SCC (NIG) LTD v. ELIYAH & ORS
(2020)LCN/15459(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, December 23, 2020
CA/A/156/2017
RATIO
CIRCUMSTANCE IN WHICH NIGERIAN POLICE FORCE MUST BE JOINED AS A CO-DEFENDANT
The answer is that the law is settled, where an applicant files a fundamental right enforcement action alleges that his right to personal liberty was infringed upon by the Nigerian Police upon instigation of a respondent, that action will be incompetent if the Nigerian Police is not joined as a co- defendant. That is, the Nigerian Police is a necessary party with whom this matter cannot be validly constituted. He cited the case of Fajemirokun v. C.B. Nig. Ltd (2009) 5 NWLR (Pt. 1135) 588 @ 599-600 paras H-c and Nwangwu v. Duru (2002) 2 NWLR (Pt. 751) 265 @ 282-283 paras G-B. PER STEPHEN JONAH ADAH, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
SCC NIGERIA LIMITED APPELANT(S)
And
1. AUTA ELIYAH 2. ABEL OLOKOR 3. THE NIGERIA POLICE RESPONDENT(S)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, delivered on the 25th day of November, 2016, coram: A.S. Adepoju, J.
The 1st Respondent who was in the employment of the appellant, as the Applicant at the trial Court instituted this action for the enforcement of his Fundamental Rights pursuant to Order 2 Rule 3 of the Fundamental Rights Enforcement Procedure Rules 2009, Section 35 (1) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and Article 2 and 6 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement Act) Cap 9 Laws of the Federation. The 1st Respondent claimed the following reliefs against the appellant and the 3rd respondent jointly and severally, as follows:
a. A Declaration that the allegation of theft, arrest and handing over of the Applicant to the Bwari Police Station by the 1st and 2nd Respondents before any formal complaint to the 3rd Respondent and without evidence whatsoever was capricious, unwarranted, wrongful, unconstitutional and a breach of the Applicant’s right to personal liberty.
b. A Declaration that the harassment, intimidation and humiliation of the Applicant by the 1st and 2nd Respondents and the subsequent arrest and handing over of the Applicant to the 3rd Respondent by the 1st and 2nd Respondents on trumped up allegation of theft without proof was plotted and executed by the 1st and 2nd Respondents to blackmail the Applicant in order to justify the Applicant’s subsequent sack from the 1st Respondent’s employment and is therefore unjustifiable, wicked and malicious.
c. A Declaration that the detention of the Applicant by the 3rd Respondent for three days (1st to 3rd December, 2014) at the Bwari Police Station without any form of investigation or prosecution is unlawful, unconstitutional, illegal, unwarranted and a violation of the Applicant’s right to personal liberty.
d. A Declaration that the act of the 1st to 3rd Respondents in arresting and detaining the Applicant for three days on the allegation of theft without charging the Applicant to Court amounted to False Imprisonment and thus a violation of the Applicant’s right to personal liberty.
e. An Order of this Honourable Court awarding the sum of N100,000,000.00 (One Hundred Million Naira) only in favour of the Applicant against the Respondents jointly and severally for false imprisonment arising from the humiliation, embarrassment, intimidation, unsubstantiated allegation of theft, unlawful arrest and detention of the Applicant.
f. An Order restraining the 3rd Respondent, its officers, servants, agents or howsoever named from further violating the Applicant’s right to personal liberty secured and guaranteed under Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and under the African Charter on Human and Peoples’ Rights.
g. Cost of this action.
The parties joined issues by filing their respective Processes, while the 3rd Respondent did not file any Process.
The trial Court in a considered judgment delivered on the 25th day of November, 2016, entered judgment in favour of the 1st respondent to the tune of N5,000,000.00 (Five Million Naira) as damages against the appellant.
The appellant aggrieved by the said judgment now appealed to this Court vide two Notices of Appeal; the first one filed on the 28th November, 2016 and an Amended Notice of Appeal field on the 5th day of May, 2017. The Record of Appeal was transmitted to this Court on 10/03/2017. Appellant’s brief was filed on 05/05/2017, while the 1st Respondent’s brief was filed on 04/03/2019. The 2nd and 3rd respondents did not file any brief.
The appellant in his brief distilled five (5) issues namely:
1. Whether or not the trial Court had requisite jurisdiction to hear and determine this suit having regard to the clear provisions of the Constitution of the Federal Republic of Nigeria 1999, and other relevant laws.
2. Whether or not the lower Court had the jurisdiction to entertain this action having regard to the settled position of the law that only the Federal High Court possesses the jurisdiction to entertain an action of this nature against the 3rd Respondent; without whom the matter would not be properly constituted.
3. Whether or not the originating application by which the 1st respondent commenced this suit was incompetent having regard to the fact that it contained no relief.
4. Whether or not the lower Court ought to have dismissed the 1st respondent’s case on the merit having regard to the law, facts and evidence before the Court.
5. Whether or not the judgment of the trial Court ought to be set aside for nullity on the basis of non-compliance with the provision of the Constitution of the Federal Republic of Nigeria (CFRN) 1999.
In response, counsel for the 1st Respondent in his own brief also framed five (5) issues which are:
1. Whether Section 254 C (1) (d) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) clothes the National Industrial Court with exclusive jurisdiction to entertain actions for unlawful arrest and detention arising from allegation of commission of crime at a work place.
2. Whether by the definition of “High Court” as it relates to fundamental right matters and the clear proviso to Section 251 (1) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) a fundamental right action cannot be maintained against the Federal Government or any of its agencies at a State High Court where a party seeks damages against the Federal Government or nay of its agencies based on any law, enactment or equity.
3. Whether the 1st Respondent substantially complied with Order II Rules 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, in commencing his action at the lower Court.
4. Whether the Court below was right to enter judgment for the 1st Respondent having regards to the facts and evidence adduced before it.
5. Whether every judgment of Court delivered outside the ninety-day period prescribed by the Constitution is a nullity and liable to be set aside.
The issues submitted by the appellant and the 1st respondent are more similar in form and content. I adopt the five (5) issues as formulated by the appellant in the consideration of this appeal, I now start with issue one.
Issue One:
This issue is whether or not the trial Court had requisite jurisdiction to hear and determine this suit having regard to the clear provisions of the Constitution of the Federal Republic of Nigeria 1999, and other relevant laws.
Counsel, while canvassing this issue relied on the case of A-G Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 614 and pointed out that the issue is a case of misinterpretation and misapplication of the relevant laws by the trial Court which forcefully assumed jurisdiction to hear and determine a case in which the Court has no jurisdiction. It is a trite law that all Courts of record are creations of statute. Jurisdiction is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. The learned counsel contended that when a Court has a cognizance of a class of cases involved, proper parties are present and the point to be decided is within the powers of the Court, the Court has jurisdiction. In the instant appeal, it is clear from the 1st Respondents pleadings at the trial Court that the matter is for the enforcement of fundamental right arising from or relating to a labour matter. He referred to the relevant paragraphs of the affidavit of facts in support of the action: 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 15, 17, 18, 19, 20, 22, 25 and 32 at pages 11-16 of the record of appeal and also paragraph 32 & Reliefs B of the affidavit in support of the application and statement of facts respectively at pages 4 & 16 of the record of appeal which establish the fact that this action is one for the enforcement of fundamental rights relating to a labour/employment issue. Counsel relied on Section 254C (1)(d) CFRN and also the case of Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119 at 187-188 paras G-C. That no matter how liberal Section 254C(1)(d) of the CFRN is construed, the National Industrial Court has exclusive jurisdiction to entertain all matters relating to or connected with any dispute over the interpretation of Chapter IV (Fundamental Rights Enforcement) as it relates to any employment or labour matter. He cited the cases of N.U.T, Niger State v. C.O.S.S.T, Niger State (2012) 10 NWLR (Pt. 1307)89 @ 111 paras E-F, 112-113 paras B-E; John v. Igbo-Ekiti LGA (2013) 7 NWLR (Pt. 1352) 1 and Coca-Cola (Nig) Ltd v. Akinsanya (2013) 18 NWLR (Pt. 1386) 225. Furthermore, in the wordings of Section 254C of the CFRN, three crucial phrases are used wit: “pertaining to”, “arising from” and “connected with”. The effect and meaning of these phrases were laid down in the following decisions of the Supreme Court and Court of Appeal in the cases of S.B.N. v. De Lluch (2004) 18 NWLR (Pt. 905) 341@ 355 paras B-D, 356 paras B-E and Shell Pet. Dev. co. (Nig) Ltd v. Maxon (2001) 9 NWLR (7190 541 @ 553- 554 paras. C-E Counsel submitted that a look at the 1st respondent’s pleadings and Relief B sought by him shows that this suit calls for the interpretation and/or application of Chapter IV of the CFRN to the employment/labour relationship between the 1st respondent and the appellant. That it is the National Industrial Court that has jurisdiction to entertain this matter as it relates to the appellant. That the lower Court did not consider the position that apart from the exclusive jurisdiction to entertain labour and employment matters, the National Industrial Court possess distinct and independent exclusive Jurisdiction to entertain 5 (five) other causes of action. This submission is borne out of Section 254C(1)(b), (c), (d), (e) & (f) which deals with labour and employment matters and Section 254C(1)(b), (c), (d), (e) & (f) of the CFRN. One of these distinct causes is (d) which deals with any fundamental right matter arising from or connected to any labour or employment relationship. He maintained that from the wordings of Section 254C(1)(d) of the CFRN which confers exclusive jurisdiction in fundamental right cases on the National Industrial Court is not the reliefs sought but the fact that the provisions of Chapter IV of the CFRN will be interpreted in connection with parties based on their labour or employment relationship.
Counsel stated that it is a trite law that jurisdiction of Court to entertain an action is most fundamental. That where a Court lacks jurisdiction to entertain an action, it cannot adjudicate over same. He cited the case of David v. Jolayemi (2011) 11 NWLR (Pt. 1258) 320 and Babington-Ashaye v. E.M.A.G. Ent. (Nig) Ltd (2011) 10 NWLR (Pt. 1256) 479. Counsel finally submitted that from the above, the trial Court lacks the requisite jurisdiction to hear and determine this matter and urged this Court to resolve this issue in favour of the appellant and strike out this suit for want of jurisdiction.
While arguing his own issue one, counsel for the 1st respondent relied on a recent decision of this Court between S.C.C. Nigeria Ltd & Anor. v. David George & Anor., in Appeal No: CA/A/222/2016, delivered on the 25th January, 2019, where this Court held that Section 254C(1)(d) CFRN does not confer exclusive jurisdiction on the National Industrial Court to hear and determine fundamental right matters arising from criminal complaint. Counsel posited that this calls for the proper interpretation of the provision of Section 254C(1)(d) of the 1999 Constitution. That Section 254C(1) of the Constitution vests exclusive jurisdiction on the National Industrial Court of Nigeria to hear and determine civil causes and matter relating to, connected with or arising from labour or employment matters and not crime or criminal complaints. That the 1st respondent’s action related to, connected with and arose from criminal allegation of theft, which led to his arrest and detention without trial. That thus, in order to determine whether an action falls under Section 254C(1 )(d) of the 1999 Constitution to warrant the National Industrial Court to exercise jurisdiction, that this Court would have to examine the cause of action upon which such action is founded. He relied on Nigerian Ports Plc. v. B.P. Pte Ltd. (2013) 3 NWLR (Pt. 1333), 454 at 480, SCC (Nig.) Ltd v. Anya (2012) 9 NWLR (Pt. 1305) 213 at 228 and Adekoya v. FHA (2008) 11 NWLR (Pt. 1099) 539 at 551. Counsel further posited that a careful reading of the 1st respondent’s affidavit in support of his application at page 11 to 17 of the record of appeal as well as his further affidavit to the appellant and 2nd respondent’s counter affidavits at pages 191 to 197 of the record of appeal would reveal that the 1st Respondent’s complaint against the appellant, 2nd and 3rd respondents related to, connected with or arose from the allegation of theft and criminal complaint against him by the appellant and the 2nd respondent that led to his unlawful arrest and detention without trial. That the said complaints are not connected to, pertained to or arose from the 1st respondent’s contract of employment with the appellant or any labour issue as contended by the appellant. That the trial Court made a finding that the 1st Respondent’s cause of action related to, connected with and arose from the criminal complaint of theft made by the appellant and 2nd respondent against him that led to his arrest and detention without trial, see pages 247 to 248 of the record of appeal. That this finding is in tandem with the evidence of the appellant that the cause of action had nothing to do with employment matters.
He relied on CCB Ltd v. Nwokocha (1998) 9 NWLR (Pt. 564) P. 98 at 110 and Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288), 534 at 588. As per whether the relief B of the 1st respondent is employment related, counsel submitted that the said relief B is not the 1st respondent’s principal relief but ancillary to the principal relief sought by the 1st respondent. That the law is well settled that what determines the jurisdiction of Court to try a matter is not the ancillary claim but the principal claim. he relied on Tukur v. Govt. of Gongola State (1989) 20 NSCC (Pt. 111) 225 at 263. He maintained that the trial Court under Section 46(1) and (2) of the 1999 Constitution has jurisdiction to entertain claims for unlawful arrest and detention of citizens and that the trial Court never made any declaration as claimed by the 1st respondent in his relief B. Counsel pointed out that, the National Industrial Court has both civil and criminal jurisdictions. However, that the parliament in its wisdom restricted the exclusive jurisdiction of the Court on fundamental rights actions to only civil causes and matters as contained in Subsection (1)(d) of Section 254C. That the facts of the instant case are distinguishable from the facts of the cases relied upon by that appellant. He urged the Court to follow its earlier decision in the case of SCC Nigerian Ltd & Anor. v. David George & Anor., and resolve this issue against the appellant.
I have carefully gone through the respective arguments of the appellant and the 1st respondent on this issue one. The issue of which Court has the jurisdiction to entertain matters bothering on breach of fundamental rights had been x-rayed in the earlier case of SCC Nigeria Limited & Anor. v. David George & Anor. (2019) LPELR 46913 (CA). This Court’s decision in that case is tangentially in direct relation with the instant case. This Court earlier in that other case of SCC Nig. Ltd. v. David George (supra) held the position which I adopt as prime in this appeal. The Court held at pp 9-11 (Paras E-C) as follows:
“Jurisdiction is fundamental in every proceeding before any Court. What determines jurisdiction majorly is the claim of the plaintiff of the applicant. It is the nature of the claim and not the parties, that is fundamental in the determination of which Court can entertain the case. Under the Constitution of the Federal Republic of Nigeria, we now have the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory and the High Court of a State exercising jurisdiction over breaches of fundamental rights provided for in Chapter IV of the Constitution. Section 46(1) and (2) provides:
46. (1) Any person who alleges that any of the provisions of this chapter has been, is being or is likely to be contravened in any state in relation to him may apply to a High Court for redress. (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this Chapter”. The reference to a High Court” in this provision has created opportunity for any of the co-ordinate High Courts in a state where the breach occurs to handle or entertain it. The only rider is that there are issues of special jurisdiction as conferred on the Federal High Court and the National Industrial Court. Any breach of the fundamental rights that relates to the special or exclusive jurisdiction of any of the Courts will be handled exclusively by such a Court. It is obvious that baring that fact any other breach of the fundamental rights can be entertained by any of the High Courts, as the Courts share concurrent jurisdiction in fundamental rights enforcement.”
I must say specifically that the 1999 Constitution elaborately specified the exclusive jurisdiction of the High Court’s particularly the National Industrial Court. By Section 254C(1)(d) the 1999 Constitutionas amended provides:
254. (1) Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters (d) relating to or connected with any dispute over the Interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine.
This provision in simple and plain language gives exclusive jurisdiction to the National Industrial Court over Fundamental Rights that relates to any employment, labour, industrial relations etc.
In the instant case, the lower Court found assiduously that the 1st Respondent’s cause of action related to the criminal complaint of theft made by the appellant against the 1st respondent. This finding of Court was not appealed against in this case. It follows that the finding is deemed acceptable to the appellant. All in all, this issue is resolved against the appellant.
Issue Two.
This issue is – whether or not the lower Court had the jurisdiction to entertain this action having regard to the settled position of the law that only the Federal High Court possesses the jurisdiction to entertain an action of this nature against the 3rd Respondent; without whom the matter would not be properly constituted. Counsel for the appellant while arguing this issue pointed out that the claim of a plaintiff is what determines whether a Court has jurisdiction to determine a matter or not. He also referred this Court to the provisions of Section 254C(1)(r) of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended) and the cases of Oguebego v, P.D.P (2016) 4 NWLR (Pt. 1503) P 446 at PP 495-496 paras G-D. At the trial Court, the trial judge in misconstruing the clear provisions of Section 251 CFRN and relevant case laws, held as follows:
“by the provision of Section 46 (1) of the Constitution, both State and the Federal High Courts have concurrent jurisdiction when the subject matter is an alleged breach of Fundamental Human rights…. I am in total agreement with the submission of counsel to the applicant that the fact that an institution is an agency of the Federal Government does not ipso facto exclude the institution from being sued at the State High Court except where the subject matter of the suit falls within terms listed in Section 251 of the 1999 Constitution and decided authorities above, I hold that the 3rd respondent is properly before this Court”. Counsel contended that the above holding of the trial Court is perverse and against the clear provisions of the CFRN. It is the appellant’s contention that the trial Court lacked the jurisdiction to have heard and determined this suit on the basis of the provisions of Section 251 CFRN (supra).
On the issue that the Nigerian Police is an agency of the Federal Government of Nigeria, counsel pointed out that it is undisputable that the Nigerian Police is an agency of the Federal Government as relied in Section 214, 215 & 216 of the Constitution of the Federal Republic of Nigeria 1999 (as altered) and the relevant provisions are Section 214(1), 215(3) & 216(1) of the CFRN which was reproduced in page 10 paras 4.24 of the Appellants brief of argument. He cited the following cases CBN & 6 Ors v. Okojie (2015) 5-6 SC (Pt. II) 173 @ 202 lines 20-24; Aniakor v. Nigerian Police Force (2014) 15 NWLR (Pt. 1429) 155 at PP 172-173 paras E-E. That the 3rd Respondent in this case is an agency of the Federal Government and any act relating to the arrest and detention of any person falls within the purview of an executive decision of a Federal Government Agency. The decision of the Nigerian Police to arrest and detain any person is an executive decision/action of a Federal Government Agency as to confer exclusive jurisdiction on the Federal High Court to hear and determine all civil causes or matters questioning the validity of such decision/action and where a party alleges that the Nigerian Police was instigated to arrest and detain any person and his rights have been breached, the proper forum is the Federal High Court.
Counsel stated that the CFRN prescribes the appropriate Court to exercise jurisdiction where a litigant seeks to challenge or question the validity of the administrative/executive decision or action of the Federal Government as prescribed in Section 254C (1)(r) of the CFRN. The Federal High Court has the exclusive jurisdiction to entertain any civil cause or matter bothering on the validity of the administrative/executive actions of the Nigerian police to arrest and detain the 1st Respondent. He relied on the case of Ogunebego v. P.D.P (2016) 4 NWLR (Pt. 1503) 446 at page 495-496 paras G-D; CBN & 6 ors v. Okojie (2015) 5-6 SC (Pt. II) pp 201-202 lines 6-36; Adetona v. I.G. Ent. Ltd (2011) 7 NWLR (Pt. 1247) 535 @ 564 Paras E-F 567-568 paras G-G; Aniakor v. Nigeria Police Force (supra) at p. 174 paras E-G.
Counsel submitted that the lower Court had no jurisdiction to entertain this suit as far as it relates to the 3rd respondent and the Nigerian Police ought to have been struck out from this suit. He cited the case of FGN v. Shobu (Nig.) Ltd. (2014) 4 NWLR (Pt. 1396) 45. The question asked- what is the effect of the striking out of the 3rd Respondent as a party to this suit having regard to its peculiarity as a fundamental right enforcement? The answer is that the law is settled, where an applicant files a fundamental right enforcement action alleges that his right to personal liberty was infringed upon by the Nigerian Police upon instigation of a respondent, that action will be incompetent if the Nigerian Police is not joined as a co- defendant. That is, the Nigerian Police is a necessary party with whom this matter cannot be validly constituted. He cited the case of Fajemirokun v. C.B. Nig. Ltd (2009) 5 NWLR (Pt. 1135) 588 @ 599-600 paras H-c and Nwangwu v. Duru (2002) 2 NWLR (Pt. 751) 265 @ 282-283 paras G-B. Counsel for the 1st respondent, while arguing this issue contrary to the argument of counsel to the appellant contended that, it is not the law that because the 3rd respondent is an agency of the Federal Government, that it can only be sued at the Federal High Court. That the 1st Respondent’s action at the lower Court was a fundamental rights enforcement action which vests special jurisdiction on High Court in a State to hear and determine fundamental rights matters. He relied on Section 46 (1) and (2) of the 1999, Constitution, Isuama v. Gov., Ebonyi State (2006) 6 NWLR (Pt. 975) 184, SCC Nigeria Ltd & Anor. v. David George & Anor. (supra), Gabriel v. Ukpabio (2008) 3 NWLR (Pt. 1073) 21 at 31 – 32 Paras., G – A, Ekanem v. A.I.G.P. (2008) 5 NWLR (Pt. 1079) 97, Nigerian Navy v. Garrick (2006) 4 NWLR (Pt. 969) 69 and Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 17) 517. That the Federal High Court, State High Court and the High Court of the Federal Capital Territory have concurrent jurisdiction under Section 46(1) of the 1999 Constitution when the subject matter is a breach of fundamental rights irrespective of the parties involved. He relied onGrace Jack v. University of Agriculture, Makurdi (2004) 5 NWLR (Pt. 865) 208, Jack v. University of Maiduguri (2004) 5 NWLR (Pt. 208) at 213, F.M.C.T v. Eze (2006) 2 NWLR 221 at 225 and Nigerian Navy v. Garrick (supra). That Section 251 (1) of the 1999 Constitution allows the Federal Government or any of its agencies to be sued in any other Court where a party claims damages based on any enactment, law or equity. He cited Roe Limited v. University of Nigeria LER (2018) SC. 42/2017. That in fundamental rights matters as any other matter, that it is not parties that confer jurisdiction on Court but subject matter. He relied on NDLEA v. Omidina (2013) 16 NWLR (Pt. 1381) 589 at 606 Para., B. Counsel submitted that there is no statute in Nigeria that forbids the 3rd respondent from being joined as a party in a State High Court in an action for damages for unlawful arrest and detention based on the provision of any enactment, law or equity. Counsel relied on Fajemirokun v. C.B. Nig. Ltd (2009) 5 NWLR (Pt. 1135) 588 and Nwangwu v. Duru (2002) 2 NWLR (Pt. 751) 262 at 283, which affirmed that the police is a necessary party in a fundamental rights action arising from unlawful arrest and detention. Counsel contended further that the authorities cited by the counsel for the appellant have no bearing whatsoever on the instant appeal. He urged the Court to discountenance same and hold that the action of the 1st respondent against the 3rd respondent at the trial Court was competent.
This issue as framed is like the first one. It is an issue of jurisdiction and it is on whether by the composition of the parties in this case it is not the Federal High Court that should exercise jurisdiction over the 3rd respondent — the Nigeria Police. This is an action for the enforcement of a fundamental right under Section 46 of the Constitution of the Federal Republic of Nigeria, 1999. The Constitution conferred a special jurisdiction on a High Court to deal with enforcement of a fundamental right. In the case of Jim-Jaja v. C.O.P. Rivers State & Ors. (2013) 6 NWLR (Pt. 1350) 225, the Supreme Court held per Ngwuta, J.S.C., as follows:
“…Section 46 of the Constitution of the Federal Republic of Nigeria confers on a High Court special jurisdiction to deal with cases of violation of fundamental right of any person within the borders of this country. Section 46(2) provides: “Section 46(2): subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provision of this Section and may make such order, issue such writ and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may been titled under this Chapter”. (for emphasis). The Chapter referred to in the provision reproduced above is Chapter IV dealing with Fundamental Rights. Section 35(1) guarantees to every person his/her personal liberty. The appellant’s case does not fall within the exceptions numbered (a) — (f) in Section 44(2) of the Constitution. The respondents did not attempt to bring their case within any of the exceptions. Section 35(6) provides: “Section 35(6): Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person…” A community reading of Section 36(6) and Section 46(2) of the Constitution (supra) will give effect to the principle of ubi jus ibi remedium. By Section 35 and Section 46 of the Constitution, Fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the appellant proved the violation of his fundamental right by the respondents, damages in form of compensation and even apology should have followed.”
In the instant case, the right being enforced is not connected to any of the exclusive matters reserved by the Constitution for the Federal High Court and the National Industrial Court. It follows therefore, that the lower Court as constituted has jurisdiction to entertain this matter. Issue 2 is therefore, resolved against the appellant.
Issue Three:
This issue is – whether or not the originating application by which the 1st respondent commenced this suit was incompetent having regard to the fact that it contained no relief.
Counsel for the appellant, while arguing this issue submitted that the 1st Respondent’s originating process filed at the trial Court was incompetent as it contained no relief. That, the decision of the trial Court as contained at in pages 248 of the record regards to the originating process is erroneous and ought to be set aside by this Court. Counsel while relying on the cases of Umu Udoeke Umueze Isuofia & Anor. v. Umueze Village Union & 11 Ors. (2011) 6 NWLR (Pt. 1243) 1243) 394 @ 410 Paras D – H, Fabunmi v. C.O.P., Osun State (2011) 15 NWLR (Pt. 1269) 19 @ 32 Paras D – E and Order II Rules 1 & 2, posited that the settled position of the law which the trial Court did not apply is that where the law provides for a special procedure for the enforcement of any right or remedy, that procedure must be strictly complied with. Counsel cited the cases of Agip Nigeria Ltd v. Agip Petroli International (2010) All FWLR (Pt. 520) 1198 @ 1261 Paras C — D and Nigerian Air Force v. Shekete (2002) 18 NWLR (Pt. 798) 129 @ 151 Paras E – G and submitted that the Court will not grant any prayer which does not appear on the face of the originating motion filed in this case. He further contended that since the non-compliance complained about under this issue relates to the mode of commencement that the trial Court was wrong to have relied on Order 9 of the FREP Rules to save this suit. That the failure of the 1st respondent to state his reliefs on his originating motion was a non-compliance the trial Court could not treat as a mere irregularity having regard to Order 9 of the FREP Rules. He maintained that the lower Court fell into a grave error having regard to the consistent stance of this Court that the Originating Motion and the Statement in Support are two separate and independent process, therefore, one cannot be incorporated into another neither can one save the other, in other words, that the 1st Respondent must comply strictly with the form of each process as he would not be allowed to rely on full compliance in one to save non-compliance in the other. He cited Umu Udoeke Umueze Village Isuofia & Anor. v. Umueze Village Union & 11 Ors. (supra). He urged the Court to resolve this issue in favour of the appellant.
Counsel for the 1st Respondent while arguing this issue contrary to appellant’s counsel argument, submitted that the substantive law on where the reliefs in an application for the enforcement of fundamental rights brought pursuant to the Fundamental Rights (Enforcement Procedure) Rules 2009 is to be circumscribed is Order II Rule 3. That the 1st Respondent complied substantially with Order II Rule 3 by accompanying his application with a statement setting out his name and description, the reliefs sought, the grounds upon which the reliefs are sought and supporting affidavit setting out the facts upon which the application was made. That the 1st respondent did not commence his action at the lower Court via a Motion on Notice but through a notice of an application for an order enforcing his fundamental right. He urged the Court to discountenance the authorities submitted by counsel for the appellant as same are not relevant to the case at hand. He submitted that the trial Court did not misinterpret the provisions of Order IX rule 1 (i) and (ii) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 or indeed went outside that provision in order to seek interpretation which is convenient to the Court or favourable to the 1st Respondent as insinuated by the appellant. Counsel urged the Court to uphold the decision of the trial Court that the 1st Respondent substantially complied with the provisions of Order II Rule 3 of the Fundamental Right (Enforcement Procedure) Rules, 2009 and that his action was competent.
The argument of the appellant on this issue dwell much on the commencement of the application and his contention that the Originating Application contained no relief. The issue is whether the omission was fundamental or a mere irregularity. The parties have argued back and forth over this issue. The law is certain and settled that rules of Court detailing procedure are meant to be obeyed. The only issue here is that because of the special nature of fundamental right enforcement, Order 9 of the Fundamental Right (Enforcement Procedure) Rules mellowed down on some aspect of the non-compliance with the Rules. The mode of commencement of the application was exempted from non-compliance but a look at the mode of commencement as detailing in the Rules will show whether in this case, the application could not be saved as done by the trial Court. Order 2 Rules 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules expressly provide as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.
3. An application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the facts upon which the application is made.
Rule 2 here makes the application to be made by any Originating Process accepted by the Court which shall subject to the provisions of these Rules. Then Rule 3 requires that the application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought etc. The statement required under the Rules is before the Court. The Originating Process complained about by the appellant is the process accepted by the trial Court. Since the Rules leave the Originating Process to the discretion of the Court, there is nothing wrong with the lower Court accepting that process and acting on it. The FREP Rules wanted to eliminate technicality in enforcement procedure of the fundamental rights, so no Court would sabotage the focus and policy of the rules of procedure as anticipated by the appellant. Since the lower Court accepted the Originating Process, this Court will honour the exercise of such a discretion since it is in line with the Rules. This issue is therefore, resolved against the appellant.
Issue Four:
This issue is – whether or not the lower Court ought to have dismissed the 1st respondent’s case on the merit having regard to the law, facts and evidence before the Court.
Counsel for the appellant submitted that this issue ought to be resolved in its favour for the following reasons:
That the appellant did not instigate the 3rd respondent against the 1st respondent: That the entire basis of the 1st respondent’s case at the trial Court was that the Appellant instigated the 2nd Respondent to arrest and detain him on trumped up charges of attempted theft for the purpose of terminating his employment. The 1st respondent has painted a rather gloom picture of intimidation, blackmail and harassment by the Appellant. This assertion was wholly denied by the Appellant’s Counter-Affidavit (pages 45-63 of the record of appeal. The question to ask now is: How should the lower Court resolve the conflicts in the two affidavits? The answer to this question is that, the law is settled that where there are conflicts in the affidavits filed in cases of this nature, the Court will resort to documentary evidence in order to resolve such conflicts. He cited the case of Ugbane v Hussain (2009) 5 NWLR (part 1135) 530 @ 544-545 paras E-A; Afribank (Nig) Plc v. Adigun (2009) 11 NWLR (Part 1152) 329 @ 350. It is a settled principle that documentary evidence should be preferred to oral evidence and where there is conflict in the oral evidence before the Court, documentary evidence should be used as the hanger upon which to test the veracity of the oral evidence before the Court. He cited the case of Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 617 @ 653 paras B-C. The 1st Respondent exhibit nothing before the lower Court to show that he was maliciously set up by the Appellant for the purpose of terminating his employment, the Appellant on the other hand exhibited to its counter- affidavit the following documents which was referred and reproduced in page 24 at para 4.65 of the appellant’s brief of arguments.
Counsel urged this Court to rely on Exhibit I & J to find that the arrest and detention of the 1st Respondent by the police was not based on an “unjustifiable malicious and wicked” trumped up allegation of theft specifically targeted at him.
On whether the act of reporting the commission of crime to the 3rd respondent does not amount to breach of the 1st respondent’s fundamental rights or false imprisonment, counsel pointed out that from Exhibits G, I & J that all the Appellant did was to report a commission of attempted theft at his premises. The law is settled that citizens have a duty to report a crime or report the impending commission of a crime, doing so, cannot be a quilt of false imprisonment or breaching a suspect’s fundamental right. He relied on the case of Fajemirokun v. CBN Ltd (2009) All FWLR (Pt. 487) 1 @ 6 paras G-H. Furthermore, a look at the Appellants counter-affidavit as well as the documentary evidence contained in Exhibit I & J duly established that the Appellant merely reported the crime of attempted theft and also Exhibit G & H (pages 58-60 of the record of appeal) which are the police reports issued by the 3rd respondent will confirm the fact that the report made by the Appellant to the 3rd Respondent was not specifically or maliciously targeted at the 1st respondent. The Appellants actions were lawful and it ought not to have been found liable for any wrong.
On whether the arrest and detention of the 1st Respondent was done by the 3rd respondent who had the power to do so, counsel contended that the 1st Respondent deposed to facts which gave impression that he was arrested by the Appellant instead of the police and the facts were denied in the Appellant’s counter-affidavit. He referred this Court to page 58 of the record of appeal in the second paragraph of same shows conclusively that the 1st Respondent and 19 others were arrested by the police; it reads: “In the course of investigation, some staff of the company were indicted for conspiracy and were arrested for interrogation. They are: (1) … (4) Auta Liya …”
He maintained that it was the 3rd Respondent that arrested the Appellant in the course of investigation. He was not arrested on the malicious instigation of the Appellant and Exhibits I & J corroborates same (pages 61 -63 of the Record of Appeal). He referred to Section 4 of the Police Act, which shows that the 3rd Respondent had the power and authority to lawfully arrest the 1st Respondent for the purposes of interrogation and investigation. Also, Section 26(C) and 27 of the Criminal Procedure Code Act applicable within the FCT, Abuja empowers the 3rd Respondent to arrest the 1st Respondent.
Counsel urged this Court to hold that the appellant was not liable for false imprisonment or breach of the 1st Respondent’s fundamental right to personal liberty.
On whether the arrest and detention of the 1st Respondent was based on reasonable suspicion, counsel stated that the law is settled that where an individual is arrested and detained based on reasonable suspicion of having committed a crime, the Court will not find that his arrest/detention was wrong. He cited the cases ofAgundi v. Commissioner of Police (2013) All FWLR (Pt. 660) 1247 @ 1296-1297 paras E-B; Bassey v. Afia (2010) All FWLR (Pt. 531) 1477 @1500-1501 paras H-A. That Exhibit A & E (documentary evidence) are statements made by Nansel Nietkwap, who was apprehended while the crime in issue was being committed. These statements were exhibited to the Appellant’s counter-affidavit (pages 47 & 48 record of appeal). A look at these statements reveals that several staff of the Appellant were indicted by these persons who confessed as accomplices and also pointed out that the 1st Respondent is one of their accomplices at paragraph 12(O) & (S) of the Appellants Counter-affidavit at pages 47 & 48 of the record of appeal.
Counsel finally submitted that these evidences coupled with the surrounding facts and circumstances of the case made the arrest and detention of the 1st respondent reasonable. He urged this Court to so hold. On whether the 1st respondent was released within reasonable time, counsel for the appellant refers to Exhibit K which shows that the 1st Respondent was to be charged to Court on the 3rd of December, 2014 within 24 hours of his arrest. Exhibit K is the first information report/charge which was to be filed before the Chief Magistrate Court on the 3rd of December, 2014 (page 63 of the record of Appeal). He submitted that the arrest and release of the 1st Respondent within a period of 48 hours is not unreasonable having regard to the fact that the 3rd respondent had to conduct its investigations and would actually have charged the 1st Respondent to Court within 48 hours if the Appellant had not withdrawn the charge. He relied on the case of NDLEA v. Omidina (2013) 16 NWLR (Pt. 1381) 589 at pages 608-609 paras H-F, pages 613 paras D-G.
Furthermore, the trial Court in its judgment tried to distinguish the case of NDLEA v. Omidina cited above from the facts of this case. Counsel submitted that the reasoning of the Court that, Omidina’s case did not apply because the 3rd Respondent did not carry out proper investigation is perverse. This is because there was documentary evidence before the Court (Exhibit A-I) which show that the police carried out proper investigation. The trial Court tried to challenge the authenticity of these documents to the effect that they are mere fabrications, worthless and documentary hearsay. Counsel submitted that these documents are Certified True Copies of a public documents, they are official documents with presumption of regularity in their favour. He relied on Section 146 of the Evidence Act. The law is trite that a Court should refrain from making a case for the parties as doing so will amount to miscarriage of justice. He cited the case of Kalu v. Uzor (2006) 8 NWLR (Pt. 981) P.66 @ 89 para E-G
On the fact that the appellant decided not to press charges against the 1st Respondent does not mean that there was no reasonable ground for his arrest and detention, counsel pointed out that the appellant decided not to press charges against the 1st Respondent based on the following facts as deduced from the appellants counter-affidavit:
i. There was merely an attempted theft,
ii. The theft was not successful,
iii. It would have been time consuming for the Appellant as nominal complainant to press charges against the 1st Respondent,
iv. It would have been financially expensive for the Appellant as nominal complainant to press charges against the 1st Respondent, and
v. The Appellant were not necessarily desirous of causing any one to go to jail.
The institution of this matter by the 1st Respondent is taking advantage of the appellant’s decision to withdraw the complaint against him. Counsel urged this Court to reject this twist as argued by the 1st Respondent as there are sufficient evidence, particularly Exhibit A & E showing that there would be a prima facie case against the 1st Respondent if the Appellant changes his mind to press charges and also Exhibit F shows that the pipes which were to be stolen were actually hauled outside waiting to be ferried by the two trailers that absconded.
On whether a Court ought not to disbelieve a party’s case because of mere discrepancies or immaterial contradictions, counsel contended that rather than relying on the documentary and affidavit evidence in the Appellants defence to dismiss this suit, the lower Court discountenanced them on the ground that they were contradictory, porous and lacked substance. The exact words of the lower Court have been reproduced in page 29 para 4.85 in the Appellants brief. The portions quoted from the judgment of the Court below do not amount to any contradiction. None of these averments highlighted by the Court below affects or relates to how the 1st respondent in this case was arrested and detained. These depositions referred to as contradictory by the Court below relate to the arrest of one Nansel Netkwap who confessed to committing the crime in issue. HOW IS THIS A MATERIAL CONTRADICTION IN THE APPELLANT’S CASE THAT THE 1ST RESPONDENT WAS ARRESTED AND DETAINED BY THE 3RD RESPONDENT? The lower Court was therefore wrong to have relied on such to find against the appellant, more so, that these documents were certified true copies. He cited the case of Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402@ 413-414 paras. H-C.
On the lower Court’s findings on who arrested the 1st respondent was perverse, counsel for the Appellant submitted that the findings of the lower Court (based on what the Court perceived as porous and non-substantial nature of Exhibit G & H) that the 3rd Respondent did not arrest the 1st Respondent is perverse because these considerations are totally irrelevant in the construction of the Exhibits. The Certified Police Reports attached as Exhibit G & H (pages 58-60 of the Record of Appeal) states that the 1st Respondent was arrested by the 3rd Respondent and not the Appellant, the lower Court found reasons for refusing to rely on these documents and in order to justify their findings, the lower Court held as follows at pages 251 of the Record of Appeal which was reproduced in page 30 para 4.87 of the Appellants brief. A perverse finding is a finding of fact which is inconsistent with the evidence before the Court or which is based on irregularities. He cited the case of Emeka v. State (2014) 13 NWLR (Pt. 1425) 614 @ 632 paras C-D.
He maintained that the law is settled that when a Court construes a document with clear and unambiguous words, it is bound to give them their literal meaning. The lower Court had no power to look into and declare the porosity and substantiality of a Police Report made by the Nigerian Police so that it would be able to discountenance same and prefer oral evidence to same. This, with respect, rendered the lower Court’s decision perverse. WHERE THE NIGERIAN POLICE ADMITTED ARRESTING AND DETAINING THE 1ST RESPONDENT IN ITS REPORT, WHY IGNORE SUCH ADMISSION ON THE REPORT WAS NOT WRITTEN AS WELL AS THE COURT WOULD WANT IT TO HAVE BEEN WRITTEN? Counsel urged this Court to set aside the said decision and resolve the issue in favour of the Appellant. He relied on the case of FRN v. Ibori (2014) 13 NWLR (Pt. 1423) 168 @ 222-223 paras F-A and Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) 606 @ 670-671 paras H-E.
Counsel for the 1st Respondent while arguing this issue posited that, the trial Court was right when after carefully considering the evidences led by both parties rightly came to the inevitable conclusion that the appellant, the 2nd and 3rd respondents breached the fundamental rights of the 1st respondent by unlawfully arresting and detaining him without trial. That the burden was on the appellant, the 2nd and 3rd respondents to show reasonable suspicion for the arrest and detention of the 1st Respondent which they failed to do. That the 1st Respondent who was accused of committing a crime by the appellant had the right and opportunity to clear his name in the Court had the appellant not truncated his prosecution. That, it was curious that the appellant could withdraw its complaint right in the Court premises after the 1st Respondent had been detained for three days claiming that it would be citing time consuming, distracting and expensive for them to prosecute. Counsel submitted that the appellant’s reasons are not tenable and only shows that it made false complaint to the 3rd respondent against the 1st Respondent. He referred the Court to I.H.A.B.U.H.M.B. v Anyip (2011) 12 NWLR (Pt. 1260) 1 at 22 – 23, Ekanem v. A.I.G.P. (2008) 5 NWLR (Pt. 1079) 97 at 114, Paras D- F and Jim-Jaja v. C.O.P (2011) 2 NWLR (Pt. 1231) P. 375 at P. 391 Para. E. He maintained that the 1st Respondent ought to have had his day in Court either to have his guilt proved or had the opportunity to clear his name. That the action of the appellant and the 3rd respondent in conspiring to withdraw the FIR while the 1st Respondent was already seated in the Court room awaiting his arraignment was a clear indication that the allegation of crime against him was false, especially considering the reasons advanced by the appellant actuating the withdrawal. Counsel further contended that one evidence which shows that the appellant and the 3rd respondent acted malafide or maliciously and therefore without reasonable suspicion against the 1st respondent is Exhibit H which was made on 12th December, 2014, i.e., nine days after the 3rd respondent took the 1st Respondent to Court for arraignment on 3rd December, 2014. That the transfer of the case to the CID for discreet investigation was an indication that the Police at Bwari never investigated the appellant’s complaint against the 1st Respondent and that lack of proper investigation of the case was apparent on the face of Exhibit H. Counsel cited the cases of Nnunukwe v. State (2003) 14 NWLR (Pt. 840) 219 at 236, Paras B D, Azeez v. State (2005) 8 NWLR (Pt. 927) 312 at 323 and Ubani v. State (2003) 18 NWLR (Pt. 851) 224 at 250. That the 3rd respondent refused to investigate the 1st Respondent’s alibi made to it at the earliest opportunity that he slept in his house with his family on the night of Sunday, 30th November, 2014 and was nowhere near the 1st respondent’s premises, which fact if investigated would either have fixed the 1st respondent at the purported scene of crime or explained his whereabouts on the said night of Sunday 30th November, 2014. He urged the Court to hold that, the findings of the trial Court that the arrest of the 1st respondent and his subsequent detention was without reasonable suspicion and therefore unlawful and unjustifiable.
Counsel further posited that Exhibits A— D, I and J made by the appellant and the 2nd respondent did not mention the name of the 1st Respondent and that Exhibit B cannot be used to justify the arrest and detention of the 1st Respondent since the exhibit was made over twelve hours of the 1st Respondent’s arrests and detention. That Exhibit E is an extra-judicial statement purportedly obtained by the 3rd respondent from an alleged suspect. That there was no evidence before the Court that the 1st respondent was confronted with Exhibit E and that he adopted it. He relied on Olufemi Babatunde v. The State Unreported Appeal No: SC/516/2014, Ozaki & Anor. v. The State (1988) 1 SC 109, Evbuomwam v. COP (1961) WNLR 257, The State v. Onyeukwu (2004) 14 NWLR CPL 89 340 and The State v. James Gwangwan (2015) LPELR – 24837 (SC). That contrary to appellant’s submission of Exhibit H, counsel contended that Exhibit H do not state that it was the 3rd respondent that arrested the 1st Respondent rather it explained the chain of events from the time the alleged crime was purportedly reported to the 3rd respondent. On Exhibit G, counsel posited that it was made seven months after Exhibit H was made and that Mr. Danladi Isa had no power or authority to make or issues Exhibit G in June, 2015, when there was no case to investigate and when the case file was with the CID.
On whether the trial Court was perverse in disbelieving the contradictory evidence presented by the appellant, counsel submitted that fundamental right actions are contested on affidavit evidence and as such, the Court does not have the opportunity to access the demeanor of witnesses. He cited Azubuike v. Diamond Bank Plc (2014) 3 NWLR (Pt. 1393) 116 at 127 Paras G — H, Ajibare & Anor. v. Akomolafe & Anor. (2011) LPELR 3948 (CA), The Administrator General and Public Trustee Delta State & Anor. v. Ogogo & Anor (2005) LPELR (CA) and Arjay Ltd. v. A.M.S. Ltd (2003) 7 NWLR (Pt. 820) 577 at 627 Paras E – F. That by reason of the incompetence of its counter affidavit, that the appellant did not put forward any credible evidence whatsoever before the lower Court worthy of consideration. That the contention of the appellant that the trial Court was perverse holds no water. That, the finding of the trial Court that the appellant’s exhibits had no probative value was not appealed against by the appellant, therefore, that finding stands and the appellant and this Court are bound by that finding.
On this issue four, the lower Court was attached for its findings which the appellant said were perverse. A look at the judgment of the lower Court will show clearly that the learned trial judge carried out a meritorious evaluation of the evidence before it and came to the conclusion it reached. There is no use trying to find unnecessary fault with the assessment of the lower Court as was done by the appellant in this case. The lower Court took adequate time to deal with the affidavit and the counter-affidavit before it.
The record shows that the evaluation conducted by the lower Court was proper. It is therefore, clear that the findings of the lower Court were apt and unassailable. The issue is also resolved against the appellant.
Issue Five:
This issue is – whether or not the judgment of the trial Court ought to be set aside for nullity on the basis of non-compliance with the provision of the Constitution of the Federal Republic of Nigeria (CFRN) 1999.
Counsel for the appellant pointed out that the 1st Respondents originating Motion and the appellant’s preliminary objection were argued at the trial Court on the 25th of January, 2016 after which the Court reserved it for ruling and did not deliver the Ruling until 25th of November, 2016, without the parties re-arguing their case. The trial Court delivered its Ruling contrary to the provisions of Section 294 (1) of the 1999 Constitution which mandates Court to deliver its decision not later than ninety (90) days after the conclusion of evidence and final addresses.
Counsel submitted that the trial Court delivered its decision months after the constitutionally prescribed period and renders it a nullity. He relied on the case of Enebong & Anor v. Edem & Ors. (2016) LPELR-41190 (CA). He referred this Court to page 143 of the record of Appeal containing Exhibit 5 where it was mentioned that the 1st respondent as one of the culprit in the attempted theft, the trial judge wrongly held at page 251 of the Record thus:
“Nowhere in any of the statements was the name of the applicant mentioned as one of the those who conspire to steal from the 1st respondent’s factory”
Furthermore, at page 251 of the Record of Appeal, the trial judge found against the Appellant because (1) that the Appellant did not attach the statements of the 1st Respondent and (2) it behoves on the appellant to establish the reasonability of their actions in arresting and detaining the 1st respondent. He maintained that by making these findings, the trial Court misplaced the burden of proof on the Appellant who was the 2nd respondent at the trial Court. The law is trite that in a case of this nature where the applicant seeks declaratory reliefs, the burden of proof rests squarely on the Applicant since he who asserts must prove. He cited the case of Onah v. Okenwa (2010) 7 NWLR (Pt. 1194) 512 @ 535-536 paras H-C. Considering the time within which the trial Court delivered its judgment, it has lost touch with the nature of the parties’ case and on who rests the burden of proof. The appellant had no duty to establish the reasonability of the actions of the police neither did he have any onus to provide or attach the statements of the 1st Respondent made to the police.
Counsel submitted that the Court did not rely on the certified true copies of the Police Reports from the 3rd respondent and declared it as unreliable on the ground that Exhibit 7 (page 148 of the record) was made six months after the incident in issue. These findings are against the documentary evidence placed before the Court and the Court referred to Exhibit 7 without taken into consideration Exhibit 8 (page 149 of the record) which is also a police report made immediately after the event. The Court obviously lost touch with the events placed before it in the determination of the case and thereby reached the perverse decisions. He relied on the case of SCC (Nig.) Ltd v. Anya (2012) 9 NWLR (Pt. 1305) 213 @ 232 Para. A and Onu v. Idu (2006) 12 NWLR (Pt. 995) 657 @ 686 paras C-F.
Counsel finally submitted that, the trial Court reached a perverse decision against the weight of the evidence and also misplaced the burden of proof on the appellant because of the time lag within which the trial Court delivered its decision. Counsel urged the Court to so hold and resolve this issue in favour of the appellant.
Counsel for the 1st Respondent while arguing this issue posited contrary to the submission by the counsel for the appellant that it is not the intendment of the makers of the Constitution that, all judgments delivered outside the provision of Section 294(1) of the Constitution is a nullity. That Subsection 294 is a saving clause which saves judgment delivered outside the provision of Subsection (1) from being set aside or treated as a nullity solely on the ground of non-compliance with Section 294 (1). He relied on the case of Idowu & Ors. v. Segun Koya Investment Ltd (2017) LPELR – 43580 (CA) and maintained that the appellant has not shown how the delay by the trial Court has occasioned a miscarriage of justice to it. He urged the Court to resolve this issue against the appellant and uphold that judgment of the trial Court as valid in line with the decision in Idowu & Ors. v. Segun Koya Investments Ltd (supra).
The final issue here deals with the operation of Section 294 of the 1999 Constitution. This Section provides at Subsections 1 and 5 as follows:
294 (1) 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 thereof.
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(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. The Constitution is very clear in its provision here. It is not every delay in the delivery of judgment that has the capacity to set aside a judgment of the Court. It is only the delay that is shown to have orchestrated a miscarriage of justice. See Akoma & Anor. v. Osenwokwu & Ors. (2014) 11 NWLR (Pt. 1419) 462, Atungwu & Anor. v. Ochekwu (2013) 14 NWLR (Pt. 1375) 605. In the instant case, the appellant has not shown what miscarriage of justice he has suffered to warrant setting aside the decision of the lower Court. It invariably means that the decision of the lower Court, although delivered late is not perse a nullity. This issue is therefore, also resolved against the appellant.
From the foregoing consideration therefore, I come to the conclusion that this appeal is lacking in merit. The appeal is hereby dismissed.
No order as to costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading the lead judgment of my learned brother, STEPHEN JONAH ADAH, J.C.A., just delivered and I am in complete agreement with the reasoning and conclusion contained therein.
I also dismiss the appeal for lacking in merit and I make no order as to costs.
MOHAMMED BABA IDRIS, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, STEPHEN JONAH ADAH, J.C.A. and I agree with the reasoning contained therein and the conclusion arrived there at.
My brother has adequately considered the issues formulated for determination in this Appeal. I have nothing useful to add. For the same reasoning advanced in the lead Judgment which I adopt as mine, this Appeal lacks merit and is hereby dismissed.
I abide by the other orders made therein the lead Judgment.
Appearances:
Ademola Abimbola, Esq., with him, Mary Martins Esq. and M. Akinnawonu, Esq. For Appellant(s)
S. E. Ekeh Esq. – for 1st Respondent.
Lukman Saadu Esq. – for 2nd Respondent.
3rd Respondent served but not represented in Court. For Respondent(s)
