, was done, which made it possible for the Respondent’s counsel to later collect the necessary documents which enabled him file the Respondent’s brief and preliminary objection.
It was further submitted that the sole ground of appeal is a ground of law which challenges the availability of evidence on the basis of which the lower Court held that the allegations of the Respondent were proved beyond reasonable doubt. It was opined that though difficult to distinguish a ground of law from a ground of fact, but that the Appellants’ ground of appeal which complains about the absence of the required evidence as provided by law is a ground of law, not mixed law and fact as contended by the Respondent. The cases of IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) 6 NWLR (PT 1084) [no page stated] or (2008) LPELR 1476, THE MINISTER OF PETROLEUM & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG) LTD (2010) LPELR-3189 (SC) or (2010) 12 NWLR (PT 1208) 261 and UWAK vs. EKPENYONG (2019) 7 NWLR (PT 1670) AT 67-84 were called in aid.
RESOLUTION OF THE PRELIMINARY OBJECTION
The Respondent’s preliminary objection is bifurcated. The first branch is on the consequences of non-service of the Notice of Appeal, while the second branch is on the sole ground of appeal being a ground of mixed law and fact, and the Appellants having failed to obtain leave of Court to appeal on the said ground of mixed law and fact.
The parties have referred to the affidavit of non-service deposed to by the bailiff of the lower Court, with the Respondent contending that the attempt at service was not made at the Respondent’s address for service on record. For the Appellants, the stipulations of Order 6 Rule 26 of the Federal High Court (Civil Procedure) Rules, 2019 was relied upon to the effect that the nature of the process was made known to the Respondent, on account of which the Respondent filed her processes in respect of the appeal.
First of all, from the processes filed by the Respondent at the lower Court, the address for service of the Respondent’s counsel included the addresses at Igando, Lagos State and Iperin-Agbara, Ogun State. (See pages 2, 6, 21, 50, 64-65 and 67-68 of the Records). From the affidavit of non-service at page 112 of the Records, the directions requested by the bailiff of the lower Court, were the directions to the Igando, Lagos State address. So it is not correct as contended by the Respondent that the attempt at service was not made at the address for service on record. Be that as it may, the Notice of Appeal which the bailiff of the lower Court attempted to serve is at pages 109-110A of the Records. The Respondent’s address for service thereon (page 110 of the Records) is the Igando, Lagos State address. Accordingly, the bailiff of the lower Court was justified in attempting to effect service at the Igando, Lagos State address, being the address for service stated in the Notice of Appeal.
By all odds, the Notice of Appeal is filed at the Registry of the lower Court; but the Respondent is correct in his submission that the Notice of Appeal is the originating process for an appeal. So it is the Rules of procedure of this Court that we would turn to in order to interrogate the consequences of failure to serve the Notice of Appeal.
It is trite law that there is no vested right in any course of procedure, a litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner. In this regard, the rudimentary principle of law is that the adjectival law governing proceedings is the rule of procedure in force at the time of the proceedings, unless there is a provision to the contrary: OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 13, OMIRINDE vs. FRN (2017) LPELR (44971) 1 at 39-40, IWUNZE vs. FRN (2014) LPELR (22254) 1 at 14, NWORA vs. NWABUEZE (2013) LPELR (20587) 1 at 18-19 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 20.
The attempt at service of the Notice of Appeal on the Respondent was made on 24th September 2020. The applicable rules of procedure of this Court as at that date was the Court of Appeal Rules, 2016. At the date of hearing of this matter on 25th November 2021, the applicable rules of procedure are the Court of Appeal Rules, 2021 which repealed the Court of Appeal Rules 2016 and which came into force on 1st November 2021. Since there is no vested interest in the rules of procedure, it is the Court of Appeal Rules, 2021 that is applicable. Happily however, the relevant stipulations whether in the 2016 Rules or the 2021 Rules are the same.
Order 2 Rule 1 of the Court of Appeal Rules, 2021, requires that service of the Notice of Appeal be effected on the Respondent personally or by electronic mail to the electronic mail address of the Respondent.
The affidavit of non-service clearly establishes that the Notice of Appeal was not served on the Respondent. Being the originating process for the appeal, the law is settled beyond peradventure that it is fatal where the Notice of Appeal has not been served as the jurisdiction of the appellate Court is as a result not activated. See ADEGBOLA vs. OSIYI (2017) LPELR (42471) 1 at 14-15, HARRY vs. MENAKAYA (2017) LPELR (42363) 1 at 38-39 and ODEY vs. ALAGA (2021) LPELR (53408) 1 at 19-27 and 71-75. Since the Notice of Appeal was not served, the concomitance is that the first branch of the preliminary objection on non-service of the Notice of Appeal succeeds. The consequence of the non-service of the Notice of Appeal is that the jurisdiction of this Court to entertain the appeal has not been activated. The appeal is therefore incompetent and will have to be struck out for want of jurisdiction: ODEY vs. ALAGA (supra), BUNI vs. OZOBO (2020) LPELR (52282) 1 at 25-40, APC vs. OZOBO (2020) LPELR (52283) 1 at 10-24, NCSU vs. EKASA (2021) LPELR (54752) 1 at 6-7 and ANWAKOBE vs. ESUMEI (2018) LPELR (47255) 1 at 13-17.
Having held that the Court does not have the jurisdiction to entertain the appeal on account of non-service of the originating process, the Notice of Appeal, I ought to end this judgment at that this stage; but being an intermediate appellate Court, I am enjoined by law to consider all the issues raised in the appeal. Accordingly, I will proceed to consider the second branch of the preliminary objection and thereafter dovetail to the merits of the appeal.
While the first branch of the preliminary objection deals with the threshold issue of service of the Notice of Appeal, the second branch of the preliminary objection challenges the competence of the Notice of Appeal filed by the Appellants. It is hornbook law that a notice of appeal in the process of an appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed is a question which touches on the jurisdiction of the appellate Court. If no proper notice of appeal has been filed, then there is no appeal for the Court to entertain. See OLANREWAJU vs. BON LTD (1994) 8 NWLR (PT 364) 622 and FIRST BANK vs. T. S. A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 49. In aliis verbis, a competent notice of appeal is the foundation and substratum of every appeal. Any defects thereto will render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to entertain the appeal: UWAZURIKE vs. A-G FEDERATION (2007) LPELR (3448) 1 at 14 and ADELEKAN vs. ECU-LINE N.V. (2006) LPELR (113) 1 at 26-27.
The Respondent’s contention in this second branch of the objection is that the sole ground of appeal is a ground of mixed law and fact and that the Appellants require leave of Court to appeal on the said ground, which leave they neither sought for nor obtained. Now, a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. Put differently, it is the reason why the decision is considered wrong by the aggrieved party. See IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 503 at 578, AZAATSE vs. ZEGEOR (1994) 5 NWLR (PT 342) 76 at 83 and AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464.
The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground. In ascertaining the real issue or complaint, the ground of appeal as formulated and all the particulars thereto are to be read and construed together. See OBATOYINBO vs. OSHATOBA (1996) LPELR (2156) 1 at 33, CHIEF OF STAFF vs. IYEN (2005) 6 NWLR (PT 922) 496, ODUKWE vs. ACHEBE (2008) 1 NWLR (PT 1067) 40 at 53 and ABIA STATE INDEPENDENT ELECTORAL COMMISSION vs. ONYEABOR (2011) LPELR (3563) 1 at 31.
The Appellants’ sole ground of appeal reads as follows:
“GROUND OF APPEAL
The Court below erred in law when it held that the officers of the Respondent were responsible for the death of the brother of the Applicant one [sic] on the 25th of January, 2019 when the Applicant did not place any cogent evidence before the Court in prove of that fact.
PARTICULARS OF ERROR
1. The case of the Applicant borders on the alleged breach of the fundamental Right of his deceased brother allegedly tortured and killed by officers of the Respondent on the 25th of January, 2019. The lower Court failed to address its mind to the fact that the Applicant has the legal burden to place enough material before the Honourable Court in prove of the depositions in the affidavit in support of the application and thereby came to a wrong conclusion that the respondents are responsible for the death of the Applicant’s brother.
2. The lower Court erred in law when it failed to properly evaluate the evidence brought before it and thereby came to a wrong conclusion. ”
The crux of the Respondent’s contention is that the above ground is not a ground of law alone but a ground of mixed law and fact and therefore leave of Court was necessary to appeal on the said ground and that having failed to obtain leave of Court, the said ground was incompetent and liable to be struck out. The Appellants contend the contrary, asserting that the ground of appeal is one of law only. I will first ascertain the character of the ground of appeal, whether one of law or one of mixed law and fact, and thereafter determine, whichever it be, if in the diacritical circumstances of this matter, the Appellants require leave to appeal on the said ground.
Now, oftentimes, it is a very thin line that separates a ground of law simpliciter from a ground of mixed law and facts. Happily, the apex Court has laid down the marker on how to ascertain whether a ground of appeal is of law alone, of fact or mixed law and fact. In the words of Eso, JSC in OGBECHIE vs. ONOCHIE (1986) LPELR (2278) 1 at 8:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
Equally, in giving the classification of a ground of appeal in FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTRIES LTD (supra) at 55-56, Adekeye, JSC stated as follows:
“The important yardstick for the classification of a ground of appeal is not in form of the question it raises but for instance –
(a) Where the grounds of appeal shows that the trial Court or appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law.
(b) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact.
(c) Where the question which the Court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.
(d) Where the question is one that will require questioning the evaluation of facts by the trial Court before application of the law, it is a ground of mixed law and fact.
(e) Where the ground of appeal questions the exercise of discretion by a trial Court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.
(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.
(g) A ground of appeal complaining of failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it is a question of law.
(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.”
See also OLABOMI vs. OYEWINLE (2013) LPELR (20969) 1 at 11-12, IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (supra) and UWAK vs. EKPENYONG (supra).
With this marker as the guide, I have closely examined the scarified sole ground of appeal and I am not in any doubt whatsoever that the complaint therein is on the evaluation of the affidavit evidence by the lower Court. Being a complaint on evaluation of evidence, it is a ground of mixed law and facts: FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTRIES LTD (supra). However, given the circumstances of this matter, do the Appellants require leave of Court to appeal on the said ground? I think not. The appeal is against the final decision of the lower Court.
Section 241 (1) (a) of the 1999 Constitution (as amended) provides as follows:
“241 – (1) 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 decision subject of this appeal is the final decision of the Federal High Court, Abeokuta Division, sitting at first instance. By the constitutional provision, an appeal lies as of right against a final decision at first instance, irrespective of whether the grounds of appeal are of law, mixed law and facts or indeed facts only. See OKOYEKWU vs. OKOYE (2009) 6 NWLR (PT 1137) 350 at 381, OYEWINLE vs. ARAGBIJI OF IRAGBIJI (2012) LPELR (9328) 1 at 28-31 and NUC vs. ALLI (2013) LPELR (21444) 1 at 35-36. Ineluctably, the ground of appeal is competent and leave of Court is not required for the Appellants to appeal on the said ground.
Having considered and dealt with the preliminary objection, I will now proceed to consider the appeal on the merits. I will only state that the manner in which the issues raised in the preliminary objection were resolved would impact on the final order to be made in this appeal, notwithstanding the manner in which the merits of the appeal is resolved.
THE APPEAL
The Appellants distilled a sole issue for determination, as follows:
“Whether from the evidence before the Court the Applicant proved his case to be entitled to the reliefs sought.”
The Respondent equally formulated a sole issue for determination, namely:
“Whether the learned trial Judge was correct and rightly condemned the extra-judicial killing and brazen violation of the Respondent Deceased Brother’s right to life by the Appellants.”
From the sole ground of appeal, the issue crafted by the Appellants is apt and it is on the basis of the said issue that I will consider the submissions of learned counsel and resolve this appeal.
ISSUE FOR DETERMINATION
Whether from the evidence before the Court the Applicant proved his case to be entitled to the reliefs sought.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that there is no convincing and/or credible evidence as required by law to entitle the Respondent to the relief he sought in the application. Sections 131 and 132 of the Evidence Act and the case of ADAKE vs. AKUN (2003) LPELR-72 were referred to on the burden of proof. It was stated that the burden was on the Respondent to prove his allegation of arrest, torture and extra-judicial killing of his brother; which allegations being criminal in nature were to be proved beyond reasonable doubt as required by Section 135 of the Evidence Act vide APC vs. PDP (2015) 15 NWLR (PT 1481) at 66-67.
It was asserted that the burden was on the Respondent to prove the alleged infringement of fundamental rights, which he failed to do by his affidavit evidence. The cases of DIRECTOR OF STATE SECURITY SERVICES vs. IBRAHIM (2016) LPELR-41618 (CA) and ATAKPA vs. OBETOR (2015) 3 NWLR (PT 1447) 549 were relied upon. It was posited that torture and murder as alleged are criminal offences which ought to be reported to the Police for investigation and that Exhibits B and D attached to the Respondent’s Further Affidavit were not Police Report of Investigation and do not state the cause of death or persons responsible for the death.
It was conclusively submitted that the facts and materials before the Court do not establish the allegations of arrest, torture and extra-judicial killing of the deceased, such that the Respondent was not entitled to the relief he claimed. The case of CPC vs. INEC (2012) 1 NWLR (PT 1280) 106 at 131 was called in aid.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent contends that the lower Court did a proper analysis of the affidavit and material evidence in arriving at the just determination of the case. It was opined that the lower Court rightly found that the Appellants approbated and reprobated by first stating that they were not at the area where the incident happened, only for them to again depose that they were in the area to seize foreign rice and had to shoot their way through when they were attacked by hoodlums, while denying that anyone died as a result of the shooting. Paragraphs 3 and 10-16 of the Appellants’ Counter Affidavit were referred to. It was therefore maintained that the lower Court rightly held at page 102 of the Records that the Appellants were liable for the killing of the deceased.
It was further submitted that the burden is on the person who has deprived another citizen of his life to show that the killing was justified or excused by law vide IGP vs. IKPILA (2016) NWLR [no volume stated] (PT 1517) 236 at 286-287. The lower Court, it was contended, rightly held at page 104 of the Records that the affidavit evidence did not show that the killing of the deceased was in execution of an order of Court and that it was therefore illegal, unlawful and a violation of Section 33 (1) of the 1999 Constitution (as amended).
It was argued that in deserving cases of abuse of fundamental rights, the attitude of the Courts is to award exemplary damages and that at page 107 of the Records, the lower Court followed the binding pronouncements of this Court in arriving at the amount it awarded as damages. The case of IGP vs. IKPILA (supra) at 298 was cited in support. It was conclusively submitted that the reasoning and findings of the lower Court were not perverse and that the Appellants have not shown any cogent reason why this Court should interfere with the said findings and reasoning.
APPELLANTS’ REPLY ON LAW
The Appellants in their Reply Brief doubled down on their submissions that the Respondent did not prove the alleged arrest, torture and extra-judicial killing beyond reasonable doubt. The necessary elements for arrest, torture, extra-judicial killing, murder, unlawful homicide, manslaughter and how to prove them were set out in support of the contention that the allegations made by the Respondent were not proved beyond reasonable doubt. Section 36 (5) and (12) of the 1999 Constitution as amended, Section 4 of the Administration of Criminal Justice Act, Sections 315 to 325 of the Criminal Code of Ogun State and the cases of AFUAPE vs. THE STATE (2020) 17 NWLR (PT 1754) at 381-424 and OLADIPO vs. THE STATE (2020) 7 NWLR (PT 1723) at 238-258 were relied upon.
RESOLUTION OF THE APPEAL
The Appellants in paragraph 4.0 on page 3 of their Reply Brief rightly submitted that the decision of the lower Court did not turn on the allegations of arrest and torture. This being so, the fine legal points made by the Appellants on elements of arrest and torture are otiose. I restate that the conspectus of the complaint in the ground of appeal is on the evaluation of evidence and ascription of probative value thereto by the lower Court. Even though the lower Court awarded the sum of N40 million as damages in favour of the Respondent, the Appellants have not challenged the award in any manner whatsoever in this appeal. So the very narrow prism in which this appeal has been ventilated is on evaluation of evidence. That is the Appellants’ grouse with the decision of the lower Court and that is what we are to resolve in this appeal, and nothing more. Therefore, the proper course to follow in resolving this matter will be to examine the evaluation of evidence by the lower Court relative to the ratio decidendi in the case.
The decision of the lower Court primarily turned on issue number four which it distilled at page 94 of the Records, namely:“…Whether the killing of the applicant’s sister [brother] is illegal and/or constitutional having regards to Sections 33, 34, and 36 and [sic] of Constitution of Federal Republic of Nigeria 1999 (as amended)”
In resolving this issue, the lower Court found and held as follows at pages 104-105 of the Records:
“From the affidavits evidence before the Court there was no evidence to show that the killing of the Applicant’s sister [brother] by the Respondents was in execution of the order of Court in Nigerian. [sic] What was in evidence was that … when the Respondent’s officers fired shot and the bullet subsequently hit and killed her [him]. This being the case therefore, I agree with the submission of the learned Counsel for the Applicant that the killing … by the officers of the Respondents at Owode on 25th January, 2019 was illegal and unlawful as it was done in flagrant violation of Section 33 (1) of the Constitution of Federal Republic of Nigeria 1999 as amended I and [sic] so hold. This issue is also resolved in favour of the Applicant against the Respondents.”
Having so resolved this issue in favour of the Respondent, the lower Court held that compensation ought to be paid for the illegal and unlawful act that resulted in the violation of the right to life. It then made an award at page 108 of the Records as follows:
“I am of the considered view that the sum of N40m will be adequate damages for breach of the right to her [his] life.”
It is translucent that the decision of the lower Court and the award made was not for arrest and torture, but solely for the violation of the constitutional right to life enshrined in Section 33 (1) of the Constitution. This is what the lower Court stated at page 104 of the Records:
“Be that as it may, it has been the constant and unambiguous provision in our past and present constitutions that every Nigerian has a right to life and no one shall be deprived of his life save in execution of the sentence of a Court of law in respect of a criminal offence of which the person has been found guilty in Nigeria. See Section 33 (6) of the Constitution of Federal Republic of Nigeria 1999 (as amended).”
The paramount consideration in the resolution of this appeal is whether the lower Court was correct in its finding and decision that the affidavit evidence established that the killing of Olabode Sunday was not in execution of the order of any Court in Nigeria and that it was illegal, unlawful and in flagrant violation of Section 33 (1) of the 1999 Constitution as amended.
The action at the lower Court was for the enforcement of fundamental rights. It was not a criminal prosecution for murder or manslaughter. This remains so, irrespective of the fact that the action which resulted in the infringement of the fundamental right was the killing of the Respondent’s brother. The Appellants are dogged in their contention that since the facts on which the application for enforcement of fundamental rights are founded amount to criminal offences, that the Respondent did not prove the allegations beyond reasonable doubt. I am not enthralled by this contention. I do not think that the fact that the allegations have some criminal connotation would change the character and complexion of the case from one for the enforcement of fundamental rights, in order to require the Respondent to meet the criminal standard of proof beyond reasonable doubt. See OMONYAHUY vs. IGP (2015) LPELR (25581) 1 at 70 and 77 and NPF vs. OMOTOSHO (2018) LPELR (45778) 1 at 43-44. This Court, per Tsammani, JCA eloquently captured the legal position in the following words in the case of ADEKUNLE vs. A-G OGUN STATE (2014) LPELR (22569) 1 at 23-24:
“This matter was initiated under the Fundamental Rights (Enforcement Procedures) Rules, 1979. It is not in doubt that, the Fundamental Rights (Enforcement Procedure) Rules have been made as a special procedure for the speedy enforcement of the fundamental rights of the citizens. In other words, an action under the Fundamental Rights (Enforcement Procedure) Rules is a peculiar action. It is a kind of action which may be considered as sui generis i.e. it is a claim in a class of its own, though with a closer affinity to a civil action than a criminal action. The remedy available by this procedure is to enforce the Constitutional Rights available to citizens which has been contravened by another or others. Indeed, in most cases, the acts or facts giving rise to the contravention of such fundamental rights, may have some criminal connotation, but will not raise the allegations of breach of fundamental rights to the level or pedestal of a criminal allegation. I am therefore of the view that, to raise the standard of proof in an action for the enforcement of fundamental rights to that required in a criminal allegation, merely because the facts giving rise to the breach or contravention have semblance of criminal acts, will defeat the purpose of Section 46 (1) of the 1999 Constitution of Nigeria, which seeks a simple, easy to attain and thus effective judicial process for the enforcement of fundamental rights available to citizens under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria.”
See also COMMISSIONER OF POLICE, EKITI STATE vs. AREGBESOLA (2020) LPELR (50177) 1 at 29-31.
Having established that the legal position is that the standard of proof in an action for the enforcement of fundamental rights is not the criminal standard of proof beyond reasonable doubt, we shall now advert to the affidavit evidence which the lower Court held that it established the flagrant violation of the constitutional right to life under Section 33 (1) of the 1999 Constitution as amended. Actions for the enforcement of fundamental rights are governed by the procedure under the Fundamental Rights (Enforcement Procedure) Rules. It requires the use of affidavits for the speedy dispensation of fundamental rights actions. The actions are determined on the affidavit evidence of the parties, which affidavit evidence is properly evaluated by the Court to ascertain if the applicant had discharged the burden of proving that the fundamental rights were indeed eviscerated. See JACK vs. UNIV OF AGRIC, MAKURDI (2004) LPELR (1587) 1 at 13-14, ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535-536, MBANG vs. JANET (2014) LPELR (22656) 1 at 27 and GEORGEWILL vs. LAMBERT ELECTROMEC LTD (2021) LPELR (54469) 1 at 27-28.
In the prolegomenon, I redacted the case of the parties as made out in their respective affidavits. From the facts as made out, there is no dispute about the Appellants having fired shots at the Owode Area of Ogun State when they went for an operation. The only areas of disagreement and the core of the question to be resolved was whether death occurred consequent upon the shooting and whether the Appellants were at the scene on 21st January 2019 as opposed to 25th January 2019 asserted by the Respondent. For the Appellants, no one died as a result of the shots they fired into the air to disperse the hoodlums that attacked them; while the Respondent’s case is that the deceased Olabode Sunday was shot dead.
Section 33 (1) of the 1999 Constitution which enacts the constitutional right to life provides:
“Every person has a right to life, and no one shall be deprived intentionally of his life save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria.”
The lower Court held that this fundamental right was infringed as there is no evidence to show that the killing of the deceased Olabode Sunday was in execution of the order of Court in Nigeria and that the evidence was that the deceased Olabode Sunday was killed by a bullet from the shots fired by the Appellants’ officers (see page 104 of the Records).
Let me reiterate that the main area of disagreement is on the presence of the Appellants’ officers at Owode on 25th January, 2019 when the deceased was killed as opposed to 21st January 2019 when they concede that they were at Owode Area, shot in the air, but no one was killed. The Appellants challenge the reliance by the lower Court on Exhibits B and D of the Respondent’s Further Affidavit, contending that the said Exhibits were not Police Investigation Report and do not state the cause of death and persons responsible for the death.
With due deference to learned counsel for the Appellants, the lower Court rightly utilised Exhibits B and D to resolve the main areas of disagreement as to when the incident happened, whether 21st January 2019 or 25th January 2019; and whether any persons died. The lower Court consequently held that the 1st Appellant’s officers were actually at Owode Area on 25th January 2019 and that all accusing fingers point to the Appellants’ officers as the violators of the right to life. (See pages 102 and 103 of the Records). Now, Exhibit B is the letter from the Divisional Police Officer in charge of Owode Police Division and it confirms that there was an incident of extra-judicial killing of five (5) persons in the Owode Area of Ogun State by Customs Officers attached to Idiroko Border on 25th January 2019 and that it was already subject of investigation by the State Criminal Intelligence and Investigation Department (SCIID) Abeokuta. So it establishes that the incident was on 25th January 2019. (See page 34 of the Records).
On the other hand, Exhibit D is a letter from State Hospital Ota (see page 39 of the Records); and it acknowledges that five corpses were brought in dead on 25th January 2019, allegedly killed by Customs Officers and deposited at the Hospital by policemen from Owode Police Division. So Exhibit D affords evidence on record that some persons died as a result of the incident, contrary to the Appellants’ contention that nobody died. So the integral evaluation of the affidavit evidence and Exhibits B and D establish that it was on 25th January 2019 that the Appellants’ officers fired the shots at the Owode Area and that some persons died from the shots that were fired.
The Appellants’ complaint against the decision of the lower Court is that the lower Court failed to properly evaluate the evidence before it and thereby came to a wrong conclusion as there was no evidence before it that the Respondent proved his case. In simple terms, evaluation of evidence is the assessment of facts by the Court to ascertain which of the parties to a case has more preponderant evidence. The lower Court in entering judgment for the Respondent held that the Respondent had more preponderant evidence. The Appellants are hankering after the setting aside of the said decision based on their contention that the lower Court failed to properly evaluate the evidence and thereby came to a wrong decision. The evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. Where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. An appellate Court is loath to interfere with the findings of facts made by the trial Court except, inter alia, where there is insufficient evidence to sustain the judgment; or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence; or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46 47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320, FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48, TERIBA vs. ADEYEMO (2010) LPELR (3143) 1 at 15-16, ATOLAGBE vs. SHORUN (1985) LPELR (592) 1 at 30 and ANYANWU vs. UZOWUAKA (2009) LPELR (515) 1 at 17-18.
I have insightfully gone through the evidence on record and I am not in any doubt whatsoever that the lower Court justifiably appraised the facts and unquestionably evaluated the evidence. The findings arrived at flow from the accepted evidence and they are not perverse. There is no basis for an appellate Court to interfere since it is not the business of an appellate Court to embark on a fresh appraisal of the evidence when the trial Court has unquestionably evaluated and appraised the evidence. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21, AWOYALE vs. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47. I am satisfied that the lower Court unquestionably evaluated the evidence, justifiably appraised the facts and came to the correct conclusion on the evidence.
In conflation, the sole issue for determination is resolved against the Appellants. The appeal is devoid of merit. Accordingly, the appeal fails and is deserving of dismissal. However, given the manner in which the preliminary objection on the service of the Notice of Appeal was resolved, the proper order to make since the jurisdiction of the Court to entertain the appeal was not activated will be an order striking out the appeal for want of jurisdiction: ODEY vs. ALAGA (supra). The appeal is accordingly struck out with costs of N200,000.00 in favour of the Respondent.
JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft, a copy of the lead judgment of my Learned brother UGOCHUKWU ANTHONY OGAKWU, JCA just delivered.
This appeal is related to appeal NO- CA/IB/344/2020. The facts and the cause of action are the same.
My Lord has adequately dealt with the issues in this appeal and I agree entirely with the reasons given therein as well as the conclusion that the appeal is incompetent and should be struck out.
I will also emphasise that the Notice of Appeal is the Originating Process and spinal cord of an appeal and that the failure to serve the Respondent with the Notice of Appeal is a fundamental defect which affects the jurisdiction of this Court to entertain the appeal.
Order 2 Rule 1 of the Court of Appeal Rules 2021 requires that service of the Notice of Appeal be effected on the Respondent personally or by electronic mail to the electronic mail address of the Respondent.
In this appeal, it was shown beyond reasonable doubt that the Notice of Appeal was not served on the Respondent. The consequence of this is that the jurisdiction of this Court is not activated.
The non-service of the Notice of Appeal on the Respondent has rendered the appeal incompetent and liable to be struck out.
See – ODEY VS ALAGA & OTHERS (2021) LPELR-53408 (SC).
– AKINLOYE VS ADELAKUN (2000) 5 NWLR PART 657 PAGE 530.
– SKEN CONSULT NIG. LTD VS UKEY (1981) 1 S. C. PAGE 6.
– NBN LTD VS GUTHRIE (NIG) LTD (1993) 3 NWLR PART 1195 PAGE 48.
Consequent upon the foregoing and in view of the detailed reasons contained in the lead judgment, I am also of the view that this appeal deserves to be struck out and it is hereby struck out.
I abide by the order as to cost made in the lead judgment.
ABBA BELLO MOHAMMED, J.C.A.: I had read in draft, the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree with his reasoning and conclusions both in relation to the Respondent’s preliminary objection and in respect of the substantive appeal.
On the first prong of the Respondent’s preliminary objection challenging the competence of the appeal, which is predicated on non-service of the Notice of Appeal, it is trite that a Notice of Appeal is the originating process that initiates an appeal: OKARIKA & ORS v SAMUEL & ANOR (2013) LPELR-19935(SC), per Ogunbiyi, JSC at page 31, para. C; and DANIEL v INEC (2015) LPELR-24566(SC), per Rhodes-Vivour, JSC at pages 32-33, para. E.
Order 2 Rule 1 of both the 2016 and 2021 Court of Appeal Rules, mandates that Notice of Appeal must be served personally or by electronic mail to the electronic mail address of the Respondent(s). In the instant appeal, the record shows that service of the Notice of Appeal was only attempted by the Bailiff at the Respondent’s address for service on record, but was not effected as required by the said Rules. Being an originating process, Notice of Appeal must be served personally on the Respondent(s), unless otherwise ordered by the Court or exempted by law: IHEDIOHA & ANOR v OKOROCHA & ORS (2015) LPELR-40837(SC), per Okoro, JSC at page 31, para. A. It is the proper service of the Notice of Appeal that activates the jurisdiction of the Court. It is therefore, a pre-condition to the competence of the Court to determine the appeal: ADERIBIGBE & ANOR v ABIDOYE (2009) LPELR-140(SC), per Oguntade, JSC at pages 28–29, para. D; and DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD v ESAPHARMA SRL ITALY & ANOR (2017) LPELR-42695(CA), per Nimpar, JCA at pages 19–21, para. E.
In the instant appeal, the non-service of the Notice of Appeal on the Respondent has rendered the appeal incompetent and has not activated the jurisdiction of this Court to entertain the appeal. I so hold.
As for the second prong of the Respondent’s preliminary objection which attacks the sole ground of appeal and the competence of the Notice of Appeal, the essential contention of the Respondent is that the sole ground of appeal is one of mixed law and fact which requires leave of Court to maintain, and no leave of Court was sought by the Appellants before same was filed. Observably however, this appeal is against the final judgment of the Federal High Court, Abeokuta Division. By the express provision of Section 241 (1) (a) of the 1999 Constitution, appeals to the Court of Appeal from final decisions of the Federal High Court or a High Court sitting at first instance do not require leave of Court, whether such appeal is grounded on law, on fact or mixed law and fact. See: AULT & WIBORG (NIG) LTD v NIBEL INDUSTRIES LTD (2010) LPELR-639(SC), per Fabiyi, JSC at pages 15–18, para. D; and DANKWAMBO v ABUBAKAR & ORS (2015) LPELR-25716(SC), per Peter-Odili, JSC at pages 61–62, para. E. Being an appeal against the final judgment of the Federal High Court, Abeokuta Division delivered on 16th July, 2020, the appeal is as of right. No leave is therefore required for the sole ground of appeal to be competent.
It is for the above reasons which are more elaborately stated in the lead judgment, that I also uphold the first ground of the Preliminary objection over non-service of the Notice of Appeal and hold that the appeal is incompetent and deserves to be struck out for want of jurisdiction.
In the event that this appeal deserves a merited consideration, the essential issue is notably whether the Respondent had proved his case to be entitled to the reliefs granted by the trial Court. Having carefully gone through the Record of Appeal, especially the affidavit evidence led before the trial Court and the trial Court’s evaluation and findings which it made thereon, I am at one with the reasoning and conclusions of my learned brother Ogakwu, JCA, that the trial Court had properly evaluated the evidence led before it. This being the case, an appellate Court which this Court is, will not interfere with the evaluation so carried out by the trial Court even if it would have evaluated such evidence differently: OBUEKE & ORS v NNAMCHI & ORS (2012) LPELR-7810(SC), per Peter-Odili, JSC at page 25, para. B.
In consequence, I also find this appeal devoid of merit, deserving of a dismissal. However, since the preliminary objection of the Respondent over non-service of the Notice of Appeal has been upheld, I join my learned brother, Ogakwu, JCA in holding that the appeal is incompetent in the first place and this Court lacks the jurisdiction to entertain same. Accordingly, I hereby strike out the appeal for want of jurisdiction. I abide by the consequential order as to cost contained in the lead judgment.
Appearances:
Abubakar Musa, Esq. For Appellant(s)
O. E. Ogungbeje, Esq. For Respondent(s)
