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UDOWONG & ORS v. IGP, FORCE HEADQUARTERS, NIG. POLICE, ABUJA & ORS (2020)

UDOWONG & ORS v. IGP, FORCE HEADQUARTERS, NIG. POLICE, ABUJA & ORS

(2020)LCN/15699(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, June 29, 2020

CA/C/87/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

HammaAkawuBarka Justice of the Court of Appeal

Between

1. CHIEF UDOWONG EDIM UDOWONG 2. MR. OKON BASSEY BASSEY 3. MR. UDO ESSIEN EKANEM 4. MR. INYANG NYA INYANG 5. MR. GODWIN INYANG EDIM 6. MR. INYANG OKON EKANEM APPELANT(S)

And

1. THE INSPECTOR GENERAL OF POLICE FORCE HEADQUARTERS, NIGERIA POLICE, ABUJA 2. THE COMMISSIONER OF POLICE, CRS COMMAND 3. INSPECTOR ETA OKOI – (D4) STATE CID, CALABAR 4. MRS. ATIM EMMANUEL AWATT RESPONDENT(S)

 

RATIO:

THE PARTICULARS TO THE GROUND OF APPEAL MUST BE IN TANDEM WITH THE GROUND OF APPEAL

A holistic interpretation or construction of the above two provisions of Order 7 of the Court of Appeal Rules 2016 presents us with this scenario. By Order 7 Rule (3) an omnibus ground of appeal as in the instant case would not be struck out for reason of being vague or in general terms. It is not within the contemplation of the Rules that an omnibus ground of appeal which is not couched as a misdirection or error of law to contain particulars to support the said ground. This is because the particulars to the ground of appeal must be in tandem with the ground of appeal. If the particulars are at cross purpose to the ground of appeal, as in the instant case, it becomes defective and liable to be struck out. See NNPC vs. AMINU (2014) All FWLR (pt. 716) 527 at 548 – 549, Ogbonna vs. Ezewuzie (2014) ALL FWLR (pt. 755) 336 at 351, Olufeagba vs. Abdul Raheem ​(2009) 19 NWLR (pt. 1173) 384. This was exactly what was meant by Ekpe JCA (of blessed memory) who delivered the lead judgment in the case of Ante vs. University of Calabar (2001) ALL FWLR (pt. 41) 1909 at 1923 and pointed out thus:
“I have considered the submissions by counsel on both sides. The thrust of the argument is whether the particulars of error set out under ‘ground’ of the grounds of appeal actually relate to the said ground of appeal. By Order 3 Rule 2 (2) of the Court of Appeal Rules 1981 (as amended) it is provided that if the grounds of appeal alleged misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. This is mandatory and not as a matter of misdirection, depending on the whims of a particular Appellant. It is a matter of plain procedural law and it is not shrouded by any technicality. MOJEED ADEKUNLE OWOADE, J.C.A.

THE IMPORTANCE AND THE ESSENCE OF THE PARTICULARS OF THE GROUND OF APPEAL

It is trite that the particulars of a ground of appeal form part of the ground of appeal. In other words, as particulars of a ground of appeal are part and parcel of the ground of appeal, there can be no question that the complaint given in the particularsof the ground of appeal are to be regarded as mere addendum. The particulars of ground of appeal are there to support and explain further the complaint raised in the ground of appeal. See Mba vs. Agu (1999) 12 NWLR (pt. 629) 1 at page 12 per Ejiwunmi, JSC. In Nnama vs. Nwanebo (1991) 2 NWLR (pt. 172) 181, it was held by the Court of Appeal that the particulars necessary to support a complaint on a ground of law are the reasons which are given in order to justify the complaint. It thus follows that a ground of appeal and its particulars must be considered together and not in isolation as they are related. In my view, therefore, the particulars given under the said ground 1 of the grounds of appeal being unrelated to the ground of appeal are incompetent and are hereby struck out.” MOJEED ADEKUNLE OWOADE, J.C.A.

THE DEFINITION OF THE OMNIBUS GROUND OF APPEAL

An omnibus ground of appeal is a general ground of fact complaining against the totality of theevidence 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 Ajibona vs. Kolawole (1996) 10 NWLR (pt. 476) 22. It therefore follows that for a complaint on a finding of fact on a specific issue; substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground of appeal.”
See also Nwokidu vs. Okanu (2010) 3 NWLR (pt. 1181) 366 at 383 Sosanya vs. Onadeko (2005) 8 NWLR (pt. 926) 185 at 212, BHOJSONS Plc vs. Daniel Kalio (2006) 5 NWLR (pt. 973) 330 SC. MOJEED ADEKUNLE OWOADE, J.C.A.

THE PROCESSES FILED BY A LEGAL PRACTITIONER MUST BE SIGNED BY A NATURAL PERSON ENROLLED TO PRACTICE LAW

Finally, the Appellants apparently relied on the case of Okafor vs. Nweke (2007) 3 SC (pt. 11) 66 out of context, the decision of the Supreme Court in that case is that processes filed by a legal practitioner must be signed by the natural person enrolled to practice law in Nigeria and not by an artificial person in the appellation of a law firm. The case does not decide that a legal practitioner who is a public officer cannot sign legal processes. Therefore, signing of legal processes by a legal practitioner as a natural person for the validity of legal processes must not be confused with the possibilities of conflict of interest of a public officer. Issue No. 1 is resolved against the Appellants. MOJEED ADEKUNLE OWOADE, J.C.A.

A CONSTITUTIONAL AND STATUTORY DUTY OF THE POLICE AND THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES

It is indeed baffling and I would say it offends sensibilities for the Appellants to say or perhaps insist that the complaint of murder of her husband by the Appellants in her very presence amount to a “resort to publishing threats, and instigating the 2nd and 3rd Respondents to maliciously begin to harass and make threats of arresting them”. Clearly and as was noted in the case of Bassey vs. Afia (2010) ALL FWLR (pt. 531) 14, the Fundamental Rights (Enforcement Procedure) Rules are not meant to shield a criminal from justice or protect lawful arrest.
Indeed, once criminal allegations are made against a citizen, as in the instant case, it is a constitutional and statutory duty of the police to investigate, as investigation and detection of crimes is a primary duty of the police. See ONAH VS. OKENWA (2011) ALL FWLR (pt. 565) 357 at 361, Fawehinmi vs. IGP (2002) 7 NWLR (pt. 767) 606 at 645 Jim – JAJA VS. C. O. P (2011) 2 NWLR (pt. 1231) 375 at 379, ISHENO VS. JULIUS BERGER (2008) ALL FWLR (pt. 415) 1632. MOJEED ADEKUNLE OWOADE, J.C.A.

AWARDING COSTS AT THE APPROPRIATE TIME AFTER DELIVERY OF A JUDGEMENT

I agree with the learned senior counsel for the 4th Respondent on issue No. 3, that the learned trial judge considered and awarded costs at the appropriate time after the delivery of the judgment in the case and did not re-visit or review the said judgment in doing so. Indeed, the award of the said cost to the 4th Respondent as shown on pages 137 – 138 of the Records was part and parcel of the judgment delivered and signed off on the 29th November, 2017. MOJEED ADEKUNLE OWOADE, J.C.A.

THE EXAMINATION OF THE MEANING OF ‘FUNCTUS OFFICIO’

In the case of First Bank Nigeria Plc vs. T. S. A. Industries Ltd. (2010) 15 NWLR (pt. 1216) 247 at 296 Adekeye JSC who delivered the lead judgment of the Apex Court examined the meaning of ‘functus officio’ and when a Court is functus officio at page 296 of the Law Report thus:
“The phrase ‘functus officio’ means ‘task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority’.
A Court is said to be functus officio, in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or re-visit the matter. Once a Court delivers his judgment on a matter, it cannot re-visit or review the said judgment except under certain conditions. More importantly, a Court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of Court process.” MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of His Lordship Hon. Justice Emilia Ibok of the Cross River State High Court, Calabar Judicial Division, delivered on the 29th day of November, 2017. On 10th July, 2017, the Appellants/Applicants brought a Motion on Notice under the Fundamental Rights (Enforcement Procedure) Rules, 2009 praying the Court for the following reliefs:
i. A DECLARATION that the threat to arrest the Applicants by the 2nd and 3rd Respondents acting on the active instigation of the 4th Respondents without lawful justification amount to threatened violation of Applicant’s fundamental right and thus violation of their personal dignity as guaranteed and preserved by the Constitution of the Federal Republic Nigeria 1999 as amended.
ii. A DECLARATION that the habitual intimidation, harassment and threat by the 2nd and 3rd Respondent to arrest and detain the Applicants on the instigation of the 4th Respondent without justifiable cause amount to infringement of the Applicants’ right to personal liberty as guaranteed by the Constitution 1999 as amended.

iii. AN ORDER restraining the Respondents whether by themselves, agents, servants, privies or any other person acting on their behalf from further threat of arrest, arresting, detaining or however infringing on the fundamental Rights of the Appellants.
iv. GENERAL damages in the sum of N5,000,000.00 (Five Million Naira) for breach of the Applicants’ Fundamental Right without lawful justification.
v. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance of this case.

The said motion on notice of the Appellants/Applicants is supported by a 17 paragraph affidavit and amongst other attachments contain charge sheet No: MC/80C/2017 and Attorney – General Information, statement of offence and particulars of offence by the Cross River state against the Appellants/Applicants.

In the Court below, the parties filed and exchanged various processes.
Upon being served with the motion of the Appellants, the 1st, 2nd and 3rd Respondents filed their counter-affidavit and written address in opposition to the motion on 24th July, 2017. (See pages 25 – 53 of the record).

The 4th Respondent filed her counter-affidavit and written address, alongside with the notice of preliminary objection on 6th September, 2017. They are at pages 54 – 81 of the record. In reaction to the processes filed by the 1st, 2nd and 3rd Respondents, the Appellants filed what they described as “Applicants further-affidavit to 1st – 3rd Respondents’ counter –affidavit” (See pages 82 – 85 of the record).

In reaction to the processes filed by the 4th Respondent, the Appellants filed the following processes on the 19th September, 2017; namely:
1. Reply to 4th Respondent’s notice of preliminary objection. (See pages 86 – 89).
2. A motion on notice seeking a declaration that the 4th Respondent’s Senior Counsel, Ntufam Mba E. Ukweni, SAN is a Public Officer and to invalidate the processes filed by him on behalf of the 4th Respondent in the matter (see pages 92 – 102 of the record).
3. Applicants further affidavit to the 4th Respondent’s counter affidavit together with an address (see pages 103 – 106 of the record).

Learned Senior Counsel for the 4th Respondent, Mba E. Ukweni, SAN, reacted to the Appellants’ motion of 19th September, 2017 filling a counter-affidavit together with a written address on 25th September, 2017 in opposition thereto. (See pages 108 – 124 of the record). The Appellants filed yet another further-affidavit on 16th October, 2017 in support of their motion to invalidate the Court processes signed by Ntufam Mba E. Ukweni, SAN (pages 125 – 130 of the record).

The case of the Appellants/Applicants through their affidavit evidence is that they are from Obukwo Esa community in UkwaEburutu, Odukpani Local Government Area of Cross River State. That in December, 2016 one Emmanuel Awatt, husband of the 4th Respondent, allegedly conspired with other people from Okpo Village and killed one Edem Essien Ekanem a native of Obukwo Esa Community. Investigation was carried out by the Police and the said Emmanuel AwattAwatt and other persons were charged to Court for promoting native war and for conspiracy and murder of Edem Essien Ekanem. Eventually, the Ministry of Justice gave Legal Opinion in the matter exonerating Emmanuel Awatt Awatt, stating that the deceased Edem Essien Ekanam died as a result of communal clash; Emmanuel Awatt Awatt and his co-suspect were released from prison custody. Upon their release, the Appellants in their Affidavit allege that Emmanuel Awatt Awatt returned home jubilating and was received with pomp and pageantry and went about boasting that he will kill anybody who crossed his path.

Meanwhile, the DPP recommended the initiation of genuine reconciliation between the two communities. According to the Appellants while the Obukwo Esa Community was waiting the initiation of the reconciliation, the Appellants received news of the death of Emmanuel Awatt Awatt. The Appellants on an allegedly flimsy report tainted with suspicion and malice, made by the 4th Respondent to the 2nd and 3rd Respondents were invited by the Police, who are 2nd and 3rd Respondents to go and answer for the murder of Emmanuel Awatt Awatt. The Appellant allege that the 1st, 2nd and 3rd Respondent have threatened to arrest all the Appellants with intent to poison them and kill the case as happened previously in the case of Edem Essien Ekanem.

The Appellants/Applicants therefore brought this action to enforce their Fundamental Rights and urge the Court to restrain the Respondents from further harassing and intimidating them and violating their Fundamental Rights at the instance of the 4th Respondent who is highly connected.

The case of the Respondents especially through the 4th Respondent is that the late Mr. Emmanuel Awatt Awatt was murdered by the Appellants herein, in the presence of the wife, the 4th Respondent herein and another eye witness, Mrs. Celine NdarakeIta on the 23rd day of June, 2017 at his backyard. The 4th Respondent who was the deceased’s wife was present and saw Mr. Inyang Nya Inyang, the 4th Appellant on record in the company of the other Appellants who were all carrying dangerous weapon, shot her husband with gun and the deceased fell down and died on the spot. She was there and intercepted the Appellants who were not satisfied with the killing of her husband but also wanted to behead the deceased, from doing away with the corpse or any part thereof. She fell and covered her husband corpse when the Appellants proceeded to carry her husband’s corpse away, insisting that they must kill both of them before they can make away with the corpse.

The 4th Respondent reported the murder of her husband to the Police at the Ukwa Ibom Police post, where the matter was investigated and the case file forwarded to the Odukpani Division Police Headquarters at Odukpani, from where it was subsequently transferred to State Criminal Intelligence and Investigation Department (CIID), Calabar. The Police commenced investigation into the matter, by visiting the locus criminis on 21st July, 2017. The Appellants, upon being aware of the fact that the matter has been reported to the Police who had commenced investigation became troubled by their guilty minds and proceeded to the Court below on 10th July, 2017 to file an application by way of motion on notice for the enforcement for what they described as “Threatened Violation of their fundamental rights of personal dignity and personal liberty”. The sole purpose of the application was to stall further investigation into the murder of the deceased.

The learned trial judge considered the preliminary objection to the Applicants process by the 4th Respondent and the Appellants/Applicants Motion on Notice to invalidate the processes filed by the 4th Respondent along with the substantive application by the Appellants to enforce fundamental rights in his judgment of 29th November, 2017. The Learned trial judge took the view that the fundamental Human Rights (Enforcement Procedure) Rules is sui generis, that it promotes and encourages access to the Courts and that the processes filed on both sides irrespective of the nature of objection that was raised are acceptable and accordingly accepted by the Court so that the larger interest of justice is pursued by the parties.

The Learned trial judge dismissed the Appellants/Applicants substantive motion on notice as lacking in merit. First, as stated on page 146 of the Records that:
“Under the law, everyone has the right to liberty and security of person and no one shall be deprived of his liberty save in accordance with a procedure prescribed by law. These include lawful arrest or detention of a person in order to secure the fulfillment of any obligation prescribed by law. Thus, for instance, an arrest or detention of a person effected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offense or where it is reasonably considered necessary to prevent his committing an offense or fleeing after having committed an offense is not unlawful. See Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also Article 6 of the African Charter on Human and Peoples’ Rights.
The right to liberty and security of person is therefore not an unfettered or unlimited right and deprivation of liberty may be permitted within the exception provided by law provided such deprivation is done in accordance with a procedure provided by law. Therefore, an arrest properly made cannot constitute a breach of Fundamental Rights and any person so properly arrested by the police cannot successfully sue the police for breach of his fundamental rights. See the case of AKANO VS. C. O. P. & ANOR. [201] 1 CHR 407.
Second, as further stated at pages 147 – 148 of the Records that:
The 4th Respondent on the other hand is a citizen and is protected by the law when faced with threat to her person, to her family or to her property and well being. In any of those instances, the law enjoins her to report to the police which the 1st, 2nd and 3rd Respondents represent. Thus there is nothing wrong in her making the report in this instance and particularly so when her report shows she is an eye witness to a breach of the law. The 4th Respondent not only named the Applicants as the perpetrators of that breach, but also laid she knew the Applicants before the incident.
When pitched against the fact that the Respondents are statutorily empowered to detect and investigate crimes as per Section 4 of the Police Act, Cap. 359; Laws of the Federation of Nigeria, 1999; also, the fact that the protection provided under Section 35 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) is not absolute, it removes the steam from the allegation of harassment of the Applicants by the Respondents and particularly so where they were not arrested at all by the Respondents.
Indeed by Section 35 (1) (c) and (7) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Respondents in the course of their duties are authorized by law to invite persons for interview where commission of crime is suspected and if need be to arrest and detain them after the conclusion of the investigation and to charge to Court and prosecute. The Court of Appeal in the case of NWUDE VS. FGN [2005] INCC 196 @ 199 held 6 as per I. T. MOHAMMED JCA succinctly stated “…if every person accused of a felony can hide under the canopy of Section 35 of the Constitution to escape lawful detention, then an escape route to freedom is easily and readily made available to persons suspected to have committed serious crime and that will not augur well for the peace, tranquility and progress of the society.” This Court agrees with that statement about the position of the law. Also see the case of DOKUBO-ASARI VS. FRN [2007] 30 WRN 1 @ 39 40.
What the Applicants needed to do in this instance therefore was to respond to the invitation of the Respondents and explain to the Respondents that they did no wrong as they allege in their Affidavit in support. The Applicants have therefore not established any breach of their fundamental Rights in the circumstances and this Court so holds.”

On delivery of His Lordship’s judgment on 29th November, 2017, the following ensued on page 138 of the Records:
Dr. Lionel Effiom Esq: We are grateful for the judgment.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Uwem Okon Esq: We are obliged.
Mba E. Ukweni Esq: We are grateful Sir and we ask for costs of N500,000.00 (Five Hundred Thousand Naira) only.
Court: Costs in the sum of One Hundred Thousand Naira (N100,000.00) only is awarded against the Applicants in favour of the 4th Respondent.
SIGNED:
EMILIA IBOK
JUDGE
29/11/2017

Aggrieved by this judgment, the Appellant filed a Notice of Appeal containing only the omnibus grounds of appeal and four (4) particulars on 4th December, 2017 as shown on pages 151 – 152 of the Records thus:
GROUND OF APPEAL
GROUND 1
That the judgment was against the weight of evidence.
PARTICULARS OF ERRORS
a. That the Learned Trial Judge Emilia Ibok, erred in law when he dismissed the application of the Appellants inspite of the fact that there was clear evidence of threatened violation of the fundamental right of Applicant.
b. That the Learned Trial Judge erred in law when she refused to uphold that NTUFAM MBA UKWENI (SAN) is a public office (sic) within the meaning of the Constitution of the Federal Republic of Nigeria 1999 (as amended) inspite of acceptance by the said MBA UKWENI (SAN) in his averment that he was sworn in as Chairman of Cross River State Law Reform Commission.
c. That the Learned Trial Judge erred in law when he heard the substantive application as well as motion challenging the competence of the Court processes signed by MBA UKWENI (SAN) together, instead of ruling on the motion before the substantive application.
d. That the Learned Trial Judge over indulged the Respondents when he awarded cost N100,000.00 (One Hundred Thousand Naira) against the Applicants for no reason after becoming functus of the matter.

The relevant Briefs of Argument for the appeal are as follows:
1. Appellant’s Brief of Argument of 5th April, 2018. It is settled by Emmanuel S. Udoh Esq.
2. 1st – 3rd Respondent’s Brief of Argument was filed on 16th October, 2019 but deemed filed on 30th April, 2020. It is settled by D. T. Tarhembar Esq.
3. 4th Respondent’s Brief of Argument was filed on 22nd October, 2018 but deemed filed on 13th May, 2019. It is settled by NtufamMba E. Ekweni SAN.
4. Appellant’s Reply Brief to the 1st – 3rd Respondents was filed on 6th January,2020 and deemed filed on 30th April, 2020. It is settled by Emmanuel S. Udoh Esq.
5. Appellant’s Reply Brief to the 4th Respondent was filed on 9th November, 2018 but deemed filed on 13th May, 2019.

THE PRELIMINARY OBJECTION
The 1st – 3rd Respondents and the 4th Respondent separately raised preliminary objection to the hearing of this appeal. The main ground upon which each of the two (2) sets of Respondents raised the preliminary objection is that the Appellant’s Notice and ground of appeal contained a sole omnibus ground of appeal which in defiance of the rules of this Honourable Court itemized four (4) particulars of error in the said ground of appeal. That an omnibus ground of appeal ought not to contain any particulars of error and that if the said particulars are struck out as they (Respondents) urge, no issue for determination could be raised from the sole omnibus ground of appeal. The consequence of the aforesaid according to the Respondents is that even when the Appellants omnibus ground is retained, the appeal which would then not have issues for determination becomes lifeless and liable to be struck out. On behalf of the 1st – 3rd Respondents, the additional ground of objection is that the Appellants record of Appeal was not regularized. The 4th Respondent also objected on the ground that the Appellants particular of error No. 3 and issue No. 3 relates to cost which requires leave of Court and which was not obtained before the appeal was filed.

The essence of the objection to the appeal by the two sets of Respondents could be captured in the grounds of objection of the learned senior counsel for the 4th Respondent as follows:
i. The Appellant’s sole ground of appeal, being an omnibus ground of appeal is incompetent and thus liable to be struck out for offending the provision of Order 7, Rule 3 of the Court of Appeal Rules, 2016.
ii. An omnibus ground of appeal is neither a ground of error in law or misdirection in law and should not be accompanied by particulars, either of error in law or misdirection in law or facts. Accordingly, the Appellants’ sole ground of appeal offends the provision of Order 7, Rule 2 (2) of the Court of Appeal Rules, 2016.
iii. The four (4) particulars of error purporting to support the Appellants’ sole ground of appeal are independent complaints from the complaint in the main ground of appeal. They are therefore incompetent and thus liable to be struck out.
iv. The three (3) issues for determination formulated by the Appellants at pages 3 – 4 of the Appellants’ brief of argument are incompetent and liable to be struck out because:
a. They are formulated from and based on an omnibus ground of appeal from which no issue can be formulated independently of any other competent ground of appeal complaining of specific allegation of error in law or misdirection on facts or law.
b. They are not distilled from or related to the ground of appeal but appear to have been distilled from the purported particulars of the grounds, which are they incompetent.
c. Formulation of three (3) issues from a single ground of appeal amounts to duplicity or proliferation of issues.
v. The complaint in particular of error No. 3 and issue for determination No. 3 concerning the award of cost by the learned trial judge is also incompetent and liable to be struck out because it borders on the exercise of discretion of the trial Court, which requires leave of the Court, but which leave was not sought for and obtained as required by Section 241 (2) (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

On the first four grounds of objection by the Respondents, especially through the 4th Respondent that the Appellant’s ground of appeal is incompetent and being an omnibus ground of appeal is not supposed to be accompanied with particulars of error, Learned Counsel for the Appellants submitted that there is no express provision in our rules that forbids, bars or excludes any ground of appeal from being accompanied by particulars. He submitted that the Appellant’s sole ground of appeal is not affected by the provision of Order 7, Rule 3 (1) of the Court of Appeal Rules 2016.

Learned Counsel for the Appellants reasoned that the Appellant’s sole ground, being an exception to Order 7 Rule 3 of the Court of Appeal Rules is clearly ground of error in law and so it must furnish the exact particulars of the error complained of.

On the Respondent’s item of objection that the four (4) particulars of error do not support the Appellant’s sole ground of appeal and thus incompetent, Appellant’s counsel submitted that this reasoning is faulty as the Court has said time and over that particulars of error which is distilled from the ground of appeal are to be related to the judgment appealed against. That the particulars of error as in page 152 of the Records are complaints which are related to the ground of appeal.
On this, Appellant’s Counsel referred to the case of Oloruntoba Oju vs. Abdul – Raheem 39 NSCQR 105 at 137 – 138.

On the Respondent’s item of objection that an issue for determination cannot be formulated on omnibus ground of appeal standing alone, Appellant’s counsel submitted that this argument is unsustainable as issues can be formulated from the particulars of error which is derivable from the ground of appeal.

Learned Counsel for the Appellants referred to the case of Nwosu vs. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688 SC and submitted that in accordance with the said authority, issue for determination in this appeal have been formulated in general and practical terms, tailored to the real question in controversy in the case. Learned counsel for the Appellants submitted in specific response to 4th Respondent’s item (V) of the grounds of objection that the Appellants complain with regards to cost awarded against them is not on the exercise of the Court’s discretion as the 4th Respondent has alleged. Rather, the grouse of the Appellants is on the use of wrong procedure in the exercise of its discretion. That this does not require leave of the Court.

He referred to the case of Anukam vs. Anukam 33 (2) NSCQ 1039 at 1048 – 1049 for the view that a ground of appeal which complained of the lower Court’s exercise of discretion necessarily involved the Appellate Court’s consideration of the peculiar facts and circumstances upon which the discretion was exercised and so one of fact. But where the ground complains of the lower Court’s use of wrong principle in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore one of law alone, and being that of law no leave of Court is necessary. He reiterated that the Appellants complaint is not the award of cost but that the Court was in fact functus officio when the cost was awarded. He urged us to discountenance the Respondents ground (s) of objection.

RESOLUTION OF THE PRELIMINARY OBJECTION
The 1st – 4th items of the Respondents preliminary objection are related but altogether they permit of the following questions:
1. Can the Appellants particulars of ground of appeal which accompanied a sole omnibus ground of appeal be sustained?
2. Can the Appellants three (3) issues formulated from sole omnibus ground of appeal be sustained?
3. Do the particulars in the Appellant’s sole omnibus ground of appeal support the ground of appeal.

The answer to question No. 1 revolves around the provisions of Order 7, Rule 2 (2) and (3) of the Court of Appeal Rules 2016. The provisions read as follows:
Order 7 Rule 2 (2)
Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
Order 7 Rule (3)
Any ground which is vague or general in terms orwhich discloses no reasonable ground of appeal shall not be permitted, save the general grounds that the judgment is against the weight of the evidence and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
A holistic interpretation or construction of the above two provisions of Order 7 of the Court of Appeal Rules 2016 presents us with this scenario. By Order 7 Rule (3) an omnibus ground of appeal as in the instant case would not be struck out for reason of being vague or in general terms. It is not within the contemplation of the Rules that an omnibus ground of appeal which is not couched as a misdirection or error of law to contain particulars to support the said ground. This is because the particulars to the ground of appeal must be in tandem with the ground of appeal. If the particulars are at cross purpose to the ground of appeal, as in the instant case, it becomes defective and liable to be struck out. See NNPC vs. AMINU (2014) All FWLR (pt. 716) 527 at 548 – 549, Ogbonna vs. Ezewuzie (2014) ALL FWLR (pt. 755) 336 at 351, Olufeagba vs. Abdul Raheem ​(2009) 19 NWLR (pt. 1173) 384. This was exactly what was meant by Ekpe JCA (of blessed memory) who delivered the lead judgment in the case of Ante vs. University of Calabar (2001) ALL FWLR (pt. 41) 1909 at 1923 and pointed out thus:
“I have considered the submissions by counsel on both sides. The thrust of the argument is whether the particulars of error set out under ‘ground’ of the grounds of appeal actually relate to the said ground of appeal. By Order 3 Rule 2 (2) of the Court of Appeal Rules 1981 (as amended) it is provided that if the grounds of appeal alleged misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. This is mandatory and not as a matter of misdirection, depending on the whims of a particular Appellant. It is a matter of plain procedural law and it is not shrouded by any technicality.
It is trite that the particulars of a ground of appeal form part of the ground of appeal. In other words, as particulars of a ground of appeal are part and parcel of the ground of appeal, there can be no question that the complaint given in the particulars of the ground of appeal are to be regarded as mere addendum. The particulars of ground of appeal are there to support and explain further the complaint raised in the ground of appeal. See Mba vs. Agu (1999) 12 NWLR (pt. 629) 1 at page 12 per Ejiwunmi, JSC. In Nnama vs. Nwanebo (1991) 2 NWLR (pt. 172) 181, it was held by the Court of Appeal that the particulars necessary to support a complaint on a ground of law are the reasons which are given in order to justify the complaint. It thus follows that a ground of appeal and its particulars must be considered together and not in isolation as they are related. In my view, therefore, the particulars given under the said ground 1 of the grounds of appeal being unrelated to the ground of appeal are incompetent and are hereby struck out.”
Meanwhile, while such an omnibus ground would not be struck out, Order 7 Rule (3) permits the striking out of particulars of appeal which are as in the instant case not in tandem with the ground of appeal.

The second question as formulated begets two related answers, the first a major one is that issue(s) cannot be formulated from an omnibus ground of appeal; the addendum is the other that three (3) issues cannot be derived from a single ground of appeal whether it is omnibus or otherwise. I think the Respondents are clear and right to have stated that the Appellants cannot formulate an issue for determination from an omnibus ground of appeal independently of any ground(s) of appeal complaining of specific points of law and facts. In other words, an issue for determination cannot be formulated from or related to an omnibus ground of appeal standing on its own. In Akinlagun vs. Oshoboja (2006) ALL NWLR (pt. 993) 60, (2006) ALL FWLR (pt. 325) 57 the Supreme Court per Kalgo JSC held at pages 75 – 76 of the law report thus:
“However, ground 2 of the main appeal and ground 6 of the cross-appeal contained the omnibus ground namely ‘judgment is against the weight of evidence’. Can this be relied upon to enable a party to raise an issue of law or of fact against a specific finding in the case appealed against? What then is an omnibus ground of appeal and what is its scope in civil proceedings.
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 Ajibona vs. Kolawole (1996) 10 NWLR (pt. 476) 22. It therefore follows that for a complaint on a finding of fact on a specific issue; substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground of appeal.”
See also Nwokidu vs. Okanu (2010) 3 NWLR (pt. 1181) 366 at 383 Sosanya vs. Onadeko (2005) 8 NWLR (pt. 926) 185 at 212, BHOJSONS Plc vs. Daniel Kalio (2006) 5 NWLR (pt. 973) 330 SC.

The second point under question No. 2 as formulated is that the Appellants cannot indeed formulate three (3) issues from only one ground of appeal as was done in the instant case. See Agu vs. Ikewibe (1991) 3 NWLR (pt. 180) pp. 6 – 7, Bille vs. The State (2016) LPELR – SC 578/2013 Kalu vs. Ohuabunwa (2004) 7 NWLR (pt. 871) 1.

On the third question as formulated the Appellants issues in the instant case are not related to the sole ground of appeal. For when an Appellant alleges as in the instant case that a decision is against the weight of evidence, he is understood to mean that when the evidence he adduced is balanced against that of the Respondent, judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced. See Akinlagun vs. Oshoboja (2006) 12 NWLR (pt. 993) 60 at 80. It follows as in the instant case that such an omnibus ground of appeal cannot accommodate issues such as “…judgment failed to address the objection of the Appellants to the validity of the processes signed by Ntufam MbaUkweni (SAN)…” (ISSUE NO. 1) OR whether he was right in awarding cost after becoming functus officio…”(issue No. 3). The issues formulated by the Appellants herein derived from the particulars and indeed cannot stand because they are not compatible with the sole ground of appeal. Issues for determination in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court. See Ibator vs. Barakuro (2007) 9 NWLR (pt. 1040) 475SC., Amadi vs. N. N. P. C (2000) 6 SC (pt. 1) 66 at 72 SC. Shitta – Bey vs. A-G, Federation (1998) 10 NWLR (pt. 570) 392 SC. J. C. Ltd. vs. Ezenwa (1996) 4 NWLR (pt. 443) 391 at 399 SC. Momodu vs. Momoh (1991) 1 NWLR (pt. 169) 608 SC, Adelaja vs. Fanoiki (1990) 2 NWLR (pt. 131) 137 SC, UTB (Nig) LTd. vs. Ajabule (2006) 2 NWLR (pt. 965) 447, Onuche Shaibu vs. Malcom (2002) 12 NWLR (pt. 780) 116 at 130, Kolawole Ind. Co. Ltd. vs. A.G Federation (2012) 14 NWLR (pt. 1320) 221 at 241 – 242, Admin, Gen. Delta State vs. Ogogo (2006) 2 NWLR (pt. 964) 366, Nigeria Customs Service vs. Bazuaye (2006) 3 NWLR (pt. 967) 303. U. P. S. Ltd vs. Ufot (2006) 2 NWLR (pt. 63) 1.
In the event, the Appellants particulars of error in the instant case are incompetent by virtue of Order 7, Rule 2 (2) and (3) of the Court of Appeal Rules 2016. The Appellants issues are also incompetent as a valid issue can only be derived from and related to a valid and competent ground of appeal. See Emechebe vs. Ceto International (Nig) Ltd. (2018) 11 NWLR (pt. 1631) 520 at 529, Dahiru vs. Kamale (2006) ALL FWLR (pt. 295) 616 at 635, Akiboye vs. Adeko (2011) 6 NWLR (pt. 1244) 415 at434,African International Bank Ltd. vs I. D. S. Ltd. (2012) ALL FWLR 9pt. 656) 413 at 433.

Having resolved that Appellants particulars of error and issues formulated for the determination of appeal are incompetent, I do not have to make any further pronouncement on the 4th Respondent’s item V of the grounds of objection which severed Appellant’s particular of error No. 3 and issue No. 3 on a separate complaint. The preliminary objections of the two sets of Respondents are hereby upheld.

THE MAIN APPEAL
This appeal would have been disposed off on my above resolution of the preliminary objections by the Respondents in their favour. However, in case, I was wrong and indeed for the reason of abundance of caution – et abundans cautela non nocet, I will now consider the appeal on its merit.

Learned Counsel for the Appellant nominated three (3) issues for the determination of this appeal. They are:
1. Whether the learned trial judge was right when in delivering his judgment failed to address the objection of the Appellants to the validity of the processes signed by NtufamMba Ukweni (SAN) he being a public officer.
2. Whether the learned trial judge was right in holding that the application for the enforcement of the fundamental right of the Applicants lacks merit thereby dismissing same against the weight of evidence.
3. Whether the learned trial judge having delivered his judgment and thereby becoming functus officio was right in awarding cost against the Applicants in favour of the 4th Respondent after judgment.

Learned Counsel for the 1st – 3rd Respondents suggested a sole issue for the determination of the appeal. It is;
“Whether the learned trial judge was right when he dismissed the Appellants application (suit) for lacking in merit.”

Learned Senior Counsel for the 4th Respondent also nominated a sole issue for the determination of the appeal to wit:
“Whether considering the circumstances of the case and the totality of the evidence before him, the learned trial judge was right in dismissing the Appellants claim with cost.”

In considering this appeal, the submissions of the Appellants would be scaled on one side while the submissions of the two sets of Respondents would be taken together as those of theRespondents. This is for the reason of the shared common interest between the two sets of Respondents and also for convenience.

On issue No. 1, Learned Counsel for the Appellants submitted that the Appellants/Applicants contended in a motion on notice dated 19th September, 2017 at page 90 of the records that the processes signed by NtufamMba Ukweni (SAN) were incompetent and invalid since the learned silk is a public officer by virtue of his appointment as the chairman of the Cross River State Law Reform Commission by the Government of Cross River State. He submitted the learned trial judge in his ruling failed to examine and consider the objection raised by the Appellants/Applicants. That in its judgment, the Court merely stated that “the objections of the Applicants and the counter objection of the Respondents in that wise therefore is overruled.”

The Court, said counsel arrived at this decision overruling the objection of the Appellant to the validity of the processes signed by NtufamMba Ukweni (SAN) based on the reasoning that:
“there are objections and counter objections by the parties hereto and arguments are advances(sic) advanced pointing out features in the processes of each party which render the application or the processes filed in reply by the opposing side incompetence (sic). That particular arm of the parties’ objection one way or the other touches on the mode of commencement of an action under the fundamental Rights (Enforcement Procedure) Rules 2009.”

He submitted that the learned trial judge was in error in treating the process of the 4th Respondent as being within the purview of Order II Rule 2 of the Fundamental Rights Rules and overruling the Appellants/Applicants objection based on that reasoning.

Moreso, he said, the issue of endorsement of Court process is a matter of jurisdiction for the Court and not merely an irregularity in procedure. He added that it is the law that a Court process is to be signed by a legal practitioner qualified to make appearance in Court. He referred to the case of Okafor vs. Nweke (2007) 3 SC (pt. 11) 66 and submitted that failure to comply is a fundamental vice.

Learned Counsel for the Appellants contends that NtufamMba E. Ukweni, (SAN) having been duly appointed as the chairman of the Cross RiverState Law Reform Commission whose appointment was publicly announced is incompetence to sign any Court process to be used in Court.

The response to Appellant’s issue No. 1 is particularly from the 4th Respondent who argued that contrary to the assertion of the learned counsel for the Appellant that the learned trial judge indeed gave due consideration and pronounced on the Appellants/Applicants objection. He referred copiously to pages 141 – 143 of the Record where according to him the learned trial judge clearly and succinctly captured the Appellants/Applicants objection and that the learned trial judge went on at page 143 of the Records to form opinion on the objection from both sides.

Learned Senior Counsel for the 4th Respondent insisted that the learned trial judge considered the Appellants/Applicants objection and made a pronouncement on it. He added, that is the style of His Lordship, the learned trial judge and it cannot be question so long as it has reflected a clear, fair and dispassionate consideration or demonstration of the facts of the case and placed before him as has been done in the instant case. On this 4thRespondent’s Counsel referred to the cases of N. B. C. Plc vs. Borgundu (1999) 2 NWLR (pt. 591) 408 at 425, Trade Bank Plc vs. Chami (2003) 13 NWLR (pt. 836) 195 – 196.

Interestingly, said counsel, it is not the contention of the Appellants that the reasoning and conclusion reached by the learned trial judge on the point was wrong in any respect.

In resolving Appellants issue No. 1, I do agree with the learned Senior Counsel for the 4th Respondent that it does not lie well in the mouth of the Appellants/Applicants to say as coined in the Appellants issue No. 1 “That the learned trial judge was right when in delivering his judgment failed to address the objection of the Applicants to the validity of the processes signed by NtufamMba Ukweni (SAN) HE Being a Public Servant.”

The learned trial judge indeed considered the validity of the processes signed by the 4th Respondent counsel, accepted that the processes are valid on account of the fact that the Fundamental Rights (Enforcement Procedure) Rules encourages access to Courts, that it is a sui generis legislation and overruled “technical objections” on bothsides that could hinder access to justice. As pointed out by Learned Senior Counsel for the 4th Respondent, after a consideration of the objection raised by both parties at pages 142 – 143 of the Records, the learned trial judge concluded at pages 144 – 145 of the Record of Appeal as follows:
“…Thus it would not matter by what manner the application has been brought, once it is clear that it seeks redress for infringement of the Rights guaranteed under the constitution of this country, the application will be entertained.
Conversely, since justice is meant for all parties, where the law emphasizes that everybody be given access to the Court to pursue their Fundamental Rights, it will be an aberration to deny a Respondent who is dragged to Court an opportunity to make her own side of the story heard based on some technical objection raised. It is now trite that Fundamental Right Enforcement Matters are sui generis and in a class of its own. This Court therefore finds any attempt by parties in this action acceptable for the purpose of granting them access to the Court to be heard.
All the processes in this action aretherefore declared acceptable and competent and this Court so holds.”

In any event and still on Appellants issue No. 1 in a case fought on affidavit evidence as the one on hand, the learned trial judge could not have decided that NtufamMbaUkweni (SAN) is a Public Officer without a Government gazette witnessing such a declaration.

Finally, the Appellants apparently relied on the case of Okafor vs. Nweke (2007) 3 SC (pt. 11) 66 out of context, the decision of the Supreme Court in that case is that processes filed by a legal practitioner must be signed by the natural person enrolled to practice law in Nigeria and not by an artificial person in the appellation of a law firm. The case does not decide that a legal practitioner who is a public officer cannot sign legal processes. Therefore, signing of legal processes by a legal practitioner as a natural person for the validity of legal processes must not be confused with the possibilities of conflict of interest of a public officer. Issue No. 1 is resolved against the Appellants.

On issue No. 2, Learned Counsel for the Appellants submitted that the gist of the Appellants claim as evidenced intheir affidavit of facts supporting their application for the enforcement of their Fundamental Right to personal liberty and dignity is that their said rights were endangered and at risk of being violated irreparably by the 2nd and 3rd Respondents upon the instigation of the 4th Respondent. That since the death of the 4th Respondent’s husband – Emmanuel Awatt, she had resorted to publishing threats and instigating the 2nd and 3rd Respondents to maliciously begin to harass and make threats of arresting the Appellants.

He submitted that the law is that any person who alleges that any of his Fundamental Rights as provided in Chapter iv of the Constitution had been, is being or likely to be contravened in any State may apply to a High Court in that State for redress. Appellants counsel referred to the Provision of Section 46 (1) of the 1999 Constitution (as amended). Order ll Rule 1 of the Fundamental Rights Enforcement Procedure Rules 2009.
He further submitted that in reaching its decision, the learned trial judge misconceived the application of the Appellants when it held that “the Applicants have therefore not established anybreach of their Fundamental Rights in the Circumstances and this Court so holds.”

Appellant’s Counsel reiterated that what the Appellants did in approaching the Court below was to seek for redress when they perceived their rights were likely to be breached. He added that the argument that the Appellants were never even arrested does not apply in this case.

He concluded that the Appellants were reasonably apprehensive of imminent violation of their right and therefore exercise their right to seek redress.

The Respondents submitted on issue No. 2 that the commission of an offence as was done by the Appellants in the instance case completely obliterated the protection and enjoyment of the rights to personal liberty and the dignity of their human persons guaranteed by our constitution.

The facts of the case disclose that there is reasonable ground of suspecting the Appellants of having committed the murder of the deceased – Mr. Emmanuel Awatt. That there is no how any responsible security agency as the Nigeria Police will not act on the complaint of the 4th Respondent to investigate the murder of her husband which shewitnessed. The Respondents submitted that no person in the shoes of the Appellants herein who had committed an offence or is under reasonable suspicion of having committed one can take cover under the constitutional provisions to prevent his being apprehended to face the consequences of his action.

They (Respondents) submitted further that the 4th Respondents’ complaint or report to the police over the murder of her husband by the Appellants in her very presence amount to a “resort to publishing threats and instigating the 2nd and 3rd Respondents to maliciously begin to harass and make threats of arresting them is of no moment, idle and offensive to the sensibility of any reasonable man. This according to Respondents is because the 4th Respondent has the right and a compelling duty as every other citizen to report to the police anyone suspected of committing crime. And, that there also exists, a correlative duty on the police to investigate such report of commission of crime. On this, Respondents referred to the case of Maduka vs. Ubah (2015) 1 NWLR (pt. 1470) 201 at 228.

The Respondents submitted further that the complaint of the 4thRespondent in the instant case discloses a prima facie case against the Appellants and that the Learned trial judge was right to have upheld the constitutional and statutory duty of the police to investigate the allegation against the Appellants, as investigation and detection of crimes is one of the primary duty of the police under the Police Act.

On this, Respondents referred to the provision of Section 214 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 4 of the Police Act Cap. 359 LFN 1990 and the cases of ONAH VS. OKENWA (2010) 7 NWLR (pt. 1194) 512 at 517, Fawehinmi vs. IGP (2002) 7 NWLR (pt. 767) 606 at 645, ISHENO VS. JULIUS BERGER (2008) ALL FWLR (pt. 415) 1632.

On issue No. 2, it is indeed baffling and I would say it offends sensibilities for the Appellants to say or perhaps insist that the complaint of murder of her husband by the Appellants in her very presence amount to a “resort to publishing threats, and instigating the 2nd and 3rd Respondents to maliciously begin to harass and make threats of arresting them”. Clearly and as was noted in the case of Bassey vs. Afia (2010) ALL FWLR (pt. 531) 14, the Fundamental Rights (Enforcement Procedure) Rules are not meant to shield a criminal from justice or protect lawful arrest.
Indeed, once criminal allegations are made against a citizen, as in the instant case, it is a constitutional and statutory duty of the police to investigate, as investigation and detection of crimes is a primary duty of the police. See ONAH VS. OKENWA (2011) ALL FWLR (pt. 565) 357 at 361, Fawehinmi vs. IGP (2002) 7 NWLR (pt. 767) 606 at 645 Jim – JAJA VS. C. O. P (2011) 2 NWLR (pt. 1231) 375 at 379, ISHENO VS. JULIUS BERGER (2008) ALL FWLR (pt. 415) 1632.
In the case of A.G ANAMBRA STATE VS. UBA (2005) 15 NWLR (pt. 947) 44 at 67 BULKACHUWA JCA speaking for this Court held thus:
“…for a person, therefore, to go to Court to be shielded against criminal investigation and prosecutions is an interference of powers giving by the Constitution to law officers in the control of criminal investigation. In the instant case, the 1st Respondent has no legally recognizable right to which the Court can take cognizance of for it has disclosed no cause of action. The 1st Respondent cannot expect a judicial fiatpreventing a Law Officer in the exercise of his constitutional power.”
In the instant case, the learned trial judge was right in dismissing the Appellants application to have relied on the case of NWUDE VS. FGN [2005] INCC 196 at 199 and DOKUBO – ASARI VS. FRN [2007] 30 WRN 1 at 39 – 40 and to hold that:
“…if every person accused of a felony can hide under the canopy of Section 35 of the Constitution to escape lawful detention, then an escape route to freedom is easily and readily made available to persons suspected to have committed serious crime and that will not augur well for peace, tranquility and progress in the society.”
Issue No. 2 is resolved against the Appellants.

The complaint of the Appellant in issue No. 3 is that the learned trial judge after delivery of judgment in Suit No. HC/260/2017 lacked any further power in law to make further order (s). Since there is nowhere in the judgment of the Court (pp. 139 – 149), where the Court made an order as to cost the learned trial judge cannot do so after judgment and upon application of the adverse party.

On this, Appellants counsel referred tothe cases of First Bank of Nigeria Plc vs. T. S. A Industries Ltd. (2010) 15 NWLR (pt. 1216) 247 at 296, Mohammed vs. Husseini (1998) 11-12 SCNJ 135 at 153 – 164, KURA & ORS. VS. YERO & ANOR. (2016) LPELR – 40256 (CA) to say that where a Court has duly performed its duty by handing down its decision/ruling, it has exhausted as it were, all its powers with regard to the matter. And so the Court becomes functus officio and incapable of giving any decision or making any competent orders with regard to the same matter, it has previously decided for want of the jurisdiction to do so. He added that the rules of Court contemplate that cost if any would form part of the judgment of the Court and not after the judgment delivered.

Learned Senior Counsel for the 4th Respondent submitted on issue No. 3 that it is not correct that the cost was awarded after the judge became functus officio and thus without jurisdiction as contended by the learned counsel for the Appellants.

He submitted that the 4th Respondent asked for cost in his written address and this was highlighted by the learned trial judge in his judgment on page 143 of the Records. Hesubmitted that the judgment was delivered on Wednesday, the 29th day of November, 2017 and the record of proceedings of that day is at pages 137 – 138 of the record where the issue of costs was again raised and His Lordship awarded same before signing of the record and proceedings of that day.

He submitted that a judge does not become functus officio until he has signed off the proceedings of the day. He referred to the case of F.R.C. N. vs. Iwuoha (2013) 1 NWLR (pt. 1335) 207 at 226 – 228 and distinguished the cases of First Bank of Nigeria, Plc vs. T. S. A Industries Ltd. (2010) 15 NWLR (pt. 1216) 247 at 296, Mohammed vs. Husseini (1998) 11 – 12 SCNJ 135 at 153 – 164 and Kura & ORS. Vs. Yero& ANOR. (2016) LPELR – 40256 (CA) cited by learned counsel to the Appellants to support their contention as good authorities which however have nothing to with the present situation.

He concluded that the issue of costs was considered at the appropriate time when such issues should be entertained by a Court. It would not have been otherwise.

I agree with the learned senior counsel for the 4th Respondent on issue No. 3,that the learned trial judge considered and awarded costs at the appropriate time after the delivery of the judgment in the case and did not re-visit or review the said judgment in doing so. Indeed, the award of the said cost to the 4th Respondent as shown on pages 137 – 138 of the Records was part and parcel of the judgment delivered and signed off on the 29th November, 2017.
All the parties to the case were represented by counsel on the said 29th November, 2017 and the following was recorded at page 138 of the Records:
“DR. LIONEL EFFIOM ESQ., We are grateful for the judgment
UWEM OKON ESQ., We are obliged.
MBA E. UKWENI ESQ., We are grateful Sir and we ask for costs of N500,000 (Five Hundred Thousand Naira) only.
COURT: Costs in the sum of One Hundred Thousand Naira (N100,000.00) only is awarded against the Applicants in favour of the 4th Respondents.
SIGNED:
EMILIA IBOK
JUDGE.”​
A judge cannot be said to be functus officio for awarding costs after the delivery of his judgment when parties are represented by counsel and the judgment and the order as to costs were dated and signed on the same date.

In the case of First Bank Nigeria Plc vs. T. S. A. Industries Ltd. (2010) 15 NWLR (pt. 1216) 247 at 296 Adekeye JSC who delivered the lead judgment of the Apex Court examined the meaning of ‘functus officio’ and when a Court is functus officio at page 296 of the Law Report thus:
“The phrase ‘functus officio’ means ‘task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority’.
A Court is said to be functus officio, in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or re-visit the matter. Once a Court delivers his judgment on a matter, it cannot re-visit or review the said judgment except under certain conditions. More importantly, a Court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of Court process.”
In the instant case, the duties and functions of the learned trial judge in relation to the case have not beenfulfilled or accomplished as to become functus officio when he awarded costs in the proceedings to the 4th Respondent. Issue No. 3 is resolved against the Appellant.
The Appellant in this appeal nominated three (3) issues for the determination of the appeal. The three (3) issues were resolved against the Appellants. This appeal lacks merit and it deserves to be dismissed.

However, I earlier upheld the preliminary objection by the two sets of Respondents and found the particulars of errors to the Appellants ground of appeal and the Appellants issues for determination to be incompetent. This appeal thereafter became lifeless and it is accordingly struck out.
Appeal is struck out.
N50,000.00 costs is awarded only to the 4th Respondent.

ITA GEORGE MBABA, J.C.A.: I agree.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my Learned brother Mojeed Adekunle Owoade, JCA, was given to me before now.

I agree entirely with the reasoning and the conclusions reached. I also abide by all orders made in the lead judgment as well as order made as to costs.

Appearances:

Emmanuel S. Udoh Esq.For Appellant(s)

Robert A. Itsu Esq. – for 1st – 3rd Respondent
NtufamMba E. Ekweni, (SAN) – for 4th RespondentFor Respondent(s)