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UBA PLC v. EDUKERE & ANOR (2021)

UBA PLC v. EDUKERE & ANOR

(2021)LCN/15690(CA)

In the Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/219/2013

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

UNITED BANK FOR AFRICA APPELANT(S)

And

1. UWEM EDUKERE 2. VICTOR EDUKERE RESPONDENT(S)

 

RATIO

DEFINITION OF AN APPEAL

An appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on a proper consideration of the facts placed before it and the applicable law, the lower Court arrived at a correct decision. See the decision of the Supreme Court on Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114)17. PER ABIRIYI, J.C.A.

DEFINITION OF AN OMNIBUS GROUND OF APPEAL

An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See the decision of the Supreme Court in Akinlagun & Ors. v. Oshoboja & Anor (2006) LPELR – 348 SC. I had reproduced issue 1 earlier in the judgment. The said issue reproduced again immediately hereunder reads as follows:
“Whether in the preponderance of evidence, the lower Court’s judgment should not be set aside.”
The ground of appeal from which the issue was formulated is reproduced immediately hereunder:
“The judgment of the lower Court is against the weight of evidence.” PER ABIRIYI, J.C.A.

 

WHETHER OR NOT THE FEDERAL HIGH COURT AND STATE HIGH COURT HAVE CONCURRENT JURISDICTION TO HEAR AND DETERMINE MATTERS FOR THE ENFORECMENT OF THE FUNDAMENTAL RIGHTS

Learned counsel for the Appellant raised the issue of the Court below not having jurisdiction to entertain the matter in the Court below. The Court below in a well-considered ruling in its judgment very elaborately and lucidly dealt with the issue as follows:
“It cannot therefore be correct as contended by learned counsel on behalf of the 1st Respondent that once a Policeman is made a party to a case before it, its jurisdiction is ousted. Rather, it appears to me the submission of the learned Applicants’ counsel that both the Federal High Court and the State High Court (and let me add the High Court of the Federal Capital Territory, Abuja) have concurrent jurisdiction to hear and determine matters for the enforcement of the fundamental rights guaranteed and protected under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, see the following cases:
1. AGWUEGBO VS. KAGOMA (2000)14 NWLR (Pt.687)252 at 263.
2. JACK VS. UNIVERSITY OF AGRICULTURE, MAKURDI (2004)5 NWLR (Pt.865) 208.
3. NIGERIAN NAVY & ORS VS. GARRICK (2006) ALL FWLR (Pt.315) 45 at 70-71, 72.
4. FEDERAL MINISTRY OF COMMERCE & TOURISM & ANOR VS. CHIEF EZE (2006)2 NWLR (Pt.965)221 at 243.
5. IGWE VS. EZEANOCHIE (2010) 7 NWLR (pt.1192) 616; and
6. GAFAR VS. GOVT. KWARA STATE (2007)4 NWLR (pt.1024) 375.
Similarly, in the Supreme Court decision in ADETONA V. IGELE GENERAL ENTERPRISES LTD (2011)7 NWLR (pt.1247)535 at 564 it was held that:
“…where a person’s fundamental right is breached, being breached or about to be breached, that person may apply under Section 46(1) of the Constitution to the Judicial Division of the Federal High Court in the State or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federal or State or the Federal Capital Territory. However, it should be noted that the exercise of this jurisdiction by the Federal High Court is only where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus fundamental rights raising from matters outside its jurisdiction cannot be enforced by the Federal High Court.”
It is therefore settled that in matters of enforcement of fundamental rights, both the Federal High Court and the State High Court (or the High Court of the Federal Capital Territory) have concurrent jurisdiction. The only exception is where the matter arises from matters where the Federal High Court has exclusive jurisdiction. In that case, only the Federal High Court shall have jurisdiction to entertain such a matter. See also ADETONA VS. IGELE GENERAL ENTERPRISES LTD (supra) at page 564. 
PER ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 18th December, 2012 in the High Court of Akwa Ibom State holden at Uyo.

In the High Court (the Court below), the Respondents were Applicants. The Appellant and two others were Respondents.

The Respondents by a motion brought pursuant to Order II Rules 2, 3 and 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009 prayed for a declaration that their arrest and detention by the Appellant and the two others was unlawful and amounted to a breach of their fundamental rights among other reliefs sought.
The application was supported by an affidavit and it was brought upon five grounds.

The Appellant filed a counter affidavit in opposition. The Appellant’s counter affidavit elicited a further and better affidavit.
The Appellant’s preliminary objection to the hearing of the application was considered in the judgment of the Court below.

​The Respondents’ case in the Court below was that there was a disagreement as to how an account of a company of which the 1st Respondent claimed to be a managing director was being managed by the Appellant bank in respect of a loan facility. There was a dispute as to how much the Appellant had taken from the account to service the facility and how much was outstanding. At a point, the Respondents applied to the Appellant to stop calculating interest on the facility but to no avail. The Respondents stopped servicing the facility. Then the 1st Respondent was arrested by the police and detained for two days. He was told on the second day that he was arrested and detained on the complaint of the Appellant on the ground that the 1st Respondent’s company was owing the Appellant and the police should recover the money. After he had been released on bail, the 2nd Respondent was arrested by the police because he was 1st Respondent’s brother.

The Appellant admitted that it advanced a loan facility to the 1st Respondent. That it was the 1st Respondent that collected the facility and went into hiding. The Appellant however denied using men of the Nigerian Police Force for the purpose of recovering the debt.

​As I pointed out earlier in the judgment, the Court below in its judgment overruled the preliminary objection of the Appellant and entered judgment in favour of the Respondents and against the Appellant and the two others. Only the Appellant has appealed against the judgment of the Court below. The notice of appeal was filed on 25th January, 2013. The notice of appeal contains three grounds of appeal. From the three grounds of appeal, the Appellant formulated the following issues for determination:
(1) Whether on the preponderance of evidence, the lower Court’s judgment should not be set aside.
(2) Whether the lower Court had jurisdiction to entertain the matter.

The Respondents adopted the issues formulated by the Appellant.

Appellant’s reply brief did not deal with any new point arising from the Respondent’s brief. It was rather a re-argument of the appeal. This is not what he is permitted to do under Order 19 Rule 5(1) of the CAR 2016.

​On issue 1, learned counsel for the Appellant contended that the Appellant urged the Court to strike out the affidavit in support of the application because it was not valid and consequently dismiss the application and the Court below refused. He referred the Court to page 8 of the record of appeal. 1st Respondent, it was further contended, did not properly identify himself and there was no evidence to show that the other applicants authorized him to swear to an affidavit on their behalf. The Court was urged to strike out the affidavit and dismiss the application.

Learned counsel for the Appellant further submitted that the 2nd Applicant Lucuna Resources, having been struck out of the application, the 1st applicant (1st Respondent) could not be a party without the 2nd applicant also being a party. The Court was also urged to dismiss the fundamental rights application on this basis.

The Court was also urged to dismiss the application for the enforcement of fundamental rights because the statement in support of the application was incompetent.
Learned counsel for the Appellant further argued that the Court below referred to a non-existent “FURTHER AFFIDAVIT” in its judgment. That the Court should on this basis set aside the judgment.

​On Issue 1, learned counsel for the Respondents argued that the Appellant is urging the Court to strike out the affidavit in support of the application for the enforcement of the Respondents’ fundamental rights without showing which provision of the Evidence Act has been violated.

It was submitted that an appellate Court is bound by the record of appeal. Learned counsel for the Appellant, it was contended, conceded that the Court below considered and ruled on his objection on the validity of the Respondents’ affidavit in support of the application but that the record of appeal does not contain the ruling of the Court below and consideration of the objection. That the Appellant has not referred the Court to where the Court below dwelt on the subject.

The deponent, it was submitted, deposed that he was deposing to the affidavit with the consent and authority of the other applicants and this was contained in all the three affidavits. The Court was referred to pages 3, 4 and 40 of the record.

It was contended that the striking out of the name of the original 2nd applicant did not affect the veracity of the affidavit in support of the application.

​On the alleged noncompliance with Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, learned counsel for the Respondent said reference was made to lines 18-24 of the record without referring to the page of the record. Therefore, both the Court and the Respondent cannot go on a voyage of discovery on behalf of the Appellant. The Court was urged to discountenance the argument on the issue.

On the alleged reference by the Court below to a non-existent Further Affidavit; it was contended that since the record shows there was a Respondent’s BETTER AND FURTHER AFFIDAVIT at page 40 – 44 of the record, it shows that there must have been a further affidavit.

An appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on a proper consideration of the facts placed before it and the applicable law, the lower Court arrived at a correct decision. See the decision of the Supreme Court on Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114)17.

An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See the decision of the Supreme Court in Akinlagun & Ors. v. Oshoboja & Anor (2006) LPELR – 348 SC. I had reproduced issue 1 earlier in the judgment. The said issue reproduced again immediately hereunder reads as follows:
“Whether in the preponderance of evidence, the lower Court’s judgment should not be set aside.”
The ground of appeal from which the issue was formulated is reproduced immediately hereunder:
“The judgment of the lower Court is against the weight of evidence.”
It is clear from the ground of appeal that it is an omnibus ground of appeal and the issue formulated from it is like father like son. Inspite of the omnibus nature of the Appellant’s ground 1 and issue 1, the Appellant’s counsel proceeded to dwell at great length on the issue of the affidavit in support of the application for the enforcement of the Respondent’s fundamental right. With respect to learned counsel for the Appellant, that is an issue of law or error in law. He is not permitted to argue that under an omnibus ground of appeal. Affidavits are provided for under the Evidence Act. See Sections 108 – 120 of the Evidence Act 2011.

Also whether the action or application of the Respondents was incompetent after the original 2nd applicant had been struck out is an issue of law or error in law. The Appellant could not argue the issue under his omnibus ground of appeal. Again whether the statement in support of the application was incompetent is a question of law and could not be argued under the omnibus ground of appeal.

The learned counsel for the Appellant was parsimonious with the truth when he alleged that the Court below referred to a non-existent “further affidavit” when the affidavit referred to was merely paraphrased by the Court below and the affidavit referred to is at page 40 – 41 of the record. Paragraph 7 of that affidavit to which the Court below made reference is particularly at page 41 of the record. Counsel should at all times strive to be honourable in the practice of this profession. It is very bad practice for counsel as Appellant’s counsel has done in this case to accuse a Judge of manufacturing evidence when the evidence is adduced by the party on the other side of the dispute and staring counsel in the face. Issue 1 is resolved against the Appellant and in favour of the Respondents.

On issue 2, learned counsel for the Appellant submitted that “in the special circumstances of this case, it is the Federal High Court that has the exclusive jurisdiction to determine it even though the matter borders on Fundamental Rights”. This according to learned counsel for the Appellant is because the alleged breach arose from a subject matter which falls within the exclusive jurisdiction of the Federal High Court as provided by Section 251(1) (r) of the Constitution. The Court was referred to Adetona v. Igele General Enterprises Ltd (2011) 7 NWLR (pt. 1247) 535. It was contended that some of the reliefs claimed against the 2nd and 3rd Respondents in the Court below who have not appealed and who are agents/agencies of Federal Government include a declaration and an injunction against the executive and administrative actions of the said Respondents; the validity of which actions, the Respondents who were applicants were challenging. The Court was referred to Section 251(1) (r) of the 1999 Constitution, Adetona v. Igele Gen. Enterprises(supra) and Oloruntoba-Oju v. Dopamu (2008) WRN Vol. 52, p.1.

On issue 2, learned counsel for the Respondent pointed out that the Court below held that although the police officers were public officers, their involvement was not within the exclusion provided for in Section 251 of the Constitution.
Learned counsel for the Respondents pointed out that the police officers were carrying out investigative and not administrative functions.

The Supreme Court, it was submitted, has settled the controversy as to the jurisdiction of the State High Court in Fundamental Rights Enforcement matters in F.R.N & 2 ORS. V. Ifegwu (2003)112 LRCN 2233.

It was submitted that the notion of the Appellant that once a fundamental rights action is brought against the Federal Government or any of its agencies, then it is a Federal High Court that has jurisdiction has been settled in Adetona v. Igele General Enterprises(supra) and Jack v. University of Agriculture, Makurdi (2004)14 WRN 91 at 103.

Learned counsel for the Appellant raised the issue of the Court below not having jurisdiction to entertain the matter in the Court below. The Court below in a well-considered ruling in its judgment very elaborately and lucidly dealt with the issue as follows:
“It cannot therefore be correct as contended by learned counsel on behalf of the 1st Respondent that once a Policeman is made a party to a case before it, its jurisdiction is ousted. Rather, it appears to me the submission of the learned Applicants’ counsel that both the Federal High Court and the State High Court (and let me add the High Court of the Federal Capital Territory, Abuja) have concurrent jurisdiction to hear and determine matters for the enforcement of the fundamental rights guaranteed and protected under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, see the following cases:
1. AGWUEGBO VS. KAGOMA (2000)14 NWLR (Pt.687)252 at 263.
2. JACK VS. UNIVERSITY OF AGRICULTURE, MAKURDI (2004)5 NWLR (Pt.865) 208.
3. NIGERIAN NAVY & ORS VS. GARRICK (2006) ALL FWLR (Pt.315) 45 at 70-71, 72.
4. FEDERAL MINISTRY OF COMMERCE & TOURISM & ANOR VS. CHIEF EZE (2006)2 NWLR (Pt.965)221 at 243.
5. IGWE VS. EZEANOCHIE (2010) 7 NWLR (pt.1192) 616; and
6. GAFAR VS. GOVT. KWARA STATE (2007)4 NWLR (pt.1024) 375.
Similarly, in the Supreme Court decision in ADETONA V. IGELE GENERAL ENTERPRISES LTD (2011)7 NWLR (pt.1247)535 at 564 it was held that:
“…where a person’s fundamental right is breached, being breached or about to be breached, that person may apply under Section 46(1) of the Constitution to the Judicial Division of the Federal High Court in the State or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federal or State or the Federal Capital Territory. However, it should be noted that the exercise of this jurisdiction by the Federal High Court is only where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus fundamental rights raising from matters outside its jurisdiction cannot be enforced by the Federal High Court.”
It is therefore settled that in matters of enforcement of fundamental rights, both the Federal High Court and the State High Court (or the High Court of the Federal Capital Territory) have concurrent jurisdiction. The only exception is where the matter arises from matters where the Federal High Court has exclusive jurisdiction. In that case, only the Federal High Court shall have jurisdiction to entertain such a matter. See also ADETONA VS. IGELE GENERAL ENTERPRISES LTD (supra) at page 564. This instant case does not fall within the said exception. As a result, the jurisdiction of this Court to entertain this suit is intact and not ousted as contended by learned counsel. Consequently, there is no merit in this objection. The same is therefore liable to be overruled and is hereby overruled by this Court.”
The above ruling of the Court below on the jurisdiction of the Court below to entertain the application is unimpeachable.
Issue 2 is also resolved against the Appellant and in favour of the Respondents.

Both issues having been resolved against the Appellant and in favour of the Respondents, the appeal is hereby dismissed.
Respondents are awarded N100,000.00 (One Hundred Thousand Naira) costs to be paid by the Appellant.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother J. S. Abiriyi JCA. 
I agree with the reasoning and conclusion reached in the judgment. 
I also dismiss the appeal as lacking in merit.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the lead judgment just delivered by my learned brother, James S. Abiriyi, JCA. I agree that the appeal is devoid of any merit. I dismiss it for the same reasons as contained in the lead judgment.
​I abide with the order as to costs.

Appearances:

E. B. Eton, Esq. For Appellant(s)

…For Respondent(s)