OLORUNTOBA v. GTB
(2020)LCN/15218(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, March 19, 2020
CA/L/205/2018
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
OLUSOLA OLORUNTOBA APPELANT(S)
And
GUARANTY TRUST BANK PLC. RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION SHOULD NOT BE BASED ON THE JUDGEMENT BUT RATHER ON THE GROUNDS OF APPEAL
The issues for determination should not be based on the judgment but rather on the grounds of appeal and the argument thereafter will be based on the issues and not the ground of appeal. See Ezemba vs. Ibeneme & Anor (2004) 14 NWLR (Pt. 894) 617; Agbai & Ors vs. Okogbue (1991) 7 NWLR (Pt. 204) 391; Adebayo & Ors vs. Shogo (2005) 3 FWLR (Pt. 276) 943. PER TOBI, J.C.A.
WHETHER OR NOT A COURT CAN REFORMULATE ISSUES FOR DETERMINATION
In order to properly streamline the issues for determination in a proper, concise and compact manner so as to ensure adherence to justice, a Court can reformulate issues for determination provided the issues are based on the grounds of appeal. See Sha & Anor vs. Kwan &Ors (2000) 5 SC 178; Poroye & Ors vs. Makarfi & Ors (2018) 1 NWLR (Pt. 1599) 91: State vs. Sani (2018) 1 SC (Pt. II) 35. In Reptico S.A. Geneva vs. Afribank (Nig) Plc (2013) 14 NWLR (Pt. 1373), the Apex Court held thus:
“However, there is no doubt that an appellate Court has the power to reformulate the issues for determination of a matter, as long as the reformulated issues are within the grounds of appeal filed by the appellant but not outside. This is usually done by the Court mostly for the purpose of clarity and precision when it is noticed by the Court that the issues are distilled are clumsy, not precise and sometimes are proliferated. See; Unity Bank Plc v. Bouari (2008) 2 SCM 193; (2008) All FWLR (Pt. 416) 1825; (2008) 7 NWLR (Pt. 1086) 372; Emeka Nwana v. FCDA &Ors.(2004) 7 SCM 25, Agbakoba v. INEC (2008) 12 SCM (Pt. 2) 159; (2008) All FWLR (Pt. 410) 799; (2008) 18 NWLR (Pt. 1119) 489.” PER TOBI, J.C.A.
A JUDGMENT OF A COURT
While the style a Court or a judge uses in writing his judgment can be peculiar to him, the point, however, is that a judgment of Court must be clear and specific and not subject to double interpretation. The judgment of a Court must be clear on the facts, the evaluation of the evidence, the issues for determination, the finding of the Court on the evaluated evidence and resolution of the issues with a clear order so that the parties are not mistaken as to the decision of the Court. See Otti vs. Excel-C Medical Centre Ltd &Anor (2019) LPELR-47699 (CA); Nwabunike vs. State(2019) LPELR-47748 (CA); Uzuda & Ors vs. Ebigah & Ors (2009) 4 FWLR (pt 499) 9709. The Apex Court drove home this point in Ajiboye vs. FRN (2018) 13 NWLR (pt 1637) 430, per Sanusi, JSC in these words:
“Having posited above, it needs to be stressed that judgment writing is an art of itself and there could be numerous ways or methods of writing judgment. The methods normally adopted by judges may vary from one judge to another. The variation could be as many as there are numerous judges and each may have or may adopt the method he wishes to adopt. There is really no particular style approved for judges to adopt in judgment writing since as I stated supra, judgment writing is an art of itself as such there can be multiplicity of ways or method of writing it. See Garuba v Yahaya (2007) 3 NWLR [pt.1021) 390; Mbani v Bosi & Ors (2006) 11 NWLR (pt.991)800 . In fact this Court in the case of Alfred Usiobaifo & Anor Vs Christopher Usiobaifo & Anor (2005) 1 SC 60 the Court had this to say per Niki Tobi JSC (of blessed memory).
“Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in field of mathematics. A judge is not bound to follow the method or methodology stated by counsel in his brief. Once a judgment of a trial judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief argument of counsel, if counsel are in the matter, reactions of the judge to the arguments and final order, an appellate Court can not hold that the judgment is not properly written.”PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice Hadiza R. Shagari of the Lagos Division of the Federal High Court delivered on 11/9/2017 in Suit No. FHC/L/CS/660/2017 – Olusolu Oluruntoba vs. Guaranty Trust Bank Plc. The case of the Appellant (Applicant at the lower Court) is very straight forward. At the lower Court, the Appellant filed an application under the Fundamental Right Enforcement Procedure against the Respondent (Respondent at the lower Court) and two other Respondents who were members of the Nigerian Police Force (though he later discontinued the action against them) for the breach of his fundamental rights as guaranteed under the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Respondent’s case in the lower Court is that it did not violate or breach the Fundamental right of the Appellant as the freezing of his account and his arrest were based on the order from a competent Court and the order from the 2nd Respondent. It is the Respondent’s further case that it is unlawful to hold it responsible for the obedience of the Court order. The lower Court after hearing the application and the arguments of both parties, held in its judgment contained on pages 91 – 104 of the records of appeal as follows specifically at page 103- 104 thus:
“Therefore, from the totality of the facts and circumstances before this Honourable Court, it is unlawful for the 2nd and 3rd Respondents to arrest the Applicant without sufficient evidence upon which to charge him to Court or caution him. It is completely wrong to arrest a person let alone caution a suspect without any justification or before they look for evidence that would implicate the suspect. See Fawehinmi vs. IGP (Supra).
This Application for the enforcement of Fundamental Right succeed.
Consequently, the arrest, harassment and freezing of the Applicants Account without justifiable (sic) is unconstitutional this is so because there was no any evidence before the Court to establish the fact that the 2nd and 3rd Respondents acted based on any complain or petition same was not attached.
Even though the 2nd and 3rd Respondents have been discontinued. I have therefore declared that the 2nd and 3rd Respondents acted ultra vires and they have violated the Applicant’s Fundamental Rights as provided under Section 31(1) (a), (b) and (c) 1999 Constitution as amended. On the whole the Applicant relief as contained in prayers 1,2,3 and 4 is granted.
However, the 2nd and 3rd Respondents did not file any Counter challenging the averment as contained in the Affidavit in Support of the Application.
It is trite any unchallenged averment is deemed admitted.
I therefore declare that the Magistrate Court Order is vacated forthwith, the Applicants Account with No: 00077887628 be unfreeze as there is no any justifiable reason for freezing the Account in the first instance.
This Application succeeds and it is granted.”
The Appellant dissatisfied with the judgment of the lower Court has filed this appeal vide a notice of appeal dated 7/12/2017 found on pages 118 -121 of the record of appeal containing three grounds, which are:
Ground 1:
The learned trial Court erred in law when it failed to rule on the legality or otherwise of the Respondent’s act of detaining and arresting the Applicant in its banking hall without a Court order to that effect.
Ground 2:
The learned trial Court erred in law when it held granted reliefs 1 to 4 as prayed but failed to award damages to the Appellant.
Ground 3:
The learned trial Court erred in law when it failed to rule on the validity of the Magistrates Court’s Bankers; Order (Exhibits G1 and G2) inspite of the Appfact (sic) that, issues were joined by parties on its validity.
The Appellant brief of argument dated 22/2/2018 but filed on 27/2/2018 adopted on 17/2/20 was settled by Olumide Babalola Esq. In his brief, Appellant raised two issues for determination to wit:
1. Whether or not having granted the declaratory reliefs, the trial Court ought to have awarded damages in favour of the Appellant? (Ground 2)
2. Whether or not the Banker’s order relied on by the Respondent (sic) valid in law? (Ground 3)
On issue one, it is the submission of counsel that in fundamental rights cases, once violation of right is established, the victim/applicant is automatically entitled to damages. He cited Oliver Iwununne vs. Morris Egbuchulem & Ors. (2016) LPELR-40515 (CA); Ozide & Ors. vs. Ewuzie & Ors (2015) LPELR 24482 CA; Prof. Mazi Chris Okoro vs. Commissioner of Police, Enugu State (2016) LPELR-41025 (CA); Skye Bank vs. Njoku (2016) LPELR-40447 (CA); Igweokolo vs. Akpoyibo (2017) LPELR-41882 (CA) and Jim-Jaja vs. C.O.P Rivers State (2013) 6 NWLR (Pt. 1350) 225 @ 244-245 and 256 in urging this Court to hold in line with his submission to the effect that damages ought to be granted to the Appellant since the Court has held that the Appellant’s right was violated. He urged the Court to resolve issue 1 in his favour.
On issue two, it is the contention of learned counsel that with respect to the validity of the banker’s order allegedly relied on by the Respondent, the trial Court did not address the fundamental issue which is important to the administration of law and justice in Nigeria especially since the practice of issuing banker’s order of this nature is a going concern. It is the argument of counsel that the document does not comply with the provisions of Order 23 Rule 14 of the Magistrates Courts (Civil Procedure) Rules 2009, which rules govern the proceedings of the Magistrate Court of Lagos State. It is the further argument of counsel that the document does not bear any reference number, and hence it is irrefutably presumed that it was neither filed at the Magistrate Court nor emanated therefrom.
It is also the contention of counsel that the application which led to the said order was made ex parte, meaning in the absence of the Appellant against whom the order was sought. It is his further contention that the order was made to last ad infinitum contrary to settled principles of law that ex parte orders are only made to last for a short time. He cited Kubor vs. Dickson (2012) LPELR-9817 (SC); Ararume vs. I.N.E.C (2007) 9 NWLR (Pt. 1038) 127 @ 160; Olorunfemi vs. Asho (2000) 2 NWLR (Pt. 643) 143 and Okeke vs. Okoli (2000) 1 NWLR (Pt. 642) 641. It is the final argument of the Appellant’s counsel that the said banker’s order relied on by the Respondent was made pursuant to the provisions of the Banker’s Order Act; which is a non-existent law both in England and in Nigeria and that Section 89 of the Evidence Act 2011 relied on by the Respondent deals on secondary evidence and nothing else. On the effect of a non-existent law, counsel cited Asims (Nig.) Ltd. vs. L.B.R.B. Dev. Auth. (2002) 8 NWLR (Pt. 769) 349. He urged this Court to resolve issue two in favour of the Appellant. He finally urged the Court to allow the appeal.
The Respondent’s brief dated and filed 6/11/2018 was settled by A.O. Ahikhueme Esq. The said brief was deemed on 17/2/2020 same day it was adopted. In its brief, Respondent raised four issues for determination viz:
1. Whether having regards to the findings of fact made by the learned trial Judge that the Respondent acted ‘accordingly as directed and instructed based on Exhibits GTB 1 and GTB 2 and/or GTB 1(b)’, it was right for the learned trial judge to grant reliefs 1, 2 and 3 that the acts of the Respondent therein were illegal and unconstitutional, notwithstanding the existence of a valid order of Court mandating the Respondent to so act.
2. Whether the findings of facts made against the 2nd and 3rd Respondents who are no longer parties to the action occasioned a miscarriage of justice to the Respondent.
3. Whether the Respondent can be held liable for the action of the 2nd and 3rd Respondent that had been struck out of the suit.
4. Whether a party is allowed to disobey an order made in error by a Court of competent jurisdiction until same is set aside.
On issue one, it is the submission of counsel that the learned trial Judge was wrong when she granted prayers 1, 2 and 3 against the Respondent herein having regard to the evidence adduced before the Court by the Respondent. He further submitted that the learned trial Judge ought to have dismissed the Appellant’s reliefs 1, 2 and 3 against the Respondent as the Appellant’s arrest was done pursuant to the execution of a valid order made by a Court of competent jurisdiction. It is the argument of counsel that the decision of the trial Court took into consideration facts which were not before the Court in arriving at its conclusion. It is also the contention of learned counsel that despite the fact that the Appellant had discontinued his action against the 2nd and 3rd Respondents, the lower Court went on a voyage when she held that the 2nd and 3rd Respondents had no sufficient evidence to arrest and caution the Appellant. Counsel relying on Okpiri vs. Jonah (1961) 1 SCNLR 174 urged this Court to evaluate the contents of Exhibit GTB 2/GTB 1(b) and hold that the necessary inference to draw thereon is that the arrest of the Appellant as well as the freezing of his account by the Respondent was not illegal and unconstitutional, but made pursuant to an order of a Court.
Learned counsel for the Respondent argued issues two and three together. It is the submission of counsel on this issue that the Appellant having discontinued its action against the 2nd and 3rd Respondents, they cease to be parties to the action and as such have no obligation to file any response to the said suit or make any admission against the interest of a party therein. Placing reliance on Akpagher vs. Gbungu (2015) 1 NWLR page 209 @ 238 counsel further submitted that the learned trial Judge took irrelevant matters into consideration in arriving at its decision when she knows that the 2nd and 3rd Respondents were no longer parties to the action and same has occasioned a miscarriage of justice. It is the contention of counsel that even though the learned trial Judge found that the Respondent was not responsible for the alleged violation of the Appellant’s Fundamental Right, she granted the Appellant’s reliefs 1, 2, 3 and 4 against the Respondent who is now the only party on record to the suit and which finding is perverse and has led to a miscarriage of justice. He relied on State vs. Sani (2018) 9 NWLR (Pt. 1624) 278 @ 303 and Songo vs. Akure (2015) 1 NWLR (Pt. 1414) 535 @ 560-561.
On issue four and the final issue, it is submitted by counsel that an order made by a Court of competent jurisdiction is valid and enforceable until same is set aside. He further submits that the Appellant had admitted the fact that the order emanated from the Magistrates’ Court of Lagos and that facts admitted needs no further proof. He cited Durosaro vs. Ayorinde (2005) 8 NWLR (Pt. 927) 407 @ 427. He argued that the Appellant is not disputing that Exhibit GTB 2/GTB 1(b) was made by a Court of competent jurisdiction but that the said exhibit is fraught with manifest irregularities. He cited Izeze vs. I.N.E.C (2018) 11 NWLR (Pt. 1629) 110 @ 135 and Fidelity Bank Plc vs. the M.T. ‘Tabora’ (2018) 12 NWLR (Pt. 1632) 135 @ 148-148, 157-158 with regards to the validity of an order or judgment made by a Court. He urged this Court to discountenance the Appellant’s submission with regards to the validity of Exhibit GTB 2/GTB 1(b).
The Appellant exercising his right of reply filed a reply brief filed on 4/12/2018 deemed on 17/2/2017. In its reply brief, the Appellant submits that the following new issues have arisen:
1. Whether or not the issues distilled by the Respondent are competent since they were not formulated from any of the three grounds of appeal on the Appellant’s Notice of Appeal.
2. Whether or not the trial Court made a finding that the Respondent acted validly in accordance with a valid order of Court mandating the Respondent to so act.
3. Whether the Court’s finding against the 2nd and 3rd Respondents occasioned miscarriage of justice to the Respondent
4. Whether or not the trial Court held the Respondent liable for the actions of the 2nd and 3rd Respondents whose names had been struck off.
5. Whether a party is allowed to disobey an order made in error by a Court of competent jurisdiction.
On issue one, it is the argument of counsel that the Respondent has formulated five issues and none of them relates with any of the three grounds of appeal contained in the Appellant’s notice of appeal contrary to settled principles of law. For this, he relied on M/V Gongola Hope vs. Smurfit Cases Nigeria Ltd (2007) All FWLR (Pt. 388) 1005 @ 1020 and Statoil (Nigeria) Ltd vs. Federal Inland Revenue Service (2014) LPELR-23144 (CA). It is the contention of counsel that since the Respondent did not answer any of the issues raised in the Appellant’s brief and since the issues raised in the Respondent’s brief were not formulated from the grounds of appeal, this Court should strike out the issues for being incompetent. He placed reliance on D.A. (Nig) AIEP Ltd vs. Oluwadare (2007) 7 NWLR (Pt. 1033) 402; Donli vs. Abdullahi (2014) LPELR-23011 (CA) and Eigbe vs. N.U.T. (2008) 5 NWLR (Pt. 1081) 604.
On issue two, it is humbly submitted by counsel that the Respondent’s argument that the lower Court made a finding in respect of the validity of the Magistrates’ Court order is misconceived, when in fact the lower Court set the order aside. He cited Illiyasu vs. Shuwaki (2009) LPELR-4305 (CA).
On issues three and four, it is the submission of Appellant counsel that only a party affected by the decision can complain against it. He cited Ziklagsis Networks Ltd vs. Adebiyi (2017) LPELR 42899 (CA). It is counsel’s submission that only the police can complain in respect of such a decision and the Respondent is not allowed to cry more than the bereaved. He relied on Dingyadi vs. Wamako (2008) 17 NWLR (Pt. 1116) 395; Chukwu vs. INEC (2014) LPELR-(SC); Alh. Kashim Ibrahim Imam vs. Senator Ali Modu Sheriff (2004) LPELR-7315; Yakubu vs. Adamawa State Urban Planning and Development Authority (2013) LPELR-22077 (CA) and UBA Plc vs. Comrade Cycle Ltd (2013) LPELR-20737 (CA) in submitting that the Respondent has not shown how it suffered a miscarriage of justice from the trial Court’s decision on the police activities/actions.
On the last issue, issue five, it is the contention of counsel that apart from the fact that this issue was not formulated from any ground of appeal, it was not even canvassed at the trial Court and as such is incompetent and ought to be struck out. He placed reliance on STB vs. Olusola (2008) WRN (Vol. 4) 82 @ 56; Punch Nigeria Ltd vs. Jumsum Nigeria Ltd (2010) LPELR-4889 (CA); Oriorio vs. Osain (2012) LPELR-7809 (SC); Ehimare vs. Emhonyon (1985) 1 NWLR (Pt. 2) 17 and Oredoyin vs. Arowolo (1989) 3 NSCC Vol. 20 (Pt. 111).
The Respondent filed a notice of cross-appeal dated 21/12/2017 found on pages 1 – 5 of the additional record of appeal compiled by the Cross Appellant containing three grounds of appeal. The grounds of the notice of cross-appeal are substantially the same with that of the Cross-Respondent’s notice of appeal earlier filed; I will, however, reproduce them for emphasis sake:
Ground 1:
The learned trial Judge erred in law when it failed to rule on the legality or otherwise of the Respondent’s act of detaining and arresting the Applicant in its banking hall without a Court order to that effect.
Ground 2:
The learned trial Court erred in law when it granted reliefs 1 to 4 as prayed but failed to award damages to the Applicant.
Ground 3:
The learned trial Court erred in law when it failed to rule on the validity of the Magistrate Court’s Banker’s Order (Exhibit G1 and G2) inspite of the fact that, issues were joined.
On its Cross-Appellant’s brief dated and filed 6/11/2018 deemed on 17/2/2020, counsel raised three issues for determination viz:
1. Whether the learned trial Judge was right in holding that the arrest and hand over of the Appellant to the Police, as well as the Post No Debit category placed on the Appellant’s account was illegal and a violation of the Appellant’s right (Ground one)
2. Whether the judgment of the learned trial Judge is perverse and occasioned a miscarriage of justice having regards to the failure of the Court to consider Exhibit GTB 1 and GTB 2/GTB 1(b) (Ground two)
3. Whether the learned trial Judge was right in holding the Cross Appellant liable for the acts of the 2nd and 3rd Respondents that had been discontinued against in the suit (Ground 3 and 4).
On issue one, it is submitted by the cross Appellant that from the facts and circumstances of the case, the Cross Appellant never violated the Applicant’s fundamental rights as enshrined in the Constitution to warrant the learned trial Judge to hold that the arrest, harassment, and freezing of the account belonging to the Respondent to the cross-appeal are illegal and a violation of his fundamental rights. Thus he referred this Court to the affidavit evidence and exhibits attached before the lower Court. He relied on Sections 32(2)(a) and 44(2)(e) and (k) of the 1999 Constitution in submitting that the rights as guaranteed by Chapter 4 of the Constitution are not absolute and that there are instances where it can be interfered with yet justified. Counsel posited that the Cross Appellant was under a legal duty to execute the order of the Court and cannot be held to be acting illegally. It is further posited that the Cross Appellant is entitled to presume the regularity of the orders validly obtained from the Chief Magistrate Court in accordance with the provisions of Section 168 of the Evidence Act 2011. He relied on the unreported case of Suit No. FHC/L/CS/244/2015 – Mrs. Ngozi Ahamefula vs. Guaranty Trust Bank Plc & 5 Ors. and Fidelity Bank Plc vs. The M.T. ‘Tabora’ (2018) 12 NWLR (Pt. 1432) 135 @ 148-149, 157-158.
On issue two, it is the argument of Cross Appellant’s counsel relying on Songo vs. Akure (2015) 1 NWLR (Pt. 1414) 535 @ 560-561 that the lower Court shut its eyes to the content of Exhibit GTB 1 and GTB 2/GTB 1(b) which is a letter from duly constituted authority as well as a valid order of a Court mandating the Cross Appellant to arrest and freeze the Cross-Respondent’s account. He submitted that the failure of the lower Court to consider these documents has led to a miscarriage of justice.
On issue three, it is the submission of Cross Appellant’s counsel that where a party had been struck out from a suit, it ceases to be a party to the proceedings having been discontinued from the suit and as such cannot participate in any form either by filing any process or otherwise. He relied on Okpiri vs. Jonah (1961) 1 SCNLR 174; Lawal vs. Dawodu (1972) 8 NWLR; Ishola vs. UBN 5-9 SC 83 and Balogun vs. Agboola (1974) 10 SC 111 in submitting that this Court is in as good a position as the learned trial judge to evaluate Exhibit GTB 1 and GTB 2/GTB 1(b) to draw the necessary inferences from them.
The Cross Respondent also filed its brief dated 9/11/2018 and filed 23/11/2018 deemed on 17/2/2020 containing four issues for determination:
1. Whether or not there is a valid ground of appeal to sustain the cross appeal.
2. Whether the trial Court’s judgment is perverse for failure to consider Exhibits GTB 1 and GTB 2/GTB 1(b) (Ground 2)
3. Whether trial Court was not right to have granted reliefs 1, 2, 3 and 4 as prayed by the Cross-Respondent (Ground 1)
4. Whether the trial Court was not right in holding the Cross Appellant responsible for the wrongs of the 2nd and 3rd Respondents.
On issue one, it is the argument of Cross Respondent’s counsel that the grounds as contained in the Cross Appellant’s notice of appeal all attacks the trial Court’s obiter dictum statement on the actions of the 2nd and 3rd Respondents whose names have been struck off the suit; and as such making them incompetent. He relied on the cases of Mobil vs. Suffolk Petroleum Services Limited (2016) LPELR-40054 (CA); Nwankwo vs. Customary Court, Ndiawu Arondizuogu & Ors. (2009) LPELR-4589 (CA); Gallaher Ltd vs. British American Tobacco (Nig) Ltd (2014) LPELR-24333 (CA); Abacha vs. Fawehinmi (2000) 6 NWLR (Pt. 660) 229; Mustapha vs. Olayinka (2018) LPELR-44298 (CA); Visafone Communication Limited vs. Musical Copyright Society of Nigeria (2011) LPELR-9063 (CA); Chief Amodu Akanbi vs. A.G Federation (2017) LPELR-43121 (CA) and Pius Ogbuawa vs. FRN (2011) 12 NWLR (Pt. 1260) 100.
On issue two, it is the contention of counsel that from the deposition of the Cross Appellant contained in its paragraphs iv and vi, the Cross Appellant relied on the directive from the Police as well as the Court order as the justification for its arbitrary acts but failed to adduce admissible evidence of such justification contrary to settled principles of law that he that asserts must prove. He cited Ecobank Nig. Plc vs. Elder Dominic Ekperikpe (2013) LPELR-20327 (CA) and Orji vs. Ohuabunwa (2006) LPELR-7656 (CA). It is also the argument of counsel that none of the exhibits pleaded by the Cross-Appellant at the lower Court was certified even though they were public documents. He relied on Tabik Investment Ltd vs. Guaranty Trust Bank (2011) 17 NWLR (Pt. 1276) 240; Araka vs. Egbue (2003) 17 NWLR (Pt. 848) 1; FRN vs. Usman (2012) LPELR-7818 (SC); Okonji vs. Njokanma (1991) LPELR (SC) and Yahaya vs. State (2014) LPELR-24083 (CA).
It is the further contention of counsel that under the Fundamental Rights Enforcement Procedure Rules 2009 (FREP Rules) or any other law, it is a strange procedure for a Respondent (Cross-Appellant in this present appeal) to be filing a further affidavit as same is unknown to the rules. He placed reliance on Chief Michael Chinedu vs. Joseph Uti (2012) LPELR-14391 (CA) and Mobil Oil Unlimited vs. Monokpo (2003) 18 NWLR (Pt. 852) 349. Aside from that, the said further affidavit was filed after the close of arguments and same was never adopted or brought to the Court’s attention at the hearing and it is deemed abandoned at law. He cited Mba vs. Mba (1999) 10 NWLR (Pt. 623) 503. Also, the said further affidavit was filed without leave. He cited Ngere vs. Okuruket XIV (2014) 11 NWLR (Pt. 657) 673; N.J.C vs. Agumagu (2015) 10 NWLR (Pt. 1467) 406; Irhabor vs. Ogaiamien (1999) 8 NWLR (Pt. 616) 517 and Uchendu vs. Ogboni (1999) 5 NWLR (Pt. 603) 337.
On issue three and four, it is the submission of counsel that the mere fact that the 2nd and 3rd Respondents’ names were struck out does not preclude the Court from commenting on their barbaric activities and that the lower Court ruled based on the documents and case before it especially the Cross Appellant’s counter-affidavit wherein they sought to justify their actions by inadmissible documentary evidence received from the 2nd and 3rd Respondents. It is the submission of counsel that since the issues borders on pronouncement on third parties, it does not lie in the mouth of the Cross Appellant to complain against same. He relied on Mobil vs. LASEPA (2002) 18 NWLR (Pt. 798) 1 and Ogboru vs. President, Court of Appeal (2007) All FWLR (Pt. 369) 1221. Finally, it is contention of counsel that though the Cross Appellant submitted by its ground of appeal and issues that the trial Court held it responsible for the acts of the 2nd and 3rd Respondents, it failed to point out the part of the judgment where the trial Court so held and as such counsel urged this Court to discountenance the submission.
The Cross-Appellant exercising his right of a reply filed a reply brief dated and filed 5/2/2020 but deemed on 17/2/2020. On its reply brief and in replying to the Cross Respondent’s issue one, counsel urged this Court to discountenance the arguments canvassed by the Cross Respondent as same did not address the ground of appeal contained in the notice of cross-appeal. He relied on Ogboru vs. President, Court of Appeal (2007) All FWLR (Pt. 369) 1221 in submitting that an appeal must be based on the decision of a Court.
On the Cross Respondent’s issue two, it is the submission of counsel to the Cross Appellant that the argument canvassed by the Cross Respondent in its brief did not arise from the Cross Respondent’s written address canvassed before the lower Court; as the Cross Respondent did not raise the issue of legality or otherwise of admissible or inadmissible evidence. He cited Lababedi vs. Majekodunmi (2018) 5 NWLR (Pt. 1612) 369 @ 378-379. On the whole, counsel urged this Court to hold that argument canvassed under issue two of the Cross-Respondent’s brief and the authorities cited therein are inapplicable and same should be struck out or discountenanced.
In the matter before this Court, there is an appeal by the Appellant and a cross-appeal by the Respondent. The issues placed before this Court for determination in the appeal and cross-appeal are not radically different as the grounds of appeal in the notice of appeal and the grounds of cross-appeal in the notice of the cross-appeal are materially the same and in fact word for word the same. It is just like different sides of the same coin since the grounds of appeal and those of the cross-appeal are the same in all respect.
The issues for determination should not be based on the judgment but rather on the grounds of appeal and the argument thereafter will be based on the issues and not the ground of appeal. See Ezemba vs. Ibeneme & Anor (2004) 14 NWLR (Pt. 894) 617; Agbai & Ors vs. Okogbue (1991) 7 NWLR (Pt. 204) 391; Adebayo & Ors vs. Shogo (2005) 3 FWLR (Pt. 276) 943. I am compelled to make this observation since the Appellant in the reply brief of 17/2/2020 formulated 5 issues for determination. This is a strange procedure where issues for determination are formulated in a reply brief. This is not the essence of a reply brief. The reply brief is supposed to address issues raised within the issues for determination in the Respondent’s brief. It is to reply to matter in the Respondent’s brief and it is not supposed to raise new issues or an opportunity to reopen or reinforce earlier submission on issues it had the opportunity to address when the Appellant brief was filed. In Onwubuya & Ors vs. Ikegbunam (2019) LPELR-49373(SC) the Apex Court per Abba Aji, JSC at pages 7-8 held thus:
“There is also the 9-page Reply brief of the Appellants filed on 30/1/2018 dedicated to responding and re-arguing all the issues argued and canvassed by the Respondent in his brief. This is obviously and definitely not the purpose for a reply brief. The Appellants cannot be allowed to have a second bite at the cherry. A reply brief is filed when an issue of law or argument raised in the Respondent’s brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the Respondent’s brief. It is not proper to use a reply brief to extend the scope of the Appellant’s brief or raise issues not dealt with in the Respondent’s brief. See CAMEROON AIRLINES v. MIKE OTUTUIZU (2011) LPELR-827 (SC), OGBORU V. IBORI (2005) 13 NWLR (PT 942) PAGE 380.”
As part of the argument in the reply brief, counsel submitted that it was not proper for the lower Court to make a finding on the 2nd & 3rd Respondents when the Appellant had withdrawn against them in the lower Court. In my opinion, all the issues and arguments in that respect, whether in the appeal or the cross-appeal is unnecessary as that is not an issue from any ground of appeal in both the notice of appeal and the cross-appeal. In order to properly streamline the issues for determination in a proper, concise and compact manner so as to ensure adherence to justice, a Court can reformulate issues for determination provided the issues are based on the grounds of appeal. See Sha & Anor vs. Kwan &Ors (2000) 5 SC 178; Poroye & Ors vs. Makarfi & Ors (2018) 1 NWLR (Pt. 1599) 91: State vs. Sani (2018) 1 SC (Pt. II) 35. In Reptico S.A. Geneva vs. Afribank (Nig) Plc (2013) 14 NWLR (Pt. 1373), the Apex Court held thus:
“However, there is no doubt that an appellate Court has the power to reformulate the issues for determination of a matter, as long as the reformulated issues are within the grounds of appeal filed by the appellant but not outside. This is usually done by the Court mostly for the purpose of clarity and precision when it is noticed by the Court that the issues are distilled are clumsy, not precise and sometimes are proliferated. See; Unity Bank Plc v. Bouari (2008) 2 SCM 193; (2008) All FWLR (Pt. 416) 1825; (2008) 7 NWLR (Pt. 1086) 372; Emeka Nwana v. FCDA &Ors.(2004) 7 SCM 25, Agbakoba v. INEC (2008) 12 SCM (Pt. 2) 159; (2008) All FWLR (Pt. 410) 799; (2008) 18 NWLR (Pt. 1119) 489.”
Taking advantage of that liberty of the law, I will now formulate my own issues for determination within the confines of the law. From the appeal and the cross-appeal, the following issues are hereby formulated for determination:
1. Whether the lower Court ruled on the legality of the Respondent’s act complained against by the Appellant in the application in the lower Court?
2. Whether the lower Court was right in the circumstance of the evidence before it to grant reliefs 1,2, 3 and 4 in one breath and in the other refusing to grant the relief for damages?
3. Whether the lower Court appropriately considered the admissibility and the validity of the evidence before it particularly Exhibits G1 and G2?
In deciding this appeal and the cross-appeal, this Court cannot go outside the issues formulated for determination which arise from the grounds of appeal which informs the argument before the Court. I will now address issue 1. The original Respondents to the application at the lower Court were the present Respondent as 1st Respondent, the Assistant Inspector General of Police as 2nd Respondent and one Mr. Adewunmi, the Investigating Police Officer as 3rd Respondent. In the course of the proceeding in the lower Court, the Appellant withdrew the suit against the 2nd & 3rd Respondents. The position of the law in a situation such as this is that having withdrawn the case against the 2nd & 3rd Respondent, the name of the 2nd & 3rd Respondents are struck out of the suit and therefore they are no more parties to the action and no order can be made against them. See Oyelese & Ors vs. INEC &Ors (2011) LPELR-11963 (CA); Imperial Homes Mortgage Bank Ltd vs. Mount Gilgal Investment Ltd & Ors (2017) LPELR-42711; The Vessel “Saint Roland” & Anor vs. Osinloye (1997) 4 NWLR (Pt. 500) 387.
The lower Court held on page 103 of the records that the 2nd & 3rd Respondents unlawfully arrested the Appellant and they acted ultra vires their powers. After that finding the lower Court held:
“On the whole the Applicant relief as contained in prayers 1,2,3 and 4 is granted…..This application succeeds and it is granted”
Though it appears the lower Court seems to relate the action of the 2nd & 3rd Respondents to the granting of prayers 1, 2, 3 and 4, the fact remains that the issue is not part of the ground of appeal and therefore the finding is of no moment and has no relevance in this appeal and indeed the cross-appeal.
The decision of the lower Court as it relates to the only Respondent on record in this appeal according to the Appellant does not correspond with the evidence before it and the finding of the Court. The lower Court on page 102 of records (page 12 of the judgment) held thus:
“In the instant suit, the 1st Respondent acted accordingly as directed and instructed by the 2nd & 3rd Respondents based on Exhibit GTB1 and GTB2.”
With a finding such as this, the Respondent is at a loss as to how the lower Court came to the conclusion that it is responsible for the breach and violation of the fundamental right of the Appellant.
The direct issue to be addressed in issue 1 demand that we look at the judgment to see whether the lower Court had made a specific finding on whether the Respondent breached the fundamental right of the Appellant. From the evidence before the lower Court as shown in paragraphs 4(ii)(iii)(iv)(v)(vi)(vii) & (viii) of the counter affidavit, it is clear that the Respondent froze the account of the Appellant and prevented him from leaving their premises. The reason given for the action is that the Respondent was acting on the letter from the Assistant Inspector General of Police (Exhibit GTB 1) and the bank order secured from the Magistrate Court (Exhibit GTB 2). Though the Respondent denied harassing the Appellant, it admitted the fact that it denied the Appellant his right of leaving the premises until staff from the Assistant Inspector General’s office arrived to take the Appellant into custody. From the law, that act amounts to a violation of the freedom of movement of the Appellant except there is a legally justifiable reason for doing that. See Director of DSS & Anor vs. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Azuh vs. Union Bank (2014) 11 NWLR (Pt. 1419) 580. This however, is subject to any good reason advanced by the Respondent for that act or those acts that amount to the violation of the right of the Appellant. Once there exist a good reason recognized under the law for the violation of the fundamental right of the Appellant, the Respondent will not be held liable or responsible. This is based on the principle that fundamental right is not absolute as it can be restricted as the right of one stop where that of another begins. See Dokubo- Asari vs. FRN NSCQR Vol (2009) 1146; Osawe & Ors vs. Registrar of Trade Union (1985) 5 SC 343; Ransome-Kuti & Ors vs. A.G. Federation & Ors (1985) 2 NWLR (Pt. 6) 211.
I will be looking at Exhibits GTB 1 and GTB 2 later in this judgment, but for now, the question is, did the lower Court make any finding on the action of the Respondent as to whether it is legal or not? I have looked through the 14 pages judgment found on pages 91-104 of the records and I make bold to say that the lower Court made no specific finding on the legality or otherwise of the action of the Respondent. While the style a Court or a judge uses in writing his judgment can be peculiar to him, the point, however, is that a judgment of Court must be clear and specific and not subject to double interpretation. The judgment of a Court must be clear on the facts, the evaluation of the evidence, the issues for determination, the finding of the Court on the evaluated evidence and resolution of the issues with a clear order so that the parties are not mistaken as to the decision of the Court. See Otti vs. Excel-C Medical Centre Ltd &Anor (2019) LPELR-47699 (CA); Nwabunike vs. State(2019) LPELR-47748 (CA); Uzuda & Ors vs. Ebigah & Ors (2009) 4 FWLR (pt 499) 9709. The Apex Court drove home this point in Ajiboye vs. FRN (2018) 13 NWLR (pt 1637) 430, per Sanusi, JSC in these words:
“Having posited above, it needs to be stressed that judgment writing is an art of itself and there could be numerous ways or methods of writing judgment. The methods normally adopted by judges may vary from one judge to another. The variation could be as many as there are numerous judges and each may have or may adopt the method he wishes to adopt. There is really no particular style approved for judges to adopt in judgment writing since as I stated supra, judgment writing is an art of itself as such there can be multiplicity of ways or method of writing it. See Garuba v Yahaya (2007) 3 NWLR [pt.1021) 390; Mbani v Bosi & Ors (2006) 11 NWLR (pt.991)800 . In fact this Court in the case of Alfred Usiobaifo & Anor Vs Christopher Usiobaifo & Anor (2005) 1 SC 60 the Court had this to say per Niki Tobi JSC (of blessed memory).
“Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in field of mathematics. A judge is not bound to follow the method or methodology stated by counsel in his brief. Once a judgment of a trial judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief argument of counsel, if counsel are in the matter, reactions of the judge to the arguments and final order, an appellate Court can not hold that the judgment is not properly written.”
In this instant case I have stated supra, that the learned justice of the Court of Appeal who wrote the lead judgment had in the said judgment summarised the submissions of the learned counsel for the parties and also relied on or endorsed the findings of the trial Court and adopted or endorsed them before resolving the issues as highlighted above. That in my view, could be his own style, approach, or method of writing judgment. In any case, he had considered all the issues raised and resolved them and had drawn conclusions or general inference before resolving those issues in favour of the respondent. I am unable to say that by the approach adopted by the learned justice of the penultimate Court who wrote the judgment had by the said judgment caused miscarriage of justice on the appellant which could be said to have vitiated the judgment in question. See David Omotola & Ors v The State (2009) 2-3 SC 7 or (2009)7 NWLR [pt.1139)148.”
Though the lower Court made no definite and specific finding as to the legality of the action of the Respondent, it can however, be inferred from the judgment that the action of the Respondent was not illegal as it was acting on Exhibits GTB 1 and GTB 2. This seems to be the position of the lower Court. This is the finding of the lower Court:
“In the instant suit, the 1st Respondent acted accordingly as directed and instructed by the 2nd & 3rd Respondents based on Exhibit GTB1 and GTB2.”
The inference of this is that even if the action of the Respondent is illegal, the Respondent cannot be held responsible because it was acting based on the order of a Court. The above is all the lower Court made as a finding on the action of the Respondent in the 14 pages judgment. As mentioned earlier this is not a clear pronouncement on the legality or otherwise of the action of the Respondent. In the circumstance, I resolve the first issue in favour of the Appellant. The legal effect of this however, will be discussed later in this judgment.
The lower Court held as earlier mentioned that prayers 1,2,3 and 4 are granted. For completeness, it will not be out of place to reproduce reliefs 1,2,3 and 4 of the claim of the Appellant contained on pages 1-2 of the records. The reliefs are as follows:
1. A DECLARATION that the harassment of the Applicant by the security officers of the 1st Respondent in their banking hall on the 24th day of April 2017 is illegal, unconstitutional and contrary to Sections 34 of the Constitution of the Federal Republic of Nigeria, 1999 (As amended).
2. A DECLARATION that the 1st Respondent’s freezing of the Applicant’s GTB’s account number 00077887628 is illegal, unconstitutional and contrary to Sections 44 of the Constitution of the Federal Republic of Nigeria, 1999 (As amended).
3. A DECLARATION that the harassment and freezing of the Applicant’s GTB account number 00077887628 by the 2nd and 3rd Respondents is illegal, unconstitutional and contrary to Sections 34 of the Constitution of the Federal Republic of Nigeria, 1999 (As amended).
4. AN ORDER of this honourable Court mandating the Respondents to unfreeze the Applicant’s account number 00077887628 domiciled with the 1st Respondent.
From the reliefs stated above, it is clear that granting relief 3 is completely out of place. This is because the declaration sought is against the 2nd & 3rd Respondents and since the Appellant has withdrawn the action against the 2nd & 3rd Respondents, no useful purpose will be served by granting the order as a Court order is not binding on a party who is not part of the proceeding. See Aribisala vs. Bello (2016) LPELR-40145 (CA); Oyeyemi & Ors vs. Owoeye (2017) LPELR-41903 (SC). The lower Court was therefore wrong in granting relief 3.
Reliefs 1,2 and 4 are against the Respondent before this Court who was the sole Respondent in the lower Court. Was the lower Court right to have granted reliefs 1, 2 and 4 against the Respondent? This is what I am considering as issue 2. I will deal with issues 2 and 3 together. What the evidence before the lower Court show is that the Respondent froze the account of the Appellant and kept him on its premises for some hours. The action of the Respondent was propelled by Exhibits GTB 1 and GTB 2 and therefore the admissibility of those exhibits is an important issue for consideration. Before I consider the admissibility of the exhibits, the question is; what is the position of the law in the circumstance of the case in determining the liability or otherwise of the Respondent. The Appellant in the first relief is seeking a declaratory order that his harassment at the premises of the Respondent is illegal and unconstitutional. In fundamental right cases, the initial burden is on the Appellant to show that he was detained or harassed by the Respondent and when this is established, the burden moves to the Respondent to justify the arrest, detention or harassment.
See EFCC vs. Oyubu & Ors (2019) LPELR-47555 (CA); Baro vs. C.O.P. Delta State (2019) LPELR-48611 (CA). The burden is on the Appellant to show that he was harassed and that his account with the Respondent was frozen. The burden of proof is on the Appellant because he is the person alleging that his fundamental right was infringed or violated. If no evidence is called, the party that will lose is the Appellant, therefore the Appellant has the initial duty to prove that he was harassed and his account frozen. See Matoh vs. Admiral Environmental Care Ltd (2015) LPELR-25905 (CA); Nwavu & Ors vs. Okoye & Ors (2008) LPELR-2116 (SC); Benedict Otanma vs. Kingdom Youdubagha (2006) LPELR-2821 (SC).
The Appellant in the Court below from the affidavit evidence has shown that his account was frozen by the Respondent. This the Respondent did not deny. The law on unchallenged evidence is clear, trite and settled. Unchallenged evidence needs no further proof as it is deemed admitted and the Court will act on same. See Oforlete vs. State (2000) 12 NWLR (Pt. 681) 415; Kopek Construction Ltd vs. Ekisola (2010) 1 FWLR (Pt. 513) 1709; Onyiorah vs. Onyiorah & Anor (2019) LPELR-49096 (SC).
In this respect, the burden shift to the Respondent to justify the freezing of the Appellant’s account or his detention. That is where Exhibits GTB 1 and GTB 2 come into focus. I will consider whether there is justification for the action when I look at issue 3. I however, cannot say the same of the relief dealing with harassment. This is because it does not appear that the Appellant has discharged the burden placed upon it to initially prove that the Respondent staff harassed him. The Respondent only admitted detaining the Appellant but did not admit harassing him. In the light of that, the Appellant has a duty to prove that he was harassed, however, what is clear is that he was detained and not allowed to leave the banking hall of the Respondent. If there is no evidence to justify the Respondent’s action then the Respondent will be held to have violated the right of freedom of movement of the Appellant. This is clear and certain from the totality of the evidence before the lower Court. As earlier mentioned, the lower Court did not make any specific finding against the Respondent to the effect of the violation of the Appellant’s right. In such a situation, this Court can assume the position of the lower Court to make a specific finding by evaluating the evidence as the lower Court would have done. See Akaose & Ors vs. Okoye & Ors (2016) LPELR-40172; Akpan & Ors vs. Otong & Ors (1996) 10 NWLR (Pt 476) 108; Dakwang vs. NJC & Ors (2019) LPELR-48450 (CA). See also Section 16 of the Court of Appeal Act, Cap C37, LFN 2004.
In the circumstance, I have evaluated the evidence before the lower Court as disclosed in the affidavit evidence and come to the conclusion that there is enough evidence that the Respondent detained the Appellant in its banking hall and also froze his account. This is the clear averments and deduction in paragraphs 4 subparagraphs (ii-vii) of the counter affidavit on pages 12-15 of the records. It is therefore very safe to hold that the Appellant has proved that the Respondent violated his fundamental right by detaining him in their banking hall and froze his account. If the Respondent cannot give any justifiable reason for those actions then I will uphold the decision of the lower Court. If I therefore do that, I will also agree with the Appellant that he is entitled to damages as the law is that once the Court holds that the right of a person has been breached or violated, he is entitled to general damage which is a damage that flows naturally from the wrong the Appellant suffered. See Iyere vs. Bendel Feed & Flour Mill Ltd (2008) 18 NWLR (Pt. 1119) 300; Elf Petroleum vs. Umah & Ors (2018) 1 SC (Pt. 1) 173; Agu vs. General Oil (2015) 17 NWLR (Pt. 1488) 327.
This now takes me to inquire whether the Respondent has adduced any evidence justifying the detention and the freezing of the Appellant’s account. The reason the Respondent gave for the action is contained in paragraphs 4 (ii)(iii)(iv)(v)(vi)(vii)(viii)(xii)(xv)(xvi) of the counter affidavit. In summary, the Respondent’s reason for the action is that it was done in obedience to Exhibit GTB 1, the letter from the office of the Assistant Inspector-General of Police to the Chief Compliance Officer of the Respondent and Exhibit GTB 2, the bank order from the Magistrate Court. These are on pages 16 & 17 in the record. Exhibit GTB 1 is a letter to the Respondent investigating the account of the Respondent with the request among other things that the account of the Appellant be placed on Post No debit and to arrest whosoever transact business on that account. This letter was written on 19/4/2017. It was signed by ACP Patrick A. Atayero. Exhibit GTB 2, is an order signed by Adelaja. C.I, a Chief Magistrate in the Lagos District. The order is directed to the Respondent and one of the orders is to place the account of the Appellant on a “post no debit and arrest whosoever that transact on that account.” The Respondent’s reason given for the action is that as a law-abiding organization, it has to obey the order of a Court. This order was given on 20/4/2017. Both documents were certified as True Copies by O.Y. Thomas a Principal Executive Officer 1 of the Federal High Court, Ikoyi, Lagos. I must mention in direct answer to issue 3 that the lower Court did not make any specific findings on the admissibility of Exhibits GTB 1 and GTB 2. In the circumstance, this Court can assume the position of the trial Court to make a decision on the admissibility of those Exhibits. This Court per Yakubu, JCA (of blessed memory) in Akaose & Ors vs. Okoye & Ors (supra) on page 27 held as follows:
“Furthermore, the law is no longer recondite but very well settled to the effect that the appellate Court, just like the trial Court, possesses the power to evaluate the documentary exhibits tendered by the parties and admitted into evidence by the trial Court. Therefore, evaluation of documentary evidence is not the exclusive preserve of trial Courts. Dr. Soga Ogundalu v. Chief A. E. O. Macjob (2015) 3 SCNJ 90 at 107; Iwuoha v. NIPOST (2013) LRCN 1622; (2003) 8 NWLR (pt. 822) 308 (SC); Salisu v. Odumade (2010) 2 SCNJ 257.”
The Appellant in the brief challenged Exhibits GTB 1 and GTB 2 on many fronts including the fact that the documents were not certified and therefore inadmissible and that the Court order is not worthy of being obeyed as it violates the Magistrate Court Law of Lagos State. In the further affidavit, the Appellant averred that Exhibit GTB 2 is fake. This is the allegation of the Appellant, in view of the presumption of regularity in favour of Exhibit GTB 2, the Appellant needed to do more than make a mere averment to rebut the presumption of regularity. See Rasheed vs. State (2014) LPELR-22456 (CA); Shitta-Bay vs. AG Federation (1998) 10 NWLR (Pt. 570)392; Torri vs. National Park Service of Nigeria (2011) 6-7SC (Pt. III) 1711.
To convince the Court that the order is fake, the Appellant needed to produce documents to show the inquiry was made in the Magistrate Court and the response from the Court. Particularly, when the Respondent has no opportunity to file another affidavit, the Appellant needed to do much more than a mere averment to show that the order is not from the Magistrate Court. In the absence of that, the presumption of regularity will be applied in favour of the Respondent. See Simon Ezechukwu & Anor vs. I.O.C. Onwuka (2016) LPELR-26055 (SC). In J.O. Osidele & Ors vs. Moses O. Sokunbi (2012) LPELR-9278 (SC), the Apex Court per Muhammad, JSC had this to say
“It is to be noted that Exh. P5 is a judicial act certifying a judgment and a sale ordered by the then Supreme Court of Nigeria. There is therefore a presumption that such judicial acts are regular and valid which can only be rebutted by establishing fraud or other vitiating circumstances (Section 150 of the Evidence Act).”
The Appellant has alleged that the Court order is fake which connotes fraud but has not provided or placed anything before this Court for it to act or verify whether the allegation is true. From all indication, the Appellant agrees that the Respondent acted on the contents of the Exhibits but its grouse is that the Appellant acted on a fake document. In the circumstance, the onus is on the Appellant to show it is fake. The law is trite, that the Court does not act in speculation but on facts and evidence placed before it. See Ikenta Best (Nig) Ltd vs. A.G. Rivers State (2008) LPELR-1476 (SC) and Abubakar vs. Waziri & Ors (2008) LPELR-54 (SC).
One major reason the Appellant challenged Exhibits GTB 1 and 2 is that it is not certified. The certification on the document is from the Federal High Court and not from the person who made it. Therefore, the certification is wrong. As public documents, they ought to be certified. Clearly, Exhibits GTB 1 and 2 do not meet the requirements on certification. Does that affect the admissibility of Exhibits GTB 1 and 2? If the originals were tendered, no certification would be needed but if a photocopy, then the certification is needed.
Does that mean that it is over for the relevance of the exhibits? I think not. This is because the law is clear that any evidence whether oral or documentary not challenged is admitted and should be acted upon. See Adelaja & Ors. vs. Alade & Anor (1999) LPELR-109 (SC). The Appellant did not deny that these exhibits exist and so it admitted that Exhibits GTB 1 & 2 exists. With that admission, is there a need to prove their existence? The Appellant did not challenge the facts in Exhibit GTB 1 and GTB 2 and as a result, the relevance of the documents takes the better part of this case. I will also add that the issue of the document not being certified also does not arise in documents attached to affidavit evidence as the Appellant in law is not entitled to object to the admissibility of such documents provided they are relevant to the issue in point. See Simon Ezechukwu & Anor vs. I.O.C. Onwuka (Supra). In view of my position, I admit both documents.
All the argument advanced by the Appellant to the effect that the order is worthless and therefore should not be obeyed is of no moment as the law on obedience to Court order is settled and it is to the effect that for as long as the order is from a competent Court, the Respondent is under obligation to obey it even if the order is not right or correct. In Isa Kassim vs. The State (2017) LPELR-42586 (SC) the Apex Court held:
“The duty of every appellant is to show and or establish that the decision he has appealed was wrong or unreasonable. Every decision of a Court of law, judicial act, done in a manner substantially regular is presumed to be correct and that formal requisites for its validity were complied with. The presumption of regularity under Section 167(1) of the Evidence Act, 2011 is all about this.”
The order from the Magistrate Court signed by a magistrate is presumed regular and therefore the Respondent is under obligation to obey such order for as long as it exists and it is not set aside. See Labour Party vs. INEC (2009) LPELR-1732 (SC).
The action of the Respondent which ordinarily is a violation of the fundamental right of the Appellant can be justified as the Respondent action was based on a Court order which the respondent is under obligation to obey. In the circumstance, the lower Court was wrong in coming to the conclusion that the Respondent violated the fundamental right of the Appellant particularly when it has made as a finding that the Respondent here acted accordingly as directed and instructed by the Police and the Court based on Exhibit GTB 1 and GTB 2. There is no justification whatsoever in the light of the finding above for the lower Court to have held that the Respondent was liable to have violated the fundamental right of the Appellant. The appeal therefore fails and it is dismissed. The cross-appeal, on the other hand, succeeds and is allowed. The judgment of Hon. Justice Hadiza R. Shagari of the Federal High Court delivered on 11/10/17 in Suit No: FHC/L/660/2017- Olusola Oloruntoba vs. Guaranty Trust Bank Plc is hereby set aside.
I award N100,000 (one Hundred Thousand Naira) in favour of the Respondent.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read before now the draft of the decision which has just been rendered by my learned brother, EBIOWEI TOBI, JCA. I am in entire agreement with, and do not desire to add to, the reasoning and conclusion therein contained. I adopt the entire decision as mine.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have read the leading judgment just delivered by my learned brother, EBIOWEI TOBI, JCA wherein he dismissed the appeal as lacking in merit.
I agree with the said decision and only want to add that the event of the Appellant discontinuing against the 2nd and 3rd Respondents who procured the Magistrate’s Court’s order which was served on the Respondent, was such that has left the Appellant’s claim in the lower Court against the Respondent as the sole surviving party in the proceedings, significantly fractured.
The Respondent has an obligation to obey every order of Courts of competent jurisdiction served on it in relation to issues concerning accounts of its customers, and it would be acting outside its powers, to interrogate such orders in order to fault its authenticity so as to defy the directives contained therein.
Once the 2nd and 3rd Respondents who procured the Magistrates Court’s order and served same on the Respondent with a covering letter as to what it was required to do in relation to the Appellant and his account with the Respondent, have been struck out as parties to the proceedings, the sustainability of the Appellant’s case against the Respondent had become severely endangered as it only acted on a Court’s Order it did not on its own, procure and enforced against the Appellant.
I too dismiss the appeal, and abide with the consequential orders made as to costs.
Appeal is dismissed.
Appearances:
M.O. Sanni, Esq. For Appellant(s)
A.O. Ahikhueme, Esq. – for Respondent/Cross Appellant.
For Respondent(s)
