SKYE BANK PLC v. EMERSON NJOKU & ORS
(2016)LCN/8585(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of May, 2016
CA/OW/163/2013
RATIO
COURT: ATTITUDE OF COURT TOWARDS CREDITORS RESORTING TO THE POLICE TO FORCE HIS DEBTOR TO SETTLE DEBTS OR BANK LOANS
We have deprecated, several times, the tendency of a creditor, resorting to the Police to force his debtor to settle simple debts or bank loan, and the willingness of the Police to accept to do so, using their coercive powers, wrongly, to violate the fundamental rights of the debtor. See the case Gusau vs Umezuwike (2012) All FWLR (pt. 655) 291: (2012) LPECR 8000 CA; OSIL ltd vs Bologun & Ors (2013) All FWLR (pt. 677) 653.
In Ogbonna vs Ogbonna (2014) LPELR-22308 CA; (2014) 23 WRN 48, it was held that:
“… party that employs the police or any law enforcement agency, to violate the fundamental rights of a citizen should be ready to face the consequences, either alone or with the misguided Agency… The police have no business helping parties to settle or recover debts. We have also deprecated the resort by aggrieved creditors to the police to arrest their debtors, using one guise of criminal wrong doing or another.”
See also the recent, case of Anogwie & Ors vs Odom & Ors (2016) LPELR-40214 (CA), where we restated the above legal position and added that:
“Maybe… the Public Officer or law enforcement agency that allows himself to be used by any member of the public, to commit illegality that results in damages and liability to the agency or government should be made to pay such cost or damages, personally, either in part or in whole, if this can serve to warn such officer to act within the rules and scope of his office…” PER ITA GEORGE MBABA, J.C.A.
ACTION: FUNDAMENTAL RIGHTS; WHAT ACCRUES A FUNDAMENTAL RIGHTS ACTION
In fundamental rights action, damages automatically accrue, once the Respondent has been adjudged to have violated the Applicants fundamental rights. See Ozide & Ors vs Ewuzie & Ors (2015) LPELR 24482 (CA); Ejirofor vs Okeke (2000) 7 NWLR (pt 665); Onogwie & Ors vs Odom & Ors (supra) PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
SKYE BANK PLC Appellant(s)
AND
1. EMERSON NJOKU
2. THE INSPECTOR GENERAL OF POLICE
3. ECONOMIC AND FINANCIAL CRIMES COMMISSION Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Abia State High Court, in Suit No. HOB/11M/2010, delivered by Hon. Justice S.F. Ananaba on 12/3/2012, wherein the Learned Trial Judge entered judgment for Applicant (Respondent herein) for the violation of his fundamental rights and awarded N1,000,000.00 (One Million Naira) only, to him as damages therefor, and N20,000.00 (Twenty Thousand Naira) only as cost of the action.
?The 1st Respondent (as Applicant) on 26/1/2010 had filed application for enforcement of his fundamental rights pursuant to Order 11 Rules 1, 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. He sought the following reliefs:
(i) A declaration?that the 1st Respondent has no right in law to use the Police, that is to say, the 2nd, 3rd, 4th or 5th Respondents and or their agents and operatives to hound, chase around, harasss, seek to arrest, detain and humiliate dehumanise and oppress the Applicant in a matter relating to Banking loan for commercial purposes of
goods clearance from the Nigeria Customs between Nkpola Investment Ltd and the 1st Respondent, which is strictly a civil matter, subject to civil law.
(ii) A declaration? that the 1st Respondent?s use of its agents and agents, operatives and servants of the 2nd, 3rd, 4th and 5th Respondents to chase around, harass, seek to arrest, detain, further detain, humiliate, dehumanise and oppress the Applicant, by now hounding him away from his Company?s Business Premise at No. 1, Nkoro Avenue, off 109B Okigwe Road, Aba into a hiding place at No.1, Umuobu Village, Ovom 1, in Obingwa L.G.A. over a civil loan transaction between Nkpola Investment Ltd and the 1st Respondent, is unconstitutional and amounts to a breach of his fundamental rights to the dignity of his person, his personal liberty and freedom of movement.
(iii) An Order of the Honourable Court restraining the Respondents, their agents, servants, privies or successors, howsoever from arresting, further arresting, chasing around, hounding, detaining, dehumanizing, oppressing or in anyway, violating and/or further violating the
fundamental rights of the Applicant in connection with the fact of this case.
(iv) A declaration? that Cheques Nos. 10000010, 10000011 and 10000012 payable on 28/2/2010, 30/3/2010 and 30/4/2010 were forcibly extracted from the Applicant whilst in detention and are of no effect whatsoever.
(v) An Order? that the Respondents jointly and/or severally pay general damages to the Applicant to the tune of one million naira for the breaches of his fundamental rights in connection with the facts of this case.? See pages 1 and 2 of the Records of Appeal.
The grounds and facts upon which the application was predicated were disclosed on pages 6 to 8 of the Records, and the affidavit in support of the facts and grounds were on pages 9 and 10 of the Records of Appeal, which also exhibited the documents relied upon at the trial by the Applicant.
The Lower Court, on 27/1/2010, granted Applicant?s ex-parte application, also filed on 26/1/2010, and made Order, on the said 27/1/10:
RESTRAINING the Respondents, their servants, agents, subordinates and
privies, howsoever, from arresting, further arresting, detaining, humiliating, hounding, dehumanizing and oppressing the Applicant in connection with the facts of this application and staying all actions in connection with the subject matter, pending the hearing and determination of the substantive application.?
Applicant was also granted leave to serve the 1st, 4th and 5th Respondents by substituted means, namely by Courier Services expedited mail, like DHL, TNT, NIPOST, FIDEX or ABEX, Viz:
(a) 1st Respondent ? Skye Bank Plc, No. 3, Akin Adesolu Street, Victoria Island, Lagos
(b) 4th Respondent ? The Inspector General of Police Force Headquarters, Area 11, Garki Abuja
(c) 5th Respondent ? Economic & Financial Crimes Commission, Plot 1018 Corce Bay Crescent, Wuse 11, Abuja. (The Order was certified on 3/2/10 ? see page 19 of the Records)
?The Respondents were served with the processes, and being served with the processes, 1st Respondent (now Appellant) filed a motion on 18/2/2010, seeking ?an
Order setting aside all the Orders made by the trial Court on the 3rd day of February 2010 and striking out the Suit for want of jurisdiction.?
1st Respondent (Appellant) also deposed to Affidavit on the 18/2/10 to oppose the main application. See pages 21 to 25 of the Records of Appeal.
Applicant filed a further affidavit on 22/4/2010 (pages 101 ? 105), and a Counter ? affidavit to oppose the preliminary objection ? pages 56 to 59 of the Records.
?The 5th Respondent filed a Counter Affidavit on 14/6/10 as per pages 142 ? 144 of the Records of Appeal. That made Applicant to file a 2nd Further Affidavit on 19/7/10 (pages 152 ? 155 of the Records). The trial Court heard the two applications, together, upon the application of the 1st Respondent?s (Appellant?s) Counsel, to consolidate the preliminary objection with the main application for enforcement of fundamental rights. It adjourned the Ruling, earlier fixed for 22/3/10, to 22/4/10. It was after adjourning the case for judgment that the 5th Respondent brought application for extension of time to file Counter Affidavit, earlier referred
in this judgment. See page 134 – 151 of the Records, which carry processes filed on 14/6/10.
There appears to be a lacuna in the Records of Appeal as to when the motion by the Respondents, filed on 14/6/10, was heard and their Counter Affidavit, filed on the same date, deemed duly filed, to which the Applicant filed a 2nd Further Affidavit on 19/7/10. It is not also clear when the substantive application was heard.
In his judgment (Ruling), delivered on 12/3/12, the Lower Court held that Applicant had satisfied the requirement relating to service of the processes; that service was properly effected (page 197 of the Records). And on the substantive claim, the Lower Court said:
“It is a common ground by both parties that the matter herein stems from civil transaction. The Applicant even attached a written agreement between parties. The Respondent, while conceding to this point, nevertheless, imported Bank usages to disclose the warehouse and fact that if Applicants wants to travel he should disclose same etc… It is trite law that where a transaction has been reduced to or recorded in writing by the agreement of the
parties, extrinsic evidence, is as general rule, inadmissible to contradict very (sic), add to or subtract from the terms of the contract. Savana Bank Nig. Ltd Vs Salami (1996) 8 NWLR (pt.468) page 131; Chinde World Wide Ltd Vs Total Nig Plc (2001) (pt.739) 291…” See page 197 198 of the Records.
The Trial Court therefore held:
“By the term of the agreement between the Bank and Nkpola Investment Co. Ltd, what happened was a civil legal relationship of lender and borrower. There was indeed been (sic) a breach by Applicant in failure to fully liquidate said debt. What the Bank, 1st Respondent, ought to do is to sue the Applicant for the remainder amount yet unpaid. That (sic) what civilized people do. Resorting to the Police, where a matter has no taint of criminality, is a brutish behaviour, unworthy of a Bank and its staff? Applicant has fully discharged the burden of proof on him.? (Page 199 of the Records)
The Lower Court concluded as follows:
“Specifically, all the reliefs sought by the Applicant are hereby granted as prayed, and for purpose of clarity, an
order is hereby made, jointly and severally, commanding 1st to 4th Respondents to pay to the Applicants the sum of N1,000 000.00 (One Million Naira) for the breach of Fundamental Rights of the Applicants… breached by the Respondents.” Page 201 of the Records.
That is the decision Appellant appealed against, as per the Notice of Appeal, filed on 25/5/2012, which disclosed 10 grounds of Appeal (pages 202 to 209 of the Records of Appeal). Appellant filed Brief of arguments on 28/11/2013 (The Records of Appeal was deemed duly transmitted to this Court on 21/10/13). Appellant distilled three (3) Issues for the determination of the Appeal, as follows:
(1) Whether the Court below did not err in law when it dismissed the Appellant?s preliminary objection and issues raised therein and proceeded to hold that it had jurisdiction to entertain the Suit before it (Grounds 1 ? 6)
(2) Whether the Judgment delivered by the Lower Court in juxtaposition to evidence before it was not against the weight of evidence (Grounds 7, 8 and 10)
(3) Whether the Judgment delivered outside the statutory 3 months period was not a
nullity, in the absence of re-adoption by parties (Ground 9).?
The Respondents filed no brief and, when the appeal was heard on 7/4/2016, only the Appellant was represented in Court.
Arguing Issue One, Appellant?s Counsel Nwabueze I. Nwankwo Esq, submitted that the trial Judge clearly misdirected himself in law in clear misadvertence to the provisions of Order VIII Rules 1, 2, 3 and 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREPR), which stipulate that a Notice of Preliminary Objection be filed along with the Counter affidavit to the main application and that on the date of hearing, the Preliminary Objection shall be heard along with the substantive Application. He submitted that the trial Court erred to have held that Appellant?s act of filing these processes with the notice of preliminary objection amounted to a waiver of the right to complain over the complaint of none and irregular service of the originating processes; that by taking steps in the proceedings, non-compliance with the rules became mere irregularity.
?Counsel argued that the issue of jurisdiction of a Court is a threshold issue and so
fundamental that even parties cannot, by their actions or in-actions or consent, confer jurisdiction on a Court, where none exists, abinitio. He relied on the case of Mobil Producing Nig Unlimited Vs Monokp (2004) ALL FWLR (pt.195) 575 at 657. Thus, he said, the trial Court was wrong to refuse to address properly the issue of the jurisdiction, merely for the reason that the Appellant had waived his right to complain of the lack of jurisdiction predicated on non-compliance with conditions precedent to the assumption of jurisdiction.
He argued again that failure of the Applicant to serve the originating processes on the Appellant, in compliance with the mandatory provisions of the Sheriff and Civil Process Act, LFN, 1990, by failure to seek and obtain the leave of Court before the Issuance and service of any originating process outside a State and in another State of the Federation, effectively voids any such process and robs the Court of jurisdiction to entertain the matter. He relied on the case of 7up Bottling Co. Ltd Vs Trio Commodities Co. Ltd (1996) 6 NWLR (pt.455) 441; Intra Motors Nig Plc Vs AMA. Akinloye (2001) 6 NWLR (pt.708) 61 at 72; UBA Plc Vs
Ekpo (2003) 12 NWLR (pt.834) 332.
Counsel said that, apparently, the 2009 Rules (FREPR) does not provide, in Order V, for service on companies; that in such situation resort is had to Order XV Rule 6, in order to cure the defect and resort had to the Civil Procedure Rules of the Court in question. He referred us to Order 9 Rule 7 of the Abia State High Court (Civil Procedure) Rules, 2009 which deals with service on companies and corporations. He also relied on Order 9 Rule 13 and Section 96, 97, 98 and 99 of the Sheriff and Civil Process Act, on issuance/service of a writ, out of jurisdiction. He relied on Mark Vs Eke (2004) 5 NWLR (pt.865) 54.
?Counsel further argued that the trial Court was wrong to uphold Applicant Counsel?s submission that the Fundamental Rights (Enforcement Procedure) Rules, share the same legal pedestal with the constitution and overrides the provisions of other statutes, especially the Sheriff and Civil Process Act. He added that failure to comply with stipulations of an Act or Statute is fatal to a Suit, unlike failure to comply with the Rules of Court, which may amount to mere irregularity that can be curried. He relied
on Surakatu Vs Housing Development Society Ltd (1981) 4 SC 28; Ogbomor Vs The State (1985) 1 NWLR (pt.2); Amuchienwa Vs Unity Bank Plc (2012) ALL FWLR (pt.657) 673. He said the Court erred by relying on the authority of Ezomo Vs Oyakhire (Supra) to say that non-compliance with statutory provision was an irregularity.
?On Issue 2, Counsel said the judgment was against the weight of evidence, that the trial Court did not evaluate the evidence, properly. He argued that the Applicant had reneged in the agreement he had with the Appellant and had surreptitiously removed the goods to an undisclosed destination, without the knowledge or consent of Appellant, and that amounted to fradulent act which made Appellant to petition the Police. He referred to pages 23 ? 24 of the Records and said that the trial Court did not consider that piece of evidence, and had regarded it as extrinsic to the written agreement. Appellant argued that the trial Court did not properly evaluate Exhibit A, which he said enumerated the sources of the payment of the overdraft etc; that it can be properly held that the existence of another parole agreement, mutually recognised by the
parties and which sought to secure the purpose of the original agreement, cannot be excluded by the rules of evidence. He said that Section 128 (1) (a) (b) and (c) of the Evidence Act, 2011 admits parole evidence, where such is intended to prove the existence of fraud or where same is not inconsistent with the terms of the written document, or where the written document is not intended to be a final and complete statement of the transaction between the parties or in “Any usage or Custom by which incident not expressly mentioned in any contract are annexed to contract of that description; unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of the contracts.”
Counsel relied on Section 167 (1) of the Evidence Act, 2011, which allows the presumption of existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case. Counsel said the trial Court was sarcastic, when he said, on allegation that Applicant should have informed the
bank of what he was doing, that “the only thing excepted (sic) is that Applicant need to inform the bank how many times he breaths an hour”?; Counsel said that, by so saying, the trial Judge allowed his emotion to take the better part of his objective assessment of the evidence before him, and that affected the proper evaluation of the evidence.
Counsel also said that the trial Court was wrong to accept Exhibit XX (an ABEX Courier Service receipt, annexed to the Applicant’?s further affidavit) to establish proof of service of the originating processes. He said the receipt did not explain the nature of document served. He said that the trial Court went on a voyage of discovery, when it accepted the Exhibit XX as evidence that the originating processes were served on the Appellant.
On Issue 3, that the judgment was delivered outside the 3 months period prescribed by the Constitution, after the final address of Counsel, Counsel said the Records of Appeal showed that Applicant and the Respondents duly adopted/consolidated their various applications before, the Court on 3/2/10 and 23/3/10, repectively, and the case was adjourned to 22/4/10
for judgment but that same was not delivered until 12/3/12, without the Counsel being called upon to either re-adopt or re-address the Court. He referred us to pages 163 -164 of the Records. Counsel relied on Section 294 (1) of the 1999 Constitution, as amended and said that failure to deliver the judgment within 3 months, occasioned miscarriage of justice. He relied on Ekeri Vs Kimside (1976) 9 – 10 SC 61 and Kararah Vs Imonikhe (1974) 4 SC 151 to say that judgment delivered outside the three months stipulated is a nullity. He also relied on Raliatu Musa Aigoro Vs Com. For Land & Housing Kwara State (2012) 11 NWLR (pt.1310) 111 at 123, 124. Counsel urged us to resolve the issues for Appellant and allow the appeal.
RESOLUTION OF ISSUES
This appeal shall be considered on the three issues distilled by the Appellant, but issues 1 and 2 shall be taken, together, while the 3rd issue shall be taken separately. Was the Appellant served with the processes of Court to justify dismissal of the preliminary objection and did the Respondents breach Applicant’s fundamental rights?
Appellant, in his preliminary objection, had wanted the
trial Court to set aside all the Order made by the trial Court on 3/2/2010, and to strike out the Suit, for want of jurisdiction.
The 1st arm of the prayer appeared to be a no issue, as the trial Court did not make any Order on 3/2/10! The ex-parte Order of the trial Court was made on 27/1/10, but certified on 3/2/10. The main contention against the alleged Order of 3/2/10, was that the Order for substituted service i.e. service by Courier Service, was made without compliance with the provisions of the Rules as to service of processes on parties out of jurisdiction and no leave of Court was first sought and obtained, before service of the originating processes, out of Abia State and in Lagos, could be made. He also alleged non service of the originating processes on the 1st Respondent.
?The trial Court had dismissed the Preliminary objection, having felt satisfied that the requirement, relating to service of the processes, had been fulfilled and that service was properly effected on the Respondents. Appellant did not appeal against the findings of the trial Court, that they had been duly served. See page 197 of the Records, where the trial Court
held:
?Learned Applicants Counsel has fully and comprehensively shown from the Rules cited that service was properly effected.?
Appellant?s Issue one, which related to the preliminary objection was, Whether the Court below did not err when it dismissed Appellant?s preliminary objection and issues raised therein and proceeded to hold that it had jurisdiction to entertain the Suit before it ? (Grounds 1 ? 6).
The grounds 1 to 6 which gave birth to the Issue were as follows (without their particulars):
(1) The Learned Trial Judge erred in law when he refused to consider all the arguments and or processes filed by the 1st Respondent/Appellant and make pronouncement thereon and this occasioned a gross miscarriage of justice on the Appellant.
(2) The Learned Trial Judge erred in law when he relied on a process (written Address) not originally in the case file and served on the 1st Respondent/Appellant about 3 months thereafter without leave of Court (after the close of argument) and which they did not respond to, in entering judgment against the 1st Respondent/Appellant and this occasioned a miscarriage of
justice.
(3) The Learned Trial Judge erred in law when he assumed jurisdiction over the 1st Respondent/Appellant who are not within his territorial jurisdiction, without leave first sought and obtained.
(4) The Learned Trial Judge erred in law when he held in page 33 of his judgment as follows:
?Proceeding and Order made on 13th February, 2010 was not meant to be under (sic) ex-parte by its Applicant who has kept (sic) in detention was granted bail pending the hearing of the Substantive Applications. This was clearly provided for under Fundamental Rules, 2009. How can it be nullity And occasioned a miscarriage of justice.
(5) The Learned Trial Judge erred in law when he held as follows:
Thus, the Respondents had all full knowledge and completely participated in the entire proceedings. The law in that is that a Defendant entering appearance on the strength of an irregular service of an otherwise valid Writ of Summons constitute not only waiver of the irregularity but also a submission to the jurisdiction of the Court
(6) The Learned Trial Judge erred in law when he assumed jurisdiction
merely on the ground that 1st Respondent/Appellant “participated in the entire proceeding and thus submitted to the jurisdiction of the Court.”
A simple review of the above six grounds and the Issue distilled from them, can show that none of them is a complaint against the clear findings and ruling of the Lower Court, that “Service was properly effected” on the Appellant.
Of course, they did not deny service, but were saying that they were served outside the jurisdiction of the High Court of Abia State, and in Lagos, and so Applicant should have filed application for leave of Court to issue the process and serve same out of jurisdiction, before the Order for service of the processes on them by Courier Service, as per Exhibit XX, could be valid; that failure to do so, robbed the trial Court of jurisdiction to hear/entertain the case. He relied on the Sheriff and Civil Process Act and on some case laws, founded on service of writ of summons out of the jurisdiction of the Court issuing the writ of summons.
I think Appellant greatly misconstrued the suit, a process originated under the Fundamental Rights (Enforcement
procedure) Rules, 2009. We have stated, several times, that an action founded on Fundamental Rights ( Enforcement procedure) Rules is sui generis, and is not subject to the other rules of Court, except where expressly adopted, to fill a lacuna in the Fundamental Rights ( Enforcement) Rules 2009, by the Chief Justice of Nigeria. See the case of Enukeme vs Mazi (2014) LPELR- 23540 CA, where this Court said:
?I must start by stating the obvious, that fundamental rights enforcement procedure is sui generis, being specially and specifically designed, with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement procedures) Rules of 2009, which actually came to correct some, perceived wrongs and hardship which the 1979 Rules (fashioned after the 1979 Constitution) caused to Applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in
determining applications. -See also the case of Agbaso vs Iwunze & Ors (2014) LPELR-24108 (CA)
In that case of Enukeme vs Mazi (supra), the overall objective of the 2009 Rules, as stipulated in the preamble, thereof, was emphasized, particularly, paragraphs 1, 3 (a), (c) and (d).
Paragraph 1 says:
“The Court shall constantly and consciously seek to give effect to the overriding objectives of these Rules at every state of human rights action, especially whenever it exercises any power given it by these Rules or another law and whenever it applies or interprets any rule.”
Paragraphs 3 says:
“The overriding objectives of these Rules are as follows:
(a) The Constitution, especially chapter iv, as well as the African Charter, shall be expansively, and purposely interpreted and applied, with a view to advancing and realizing the rights and freedom contained in them and affording the protections intended by them
(b) ——–
(c) For the purpose of advancing but never for the purpose of restricting the Applicant?s Rights and freedoms, the Court may make consequential orders as may be just and
expedient.
(d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and the unrepresented.
I believe it was in realization of such objectives that the law stipulated in Order IX Rule 1 of the 2009 Rules, that:
” Where, at any stage in the course of or in connection with any proceedings, there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place, or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings, except as they relate to:
I. Mode of commencement of the application
II. The subject matter is not within Chapter IV of the Constitution or African Charter on Human and People?s Right (Ratification and Enforcement) Act.”
Appellant’s main grouse with the decision of the trial Court was that the objection to the competence of the suit should have been upheld, because Appellant was served with the processes at Lagos (by courier service), outside the jurisdiction of the trial Court,
without any prior seeking and obtaining of leave to issue the process and serve outside jurisdiction. In my opinion, those arguments cannot sail, because they are strange to matters of enforcement of fundamental rights, where-of the 2009 Rules have provided sufficient procedure for service of Respondents with the processes, and the Respondents had been duly served with the originating processes, and they had filed their counter-affidavit to oppose the application, as well as the preliminary objection. Appellant cannot therefore complain about service, or of not being properly served. By submitting to jurisdiction and taking part in the trial, the alleged non compliance with the Rules becomes a mere irregularity, going by Order IX Rule I of the FREPR. More-so, the Sheriff and Civil process Act, regarding services out of jurisdiction, which Appellant relied on, is not part of the provisions of fundamental rights enforcement laws. See the case of Chukwuogor & Ors vs Chukwuogor & Anor (2006) 7 NWLR (pt 979); (2005) LPELR -12894 CA where Omokri JCA (of blessed memory) said:
?The Fundamental Rights (Enforcement Procedure) Rules are made by the
Chief Justice of Nigeria in exercise of his power pursuant to the Constitution of the Federal Republic of Nigeria. They are peculiar rules restricted to the enforcement by a citizen of his rights under Chapter IV of the said Constitution. It makes no provision for importation of any other Rule of Court for the enforcement of such rights. It is therefore, clearly, wrong for the Lower Court to fall back to High Court rules and purport to derive its power to extend time there-from.?
Appellant had deposed to counter affidavit in this case, to oppose the application, and that, completely, demolishes his argument that he had not been served with the originating processes. If Appellant was not served, how did he come by the information in the original processes, to file such informed and rich affidavit, with supporting exhibits, to oppose the application? That tends to explain the wisdom in Order viii Rule 1,2,3 and 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which require a Respondent, who has preliminary objection, to file same with his counter affidavit and address, if any. It was meant to cure the mischief of taking the judicial
time of the Court in pursuit of an ill-intented preliminary objection, as in this case, which would take precious judicial time, in vain, for Respondent?s frolic, by which time the hearing of the substantive case would have been stalled. By taking the two, together, the wrong motive of the Respondent is exposed and the hearing of and decision in the Substantive suit is not defeated or delayed. The learned trial Court, in my view, was right to dismiss the preliminary objection, as it lacked merit in the circumstances.
Appellant cannot deny his role in the violation of the fundamental rights of the 1st Respondent (Applicant). The trial Court had harped on the existence of civil agreement between Appellant and the 1st Respondent, over the whole transaction that led to the arrest and detention and subjection of Applicant to the harassment and affliction complained of. On pages 197-198 of the Records the trial Court said:
?It is common ground by both parties that the matter herein stems from civil transaction. The Applicant even attached a written agreement between parties. The Respondent while conceding to this point nevertheless imported
Bank usages to disclose the warehouse and the fact that if Applicants (sic) wants to travel, he should disclose same etc? There was no way in the agreement where disclosure of warehouse was made one of the terms of the agreement. The instant cause of action, as disclosed in the Applicant?s supporting affidavit, is that the Bank Manager called Applicant on phone, requesting the Applicant to come to the place, which Applicant had told him, is the warehouse, that he has brought buyers for the goods. Based on the above representation, the Applicant said he went to the said warehouse, on getting there he was overwhelmed with policemen, who arrested him, carried him to Umuahia with other Criminals alleged to have committed other offences.?
?Of course, Appellant admitted lodging complaint with the Police against the Applicant, but said they only reported a crime to the Police, that what Applicant did, evinced fraud; that after reporting the crime to the Police, the Police took their independent decision in handling the complaint by arresting and detaining the Applicant. The trial Court had asked: What report did the Bank make to the Police
against the Applicant: was it that Applicant owed the “Bank or that he defrauded the Bank? It answered, thus:
?By the term of the agreement between the Bank and Nkpola Investment Co. Ltd (Applicants Company) what happened was a civil legal relationship of the lender and borrower. There was indeed (sic) been a breach by Applicant in failure to fully liquidate said debt. What the Bank, 1st Respondent, ought to do is to sue the Applicant for the remainder amount yet unpaid. That (sic) what civilized people do. Resorting to the Police, where a matter has no taint of criminality, is a brutish behavior unworthy of a Bank and its staff.? See page 199 of the Records of Appeal.”
I cannot fault that findings of the trial Court. As rightly observed by the trial Court, in so far as the written agreement between Appellant and Applicant was silent on the warehouse, where Applicant agreed to keep the goods, no oral or parole evidence would be allowed to vary or add to, or subtract from the written agreement. Thus, the insinuation that Applicant ran to the United States of America, or moved the warehouse without informing the Appellant (Bank), cannot be
a ground to infer fraudulent act against Applicant and cause his arrest and detention, and other violation of his fundamental rights. There was, therefore, no legal basis for reporting the Applicant (1st Respondent) to the Police over the dispute, relating to the outstanding debt by the 1st Respondent?s company to the Bank, based on their agreement in Exhibit A.
Appellant cannot deny that what motivated their report of Applicant to the Police was the intention to use the Police to recover whatever was the outstanding debt of the Applicant?s company to the Bank (Appellant). In paragraph (xi) and (xii) of the grounds in support of the application to enforce his fundamental rights, Applicant said:
(xi) ?The 1st respondent (Appellant herein) and other respondents kept the applicant in detention until 22nd January, 2010, when they forced him in police cell and detention to give them a cheque of N600,000.00 with No. 10000010, to be paid on 28/2/2010 and another cheque of N300,000.00 with No. 10000011, to be paid on 30/3/2010, and another cheque of N500,000.00 with No. 10000012, to be paid on 30th April, 2010, whilst in Police detention.
The cheques were cheques of Skye Bank PLC.
(XII) It was on that forcible extraction of the 3 cheques that he was released from police detention, subjection to his paying the cheques forcibly and illegally from him.?
See page 8 of the Records of Appeal. I cannot see where and how Appellant effectively denied the above facts in their affidavit of 18/2/10, where in paragraphs 22 and 23, they averred:
22) Paragraph XI is false and denied and in further answer 1 state that the Applicant on his own and personally too walked into the Bank and gave the cheques mentioned in paragraph XI to the Recovery Officer, one Kalu Obasi.
23) Paragraph XII is false and denied as there was no forcible extraction of cheque or cheques from the Applicant as the cheques were voluntarily handed to the officer by the Applicant. (page 24 of the Records)
Of course, the coincidence of the cheques (three of them) being issued on the same day, with post dated dates of value and at the time of arrest and detention of Applicant was not denied or explained by the Appellant in the above reaction.
We have deprecated, several times, the tendency of a creditor,
resorting to the Police to force his debtor to settle simple debts or bank loan, and the willingness of the Police to accept to do so, using their coercive powers, wrongly, to violate the fundamental rights of the debtor. See the case Gusau vs Umezuwike (2012) All FWLR (pt. 655) 291: (2012) LPECR 8000 CA; OSIL ltd vs Bologun & Ors (2013) All FWLR (pt. 677) 653.
In Ogbonna vs Ogbonna (2014) LPELR-22308 CA; (2014) 23 WRN 48, it was held that:
“… party that employs the police or any law enforcement agency, to violate the fundamental rights of a citizen should be ready to face the consequences, either alone or with the misguided Agency… The police have no business helping parties to settle or recover debts. We have also deprecated the resort by aggrieved creditors to the police to arrest their debtors, using one guise of criminal wrong doing or another.”
See also the recent, case of Anogwie & Ors vs Odom & Ors (2016) LPELR-40214 (CA), where we restated the above legal position and added that:
“Maybe… the Public Officer or law enforcement agency that allows himself to be used by any member of
the public, to commit illegality that results in damages and liability to the agency or government should be made to pay such cost or damages, personally, either in part or in whole, if this can serve to warn such officer to act within the rules and scope of his office…”
Appellant cannot claim that they made a only a complaint to the police and that they were not responsible for what the Police did in handling their complaint. That would have been so, if the foundation of the complaint or the motive there-of was not tainted with mischief, and the dispute Appellant had with the Applicant was not purely civil in nature. See Oliver Iwumune vs Morris Egbushulem & Anor: CA/OW/80/2012, delivered on 29/4/16.
In fundamental rights action, damages automatically accrue, once the Respondent has been adjudged to have violated the Applicants fundamental rights. See Ozide & Ors vs Ewuzie & Ors (2015) LPELR 24482 (CA); Ejirofor vs Okeke (2000) 7 NWLR (pt 665); Onogwie & Ors vs Odom & Ors (supra)
I therefore resolve issues 1 and 2 against the Appellant.
Appellant?s issue 3 is a complaint against the delivery of the
judgment, after 3 months from the date of final addresses by Counsel. Appellant had relied on the Section 294(1) of the 1999 Constitution, as amended, which states:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery.”
However, Section 294 (5) of the said Constitution says:
“The decision of the Court shall not be set aside or treated as a nullity solely on ground of non-compliance with the provisions of Sub-section (1) of this Section, unless the Court exercising jurisdiction by way of appeal from review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
Appellant had submitted that the parties in the Court below ?adopted/consolidated their various applications before the Court on the 3rd of February, 2010, and 23rd of March, 2010 respectively, and (the case) was adjourned for Ruling/Judgment to the
22nd day of April, 2010 but same was not delivered until 12th day of March, 2012 without the respective Counsel being called upon to either re-adopt or re-address the Court.? (See paragraph 4.41 of the brief of Appellant).
?I had earlier observed that there is a lacuna in the Records of Appeal transmitted to this Court for this appeal. It appears it was intentionally done by the Appellant for the purpose this Issue, as Appellant appears to have left out some vital information and proceedings in the Records. For instance;
(1) There is evidence that Appellant filed a Counter affidavit in this appeal but the same is not reflected in the Records.
(2) There is evidence that the Respondents filed motion for extension of time to file their written address and to deem what they filed as duly done (see pages 97 ? 101 of the Records) same was filed on 22/4/10. There is no record as to when that application was heard.
(3) The Applicant filed a Counter affidavit and a Further affidavit on 22/4/10 ? see pages 55 ? 59 and 101 to 105 of the Records.
(4) 5th Respondent filed application on 14/6/10 for extension of time to file
Counter affidavit and an address and to deem the Counter affidavit and address already filed as duly done. See pages 134 ? 144 of the Records. There is no indication as to when that application of 14/6/10 (filed after the alleged 22/4/10 meant for judgment) was heard and determined and yet the same were considered in the judgment of 12/3/12.
(5) Applicant, at the Court below, filed a 2nd further affidavit on 19/7/10 and a response to the 5th Respondent address on the same 19/7/10 (see pages 152 to 159 of Records). That was about 3 months after the alleged date of hearing?
From the above, it is obvious the case was not heard on 23/3/10 or 22/4/10, as the Respondent?s Counter affidavit and address, and Applicant?s 2nd Further Affidavit and response to 5th Respondents? brief were all filed in June and July 2010.
?Appellant did not cause the complete Records to be transmitted to this Court, particularly, the date of final hearing and/or adoption of addresses of Counsel. We were only obliged the date of hearing and consolidation of 1st Respondents preliminary objection with the main application, which was on 23/3/2010. (See
page 162 of the Records).
I think Appellant is to be blamed for the confusion or error and omission, being the one who caused the Records to be transmitted to this Court, and one to have identified the processes he would need at the hearing of the appeal at the settlement of the Records. See Order 8 Rule 2 (a) and 5 of the Court of Appeal Rules, 2011.
It would, therefore, be improper to assume that the Judgment was delivered after 3 months of taking final addresses, as Appellant had failed to disclose the actual date of the hearing and taking of the final addresses of the Counsel in this case.
Even where Judgment is said to have been delivered outside the stipulated time in Section 294 (1) of the 1999 Constitution, as amended, Section 294 (5) thereof requires the Appellant to satisfy the Court that failure to deliver the Judgment within 3 months has caused him miscarriage of justice. See the case of Onegbedan Esq Vs Unity Bank Plc (2014) LPELR – 22186 CA; Atungwu & Anor. Vs Ochekwu (2013) LPELR -20935 SC; Akpan Vs Umoh (1999) 7 SC (pt.11) 13; Akoma and Anor. Vs Osenwokwu & Ors (2014) LPELR – 22885 (SC); Owoyemi
Vs Adekoya (2013) 18 NWLR (pt.852) 307.
Appellant did not say or show that the judgment caused him miscarriage of justice, even if it were delivered outside 3 months. I do not see how the said judgment of the Lower Court can be disturbed in the circumstances. I therefore resolve the issue too against the Appellant and dismiss the appeal for lacking in merit.
Appellant shall pay the cost of this appeal assessed at fifty thousand (N50,000.00) only, to the 1st Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I had the privilege of reading in advance the lead judgment written by my learned brother, Ita G. Mbaba JCA and I agree completely with both the reasoning and conclusions. I have nothing useful to add.
IGNATIUS IGWE AGUBE, J.C.A.: I have the advantage of reading in draft the lead judgment just delivered by my Learned brother, I. G. Mbaba, JCA, and am in total agreement with his reasoning and conclusion that this Appeal is devoid of any merit and it is also dismissed by me.
I abide by the consequential order as to costs.
Appearances
Nwabueze Nwankwo, Esq.For Appellant
AND
UnrepresentedFor Respondent
