NIGERIAN AIR FORCE & ORS v. CHIA & ORS (2021)

NIGERIAN AIR FORCE & ORS v. CHIA & ORS

(2021)LCN/15065(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, March 04, 2021

CA/MKD/54/2016

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

THE NIGERIAN AIR FORCE 2. THE COMMANDER NIGERIAN AIR FORCE TACTICAL AIR COMMAND, MAKURDI 3. THE COMMANDER NIGERIAN AIR FORCE BASE, MAKURDI 4. CHIEF OF AIR STAFF, NIGERIAN AIR FORCE, ABUJA 5. THE MINISTER OF DEFENCE, DEFENCE HQ, ABUJA APPELANT(S)

And

CLEMENT TERFA CHIA 2. CLETUS ATENGER 3. GABRIEL ATOO 4. VERONICA AHUNDU 5. SEBASTINE ANYIMAN 6. EPHRAIM GUMJI 7. MRS. BRIDGET AHURA 8. MR. JAMES A. KWAGHAGER (REPRESENTING APKEN COMMUNITY) RESPONDENT(S)

RATIO

POSITION OF THE LAW AGAINST PROLIFERATION OF ISSUES

The law on proliferation of issues was aptly restated in the case of APATA V OLANLOKUN & ANOR (2013) LPELR-20938(SC) thusly: “This Court has stated and restated that it abhors the proliferation of issues where only a few issues would determine the appeal. Ogbuagu, JSC, in G.K.F. INVESTMENT NIG. LTD. v. NIGERIA TELECOMMUNICATIONS PLC. (2009) 15 NWLR (PART 1164) 344 put it simply this way, “I need to stress that this Court discourages the proliferation of issues.” Musdapher JSC, (as he then was) was more emphatic. In OMEGA BANK (NIG.) PLC. v. O.B.C. LTD (2005) 8 NWLR (PART 928) 547 he stated thus; “This Court has on several occasions condemned the proliferation of issues in briefs of argument. It is not the number of issues for determination formulated that determines the quality of a brief or that determines the success of an appeal.” Edozie, JSC, in IBRAHIM V. OJOMO (2004) 4 NWLR (PART 862) 89 was just as emphatic when he said as follows: “Prolixity or proliferation of issues is not ideal as it tends to obscure the core issues to be determined and tends to reduce the issue to trifles. Appeals are not won on large number or quality of grounds of appeal but on the quality of the content of the grounds of appeal and issues.” See also MOZIE & ORS V. MBAMALI & ORS (2006) 15 NWLR (PART 1003) 466; UGO V. OBIEKWE (1989) 1 NWLR (PART 99) 566; ANON LODGE HOTELS LTD v. MERCANTILE BANK OF NIGERIA LTD. (1993) 3 NWLR (PART 284) 721.” Per ALAGOA, J.S.C. The rule for distilling issues for determination was not adhered to by the Appellants in donating 5 issues from 4 grounds of appeal. The Appellants also did not tie/link the grounds to the issues as required, if that was done, it would have shed light on the issue/issues without a foundation in the grounds of appeal. As it is reflected, it cannot be said from which ground each issue was distilled from. The Appellants obviously split a ground of appeal into 2 issues and that too is not allowed. See NACB LTD V. OZOEMELAM (2016) LPELR-26051(SC) wherein the apex Court held thus: “A more fundamental vice bedevilling the Respondent’s issues is the marriage of the said issues with the appellant’s three grounds of appeal. Issue 1 is said to be a product of grounds 2 and 3 of the Notice of Appeal while issues 2 and 3 are framed from appellant’s grounds 1 and 3. Ground 3 of the Notice of Appeal is therefore split into three to form issues 1, 2 and 3. Since one issue is framed from one, but usually a combination of grounds of appeal, it is manifestly wrong to split one ground of appeal into three issues as the Respondent has done. It is undesirable to split an issue in appeal. See Labiyi v. Anretiola (supra). It is equally not appropriate to split a ground of appeal in the formulation of issues.” Per NGWUTA, J.S.C See also the case of OMOZEGHIAN V. ADJARHO & ANOR (2005) LPELR-7489 (CA) where the Court held thus: “I agree with the respondents that the issues as formulated by the appellant are more wide-ranging than are necessary in the determination of this appeal. In addition, the appellant split his issue 2 into (i), (ii), & (iii) which is absolutely unacceptable. Authorities abound which state that it is clearly unacceptable for an issue to raise in it, other issues. It is well settled that most appeals are won on a few cogent and substantial issues, well framed, researched and presented them on numerous trifling slips. See Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197; & Ehikhamwen v. Iluobe (2002) 2 NWLR (Pt.750) 151 where the Court also held that the practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues.” Per AUGIE, J.S.C See also CHIAIN KONCRETE NIG LTD V. GOVERNOR OF BENUE STATE & ORS (2013) LPELR-22750 (CA). PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER AN APPELLATE COURT CAN FORMULATE ISSUES FOR DETERMINATION IT BELIEVES WOULD ADEQUATELY DETERMINE THE GRIEVANCE IN THE APPEAL

The Court has no other option but to formulate issues for determination in this appeal in the interest of justice and on the authority of EMEKA V STATE (2014) LPELR-23020 (SC) which held: “It is rather a triable argument or merely frivolous for the appellant to contend that the appellate Court, in considering an appeal before it has no discretion to either adopt the issues formulated for determination by the parties or alternatively formulate such issue(s) it believes would adequately determine the grievance in the appeal. Recently, what this Court said in AGBAREH v. MIMRA (2008) 2 NWLR (Pt. 1071) 378 at 410, further emphasis the triteness of the law on this trig-point. It was held thus: “Finally an appellate Court can prefer an issue or issues formulated by any of the parties and can itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) 1 & Anor v. Da Rap. Kwan & 4 Ors (2000) 8 NWLR (Pt. 670) 685, (2000) 5 SCNJ 101; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbonla & 3 Ors (2003) 2 NWLR (Pt. 804) 399, (2003) 1 SCNJ 463 at 479 and Emeka Nwana v. Federal Capital Development Authority & 5 Ors (2004) 13 NWLR (Pt. 889) 128 at 142 – 143; (2004) 7 SCNJ 90 at 99 citing several others cases therein.” Per GALADIMA, J.S.C PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER THE RULES OF COURT CAN BESTOW JURISDICTION ON A COURT

The Rules of Court do not bestow jurisdiction on a Court, jurisdiction of the Court is bestowed by the Constitution or Statute. See the case of OKEZIE V. FEDERAL-ATTORNEY & ANOR (1979) LEPLR-2448(SC) wherein the apex Court held thus: “The Court also found it necessary to point out that Supreme Court Rules, 1977 on which counsel relied, in particular Order 5, cannot confer jurisdiction on, or enlarge the jurisdiction of the Supreme Court, since the Supreme Court cannot confer jurisdiction on itself and thereby usurp the function of the constitution-making authority or the legislature.” Per ALEXANDER, J.S.C See also ONYENOBI V. AMADI & ORS (2013) LPELR-22041(CA) where the Court held as follows: “Now, it is trite law that Courts of law are creation of either the Constitution or statute and therefore, their jurisdiction is circumscribed or limited to those conferred on it by the Constitution or the statute. In the same vein, Appeals are creatures of the Constitution or statute. In other words, an appellate jurisdiction is generally conferred on the appellate Court either by the Constitution or a statute of the National or State House of Assembly. In that respect, no Court has jurisdiction to hear and adjudicate on a matter brought before it, unless it has such jurisdiction donated or conferred on it by the Constitution or other statute. Furthermore, failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competently filed before the Court will deprive the appellate Court of the jurisdiction to hear and determine the appeal. See EHUWA v O.S.I.E.C. (2006) 18 NWLR (Pt.1012) p.544: IWUAGOLU v AZYKA (2007) 5 NWLR (pt.1028) p.613 and UWAZURIKE v A.G. FEDERATION (2007) 8 NWLR (Pt.1035) P.1.” Per TSAMMANI, J.C.A See also the cases of TIZA & ANOR V. BEGHA (2005) LPELR-3251(SC); ELIGWE V. OKPOKIRI & ORS (2014) LPELR-24213(SC); OPARA & ANOR V. AMADI & ANOR (2013) LPELR-20747(SC). Rules of Court are the handmaid with which to achieve substantial justice and not to control the Court and lead it in to doing injustice. See DUKE V AKPABUYO L. G(2005) LPELR-963(SC) where the Court held as follows: “…it is now firmly settled, that a breach of a rule of practice, can only render a proceeding an irregularity and not a nullity. See Alhaji Saude v. Alhaji Abdullahi (1989) 4 NWLR (Pt.116) 387; (1989) 7 SCNJ 216; (1989) 2 SC 216.” Even if any part of the Fundamental Rules was breached as long as justice was done, it will not nullify the proceedings nor divest the Court of jurisdiction. There is a difference between procedural and substantive jurisdiction, see the case of NDAYAKO & ORS V. DANTORO & ORS (2004) LPELR-1968(SC) wherein the Court held as follows: “It is noteworthy that a distinction must be drawn between two types of jurisdictions viz jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or a statute or any provision of the common law says that the Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court e.g. where a writ has been served outside jurisdiction without leave.” Per EDOZIE, J.S.C In NAGOGO V. CPC & ORS (2012) LPELR-15521(SC), the apex Court held thus: “It is settled law that jurisdiction as a substantive law is not amenable to be waived as is the case with procedural jurisdiction which can be waived. It is clear that procedural jurisdiction does not go to root of the action. Normally, the litigant is allowed to cure the defect in the form of action by amendments with regard to the form of action provided there is no misleading of the other party to the action by the mistake.” Per CHUKWUMA-ENEH, J.S.C PER YARGATA BYENCHIT NIMPAR, J.C.A.

DUTY OF THE COURT TO CONSIDER AND DETERMINE ALL THE ISSUES PRESENTED BY THE PARTIES BEFORE HIM

It is trite that a Judge is duty bound to determine all issue presented by parties before him. See the case of DINGYADI & ANOR V. INEC & ORS (2010) LPELR- 40142(SC) wherein the apex Court held thus: “It is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. … it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such questions… See the case of Mobil Prod. (Nig.) Ltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346 at PP. 412 – 413, Uwaifo, JSC, stressed the point lucidly as follows: it has been laid down in many decisions that it is the duty of a Court to entertain and decide on the merit of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application. It seems to me that this principle of law has been solidly laid down by the Court of Appeal. There are very many of its decided cases on it, a few may be cited thus: Eguamwense v. Amaghizemwen (1986) 5 NWLR (Pt.41) 282; Harrods Ltd. v. Anifalaje (1986) 5 NWLR (Pt.43) 603; Kotoye v. Saraki (1991) 8 NWLR (Pt.211) 638; Mokwe v. Williams (1997) 11 NWLR (Pt. 528) 309; Okoro V. Okoro (1998) 3 NWLR. (Pt. 540) 65; Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622..” Per MUHAMMAD, J.S.C And the case NWUAMADIKE V. IGP & ORS (2018) LPELR-46039(CA) wherein the Court held thus: “…The current disposition of the Courts is to promote the hearing and determination of a matter on the merits where the same can be accomplished without prejudice or injustice being occasioned to the other party. No prejudice, injustice or miscarriage of justice was occasioned to the Appellant because the lower Court having granted the 1st and 2nd Respondents’ application gave the Appellant the opportunity to react to the processes of the 1st and 2nd Respondents… In a coda, these issue numbers three and four are resolved against the Appellant. The lower Court did not sit on appeal and overrule itself and the lower Court was right to have heard the pending application filed by the 1st and 2nd Respondents, as it was duty bound to do.” Per OGAKWU, J.C.A See also the following cases7UP BOTTLING CO. LTD & ORS V. ABIOLA & SONS BOTTLING CO. LTD (2001) LPELR-1(SC); BRAWAL SHIPPING NIG. LTD V. F. I. ONWADIKE CO. LTD & ANOR (2000) LPELR 802 (SC) and LONG-JOHN & ORS V. BLAKK & ORS (1998) LPELR-1971 (SC).PER YARGATA BYENCHIT NIMPAR, J.C.A.

EFFECT OF THE DENIAL OF THE RIGHT OF A PARTY TO FAIR HEARING

Fair hearing has received judicial attention in a plethora of decisions, see the case of ARIJE V. ARIJE & ORS (2018) LPELR-44193 (SC); UKPAI V. OKORO & ORS (1983) LPELR-3347(SC); EKIYOR & ANOR V. BOMOR (1997) LPELR-1082 (SC); EZE V. FRN (2017) LPELR-42097(SC); OGUNSANYA V. STATE (2011) LPELR-2349; PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR-42563(SC) wherein the apex Court held thus: “Where a party who is entitled to be given an opportunity to be heard is denied that opportunity, which in fairness he is entitled, the proceedings and order emanating therefrom, as held by Wheeler, J, in OGUCHE v. KANO PUBLIC SERVICE COMMISSION (1974) 1 NWLR 128, are all null and void for breaching rules of natural justice. I completely agree. This Court arrived at the same conclusion in RASAKI A. SALU v. TAIWO EGEIBON(1994) 6 SCNJ 223; (1994) 6 NWLR (Pt.348) 23. A breach of the right to fair hearing renders the proceedings, including the judgment in the case, null and void. A suit or an action in a law Court contrived to deny parties adversely affected an opportunity to be heard before the judgment affecting them is one designed mala fide or mischievously to deny fair hearing. Public policy does not permit this mischief. It completely abhors the mischief. The principle of audi alteram partem is recognised as a vibrant component of the principle of fair hearing. See ARUBO v. AIYELERU & ORS. (1993) 2 SCNJ. 90; (1993) 3 NWLR (Pt.280) 126. Thus, the breach of the principle of fair hearing creates an unfortunate impression that the judge was not acting as an impartial umpire, which by Sections 17 (2)(e) and 36 (1) of the Constitution he is enjoined, throughout the proceedings before him, to maintain… Fair hearing in every suit or action cannot be achieved unless all parties affected or likely to be adversely affected by the suit are heard or given an opportunity to be heard. See OTAPO v. SUNMONU & ORS. (1987) 5 SCNJ. 57; (1987) 2 NWLR (Pt.58) 587.” Per EKO, J.S.C PER YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Benue State High Court sitting in Makurdi delivered by HON. JUSTICE A. O. ONUM on the 30th November, 2015 wherein the lower Court entered judgment against the Appellants and awarded the sum of N20,000,000.00 (Twenty Million Naira) as damages for violating the fundamental rights of the Respondents. The Appellants dissatisfied with the judgment, filed a Notice of Appeal dated 18th January, 2016 setting out 4 grounds of Appeal.

Facts leading to this appeal are straight forward and can be summarized in the following way. I shall do so shortly. The Respondents by way of an Application dated 10th of November, 2014 brought a Fundamental Rights Enforcement proceedings to enforce their fundamental Rights against the acts of the Appellants that forcefully, unlawfully and illegally arrested and detained members of Akpen Community in guard rooms and disused toilets at the Nigeria Air force base Makurdi. The Respondents sought the followings reliefs:
a. AN ORDER(S) to secure the enforcement, and protection of the Applicants (Respondents) Fundamental

Rights in terms of the statement of fact and statement of relief sought as filed herewith.
b. A DECLARATION that the Respondents’ (Appellants) attempts to forcefully vacate the Applicants from the expanse of land next to or bordering the western boundary of the Respondents’ Makurdi Base which the Applicant settled on for over 50 years is illegal, arbitrary, wrongful, unconstitutional, null and void, and is in breach of the Applicants (Respondents) Fundamental Rights of freedom to own land and to settle anywhere in Nigeria without discrimination as guaranteed by Sections 42, 43, 46 of the 1999 Nigeria Constitution.
c. A DECLARATION that the Respondents’ (Appellants) capricious marking of (over 150 Nos.) houses belonging to the Applicants (Respondents) and other affected members of the said Apken Community including a Church and the arrest, torture and detention of members of Akpen Community in the Appellants’ (Respondents) military toilets/guardrooms for 3 days (21/9/2013-23/9/2013) and the threat to further brutalize them if they do not vacate their houses for demolition amount to violations of their Fundamental Rights to

personal liberty, dignity of human person, right to movement and freedom from discrimination contrary to Section 34, 35, 42 of the Constitution of Nigeria, 1999.
d. A DECLARATION that the Respondents’ (Appellants) rampageous, callous and sadistic conduct expressed in relief (a), (b) & (c) hereof, and in the accompanying statement of acts hereto, entitles the Applicants to compensation in damages.
e. AN ORDER directing the Respondents (Appellants) to cause the erasure of mischievous ‘X’ marking on the Applicants 99 structures on the land including two fuel stations and a church auditorium and the priest residence.
f. AN ORDER compelling/directing the Respondents (Appellants) to pay the Applicants, (see full list in Appendix ‘A’) monetary compensation to the tune of N5,000,000,000.00 (Five Billion Naira) for the aggravated violation of their Human Rights.
g. AN ORDER of perpetual injunction restraining the Respondents (Appellants), their agents, privies and representatives from further harassing, brutalizing and threatening to sack the Applicants (Respondents) from Akpen Community land situate on the right

hand side of the Makurdi-Gboko Road between Ambilla stream and the block wall fence near the AOC’s Residence.
h. AN ORDER directing the Respondents (Appellants) to remove to another location the road block mounted on the said Makurdi – Gboko Road by Akpen Catholic Church.
i. AN ORDER directing the officers and men of the Respondent (Appellants) to stop sexual harassment of female members of Akpen Community at the uncompleted filing station owed by Ugbechi Nigeria Limited at the military check point.
j. AN ORDER directing the Respondents (Appellants) to cause public apology to be published for the infringement of Applicants’ (Respondents) Fundamental Rights in two National and one local dailies within seven (7) days from the date judgment.

In opposition to the claims of the Respondents, the Appellants filed a 35 paragraphs counter affidavit denying the allegation. Also, the Respondents in reaction to the Counter affidavit filed and served a further and better affidavit. Upon hearing, the trial entered judgment in favour of the Respondents and awarded the sum of N20,000,000 (Twenty Million Naira) as damages for violating the Fundamental Rights of the Respondents.

The Appellants’ brief settled by AMOS NENFORT, ESQ., is dated 24th day of October, 2016, filed on the 7th November, 2016 but deemed on the 3rd May, 2017 and it distilled 5 issues for determination as follows:
1. Whether the learned trial Judge was right when he refused to strike out the incompetent further and better affidavit of the Respondents dated 28/7/2015.
2. Whether learned trial Judge denied the Appellants fair hearing in failing to consider the defence of the Appellants that the intention to eject the Respondents from the land is in the interest of defence and public safety, in the overriding public interest.
3. Whether the Honourable trial Judge properly relied on Exhibits generated from computers and copied from the originals when the Respondents did not comply with the provisions of the Evidence Act, Laws of the Federation of Nigeria, 2011.
4. Whether the Honourable learned trial Judge properly evaluated the evidence placed before him?
5. Whether the Honourable Court learned trial Judge misdirected himself in facts and erred in law in the award of damages to the Respondents,

he held that “the Respondent shall jointly and severally pay N20,000,000.00 (Twenty Million Naira Only) to the members of the Applicants community earlier listed in the opening part of the Judgment on account of the breach of their fundamental rights to dignity of their respective human persons.”

The Respondents’ Brief settled by P.D. ADI, ESQ., is dated 28th March, 2018 and filed on the 5th April, 2018. It was deemed on the 23rd June, 2020 and he adopted the issues formulated by the Appellant counsel and re-couches it.

The Respondent also filed a Notice of Preliminary Objection dated 28th March, 2018 on the 5th April, 2018, setting out 5 grounds of objection. It was also incorporated in the Respondent’s Brief with arguments in support at pages 3 -7 of the Respondent’s Brief.

The Appellants did not react to the preliminary objection, however, it shall still be determined on the merit.

PRELIMINARY OBJECTION
GROUNDS UPON WHICH THE OBJECTION IS RAISED
1. The purported grounds of appeal and the lone particulars of error to grounds one (1) and two (2) of the notice of appeal failed to comply with the

conditions for a ground of appeal, failed to comply with the conditions for a ground of appeal alleging misdirection or error in law.
2. The particulars of error to grounds one (1) and two (2) of the notice of appeal are not related to or flows from grounds one (1) and two (2) of the notice of appeal.
3. That ground three (3) of the notice of appeal is invalid as same comprise of defective particulars contrary to the decision in NWADIKE V. IBEKWE (1987) 4 NWLR (PT. 67) 718.
4. That ground four of the notice of appeal failed to comply with the conditions for a ground of appeal alleging misdirection in law and facts.
5. The particulars of error to ground four of the notice of appeal are independent complaint from the ground of appeal.

The Respondents argued that the grounds of appeal are complaints by the Appellant and the particulars of error of a ground are meant to bring to fore the real complaint of the Appellants against the judgment appealed against where a ground of appeal alleges misdirection or error in law as provided in ORDER 7 RULE 2 (2) COURT OF APPEAL RULES, 2016 and the case of MANSON V. HALLIBURTON ENERGY SERVICES LTD

(2007) 2 NWLR (PT. 1018) 211. According to the Respondent, in MANSON V. HALLIBURTON ENERGY SERVICES LTD (SUPRA), the Court provides three basic conditions for an Appellant to comply with in observing Order 7 Rule 2 (2) Court Of Appeal Rules, 2016 which are:
i. The ground must quote the passage in the judgment where the misdirection or error in law is alleged to have occurred.
ii. It must specify the nature of the error in law or misdirection; and
iii. It must give full and substantial particulars of the alleged error or misdirection.

The Respondents also argued that in the instant case, all the grounds of appeal in the Appellants notice of appeal woefully failed to give validity to the said grounds of Appeal as required by Order 7 Rule 2 (2) Court Of Appeal Rules, 2016. It is thus mandatory that the misdirection or error in law in a ground of appeal must be stated. Cited NWAKO V. GOVERNOR OF RIVERS STATE (1989) 2 NWLR (PT. 104) 470; LUCAS PHARMACEUTICAL CHEMIST LTD V. ROCHIE (NIG) LTD (1995) 1 NWLR (PT. 369) 28. Equally, the particulars of a ground of appeal are intimately related to the ground and cannot be divorced from it. This makes it

imperative that for particulars in a ground of appeal to be effective, it should have the following attributes:
i. Should be related to the ground and flow from it.
ii. Should not be vague.
iii. Must not be hypothetical. It must relate to the question. decided by the lower Court.
iv. Shall not be argumentative or narrative.

The Respondents further argued that a defective particular invalidates the grounds of appeal as held inLAAH V. OPALUWA at pages 416 of the Principle of Appellate practice in Nigeria through the cases by Chief Tom Anyafulude (1st Ed.). In the instant case, ground one in the notice of appeal challenges the refusal of the trial Court to sustain the objection on the competence of a further affidavit filed by the Respondents, however the particulars did not expatiate what was alleged in ground one rather it expatiate on amendment of statement and further affidavit under Order 6 Rule 2 of the Fundament Rights (Enforcement Procedure) Rules 2009, this made both the ground and particulars incomprehensible. No genuine complaint can be distilled out of the ground 1 and 2. Also, the Respondents submit that ground two alleged

failure of the Court below to consider the Appellants defence which is predicated on the overriding interest of the public. But the particulars raised issue of fair hearing which does not emanate from the judgment of the lower Court, this attitude calls the Court to act according to Order 7 Rule 2 (2) Court of Appeal Rules, 2016. The Respondents submits that ground 1 and 2 are vague and same be struck out.

The Respondent contend that Ground 3 complained of the Appellants’ acts of self help and consequent exposure of Respondents to hazard of weather, inhuman treatment contrary to Fundamental Rights to dignity of human person, however it particularize the inaction of the Respondents complained by the Court below to an erroneous belief as insight on the ground. Finally, Ground 4 complained of the award of damages against the Appellant jointly and severally in the sum of Twenty Million Naira (N20, 000,000.00) but raised particulars that throw more light on the complaint in the said ground four.

Furthermore, the Respondents submits that from a careful perusal of the entire grounds on the notice of appeal, the grounds have stated the complaint

without particulars or stated the particulars that are not in any way related to the grounds attached or sought to expatiate. The Respondents urge the Court to strike out the grounds of appeal and in the absence of any competent ground of appeal dismiss the Appellants appeal in its entirety.

RESOLUTION OF THE PRELIMINARY OBJECTION
The Respondents contends the Appellants did not comply with ORDER 7 RULE 2 (2) of the Court of Appeal Rules, 2016, which provides that:
“where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
The 4 grounds of appeal complained about which is shorn of particulars states thus:
“GROUND ONE:
The learned Honourable trial Judge misdirected himself and erred in law in refusing to sustain the objection raised by the Appellants on the competence of a further and better affidavit filed by the Respondents when he held, “nothing in foregoing provision requires the leave of Court before a further affidavit is filed.”
GROUND TWO
The learned Honourable trial Judge misdirected himself and

erred in law when he failed to consider the defence of the Appellants that the intention to eject the Respondents from the land are in the interest of defence and public safety in the overriding interest of the public.
GROUND 3
The learned Honourable trial Judge misdirected himself and erred in law when he relied on Exhibits B1, B2, B3, B4, B6, B6I, CI, C2, C3, C4, D, E1 E2, F, G, G2 and held “I declare that in demolishing the landed property of some of the Applicants’ community in acts of self help and exposing the members to the hazards of weather, including the brutalization of some of them, the respondents were in breach of the fundamental rights of the members to the dignity of their human persons.”
GROUND 4
The learned Honourable trial Judge misdirected himself in facts and erred in law in the award of damages to the Respondents when he held that “the Respondents shall jointly and severally pay N20,000,000.00 (Twenty Million Naira Only) to the members of the Appellants’ community of the breach of their fundamental rights to the dignity of their respective human persons.’’

The Respondents’ complaint is that the particulars were independent complaints and unrelated to the grounds of appeal. Expectedly, a ground alleging a misdirection is required to comply with certain standards or qualifying factors named in the case of MANSON V HALLIBURTON (supra), the 3 qualifying factors are thus:
a. That the ground must quote the passage in the judgment where the misdirection or error in law is alleged to have occurred.
b. That it must specify the nature of the error in law or misdirection; and
c. It must give full and substantial particulars of the alleged error or misdirection.
An appeal is an invitation to a higher Court to review a decision of a lower Court, and grounds of appeal are basically highlights of the error of law or fact or mixed law and fact made by a lower Court in the decision sought to be set aside on appeal. Therefore, a ground of appeal must be related to the decision of the lower Court and must show the complain that the Appellants relies upon to succeed in setting aside the ratio decidendi of the judgment and not just observations or any passing remark of a Judge in the course of writing the

judgment. See FIRST BANK & ORS V A. G. FEDERATION & ORS (2018) LPELR- 46084 (SC). The Respondents placed so much emphasis on the particulars to the grounds contending that they are defective and not flowing from the grounds of appeal. It is settled that a ground of appeal cannot be competent without particulars, except composite grounds incorporating particulars. However, there is shift in considering inelegant or defective particulars to a ground of appeal. The essence or purpose of a ground of appeal is to give adequate notice to the opposing side about the complaint with the judgment, the apex Court in the case ofJULIUS BERGER & ANOR V TOKI RAINBOW COMMUNITY BANK LTD (2019) LPELR-46408(SC) said thus:
“… It is now trite in law that the aim or purpose of a ground of appeal is to give the opposing party notice of the case it has to meet at the appellate Court and the particulars of error or misdirection alleged only intended to showcase the complaint against the decision appealed against. The particulars are not independent of the ground but must be in harmony and compatible with the grounds.”

Augie, JSC in the case of AWUSA V NIGERIAN ARMY (2018) LPELR-44377(SC) said:
“It is also settled that the particulars are the specific reasoning, finding or observations relating to or projecting the error or misdirection complained of – see Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265 SC, wherein this Court, per Akpata, JSC, further explained as follows: They are in a sense the itemization of the error or misdirection in the Judgment or Ruling. Particulars required are not the arguments or narratives that should be proffered at the hearing of the Appeal to establish that the Court erred or misdirected itself. They should also not be independent complaint from the ground – – but ancillary to it. See also Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC), wherein M. D. Muhammad, JSC, observed that: The complaint of an Appellant can hardly be understood where there is a dichotomy between the mother/main ground and its “children” or particulars. The law does not allow a party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against the decision is.

To determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties.” Per AUGIE, J.S.C
See also the case of ACCESS BANK PLC V SIJUWADE (2016) LPELR 40188 (CA) per Danjuma JCA as follows:-
“… the sum total of all legal principles and judicial precedents on the relationship between ground of appeal and supporting particulars is that on reading a ground of appeal and its particulars, the adverse party must be left in no doubt as to what the complaint of the appellant is. In other words, a ground of appeal and its particulars go together. Where the particulars in support of ground are not related to the ground, the ground is incompetent. See Hambe v Hueze (2001) 2 SC 26.” In Waziri V Geidam (2016) 11 NWLR (Pt.1523) 230 at 256, I had in this Court stated that:- “The functions which particulars to a ground of appeal are required to perform are to highlight the grouse of the appellants against the judgment on appeal. They are specifications of errors and misdirection which

show the complaint the appellants are screaming about and the line of thought the appellants are going to canvass in their brief of argument. What is fundamental is that the ground of appeal are really explanatory notes on what is in contest and the particulars which open and exposed so that there is no attempt at an ambush or giving of room to which the respondent would say he was left in the dark of what he was to defend on appeal or that they are unable to understand or appreciate the complaint in the said ground”. I would want to say in this appeal that where the presentation of the particulars are not elegantly presented, that would not be used to punish a litigant to get the ground of appeal struck out for incompetence in a situation where the ground of appeal in substance is valid. See Ogboru v Okowa (2016) 11 NWLR (Pt.1522) 84, 146; Omisore v Aregbesola (2015) 15 NWLR (Pt.1482) 205; Dakolo v Dakolo (2011) 16 NWLR (Pt.1272) 22.”
A shift in thinking was highlighted in the case of OLEKSANDR & ORS V LONESTAR DRILLING CO. LTD & ANOR (2015) LPELR-24614(SC) where the apex Court held thus:
“…Having said that, it remains to be added that there

is now a current shift of emphasis from technical justice to substantial justice. In this context, it is instructive to note that this Court acknowledges that an appellant is required to highlight the misdirection or error in law complained of. However, consistent with this shifting trend, it has been held that it is not every failure to do so that would render the ground so couched incompetent. This is, particularly, so where sufficient particulars can be gleaned from the ground of appeal in question and the opponent and the Court are left in no doubt as to the particulars on which the ground is founded, Ukpong and Anor. v. Commissioner for Finance and Economic Development and Anor. (2006) LPELR-3349 (SC), citing Hambe v. Hueze [2001] 4 NWLR (Pt. 703) 372; [2001] 5 NSCQR 343, 352. Even then, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. See Dakolo and Ors. v. Dakolo and Ors. (2011) LPELR – 915 (SC). Hence, defective particulars in a ground of appeal would not, necessarily, render the ground itself incompetent. See Prince Dr. B.A. Onafowokan v. Wema Bank NSCQR

Vol 45 (2011); Best (Nig) Ltd. v. Black Wood Hodge NSCQR Vol. 45 (2011) 849.” Per NWEZE, J.S.C
I have carefully considered the grounds and the particulars in support of the grounds and some are actually disconnected from the grounds of appeal and gave no adequate information about the complaint of the Appellants, however, the disconnection is not so grave as to defeat the grounds and the appeal. Some of the particulars are relevant and can sustain the grounds of appeal. The objection is merely pursuing technicality instead of substantive justice. The Court is desirous of doing substantial justice and consequently, the objection is over ruled and hereby dismissed. It will serve justice better if the appeal is determined on the merit. The grounds are competent and issues distilled are valid for determination.

APPELLANTS’ SUBMISSION
ISSUE ONE
The Appellants argued that the learned trial Judge misdirected himself and erred in law in refusing to sustain the objection raised by the Appellants on the competence of a further and better affidavit filed by the Respondents which did not comply with the provisions of Order VI of the Fundamental Rights Enforcement Procedure Rules, 2009

(See P. 183 of records). According to the Appellants, the effect of the word shall applied to the word must which makes it mandatory that the rule must be observed. The Appellants relied on IFEZUE V. MBADUGHA (1984) 5 SC 79 and Longman Dictionary of the English Language where the word shall is used to express a command or exhortation or what is legally mandatory. Cited AMOKEODO V. IGP (1999) 5 SCNJ 570. The Appellants states that actions under the Fundamental Rights (Enforcement Procedure) Rules, 2009 is peculiar and the Rules were made pursuant to Section 46(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), for the Court to have jurisdiction, the rules must be strictly followed, any deviation from it vitiates the proceedings. The Rules have the same force law as the Constitution itself. Cited ABIA STATE UNIVERSITY V. ANYAIBE (1996) NWLR (PT. 439) 646. The Fundamental Rights (Enforcement Procedure) Rules are not mere adjectival Rules of Court amenable to be changed or maneuvered by a party. Observance of the Rules is as fundamental as the entrenched rights of an Applicant. Cited UTI V. FRSC (2001) CHR 434;

ABIA STATE UNIVERSITY V. ANYAIBE (1996) NWLR (PT. 439) 646; ODOFIN V. I.G.P. & ORS (2001) 1 CHR 441; SAUDE V. ABDULLAHI (1989) 4 NWLR (PT. 116) 387. The Appellants urge this Honourable Court to hold that the learned trial Judge was not right when he refused to strike out the incompetent further and better affidavit of the Respondent dated 28/7/2015.

ISSUE TWO
The Appellants contends that the trial Judge erroneously denied the Appellants fair hearing by failing to consider the defence and contention of the Appellants that the land claimed and occupied by the Respondents form parts or portion of the land in which the Appellants use as Air Force base (NAF Base) which has Ammo Dump housing innumerable highly dangerous weapons, shooting range, flying training school, structures and other security installations necessitating the need by the Respondents to wade and fend off intruders and trespassers, including the Respondents (See p. 124 – 125 of Record). According to the Appellants, fair hearing in the instant case, arises when the trial Judge failed and neglected to consider or make pronouncement on the Appellants’ defence that uncontrolled

encroachment, intrusion and trespass to the land which poses serious security threat to the Nation’s security installations on the land and the Appellants do routinely take legitimate steps to wade off trespassers and intruders in order to protect the land from intruders’ activities which are inimical to the statutory functions of 1st Appellant on the land. Relied on TANKO V. U.B.A (2010) 17 NWLR (PT. 1221) 80; AKPAN V. STATE (2012) 1 NWLR (PT. 1281) 403. The Appellants submits that the right to fair hearing is a Constitutional right enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and cannot be waived or statutorily be taken away. It is the basic attributes of fair hearing that the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case. Relies on ERNEST NZEKWU & ORS V. CHRISTIANA NZEKWU & ORS (1989) 2 NWLR (PT. 104) 373; USANI V. DUKE (2004) 7 NWLR (PT. 871) 116; FAGBUNLE V. RODRIGUES (2002) 7 NWLR (PT. 765) 188; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290.

The Appellants states that the trial Judge denied the Appellants fair hearing in failing to consider the defence of the Appellants that the intention to eject the Respondents from the land are in the interest of defence and public safety in overriding public interest. Cited MOGAJI V. ODOFIN & ORS (1978) 4 SC 90. The right to fair hearing being a Constitutional right, the breach of it nullifies any decision taken. Cited AKULEGA V. B.S.C.S.C (2001) 12 NWLR (PT. 728) 524; OTAPO V. SUNMONU (1987) 2 NWLR (PT. 58) 587.

ISSUE THREE
The Appellants argued that the Respondents annexed to their affidavit Exhibits which are photographs of demolished structures, injured person and personnel of Appellants purportedly laying ambushed to attack on the Respondents while Exhibits G1 and G2 are Newspaper publications which failed to comply with the provision of Section 84 of the Evidence Act, 2011 because the Respondents failed to tender same together with the negatives or the micro disk which are primary evidence. Also same Exhibits relied upon by the Respondents are computer generated and are therefore, secondary evidence which admissibility must satisfy the

requirements of Section 84 of the Evidence Act, 2011 which state that for admissibility of the secondary evidence in certain cases include that the original must be in the possession of any person legally bound to produce it. Notwithstanding that no objection was raised or taken on the admissibility of the Exhibits, they remained inadmissible as they are secondary evidence, citing CHIEF BURNO ETIM V. CHIEF OKON UDO EKPO (1985) 1 SCN LR 121. The Appellants reproduced the provision of Section 84 (2)-(5) of the Evidence Act, 2011 and relied on the case of KUBOR V. DICKSON (2013) 4 NWLR (PT. 1345) 534 where the Supreme Court held that a Newspaper being a public document requires certification. Furthermore, the Appellants states that Exhibits B, B2, B3, B4, B5, B6, B7, B8, B9, C1, C2, C3, C4, C5, D, E, E1 and F are copies generated from computer and Exhibits G1 and G2 being public documents, therefore only admissible in evidence on the fulfillment of the conditions laid down in Section 84 and 102 (b) of the Evidence Act, 2011. The Appellants urge this Honourable Court to expunge the documents as they were wrongly admitted in evidence based on the Supreme Court decision.

ISSUE FOUR AND FIVE
The Appellants contends that the trial Judge did not properly evaluate the evidence placed before him when he found in favour of the Respondents. The Appellants submits that the findings and the decision of the trial Court was predicated on facts contained in the affidavit in support of application and counter affidavit in addition to the Exhibits attached to the affidavit and the counter affidavit and there was no oral testimony of witnesses. It is trite that where a trial Court has arrived at wrong conclusion on evidence that were properly led before it, the Appellate Court will intervene and evaluate and resolve the question of fact so that the right conclusion be arrived at as held inSAKA V. IJUH (2010) 4 NWLR (PT. 1184) 405. The Appellants states that evaluation of evidence and ascription of probative value to such evidence is the primary function of the trial Court which heard, assessed the witnesses, therefore, the trial Court failed to properly evaluate the evidence before it reached a decision which is perverse, the Court of Appeal has a duty by way of rehearing to evaluate the evidence as if it were the trial

Court, cited OGUNJEMILA V. AJIBADE (2010) 11 NWLR (PT. 1206) 559. It is trite law that an Appellate Court will not interfere with finding of facts by the trial Court except where the trial Court did not see nor hear the witnesses testified or where it draws wrong conclusions from credible evidence or where the trial Court has taken an erroneous view of the evidence adduced before it or where the findings of facts by the trial Court are perverse as stated in AGBABIAKA V. SAIBU (1998) 10 NWLR (PT. 571) 545.

The Appellants contend further that the Respondents being Applicants who alleged infringement of their fundamental right did not put in sufficient evidence establishing vital facts regarding the infringement, hence their action must fail. The burden shifts to the Respondents only after that. Where that has not been done or done scantily, the trial Court ought to strike out such application for being meritless as held in FAJEMIRKUN V. COMMERCIAL BANK (CREDIT LYONNAIS) (2002) 10 NWLR (PT. 774) 95. The Appellants submits that the allegations of trespass, assault and illegal detention, criminal destruction of property, rape and criminal intimidation made

against the Appellants by the Respondents, connote illegal acts done with sinister intention which substantially border in criminality and tort. The law is trite that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proof beyond reasonable doubt, they relied on Section 135(1) of the Evidence Act, 2011 and EJIOGU V. ONYEAGUOCHA & ORS (2006) ALL FWLR (PT. 317) 467. According to the Appellants, the Respondents failed to discharge this burden other than exhibit copies of Newspaper and photographs which have no evidential value. Also they stated that newspaper reports are no more than news item, with variation in different media on the same facts and therefore cannot be accepted in evidence. Cited LAWAL V. EXECUTIVE GOV. KWARA STATE (2006) 5 WLRN 132 SC; ROYAL NETHERLANDS HARBOUR WORKS CO. LTD V. DR. SAMA EKPO SAMA (1991) 2 NWLR (PT. 17) 64; ZAMANI LEKWOT V. JUDICIAL TRIBUNAL (1997) 7 SCNJ 347. The Appellants further submits that the Appellate Court has power to evaluate the evidence where the question does not affect the issue of credibility of witnesses who have testified in the

case but have been completely narrowed down to inferences that can be drawn from exhibits and provable facts as stated in EBBA V. OGODO (1984) 1 SCNLR 372; ABISI V. EKWEALOR (1993) 6 NWLR (PT. 302) 643; EDWARD UKAEGBU NWOKORO & ORS V. EZEKIEL NWOSU & ORS 4 NWLR (PT. 337) 172. Furthermore, the Appellants submit that the trial Judge did not properly evaluate the evidence placed before him, misdirected himself in facts and erred in law in the award of damages to the Respondents. Finally, the Appellants submit that based on the facts and authorities above stated and cited, this appeal is meritorious and urged the Court to hold so.

RESPONDENTS’ SUBMISSION
ISSUE ONE
The Respondents argued that Order VI Rule V of the Fundamental Right (Enforcement Procedure) Rules, 2009 provides that any Applicant who approaches the Court to enforce his Fundamental Rights could file a further and better affidavit in reply to factual issues raised by the Respondents in the Respondents counter affidavit. It does not require leave of Court to file a further and better affidavit but demand that the Applicant who intends to be allowed to amend their statement to

put the other party or parties on notice of his intention to amend. In the instant case, Appellants did not amend or intend to amend their statement or further affidavit to warrant the operation of Order VI Rule V of the Fundamental Right (Enforcement Procedure) Rules, 2009 neither did they put the other party on notice of the any amendment but the Appellants contention that the Respondents should seek leave of Court to do so was erroneously misconceived. Furthermore, the Respondents submits that the further and better affidavit filed by the Respondents on 28/7/2015 was competent and same could not have been struck out as the said further and better affidavit was competent before the Court below. The trial Court rightly acted on Respondents further and better affidavit dated 28/7/2015, the Appellants’ argument is highly misconceived and aimed at misleading the Honourable Court. The Respondents urge the Court to discountenance Appellants issue in this regard.

ISSUE TWO
The Respondents relied on the case of ARIORI & ORS V. MURAIMO ELEMO & ORS (1983) 1 SC which defined fair hearing as a trial conducted according to all legal rules formulated

to ensure that justice is done to the parties to the case and reasonable time means the period of time which, the search for justice does not wear out parties and their witnesses and which is required to ensure that justice is not only done but appears to a reasonable person to be done, also cited the case of EGBO V. AGBARA (1997) 1 NWLR (PT. 481) 293. According to the Respondent, the Supreme Court inBILL CONSTRUCTION CO. LTD V. IMANI & SONS LTD/SHELL TRUSTEES LTD (2006) 19 NWLR (PT. 1013) 1, the apex Court held that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has been breached. The Court is enjoined to create a conducive atmosphere for the parties to exercise their right to fair hearing, by holding the seals of justice fairly but firmly without fear or favour, affection or ill will (See Section 36 of the 1999 Constitution). Having provided the required atmosphere the duty of the Court stops there. In the instant case, the Appellants observed, conducted and complied with all the legal rules formulated under

the Fundamental Rights (Enforcement Procedure) Rules, 2009 and any other relevant laws of the Court below which enjoin the Appellants to file their defence (counter affidavit) in opposition to the Respondents (affidavit in support) of application for enforcement of Applicants (Respondent) Fundamental Rights and also filed their Preliminary objection (See pages 111-154 of records). Having exhaustively explored and enjoyed all the opportunities to present their defence under the law, Appellants cannot in any way cry foul of the breach of their Fundamental Right of fair hearing. The Respondents urge this Court to discountenance this issue, more so that it is not tied to any of the four grounds of appeal.

ISSUE THREE
The Respondent contends that the law is trite that a document attached to an affidavit is part of the affidavit and must be considered as such as held in UNIVERSITY OF ILORIN V. OYOLANA (2001) 15 NWLR (PT. 737) 2193. The Appellants submission that the Respondents did not comply with the provisions of Section 84, 85, 86 (1) and 8 of the Evidence Act, 2011 is highly misconceived and same is aimed at misleading the Court. Cited

EZECHUKWU & ANOR V. ONWUKA (2016) VOL. 252 LRCN 21. Furthermore, no evidence before the Court below that Exhibits B, B2, B3, B4, B5, B6, B7, B8, B9, C1, C2, C3, C4, C5, D,E,E1,F,G1 and G2 are generated from computer.

The Respondents urge this Court to discountenance this issue, more so that it is not tied to any of the four grounds of appeal.

ISSUE FOUR AND FIVE
The Respondents argued that the five issues formulated by the Appellants in this appeal have outnumbered the four (4) grounds filed in this appeal. First and foremost, issues 4 and 5 formulated by the Appellants from the grounds of appeal are highly incompetent and should not be countenance with. This is because by the rules of the Appellate practice as regards brief writing, issues for determination derived or drawn from grounds of appeal cannot be more than the grounds as held in EZE V. FRN (1987) 1 NWLR (PT. 51) 506; ATANDA V. AJANI (1989) 3 NWLR (PT. 111) 511; DUWIN PHARM V. BENEKS PHARM VOL. 33 (PT. 1) NSCQLR 239. In the instant case, the Appellants notice of appeal contained four grounds of appeal and they are expected to formulate a maximum of four issues for determination or lesser

issues than the grounds. Curiously, the Appellants formulated five issues from the four grounds of appeal filed. Therefore the said issues for determination are highly incompetent for consideration and determination by the Court. The Respondents urge the Court to strike same out.

RESOLUTION OF MAIN APPEAL
I have carefully considered the Notice of Appeal, the Record of Appeal and the briefs of learned Counsel for the parties and the Respondents made a valid and subtle objection to the issues distilled by the Appellants. They contended that there are 4 grounds of appeal generating 5 issues for determination and asked if it is possible. I will resolve that query before deciding on the issues to determine in this appeal.
The law on proliferation of issues was aptly restated in the case of APATA V OLANLOKUN & ANOR (2013) LPELR-20938(SC) thusly:
“This Court has stated and restated that it abhors the proliferation of issues where only a few issues would determine the appeal. Ogbuagu, JSC, in G.K.F. INVESTMENT NIG. LTD. v. NIGERIA TELECOMMUNICATIONS PLC. (2009) 15 NWLR (PART 1164) 344 put it simply this way, “I need to stress that this Court

discourages the proliferation of issues.” Musdapher JSC, (as he then was) was more emphatic. In OMEGA BANK (NIG.) PLC. v. O.B.C. LTD (2005) 8 NWLR (PART 928) 547 he stated thus; “This Court has on several occasions condemned the proliferation of issues in briefs of argument. It is not the number of issues for determination formulated that determines the quality of a brief or that determines the success of an appeal.” Edozie, JSC, in IBRAHIM V. OJOMO (2004) 4 NWLR (PART 862) 89 was just as emphatic when he said as follows: “Prolixity or proliferation of issues is not ideal as it tends to obscure the core issues to be determined and tends to reduce the issue to trifles. Appeals are not won on large number or quality of grounds of appeal but on the quality of the content of the grounds of appeal and issues.” See also MOZIE & ORS V. MBAMALI & ORS (2006) 15 NWLR (PART 1003) 466; UGO V. OBIEKWE (1989) 1 NWLR (PART 99) 566; ANON LODGE HOTELS LTD v. MERCANTILE BANK OF NIGERIA LTD. (1993) 3 NWLR (PART 284) 721.” Per ALAGOA, J.S.C.
The rule for distilling issues for determination was not adhered to by the Appellants in donating 5 issues from 4 grounds of

appeal. The Appellants also did not tie/link the grounds to the issues as required, if that was done, it would have shed light on the issue/issues without a foundation in the grounds of appeal. As it is reflected, it cannot be said from which ground each issue was distilled from. The Appellants obviously split a ground of appeal into 2 issues and that too is not allowed. See NACB LTD V. OZOEMELAM (2016) LPELR-26051(SC) wherein the apex Court held thus:
“A more fundamental vice bedevilling the Respondent’s issues is the marriage of the said issues with the appellant’s three grounds of appeal. Issue 1 is said to be a product of grounds 2 and 3 of the Notice of Appeal while issues 2 and 3 are framed from appellant’s grounds 1 and 3. Ground 3 of the Notice of Appeal is therefore split into three to form issues 1, 2 and 3. Since one issue is framed from one, but usually a combination of grounds of appeal, it is manifestly wrong to split one ground of appeal into three issues as the Respondent has done. It is undesirable to split an issue in appeal. See Labiyi v. Anretiola (supra). It is equally not appropriate to split a ground of appeal in the formulation of issues.”
Per NGWUTA, J.S.C

See also the case of OMOZEGHIAN V. ADJARHO & ANOR (2005) LPELR-7489 (CA) where the Court held thus:
“I agree with the respondents that the issues as formulated by the appellant are more wide-ranging than are necessary in the determination of this appeal. In addition, the appellant split his issue 2 into (i), (ii), & (iii) which is absolutely unacceptable. Authorities abound which state that it is clearly unacceptable for an issue to raise in it, other issues. It is well settled that most appeals are won on a few cogent and substantial issues, well framed, researched and presented them on numerous trifling slips. See Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197; & Ehikhamwen v. Iluobe (2002) 2 NWLR (Pt.750) 151 where the Court also held that the practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues.”
Per AUGIE, J.S.C
See also CHIAIN KONCRETE NIG LTD V. GOVERNOR OF BENUE STATE & ORS (2013) LPELR-22750 (CA).
The vice bedeviling the issues donated by the Appellants obviously makes the issues incompetent and must be struck out.

Surprisingly, the Respondents’ learned Counsel adopted the said issues which are incompetent and after he also objected to them. The Court has no other option but to formulate issues for determination in this appeal in the interest of justice and on the authority of EMEKA V STATE (2014) LPELR-23020 (SC) which held:
“It is rather a triable argument or merely frivolous for the appellant to contend that the appellate Court, in considering an appeal before it has no discretion to either adopt the issues formulated for determination by the parties or alternatively formulate such issue(s) it believes would adequately determine the grievance in the appeal. Recently, what this Court said in AGBAREH v. MIMRA (2008) 2 NWLR (Pt. 1071) 378 at 410, further emphasis the triteness of the law on this trig-point. It was held thus: “Finally an appellate Court can prefer an issue or issues formulated by any of the parties and can itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) 1 & Anor v. Da Rap. Kwan & 4 Ors

(2000) 8 NWLR (Pt. 670) 685, (2000) 5 SCNJ 101; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbonla & 3 Ors (2003) 2 NWLR (Pt. 804) 399, (2003) 1 SCNJ 463 at 479 and Emeka Nwana v. Federal Capital Development Authority & 5 Ors (2004) 13 NWLR (Pt. 889) 128 at 142 – 143; (2004) 7 SCNJ 90 at 99 citing several others cases therein.” Per GALADIMA, J.S.C

I shall now formulate a sole issue for determination in this appeal as follows:
“Whether the Respondents established their claim by valid and credible evidence so as to warrant the award of N20,000,000.00 (Twenty Million Naira) only as Damages.”

The claim was brought under the Fundamental Rights Enforcement Proceedings. The application was duly supported and opposed by a Counter Affidavit to which the Respondents as Applicants filed a further and better affidavit. The Appellants submits they did so without leave of Court as required by ORDER VI RULE 5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. The said rule provide as follows:
“Where the applicant intends to ask to be allowed to amend his statement or use

further affidavits, he must put the other party or parties on Notice of his intention to amend.”
The title of the Order says: Amendment of Statement and Affidavits and subtitle of Rule 5 says: Notice of Application. There is nothing therein requiring prior leave of Court before the Applicants can file a further and better affidavit. The subject matter refers to amendment of statement and affidavits and the notice is to the other party. However, Order II on commencement of action provides for how the processes relevant to initiating and maintaining a claim under the Fundamental Rights Enforcement Rules provides in clear terms that an Applicant does not require leave to initiate a claim. Under Order II Rule 2-7 provides thus:
“Mode of Commencement
2. An application for the enforcement of the Fundamental right may be made by any originating process accepted by the Court which shall, subject to the provisions of the Rules, lie without leave of Court.
3. An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and

supported by an affidavit setting out the facts upon which the application is made.
4. The affidavit shall be made by the applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit.
Applicant’s Written Address.
5. Every application shall be accompanied by a Written Address which shall be a succinct argument in support of the grounds of the application.
Respondent’s Written Address.
6. Where the respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.
Applicant’s Address on Points of Law
7. The applicant may on being served with the Respondent’s Written Address, file and serve an address on points of law within 5 days of being served, and may accompany it with a further affidavit.”

It is obvious from the quoted portion of the rules that an Applicant has the right of filing a further and better affidavit in response to the Respondents’ Counter affidavit and written address. Therefore, the right of filing a further affidavit exist and without leave of Court. It is preposterous for the Appellants to want to impose the duty of seeking leave before a further and better affidavit can be filed, when the main suit itself does not require leave of Court. Breach of a fundamental right is very serious claim that unnecessary technicalities should not be allowed in to clog the free flow of the stream of justice in protecting human rights. The trial Court was right in holding that the Respondents did not require a prior leave of Court to file a further and better affidavit. A further and better affidavit is always allowed to be filed in reaction to a Counter affidavit. To now stretch this to the question of jurisdiction is quite unfortunate. The Rules of Court do not bestow jurisdiction on a Court, jurisdiction of the Court is bestowed by the Constitution or Statute. See the case of OKEZIE V. FEDERAL-ATTORNEY & ANOR (1979) LEPLR-2448(SC) wherein the apex Court held thus:

“The Court also found it necessary to point out that Supreme Court Rules, 1977 on which counsel relied, in particular Order 5, cannot confer jurisdiction on, or enlarge the jurisdiction of the Supreme Court, since the Supreme Court cannot confer jurisdiction on itself and thereby usurp the function of the constitution-making authority or the legislature.”
Per ALEXANDER, J.S.C
See also ONYENOBI V. AMADI & ORS (2013) LPELR-22041(CA) where the Court held as follows:
“Now, it is trite law that Courts of law are creation of either the Constitution or statute and therefore, their jurisdiction is circumscribed or limited to those conferred on it by the Constitution or the statute. In the same vein, Appeals are creatures of the Constitution or statute. In other words, an appellate jurisdiction is generally conferred on the appellate Court either by the Constitution or a statute of the National or State House of Assembly. In that respect, no Court has jurisdiction to hear and adjudicate on a matter brought before it, unless it has such jurisdiction donated or conferred on it by the Constitution or other statute. Furthermore, failure

to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competently filed before the Court will deprive the appellate Court of the jurisdiction to hear and determine the appeal. See EHUWA v O.S.I.E.C. (2006) 18 NWLR (Pt.1012) p.544: IWUAGOLU v AZYKA (2007) 5 NWLR (pt.1028) p.613 and UWAZURIKE v A.G. FEDERATION (2007) 8 NWLR (Pt.1035) P.1.”
Per TSAMMANI, J.C.A
See also the cases of TIZA & ANOR V. BEGHA (2005) LPELR-3251(SC); ELIGWE V. OKPOKIRI & ORS (2014) LPELR-24213(SC); OPARA & ANOR V. AMADI & ANOR (2013) LPELR-20747(SC).
Rules of Court are the handmaid with which to achieve substantial justice and not to control the Court and lead it in to doing injustice. See DUKE V AKPABUYO L. G(2005) LPELR-963(SC) where the Court held as follows:
“…it is now firmly settled, that a breach of a rule of practice, can only render a proceeding an irregularity and not a nullity. See Alhaji Saude v. Alhaji Abdullahi (1989) 4 NWLR (Pt.116) 387; (1989) 7 SCNJ 216; (1989) 2 SC 216.”
Even if any part of the Fundamental Rules was breached as long as justice was done, it will not nullify the

proceedings nor divest the Court of jurisdiction. There is a difference between procedural and substantive jurisdiction, see the case of NDAYAKO & ORS V. DANTORO & ORS (2004) LPELR-1968(SC) wherein the Court held as follows:
“It is noteworthy that a distinction must be drawn between two types of jurisdictions viz jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or a statute or any provision of the common law says that the Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court e.g. where a writ has been served outside jurisdiction without leave.”
Per EDOZIE, J.S.C
In NAGOGO V. CPC & ORS (2012) LPELR-15521(SC), the apex Court held thus:
“It is settled law that jurisdiction as a substantive law is not amenable to be waived as is the case with procedural jurisdiction which can be waived. It is clear that procedural jurisdiction does not go to root of the action. Normally, the litigant is allowed to cure the defect in the form of

action by amendments with regard to the form of action provided there is no misleading of the other party to the action by the mistake.”
Per CHUKWUMA-ENEH, J.S.C
The Applicants or Claimants (Respondents) in this appeal had a right of reply if fair hearing principles are to be respected. The contention of the Appellants is without basis and must be discountenanced. The cases ofUTI V FRSC (supra); ABIA STATE UNIVERSITY V ANYAIBE (supra); ODOFIN V I.G.P (supra) and SAUDE V ABDULLAHI (supra) relied upon by the Appellants are not applicable here. The trial Judge was right in refusing to strike out the further and better affidavit and therefore, the further and better affidavit was good evidence before the Court.

Arguing the appeal further, the Appellants accused the trial Judge of denying them fair hearing by its refusal to consider their defence that the attempt to eject the Respondents from the land was in the interest of National security. Indeed the Appellants by their affidavit in support admitting taking steps to possess the land which the Respondents reside on and asserted that it was in National Interest because it belonged to the Air force.

The Appellants alleged that there was no pronouncement by the trial Judge and therefore denied them fair hearing. It is trite that a Judge is duty bound to determine all issue presented by parties before him. See the case of DINGYADI & ANOR V. INEC & ORS (2010) LPELR- 40142(SC) wherein the apex Court held thus:
“It is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. … it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such questions… See the case of Mobil Prod. (Nig.) Ltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346 at PP. 412 – 413, Uwaifo, JSC, stressed the point lucidly as follows: it has been laid down in many decisions that it is the duty of a Court to entertain and decide on the merit of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application. It seems to me that this principle of law has been solidly laid down by the Court of Appeal. There are very many of its decided cases on it, a few may be

cited thus: Eguamwense v. Amaghizemwen (1986) 5 NWLR (Pt.41) 282; Harrods Ltd. v. Anifalaje (1986) 5 NWLR (Pt.43) 603; Kotoye v. Saraki (1991) 8 NWLR (Pt.211) 638; Mokwe v. Williams (1997) 11 NWLR (Pt. 528) 309; Okoro V. Okoro (1998) 3 NWLR. (Pt. 540) 65; Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622..” Per MUHAMMAD, J.S.C
And the case NWUAMADIKE V. IGP & ORS (2018) LPELR-46039(CA) wherein the Court held thus:
“…The current disposition of the Courts is to promote the hearing and determination of a matter on the merits where the same can be accomplished without prejudice or injustice being occasioned to the other party. No prejudice, injustice or miscarriage of justice was occasioned to the Appellant because the lower Court having granted the 1st and 2nd Respondents’ application gave the Appellant the opportunity to react to the processes of the 1st and 2nd Respondents… In a coda, these issue numbers three and four are resolved against the Appellant. The lower Court did not sit on appeal and overrule itself and the lower Court was right to have heard the pending application filed by the 1st and 2nd Respondents, as it was duty bound to do.”
Per OGAKWU, J.C.A

See also the following cases7UP BOTTLING CO. LTD & ORS V. ABIOLA & SONS BOTTLING CO. LTD (2001) LPELR-1(SC); BRAWAL SHIPPING NIG. LTD V. F. I. ONWADIKE CO. LTD & ANOR (2000) LPELR 802 (SC) and LONG-JOHN & ORS V. BLAKK & ORS (1998) LPELR-1971 (SC).

(Pt.348) 23. A breach of the right to fair hearing renders the proceedings, including the judgment in the case, null and void. A suit or an action in a law Court contrived to deny parties adversely affected an opportunity to be heard before the judgment affecting them is one designed mala fide or mischievously to deny fair hearing. Public policy does not permit this mischief. It completely abhors the mischief. The principle of audi alteram partem is recognised as a vibrant component of the principle of fair hearing. See ARUBO v. AIYELERU & ORS. (1993) 2 SCNJ. 90; (1993) 3 NWLR (Pt.280) 126. Thus, the breach of the principle of fair hearing creates an unfortunate impression that the judge was not acting as an impartial umpire, which by Sections 17 (2)(e) and 36 (1) of the Constitution he is enjoined, throughout the proceedings before him, to maintain… Fair hearing in every suit or action cannot be achieved unless all parties affected or likely to be adversely affected by the suit are heard or given an opportunity to be heard. See OTAPO v. SUNMONU & ORS. (1987) 5 SCNJ. 57; (1987) 2 NWLR (Pt.58) 587.”
Per EKO, J.S.C

The Appellants cannot just alleged denial of fair hearing without going further to establish that it occasioned a miscarriage of justice. It is not every breach that can affect the judgment appealed against and lead it to be nullified if miscarriage of justice is not established.
The fundamental question is whether there was a failure of justice, failure of justice was captured by the apex Court in the case of STATE V GWONTO (1983) LPELR-3220(SC) in the following way:
“What then is failure of justice in Buraimah Ajayi’s case, the Federal Supreme Court held that there is a failure of justice “if the proceedings at the trial fall short of the requirement not only that justice be done, but that it may be seen to be done”… Failure of justice is in my view very much the same thing as miscarriage of justice.”

Going through the judgment appealed against, the trial Judge at pages 185 of the record of appeal said thus:
“the acts of forcefully ejecting the applicant’s members from their habitation, destroying their houses to expose them to the vagaries of weather and subjecting some of them to torture as self- evidence in some of the

still pictures attached to the application depict total disrespect for and breach of the dignity of the human persons to which the members of the applicants’ community are entitled to under the 1999 Constitution and the Law. The Courts are firmly in place for the respondents to address their grievances in a more civilized way, assuming that the applicants are in trespass on the land over which the structures were sited.
The incidence of self help is certainly barbaric and fitting only for the pristine sate of nature from which we have evolved into a robust democratic society. The Supreme Court frowned at such an act when in the case of Obeya Memorial Hospital v Attorney General of the Federation (1987) 3 NWLR (Pt. 60) 325 at 343, the Court, per Obaseki, JSC, said:
‘I must stress that the government is entitled to pursue its debtors and recover from them all amounts legitimately due to it. The Courts of law are established both for the people and the government or authority. The government should nor shy away from making use and taking advantage of the process of the Courts of law. It is a misconception to think that the measured speed

with which the processes of Court travels is too slow for the military government. Since the government has taken the civilized stand of observing the Human rights provision of the 1979 Constitution and the Rule of law, it cannot allow its image to be tarnished, stained and mutilated by abandoning the Rule of law and resorting to the rule of force wearing the kid glove of an Edict can never usher in social justice. It only wears the condemned face of law.’
The learned jurist has said it all. The view expressed in that case also speaks directly to the situation in hand, even though the acts then were done under a military regime. Any agency of government, including any arm of the military, which desires to recover anything to which it considers that it is entitled to must resort to the more civilized approach for which the Courts are in place. We are out of the doldrums that is the pristine nature of society. We should now be heading for utopia, with the audacious hope that it is attainable. We have already started the journey in the direction of that ideal society on the platform of democracy where the rule of law holds sway over that of force.

Therefore attractive as the submissions of Mr. Chabki of counsel for the respondent may be in this particular case under guise of national security, it cannot be acceptable to justify the actions of the respondents whereby they took the law into their hands to root out the applicants from their habitations in a brazen acts of self help.’’ (underlining mine for emphasis).

In the light of the quotation above, it is obvious that the trial Judge considered the defence raised by the Appellants that the intention to eject the Respondents from the land was in the interest of defence and public safety or National security which to them is overriding public interest. It is obvious the Appellants did not painstaking study the judgment appealed against. Even the mention of learned Counsel’s name did not attract him to the relevant page where the defence was considered and the trial Judge succinctly resolved it and I dare say, the quest to defend the Nation and its citizens cannot under any guise be a licence to act in breach of clear constitutional provisions and also breach fundamental rights of the citizens. There could not have been

ammunition and installation on the land with the Respondents still in occupation. No citizen can be ejected from his place of abode by force or military fiat without recourse to how. The land Use Act provides for compulsory acquisition of land for overriding public purpose and compensation is usually paid by the government. Let us even assume that compensation had been paid and the Respondents refused to vacate the land, still, the Appellants must of necessity follow due process in ejecting them from the land. Self-help can never fulfill the overriding purpose of the rule of law. Even a squatter or trespasser deserves to be ejected by due process of law. See the case of MILITARY GOVERNOR OF LAGOS STATE & ORS V. OJUKWU & ANOR (1986) LPELR-3186(SC); DASHE & ORS V. JATAU & ORS (2016) LPELR-40180(CA); MONKOM & ORS V. ODILI (2009) LPELR-3927(CA); BELLO & ORS V. DORIS (2016) LPELR-41298(CA).
The trial Judge relied on the case of OBEYA MEMORIAL HOSPITAL V ATTORNEY GENERAL OF THE FEDERATION (SUPRA). It is part of the quotation above, the learned jurist of the apex Court made it abundantly clear that even the government is expected to

pursue its rights through the Courts it created and the use of brute force can never achieve any purpose in a democratic society where the rule of law is highlighted. In this case, the self help employed to dehumanized citizens who were residing on their ancestral land and ironically part of those the Appellants claim to be working towards their interest and security. No, it is not done by means of breaching the human rights of citizens. Every citizen deserves to treated with some dignity and the minimal standard is to respect the fundamental rights of citizens. Right to human dignity is guaranteed by the Constitution and when the country is not at war, there cannot be any justification for dehumanizing citizens in the name of national security. The Respondents as Nigerians also have the right to own property and their houses destroyed by the Appellants is also a breach of their rights to own property. The Appellants missed it when they alleged that their defence was not considered and in any case they failed to establish the miscarriage of justice occasioned them. The Appellants’ right to fair hearing was not breached. Their defence was fully considered

by the trial Court. The authorities relied upon in support of this issue are not relevant here.

In arguing the appeal further, the Appellants attacked the use of certain documents attached to the affidavit in support of the claim and further and better affidavit which the trial Judge relied upon in arriving at judgment. The Appellants contend that they were computer generated documents and failed the test set by Section 84 of the Evidence Act, 2011. This was a new issue not covered by the judgment appealed against and no leave of Court was sought and obtained to raise new issue on appeal. It is a stand alone issue, no foundation and this Court has nothing to review in arriving at a resolution of the issue. It will amount to an academic exercise since there is no pronouncement on it by the trial Court. As observed by the Respondents’ counsel in his preliminary objection, the particulars purportedly in support of the ground which covers the question are totally unrelated and cannot further explain the complaint. The trial Judge was not given the chance to pronounce on the validity of the documents annexed to the affidavit in support. Suffice to say

that the trial Judge used the said Exhibits in arriving at his decision that the houses belonging to the Respondents were destroyed and some of the members of the community were beaten and dehumanized. Having relied on them without any objection, the Appellants have a duty to show that the documents were illegally before the Court. The matter was fought on affidavit evidence so there was no application to tender the document in evidence or an opportunity to oppose its admissibility in evidence.
Generally, the law is that documents attached to the affidavit are part of the affidavit, see UNIVERSITY OF ILORIN V OYOLANA (SUPRA) and undoubtedly, copies of the documents are usually attached and the Court considers them as the affidavit itself not as documents that are detachable from the affidavit. Authorities abound wherein superior Courts held that documents attached to an affidavit becomes part of the affidavit see the case of EZECHUKWU & ANOR V I.O.C ONWUKA (2016) LPELR- 26055 (SC) where the apex Court held thusly:
“However, it is also trite that all documents attached to an affidavit such as Exhibit R form part of the affidavit in question and

it is not possible to raise objection to its admissibility in the affidavit of the respondent without running counter to Section 87 of the Evidence Act 1990, I rely on C.R.P.D.I.C. Ltd v. Obongh (2001) FWLR (Pt.54) 353.” Per PETER-ODILI, J.S.C
See also the following MBORA V. EKPENYONG & ANOR (2019) LPELR-48169 (CA); ABAH V. UBN PLC & ORS (2015) LPELR-24758(CA); MINAJ HOLDINGS LTD V. AMCON (2015) LPELR-24650(CA); HWANDE V. BIEM & ORS (2019) LPELR-46868(CA).
The argument of the Appellants is therefore misconceived and untenable because once the affidavit is properly before the Court, the Court will use it in arriving at a decision as was done in this case.

The award of damages was alleged to have been arrived at without proper evaluation of evidence. Undoubtedly, the duty to evaluate evidence is primarily that of the trial Court and unless it fails in that duty, the Appellate Court will not interfere. SeeARIJE V. ARIJE & ORS (2018) LPELR-44193(SC) wherein the apex Court held thus:
“It is well settled that the evaluation of evidence is primarily the exclusive preserve of the trial Court, which has the unique opportunity of

seeing and hearing the witnesses testify and of observing their demeanour. However both the trial Judge and the appellate Courts have equal right to evaluate documentary evidence. Where the trial Court failed to evaluate the evidence, or failed to evaluate it properly or where such evaluation results in a perverse conclusion, the appellate Court, has a duty to re-assess and evaluate the evidence in order to reach a just Conclusion. See Gonzee Nig. Ltd. vs. Nigerian Educational Research and Devt. Council & Ors. (2005) 13 NWLR (Pt. 943) 634; Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) 745; Iwuoha vs. NIPOST Ltd (2003) 8 NWLR (Pt. 822) 308; Rev. King vs The State (2016) LPELR-40046 (SC) 1 @ 49 A – D.”
Per KEKERE-EKUN, J.S.C
See also the following cases TINUBU V. KALIL & DIBBO TRANSPORT LTD (2000) LPELR-3249 (SC); ONUBE V. ASUAKOR & ORS (2019) LPELR-47231(CA) and FRN V. UMEH & ANOR (2019) LPELR-46801(SC).

The evidence before the trial Court was simply affidavit evidence. I carefully read the judgment appealed against and the trial Judge dutifully considered evidence before the Court in arriving at judgment. It has often been said that

a party complaining about failure of a Court to evaluate evidence must go further to identify in detail the piece of evidence not evaluated, it cannot make a sweeping statement alleging failure to evaluate evidence and the possible outcome of due evaluation. SeeNKEBISI & ANOR V. STATE (2010) LPELR-2046(SC) wherein the apex Court held thus:
“It is accepted that an appellant who relies on improper evaluation of evidence to set aside the judgment, has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached, would have been different and in favour of the party complaining of wrong evaluation. Where a trial Court believes a witness, the onus shifts to the appellant to show that the trial Court failed to consider the relevant facts. See the case of Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 @ 691; (1988) 3 SCNJ (Pt. 1) 68, 74, 75.”
Per OGBUAGU ,J.S.C ( P. 23, paras. D-G)
See also the case ofSTATE V. YUSUF (2006) LPELR-11802 (CA) and IGAGO V. THE STATE 2 104 AT 122.
The Appellants here failed to identify the

particular part of the affidavit evidence not evaluated. There cannot be the issue of witnesses in a matter fought on affidavit evidence. Of course, where the trial Court fails in that duty, the Appellate Court can evaluate the evidence particular where the evidence before the trial Court was documentary as in this case. The Appellants grouse here is that the Court believed the Respondents, if I may ask: what did the Appellants expect their after admission against interest that they were trying to eject the Respondents in the interest of National security? Having taken the wrong step, the resultant effect was the breach of fundamental rights of the Respondents which must attract monetary compensation. There was no conflict in the affidavits that would require the calling of oral evidence. Furthermore, because a party disagrees with the findings of a Court and is not happy about the outcome of a case, it cannot amount to failure to evaluate evidence, a bad case is a bad case any day. It is surprising that the Appellants do not see that their actions have breached fundamental rights of the Respondents that are universal and guaranteed by the Constitution of this

Nation to which they also subscribed to uphold. The trial Court arrived at the findings after a proper evaluation and relied upon the admission by the Appellants as corroborated by the numerous Exhibits attached to the further and better affidavit.

The Appellants contends that the Respondents did not put in sufficient evidence, the standard of proof in civil matters is on the preponderance of evidence and where there is admission the burden of proof is less and obviously the scale of justice will tilt against the party with less weight and the Appellants affidavit evidence was light weight compared to the heavier side of the Respondents. Furthermore, except the bare denial, the facts deposed in the Respondents’ affidavit were not contradicted.

The trial Court did not determine any criminal allegation in the claim for breach of fundamental rights and therefore the argument about Respondents not proving those allegations beyond reasonable doubt does not arise. The trial Court discountenanced all other allegations not connected to the breach of fundamental rights made against the Appellants. He said at the end of the judgment that all other

allegations are dismissed. It is therefore strange for the Appellants to still demand proof of a dismissed claim. Furthermore, there is no ground of appeal against the dismissal of those pure criminal allegations. The argument on that point is hereby discountenanced.

The Respondents in their claim asked for monetary compensation in the sum of N5Billion Naira for breach of fundamental rights. Compensation for breach fundamental rights is constitutionally provided for and not optional. Discretion is only allowed in the amount to award. See the case of WILLIAM & ANOR V. USEN & ORS (2018) LPELR-46163(CA) where the Court held thus:
“…The onus is on him to show that he was unlawfully arrested and detained i.e that his fundamental right has been violated, If this is proved, by virtue of the provisions of Section 35(6) of the 1999 Constitution Federal Republic of Nigeria, the complainant is entitled to compensation and apology, where no specific amount is claimed. Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. In this

respect, the common law principles on the award of damages do not apply to matter brought under the enforcement of the Fundamental Human Rights procedure…. The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the Nigerians; fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed…”
Per OGBUINYA, J.C.A
And also the case of ANOGWIE & ORS V. ODOM & ORS (2016) LPELR-40214(CA) held thus:
“I think the law is trite and the case law on this issue is replete, that once the Court has found that the fundamental rights of applicant has been violated by the act(s) or conduct of a respondent, the affected person (applicant) is entitled to compensation, in the circumstances. That too was/is the intent of the law in Section 35 (6) of the 1999 Constitution, as amended, which says: “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. In the case of Jim-jaja Vs C.O.P. Rivers State

(2013) 22 WRN 39 at 56, the Supreme Court held: “A community reading of Sections 35 (6) and 46 (2) of the Constitution (supra) will give effect to the principle of Ubi Jus ibi remedium. By Sections 35 and 46 of the Constitution, fundamental rights matter are placed on a higher pedestal than ordinary civil matters, in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the appellant proved violation of his fundamental right by the Respondents, damages, in form of compensation and even apology, should have followed.”
Per MBABA, J.C.A
See also the following cases FIRST BANK & ORS V. A.G. FEDERATION & ORS (2018) LPELR-46084 (SC); ARULOGUN V. C.O.P LAGOS & ORS (2016) LPELR-40190 (CA); ODIONG V. ASST. IGP (2013) LPELR-20698(CA); OKONKWO V. EZEONU & ORS (2017) LPELR-42785 (CA).

It is trite that once an infringement of fundamental right is proved or established the award of compensation in form of monetary damages, whether claimed or not, follows as surely as sunrise in the Tropics (permit the expression). There is nothing like categorisation and particularisation of damages in an action

for the enforcement of fundamental rights as held in JIM-JAJA V. C.O.P. RIVERS STATE (2013) 6 NWLR (PT.1350) 225 AT 254 per the lead judgment prepared by Muntaka-Coomassie, J.S.C., thus –
“The appellant’s claim is in connection with the breach of his fundamental rights to his liberty by the respondents. The onus is on him to show that he was unlawfully arrested and detained i.e. that his fundamental right has been violated. If this is proved, by virtue of the provisions of Section 35(6) of the 1999 Constitution Federal Republic of Nigeria, the complainant is entitled to compensation and apology, where no specific amount is claimed. Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matter brought under the enforcement of the Fundamental Human Rights procedure as submitted by the learned counsel to the 3rd respondent. The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the Nigerians’ fundamental

rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed.”
The judgment prepared by M.D. Muhammad J.S.C., in page 256 thereof stated thus –
“Appellant’s unlawful detention by the respondents constitute a breach of his right to personal liberty as guaranteed under Section 35 (1) of the Constitution. The same Constitution has provided under Section 35 (6) thus:- “35 (6): Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.” (Italics supplied for emphasis). From the foregoing, the appellant does not have to ask for compensation once he has established the fact of his being unlawfully detained, a fact which the Court below itself held he has. The compensation is automatic by the operation of the law.”
In the same light, the Court in the case of ARULOGUN V C.O.P LAGOS & ORS (2016) LPELR-40190(CA) where the Court had this to say:
“The Appellant proved that he was unlawfully arrested and detained, and he is therefore,

entitled by virtue of Section 35(6) of the Constitution, to compensation and apology – see Jim-Jaja v. C.O.P., Rivers State (2013) 6 NWLR (Pt.1350) 225 SC, where the Supreme Court further held as follows-“Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matters brought under the enforcement of fundamental rights procedure … The procedure for the enforcement of the Fundamental Human Rights was specifically promulgated to protect the Nigerians’ fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation, even if no specific amount is claimed.” So, fundamental rights matters are placed on a higher pedestal than the ordinary civil matter, in which a claim for damages resulting from a proven injury has to be made specifically and proved.”
The issue of compensation in an established breach of fundamental right is settled by the Constitution, see

Section 35(6) of the 1999 Constitution as Amended and once a breach is established, whether the Claimant asked for compensation or not, the Court can award compensation and the quantum is at the discretion of the Court. The trial Court having found that the Appellants breached the fundamental rights of the Respondents, compensation must follow. The assessment of the compensation is clearly below what was asked for and the Appellants have not shown it was wrongly assessed, therefore the Court cannot interfere. The award was rightly made on account of the breach of the Respondents fundamental rights to the dignity of their human persons.

Generally, it is the essence of justice and fairness that cases are decided on its merits, and this imposes a corresponding duty on the Court to consider the issues arising between the parties before deciding for or against any such party – See OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (PT 95) 26 SC. Simply stated, while it is right of a Plaintiff to present a relief to the Court, it is the duty of the Court to determine it in the light of the law and the facts of the case. See N.P.A. PLC. V. LOTUS PLASTICS LTD. (2005) 19 NWLR (PT.959)

158 SC. The trial Judge acquitted himself creditably in this regard. I have not found any reason to interfere.

In the light of above, the appeal lacks merit and is hereby dismissed. The judgment of HON. JUSTICE A. O. ONUM delivered on the 30th November, 2015 is hereby affirmed.
I make no order as to cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of being furnished with the draft of the Lead Judgment of my learned brother HON. JUSTICE YARGATA BYENCHIT NIMPAR, JCA and I am in total agreement with his reasoning and conclusion.

It is the duty of Courts in this country to safeguard the Fundamental Rights of each individual. Human rights are usually described as inalienable and constitute birthright. The importance of these rights in this country is obvious by the entrenchment of such rights in our Constitution under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).
In F.R.N v IFEGWU (2003) 15 NWLR (Pt.843) 113, Uwaifo JSC held at p. 1844 thus: “If I may say so, as far as this Court is concerned whenever an aspect of personal liberty is properly raised in any proceedings, the focus on the

constitutional question is intense and intensive, and a solution which projects the essence of the constitutional guarantee is preferred.”
In THE DIRECTOR, STATE SECURITY SERVICE V. OLISA AGBAKOBA (1999) 3 NWLR (Pt. 595) 314 at 379, the Apex Court held thus: “In regard, I must express my full agreement with the Court of Appeal that the respondent, having shown by evidence that his right to the possession of his passport had been infringed, the burden was on the appellants to establish that their seizure of the said passport was justified by law.”
If those entrusted with the power to govern or rule Nigeria have no respect to the traditional institution or the citizens, how could these personalities be respected abroad? That will not be possible. Charity must begin at home.

The principles guiding award of damages for the violation or infringement of fundamental human rights had been dearly enunciated in the case of FBN Plc Vs. A-G. Federation (supra) at page 760 paras. A-C, G-H, 161-162 paras. H-B; G-A; by Augie, JSC; Peter-Odili, JSC and J. I. Okoro, JSC: who quoted with approval the authorities of Odogu vs. A-G. Federation

(1996) 6 NWLR (Pt.456) 508; Onwu vs. Nka (1996) 7 NWLR (Pt.458) 1; Eliochin Ltd. vs. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 and UBN vs. Odusote Books Stores (1995) 9 NWLR (PT. 421) 558, particularly the Odagu’s case per Ayoola, JCA (as he then was} following the dictum of Obaseki, JSC in the Eliochin (Nig.) Ltd. vs. Mbadiwe’s case where the learned Sage reasoned that: “The primary object of an award of damages is to compensate the Plaintiff for the harm done to him or a possible secondary object is to punish the defendant for the conduct in inflicting that harm. Such secondary object can be achieved by awarding in addition to the normal compensatory damages, damages which go by various names to wit; exemplary damages, punitive damages, even retributory damages and comes into play whenever the Defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard for law and the like.”
Their Lordships also reflected on the decision of this Court which they quoted with approval in Arulogun Vs. COP Lagos State (2016) LPELR-40190 (CA) on the factors to be taken into consideration on amount to award

for infringement of fundamental rights thus, at page 162 paras G and H of the Law Report:
“(a) The frequency of the type of the violation;
(b) The continually depreciating value of the Naira;
(c) The motivation for violation;
(d) The status of the Applicant;
(e) The embarrassment meted out to the Applicant including pecuniary losses; and
(f) The conduct of the parties generally, particularly the Respondent.”

Speaking in the same vein, the Supreme Court again in British Airways vs. Mr. P.O. Atoyebi (2014) 13 NWLR (Pt.1424) 253 at 286 paras. B-C and on the rationale behind the compensatory theory for award of damages and the nature of general damages in contrast with special damages; Kekere Ekun, JSC citing Shell Petroleum Dev. Co. (Nig.) Ltd. vs. High Chief Tiebo VII & Ors. (1996) 4 NWLR (Pt.445) 657 at 680 pares. D-E; Okongwu vs. NNPC (1989) 4 NWLR (Pt. 115) 296; Cameroon Airlines vs. Otutuizu (2011) 4 NWLR (Pt. 1238) 572, restated the position of the law that the rationale can be found in the Latin Maxim “restitutio integrum” which means to restore the injured party to the status quo ante bellum

(that is the position he/she was prior to the injury complained of). As for general and special damages, she further explained that:
“It is the law that general damages such as the law will presume to be the natural or probable consequence of the Defendant’s act need not be specifically pleaded. It arises by inference of law and need not be specifically pleaded and may be averred generally.
On the other hand, special damages are such losses as the law will not presume but which depends in part, on the special circumstances of the case. Special damages must be specifically pleaded and strictly proved. See Incar (Nig.) Ltd. vs. Benson Transport Ltd, (1975) SC (Reprint) F.B.N. Plc vs. Associated Motors Co. (Nig.) Ltd. (1998) 10 NWLR (Pt.570) 441 at 465-466.”

In the instant case, it is pertinent to note that in Prayer (f) of the Originating Motion, the Applicants/Respondents sought for: “An Order compelling/directing the Respondents (Appellants) to pay the Applicants Monetary compensation to the tune of N5,000,000,000.00 (Five Billion Naira) for the aggravated violation of their Human Rights” and the total number of reliefs sought

therein were Ten, whereas in the statement pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009; Prayer (g) thereof rather sought for “An Order of perpetual injunction restraining the Respondents (Appellants), their agents, privies and representatives from further harassing, brutalizing and threatening to sack the Applicants (Respondents) from Akpen Community land situate on the right hand side of the Makurdi-Gboko Road between Ambilla Stream and the block wall fence near the AOC’s Residence.”

Accordingly, I also agree that this Appeal lacks merit and same is hereby dismissed while the judgment of the Trial High Court is affirmed. I abide by the Order as to costs as made by my Learned brother.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: My learned brother, Yargata Byenchit Nimpar made available to me a draft copy of the lead judgment, just delivered in which the appeal was determined as lacking in merit and thereby dismissed. I totally adopt my learned brother’s reasoning and conclusion reached therein as mine.

Accordingly, the judgment of Hon. Justice A. O. Onum delivered on the 30th November, 2015 in suit No. MHC/1834m/14 is affirmed with no cost awarded.

Appearances:

A. FASHAMO MONE, Esq. For Appellant(s)

ADL, Esq. For Respondent(s)