Affidavit

Before Their Lordships

Between

AND

…………………….A…………………….

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellants were the Plaintiffs before the High Court of Lagos State in Suit No.ID/1590/1998: ADIO ONABIYI & ORS. vs. I.O.N. PETROLEUM LIMITED wherein they claimed reliefs for declaration of entitlement to statutory right of occupancy, damages and perpetual injunction in respect of parcel of land along Lagos Abeokuta Expressway, Ijaiye, Ojokoro, Lagos State. The Respondent which was the Defendant at the lower Court did not file any processes and upon the application of the Appellants for judgment in default of defence, the lower Court granted the Appellants leave to lead evidence in proof of the declaration sought. The Appellants duly adduced evidence after which the lower Court entered judgment for the Appellants on 10th December 2009.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the concurrent findings of fact of the two lower Courts. The Court of Appeal, Lagos Division, Coram: J. S. Ikeyegh; U. A. Ogakwu; A. O. Obaseki-Adejumo delivered its judgment on the 14th day of December, 2017 affirming the judgment of the trial Court in favour of the Respondent. The Appellants had appealed against the judgment of the trial Court delivered by Hon. Justice W.

Animasahun of the High Court of Lagos State in a fundamental right proceeding on the 1st day of February, 2016 wherein judgment was delivered in favour of the Respondent (Applicant at the trial Court). The Appellants herein were the Appellants at the Court of Appeal while the Respondent herein was the Respondent at the Court below. The trial Court awarded aggravated damages against the Appellants and held their employers – First Bank not vicariously liable for the breach of the Respondent’s fundamental rights.

The facts that led to this appeal are that the 1st Appellant was the officer in charge of the account of a customer known as OLAM NIGERIA LIMITED on which a fraud of N355,000,000 (Three Hundred and Fifty-Five Million Naira) was attempted on 25/09/2013. It was this attempted fraud that occasioned the chain of events that precipitated the suit. The two lower Courts found as follows: The Respondent was a dispatch rider whose routine duties include delivering documents specified by his superiors to various officers within the Bank and other places around Lagos.

The Respondent was instructed to take four (4) funds transfer forms originating from the account of OLAM NIGERIA LIMITED to the Operations Manager at the Head Office to effect the transfer of the total sum of N355 million into four Corporate Accounts. After the Respondent dispatched the transfer forms as instructed, he was summoned back to the office and the two Appellants caused him to be detained at the Lion Building Police Station because he refused to say that he submitted the transfer funds in error to the Operations Manager.

The Respondent was detained from 25/9/2013- 26/9/2013 at Lion Building police cell where he had been taken by First Bank Security on the instruction of the Appellants. On 27/9/2013 he was bailed, but the same night, the Bank’s security men on the instruction of the Appellants got the Respondent detained at Ikoyi Police Station. He was detained for seven (7) days and charged on 4/10/2013 at the Magistrates’ Court 11 in Lagos State. After numerous adjournments, the Magistrates’ Court struck out the charge for lack of diligent prosecution.

There was unanimity in the affidavit and the counter-affidavit filed by both Appellants and the Respondent at the trial Court that no-superior official of First Bank’s head office questioned the Respondent on the matter, and apparently knew any details of the attempted fraud or participated in the instructions to detain the Respondent. ​ After his discharge by the Magistrates’ Court, the Respondent instituted proceedings to enforce his fundamental human rights to personal liberty and dignity and for damages for his unlawful incarceration at various police stations for several days for no just cause.

After hearing the application, the trial Court found and held that the rights of the Respondent had been infringed and awarded exemplary damages of Ten Million Naira (N10,000,000) against the 1st Appellant and Seven Million, Five Hundred Thousand Naira against the Appellant and costs of the action at N1 million each against the Appellants. The Appellants appealed to the Court below.

The Court held after it re-evaluated the evidence at trial and considered the issues raised by the parties that the trial Court discharged its primary duty of evaluating evidence and its conclusion after the evaluation was not perverse and that the trial Court justified its findings of violation of human rights against the Appellants. The Court also held there was no appeal against the award of aggravated damages and refused to decide the point.

On appeal to this Court, the Appellants settled through their counsel Chief Karina Tunyan SAN the following issues for consideration. 1. Whether on the state of the disputed facts, the conflicting evidence in the affidavits exchanged by the parties and the hostile nature of the proceedings based on the allegation of violent maltreatment, the suit at the lower Court was rightly commenced by affidavit evidence procedure and the two Courts below were right to have countenanced same and accede to the Respondent’s claims. (Distilled from grounds 1) 2.

Whether the Appellants were responsible for breach of the Respondent’s fundamental right to personal liberty (Distilled from grounds 2). 3. Without prejudice to issue two above whether the Appellants can be adjudged and/or held personally liable in damages for an action of a disclosed principal. (Distilled from grounds 3). 4. Whether the award of aggravated damages against the Appellants jointly and severally was proper based on the relevant facts and circumstances of this case. (Distilled from grounds 4).

The Respondent’s counsel Mrs. Funmi Falana settled four (4) similar issues for determination as set out below: 1. WHETHER the Court of Appeal was right in holding that the judgment of the trial Court was not against the weight of evidence adduced at the hearing considering the facts and circumstances of the case. (Distilled from Ground 1). 2. WHETHER the Appellants can be held liable for breach of the Respondent’s fundamental right to personal liberty. (Distilled from Ground 2). 3.

WHETHER the Appellants who mischievously complained to the police, strenuously pursued same to indict the Respondent and even when the Police offered to investigate the fraud multiple times but they were always stopped by the Appellants who would tell them to ignore that and just make sure that the Respondent admitted that he was guilty for a crime he knew nothing about can be adjudged personally liable for their actions. (Distilled from Ground 3). 4.

WHETHER the award of aggravated damages against the Appellants jointly and severally was proper considering the facts and circumstances of the case. (Distilled from Ground 4).

The real issues in controversy between the parties will be considered in the determination of this appeal. They are: 1. Whether the Appellants can be held solely liable for the breach of the Respondent’s fundamental right to personal liberty. 2. Whether the Court below was right in holding that the claim of the Respondent was legally proved and the Respondent was entitled to the award of aggravated damages in the circumstances of this case.

ISSUE ONE Learned Appellant’s counsel submitted that from the undisputed facts on record, the appellants at all material times acted as agents for and on behalf of a disclosed principal in reporting an alleged fraud and handing over the Respondent as suspect to the security department of First Bank who in turn handed him over to the police who subsequently detained him.

Learned counsel argued that if the First dank was not found liable, then the Appellants who did not act on a frolic of their own but simply discharged their duties to their employers could also not be found liable for violating the rights of the Respondent. Counsel argued that an agent acting on behalf of a disclosed principal incurs no liability. Counsel cited the case of NIGER PROGRESS LTD v. N.E.L CORPORATION (1989) 3 NWLR (Pt. 107) PAGE 68, LEVENTIS TECH. LTD v. PETRO JESSICA ENT. LTD. (1992) 2 NWLR (Pt. 214) pg. 459, FAITH ENTERPRISES LTD. v.

B.A.S.F. (NIG) LTD. (2001) 8 NWLR (Pt. 714) PG. 242 AND ESSANG v. AUREOL PLASTIC LTD. (2002) 17 NWLR (Pt. 795) pg. 155.

In reply, Counsel argued that the Respondent was able to prove that it was the two Appellants and not First Bank as a corporate entity which set the law in motion against him, while the Appellants could not prove that their actions were in furtherance of their duty to their employers. The Court was bound to hold that their actions were mala fide.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Counsel cited AFRIBANK v. ONYIMA (2004) 2 NWLR pt. 858 pg.654 AT 679, FAJEMIROKUN v. COMMERCIAL BANK NIG. LTD (2002) 1 NWLR Pt. 774 pg. 95.

OPINION ON ISSUE ONE The only ground of appeal and reliefs sought against the judgment of the trial Court at the Court of Appeal is stated as follows: 1.

The judgment is against the weight of evidence adduced at hearing: Particulars of Errors: (a) The appellant merely reported an attempted fraud to the police but did not order the police to detain or prosecute the respondent as implied by the judgment (b) The report incidented (sic) by the Appellants at the police was not fictitious as there was real/apparent prove of attempted fraud justifying a necessity for police investigation against the Respondent. (c) That the evidence adduced at hearing are such as would have required oral evidence to proof and or to justify the award of aggravated damages against the Appellants.

RELIEFS SOUGHT FROM THE COURT: i) That the appeal be allowed and the decision of the lower Court be set aside. ii) That the application/originating summons of the Appellant/Respondent at the lower Court be dismissed

The learned Court below held on the issue of the vicarious liability of First Bank as follows: “First Bank of Nigeria Plc was one of the Respondents at the lower Court. In its ruling, the lower Court held that First Bank was not responsible and liable for the infringement of the Respondent’s fundamental rights (see page 74 of the records). There is no appeal against this finding so it remains subsisting and binding: ONAFOWOKAN V. WEMA BANK (2011) LPELR(2665) 1 at 41 (SC).”

In the original notice of appeal to this Court filed on 20/12/2017 against the judgment of the Court below, the following complaints shorn of their particulars were made: 1. The lower Court erred in law and facts when it held that the judgment of the trial Court is not against the weight of evidence adduced at hearing. 2.

The lower Court erred in law and fact when it held that the evaluation of evidence and ascription of probative value thereto by the lower Court are not perverse and clearly justifies the award of aggravated damages as claimed by the Respondent. ​ Nothing in the particulars of error relates to the finding of the Court below on the issue of lack of vicarious liability of the Appellants’ employer.

The Appellants were obliged to appeal against the finding of the Court below wherein it held that there was no appeal to it against the finding of the trial Court that First Bank was not vicariously liable for the action of its employees.

An appeal can only emanate from complaints against the findings of fact and decisions of law of the Court below to this Court pursuant to Section 233 (1) of the 1999 Constitution (as altered). In this case, there were no complaints before the Court below against the findings that there was no evidence that First Bank Plc was vicariously liable for the actions of its agents. That was an issue on which the Court below did not take a decision having not been made a ground of appeal before it.

The Appellants raised this issue for the first time in its amended notice of appeal filed on 2/4/2019 in this Court. From the records available, there is no order sought or obtained to raise the fresh issue on appeal. There can only be an appeal to this Court on an issue on which the Court below had pronounced except in circumstances where this Court has allowed it. Even if there is leave to appeal on a fresh issue, this is not a fresh issue having been vigorously fought at the trial Court and decision taken on it against which there was no appeal to the Court of Appeal.

A fresh issue is one which the parties did not controvert at trial and on which there is no prior determination of same. No appeal from the trial Court can lie directly to the Supreme Court as the Appellant is seeking to do in this case. This Court has no jurisdiction to determine this issue.

This matter has been raised suo motu in this Court as a matter of jurisdiction. There is no need to seek the opinion of the parties in order to make a final decision in the circumstances. This Court has held recently and consistently that the need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were not aware or ignored a statute which may have bearing on the case.

That is to say where the Court is supposed to take judicial notice of a statutory provision. (c) when on the face of the record, serious questions of the fairness of the proceedings is evident. See Section 73 of the Evidence Act. See IDACHABA & ORS V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2021) LPELR-53081(SC) Pg. 21-22, paras. E-D PER ABBA AJI, JSC, OLABODE RHODES-VIVOUR, JSC in OMOKUWAJO V. FRN (2013) LPELR-20184(SC) (Pg. 37-38, PARAS. F-D).

Ground 3 of the amended notice of appeal and issues 2 and 3 distilled by the appellant similar to issue 1 distilled by me are hereby struck out.

ISSUE TWO The only live issue in this appeal is the one identified above as issue 2. Learned senior Counsel for the Appellants argued five points on this issue. Learned senior Counsel for the Appellants on the first point argued that since the Respondent swore that he was assaulted by the Policemen who arrested and detained him, he was obliged to prove these criminal allegations beyond reasonable doubt Senior Counsel cited A.C.N. v.

NYAKO (2015) 18 NWLR Pt. 1491 Pg. 352 at 388 and Section 135 of the Evidence Act. ​ Senior Counsel argued on the second point that the Court below failed to consider these allegations, which is rooted in tort, criminality should be proved beyond reasonable doubt. Senior Counsel argued that there is no gainsaying from the averments made by the Respondent in his originating process, which contains allegations of assault and inflicting bodily harm which are tortious and criminal in nature and must be strictly pleaded with particulars and proved beyond reasonable doubt.

More fundamentally, these allegations were specifically denied by the Appellants in their joint counter-affidavit at page 31- 35 of the record of appeal making them highly contentious and the proceedings hostile in nature. The Court below failed to consider many serious and material conflicting evidence that characterized the proceedings at the trial Court, but limited the judgment to the claim to enforcement of the respondent’s right to personal liberty. Senior Counsel cited AGI v. PDP & ORS (2016) LPELR-42578 (SC) Pg. 87-88.

Learned senior Counsel submitted that on the state of affidavit evidence filed by the respective parties in the proceedings, alleging assault, violence and counter-allegation which are criminal in nature, it was inexcusable in the interest of clarity for the trial Court to proceed on the mode of commencement of the suit vide an originating motion procedure. Senior counsel cited WILLIAMS v. NWOSU (1994) 3 NWLR Pt. 331 Pg. 156 at 176, JABRE V. JABRE (1999) 3 NWLR Pt.596 Pg. 606 at 621 AND UDO V. ESSIEN & ORS (2014) LPELR-22684 (CA).

Learned senior counsel argued on the third point that the decisions of the trial Court and the Court below were largely subjective and based on presumptions and they should not be allowed to stand. Senior counsel cited AMUZIE V. THE STATE.

Learned senior counsel argued on the fourth point that, there was no reasonable cause of action directly against the Appellants regarding the arrest and unlawful detention of the Respondent, for days in excess of the constitutionally prescribed period by virtue of Section 35 (1) of the Constitution.

There was equally no proof of malice on the part of the Appellants when it caused a complaint to be laid to the police on grounds of reasonable suspicion. ​ Senior counsel argued that the facts of this case clearly showed that the appellants only handed the respondent to the security attached to the bank for onward investigation on reasonable suspicion of fraud, which was done in the ordinary course of discharging the functions of their office.

The subsequent actions of the police were not within the control of the appellants, even if it was rightly adjudged illegal by the trial Court that the respondent’s detention by the Police was beyond the constitutional period prescribed by law to hold a suspect. Senior Counsel cited AIG IMUOKHUEDE V. UBAH (2014) LPELR-23965, ONAH V. OKENWA (2010) 7 NWLR PT. 1194 Pg. 512 at 536, BANK OF WEST AFRICA V. ODIATU (1962) ALL NLR PG. 625.

The substance of the arguments of the Appellants, is that it was an error on the part of the trial Court to believe the Respondent without calling oral evidence. Counsel cited PRINCEWILL V.

STATE (1994) 6 NWLR pt. 353 pg. 703 in aid of the submission that oral evidence must be called to reconcile conflicting affidavit evidence. ​ Senior Counsel complained on the fifth point of the aggravated damages awarded against the Appellants in view of the fact that the decision of the trial Court was perverse because it took into account matters which were irrelevant and shut its eyes to the specific traverse by the appellants in its joint counter- affidavit.

Senior Counsel submitted that the trial Court misdirected itself when it held that the Respondent was incarcerated for fifty-two days, having earlier held that the detention of the Respondent at Lion Building Police Station was not unconstitutional. Senior Counsel urged the Court to set aside the judgment of the trial Court.

In reply to the first complaint, the Respondent submitted that it is misconceived for the Appellants’ counsel to argue that the action should not have been first commenced and maintained under the Fundamental Rights Enforcement Rules 2009.

Counsel argued that the reliefs sought by the Applicant at trial was the protection of his fundamental rights to personal liberty and dignity of the person guaranteed by Sections 34 and 35 of the 1999 Constitution. ​ Counsel submitted that the Fundamental Rights (Enforcement Procedure) Rules, 1979 created a special procedure for proceedings under this peculiar category of action. It is only by these procedures that an action can be brought to enforce fundamental rights and it is the provisions of the 1979 Rules that guide the conduct of proceedings of all actions to enforce these Rights.

Counsel cited OGUGUA V. THE STATE (1996) 9 NWLR Pt. 336 pg. 6 AND RAYMOND DONGTOE V CSC PLATEAU STATE (2001) 4 SCNJ 131. On the second complainant, learned Respondent’s Counsel argued that a tortious act may also amount to an abuse of fundamental right. In such a situation the victims are entitled to elect the procedure of obtaining redress. In this case, the Respondent opted to activate redress through the procedure under the Fundamental Human rights enforcement rules. Counsel cited NUT V. COSST (2007)23 WRN 63.

In reply to the third complaint, the Respondent argued that the allegation against the Respondent was that he submitted four fund transfer forms which were forged. The charge against him at the Magistrates’ Court did not accuse him of forging the forms or being a beneficiary or transferee of the funds. Counsel for the Respondent argued that the Appellants resisted the attempt by the Police to investigate the particulars of the transferees of the funds and it was correct for the trial Court to hold that the presumption created by Section 167 (d) of the Evidence Act availed the Respondent.

In reply to the issue of the liability of the Appellants for the breach of the Respondent’s fundamental right to personal liberty, the Respondent argued that the Applicant now Respondent successfully discharged the onus of proof on him to show that the Appellants were actively and maliciously instrumental in causing his arrest and that his arrest and detention were unlawful.

Learned Respondent’s counsel argued that the subsequent arraignment of the Respondent did not absolve the Appellants or remedy the unlawfulness of the initial detention.

On the last issue of the award of aggravated damages, learned Respondent’s Counsel argued that the reasoning of the learned trial judge was based on the evaluation of all the evidence before the Court. Counsel argued that the damages were awarded in this case for the wrongful conduct of the Appellants which far exceeded the bounds of their duty. Counsel cited ADAMU V. GULAK (2013) LPELR-20844 (CA), ASIEGBU V. OLIBIE (2010) ALL FWLR part 516 at 547, IJEBU ODE LGA V. BALOGUN (1991)1 SCNJ 1 and ADENIRAN V. ALAO (1992) 2NWLR (223) 350 at 372.

Counsel insists that there is no reason to disturb the findings of fact of the trial Court and the appellate Court. Counsel cited DANIEL GARAN V. STAFF OLOMU (2013) 10 SCM pg.88 at 102-103 to support the argument that this Court should not interfere with the order for payment of aggravated damages.

RESOLUTION OF ISSUE TWO The first complaint of the Appellants, is that given the state of the disputed facts, the conflicting evidence of the affidavit of the parties and the hostile nature of the proceedings, the suit should never have been commenced by affidavit evidence but by Writ of Summons more so when there was need to prove some criminal allegations beyond reasonable doubt, which the Respondent failed to do.

Throughout the gamut of the Appellants’ brief, the reasoning senior Counsel for the Appellants has been to attack the judgment of the trial Court and not the judgment of the Court below. It appears that senior Counsel for the appellant is in willful denial or misconception of the specie of claim brought against the Appellants at the trial Court. The Respondent had filed an Originating Motion pursuant to Sections 34(1)(a), 35(1)(5) & (6) and Section 46(1) & (2) of the 1999 Constitution (as altered).

And Order 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009. ​There was a statement in support of the application and an affidavit in support of the Originating Motion, which is the proper mode of commencement of an action under the Fundamental Right Enforcement Procedure Rules. This specie of action is a peculiar action. It is a kind of action which may be considered as “Sui Generis” i.e. it is a claim in a class of its own though with a closer affinity to a civil action than a criminal action.

The available remedy by this procedure is to enforce the Constitutional rights available to citizens which had been contravened by another person or the State. Fundamental Rights are so basic and inalienable to every man that they have to be enshrined directly in the Constitution. Under the 1999 Constitution (as altered), the rights are preserved by Chapter IV thereof See RAYMOND S. DONGTOE V. CIVIL SERVICE COMMISSION, PLATEAU STATE & ORS (2001) 4SCNJ PAGE 131.

The right to approach a Court to enforce a Fundamental Right is conferred by Section 46(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as altered). An action to enforce the fundamental rights is almost invariably a complaint against a tortious act. An applicant may choose to attain redress by way of the fundamental Rights procedure which is quicker or by Writ of Summons.

The complaint against the procedure adopted is that there are contradictions in the case of both parties which are needed to be resolved by oral evidence, failing which it was wrong for the trial Court and the Court below to hold that the allegations of crime in the application of the Respondent had been proved beyond reasonable doubt. As I stated earlier, it is apparent that the learned Senior Counsel for the appellants does not appreciate the nature of the proceedings chosen by the Respondent for obtaining redress from the Appellants for the violation of his fundamental rights.

Contrary to the Appellants’ assertion, the affidavit sworn to and documents attached to them constitute evidence as against the calling of oral witnesses and tendering of documents in a suit commenced by writ of summons. In the instant case, the Respondent in proof of his case attached documents admitted as Exhibits to his affidavit in support of his motion.

The rationale for this mode of commencement of enforcement of fundamental rights procedure was amply explained in EMEKA V. OKOROAFOR & ORS (2017) LPELR-41738 (SC). It was held that enforcement of this right is in a special breed amongst the various means of approaching the Courts for justice in that the procedure is peculiarly structured to achieve speed and uphold the constitutionally guaranteed freedom of the aggrieved party.

It is governed by specific and special rules which have bypassed the normal rules of procedure in order to give effect to the overriding need for speedy justice in these cases which in times past were originated by writ of habeas corpus to force the state to bring up prisoners in the custody of the state. The procedure adopted by the Respondent was proper according to law, as it renders meaningful the provisions of the Constitution dealing with enforcement of fundamental rights.

The crux of the Appellants’ complaint on this issue is that there were conflicts in the affidavit evidence of both parties which should have been resolved by oral evidence. ​ The law is settled that generally, a Court of law is not competent to resolve conflict in affidavit evidence without calling oral evidence. There is however exception to this rule, one of which is that where the Court has documentary evidence at its disposal which can aid it to resolve the conflict, it can do so without recourse to oral evidence. See EZEGBU V. F.A.T.B LTD  (1992) 1 NWLR (Pt.220) 699 at 720; MAGNUSSON V.

KOIKI (1991) 4 NWLR (Pt.183) 119.

​Furthermore, the need to call oral evidence would not arise if the areas of conflict are so narrow or if there are enough documents to assist the Court in the resolution of such conflict. The conflicts in paragraphs 6 and 7 of both the affidavit in support and some paragraphs of the counter-affidavit before the trial Court were highlighted by the Appellants in paragraphs 3.5, 3.7, 3.8, 3.10, 3.11, 3.16, 3.18, 3.19, 3.20, 3.22 etc of their brief.

Wherever there is a complaint that the resolution of affidavit evidence has led to a miscarriage of justice, the review Court must consider the importance of the contradictions in determining the actual issues in controversy between the parties. Immaterial contradictions go to no issue.

The Court below determined this point brilliantly as follows on Pg. 105 – 106 of the record: ​”The conflicts highlighted by the Appellant dwell on whether documents meant for dispatch can be left on a printer or on a table, or whether it is to be specially handed over to the dispatch rider. Also, whether any member of staff of the company whose account a fraud was sought to be perpetrated upon was in the bank on the day in question. Undoubtedly, the affidavits filed are in conflict in this regard, but the action before the lower Court could not have turned on these matters.

As earlier stated, it was an action for the enforcement of fundamental rights of the Respondent; what was material was whether the arrest and detention of the Respondent was for a period in excess of the constitutional provisions in Section 35 of the 1999 Constitution. So, the crux of the dispute was such that could be resolved against the background of the law without the necessity of resorting to first hearing oral evidence to resolve the conflicts in the affidavits.” See also PHARMACISTS BOARD V. ADEBESIN (1978) 5 SC 43, NATIONAL BANK V. ARE BROTHERS NIG. LTD (1977)6 SC 97.

Where the issues can be resolved on grounds of law, there would be no necessity to resolve conflicts in affidavit evidence. See IN RE: OTUEDON (1995) 4 NWLR PT. 392 pg. 655.

The material facts in issue in this cause of action to assert the fundamental rights of the Respondent and to seek redress for its violation are whether or not indeed the right to freedom of movement of the Respondent was violated contrary to the constitution. That is the live issue between the parties. In this case, all parties were in agreement as to the length of time the Respondent spent in police custody at the different Police Stations until he was charged to Court.

Thus, I agree with the Court below that the conflicts on which the Appellants anchored their complaint are immaterial to the determination of the real issues in controversy between the parties.

On proof beyond reasonable doubt, of some allegations bordering on criminality, as I said earlier, it is apparent that the learned senior counsel to the Appellants does not appreciate the requirements of the law in proving or disproving complaints of violation of fundamental rights. All an applicant is required to do to prove violation of his rights by an individual or an agent of government is by filing an application supported by a Statement of facts and verifying affidavit in proof. It is not a criminal charge against the State or an individual as the case may be.

The purpose of an affidavit is to provide evidence to prove a material point(s) in controversy. See OBLECHOR LIFU AGU & 2 ORS V. JOSEPH IDU (2013) 24 WRN 106. See also BANQUE DEL’AFRIQUE OCCIDENTTAL V. ALHAJI BABA SHARFADI & ORS (1963) NNLR 21.

It is the detention of the Respondent by the Police through the instigation of the Appellants that was the crux of the claim at trial against the Appellants, not the physical assault on the Respondent by the police which the Appellants claims must be proved beyond reasonable doubt. In this case, the argument about proof of the allegations of police brutality go to no issue and is irrelevant.

The question here is whether the right of the Respondent to freedom of movement was violated. The Court below agreed with the trial Court that there being no controversy about the times the Respondent was incarcerated, what is relevant is whether each incarceration caused the derogation of the rights of the Respondent pursuant to Section 35 of the Constitution. Section 35(1) provides for the right to Personal liberty. The rights can be curtailed under any of the circumstances enumerated in Section 35(1)(a)-(f).

In this case, the trial Court found that the detention of the Respondent at Lion Building Police Station for 3 days over a weekend did not infringe his rights but that his detention at Ikoyi Police Station for (7) seven days infringed his rights. The Court below agreed with the finding of the trial Court that the Respondent was detained and not brought to Court within a reasonable time. The Court held that the finding was not against the weight of evidence. ​ The Respondent was arrested and detained for 7 days at Ikoyi Police Station.

Reasonable time is defined by Section 35(5) to mean one (1) day where there is a Court of competent jurisdiction within 40-kilometre radius of the place of detention. The fact that there is no denial by the Appellant in their counter affidavit of the period when the Respondent was detained at Ikoyi Police Station (7days) means that the finding of the Court below wherein it agreed with the trial Court that there was preponderance of evidence to support the unlawful detention of the Respondent for 7 days cannot be faulted.

As I have held earlier, there is no appeal against the finding of the Court below wherein it stated that there is no appeal against the finding of the trial Court that the First Bank was not liable for the infringement of the Respondent’s fundamental rights. That finding remains subsisting.

After reading the record, I can find no reason to disagree with the concurrent findings of both lower Courts that indeed the Appellants violated the Respondent’s rights to freedom of movement. In this type of claim, an action will not succeed against an individual who merely gave information to the Police, who on their own initiative decided to effect the arrest of a viable suspect of a crime.

In this case, it is clear from the affidavit of the parties and the findings of the trial Court upheld by the Court below that it was the Appellants who actively set the law in motion against the Respondent. See Isheno v. Julius Berger Nig. Plc. (2008) 6 NWLR pt. 1084 pg. 582. Those findings were rooted in evidence and not perverse.

On the issue of whether the award of aggravated damages was justified in the circumstances of this case, the reasoning of the learned trial judge needs to be considered. Before doing so, it is important to state that where an arrest and detention was unlawful, it doesn’t matter the length of time the plaintiff was detained, it is the unlawful action that has to be compensated in damages once the plaintiff proves his right to freedom of movement has been breached at the instigation or by the Respondent.

There is no need to show any special evidence of damage, so long as there is preponderance of evidence of the breach of the right to freedom. See Mandilas v. Apena (1969) 1 NWLR pg. 99, Afribank v. Onyima (2004) 2 NWLR pt. 858 at 654.

At trial, the learned trial judge held on Pg. 74 of the record. “I am left with the 2nd and 3rd Respondents. These two are the principal actor and actress in the concealment of the people behind the attempted fraud. They took charge immediately the fraud was discovered by the Fund Transfer Officer and made sure that it was not properly investigated and prosecuted. Common sense dictates that the 2nd Respondent should even have personal interest in seeing the case to logical conclusion if truly he knows nothing about how his signature got endorsed on the transfer forms.

I once again agree with the Applicant that the 2nd and 3rd Respondents used him as a shield and as a scape goat, I wish to condemn these in strong terms. It is unacceptable, it is wrongful, it is unlawful, it is devilish and sinful. This is a case in which the Court should award aggravated damages. Aggravated damages are awarded whenever the Defendant’s conduct is sufficiently outrageous to merit punishment, as where for instance, it discloses malice, fraud, cruelty, insolence, or fragrant disregard of the law. See UNIVERSITY OF CALABAR V. OJI (2011) LPELR-5069(CA).”

The Court below in reviewing this point held that the trial Court was right in its evaluation of evidence before it to determine that there was justification for the award of exemplary damages against the Appellant as claimed by the Respondent. I have read pages 72-74 of the record and I cannot but agree with the conclusions of the Court below that the trial Court discharged its primary duty of evaluating the evidence and ascribing proper probative value to it. The conclusions and inference are not perverse and justifies the award of aggravated damages in the circumstances.

Aggravated damages are awarded where the tortfeasor have been particularly punitive, vindictive, malicious, high-headed and behaved in an oppressive manner towards the Plaintiff. See CHIEF FRA WILLIAMS V. DAILY TIMES LTD (1990) LPELR-3487 (SC) G.K.F. INVESTMENT V. NITEL PLC (2009)6-9 SC (PT.111) pg.163. They have been rightly awarded in this case.

Now, to the quantum of the aggravated damages. The Court below in reviewing this point held that the trial Court was wrong when it decided that the Respondent had been incarcerated for 52 days whereas by the initial finding of the Court the detention at Lion Building was for 3 days and found not unconstitutional. Whereas, the detention at Ikoyi Police Station for 7 days without any charge being laid against the Respondent was found unconstitutional. Thus, the claim only entitled the Respondent to compensation for detention for 7 days and not 52 days.

The trial Court misdirected itself on this point and it is apparent on the record that this misdirection affected the quantum Of damages awarded by the trial judge. Where there is a complaint about the quantum of damages, and it is clear that the trial Court or penultimate Court misdirected itself or took into account irrelevant factors or false facts, the appellate Court is entitled to review upwards or downwards the damages. The Court in such circumstances can consider whether the damages awarded is manifestly too high or too low.

The purpose of the award is to compensate the plaintiff for the harm done to him and secondly to punish the defendant for his conduct in inflicting that harm. See First Bank v. A. G. Federation & Ors (2018) LPELR-46084 (SC); (2018) 7 NWLR pt. 1617 Pg. 121. In this case, a downward review of the damages is apt in view of the obvious misdirection on the relevant facts which caused the trial judge to award the amount so awarded.

In the circumstances, I shall make a review of the quantum of damages. I believe the appeal on the entitlement of the Respondent to aggravated damages also includes the challenge to the quantum of the said damages. There is no evidence that the Respondent would have lost a lot of money during the detention even though he lost his liberty in egregious circumstances. Having agreed that the behaviour of Appellants was wrong and malicious, but taking into consideration that the Appellant did not actually lose money during the period in view, the awarded damages are revised downwards as follows: 1.

N5 million (Five Million Naira) damages awarded against the 2nd Appellant. 2. N2.5 million (Two Million, Five Hundred Thousand Naira) damages awarded against the 2nd Respondent.

The amount awarded as costs stands, there being no appeal against same. Appeal succeeds in part. Parties to bear their costs of this appeal.

MUSA DATTIJO MUHAMMAD, J.S.C.: I had a preview of the lead judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC just delivered. I adopt the reasoning and conclusion articulated in the lead judgment in allowing the appeal in part and imbibing the consequential orders arising from the success of the appeal.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ogunwumiju, JSC, obliged me with the draft of the leading judgment just delivered. I entirely agree with His Lordship that this appeal succeeds in part. ​ It is a general principle of law of evidence that where there are irreconcilable conflicts on material facts in the affidavit evidence filed by the parties before the Court over a matter in dispute, such conflicts can only be resolved by calling oral evidence.

In Momah v V.A.B Petroleum Inc. [2000] 4 NWLR (pt. 654) 534, this Court, per Achike JSC, held: “On the question of conflict of affidavit evidence placed before the lower Court which appellant’s learned counsel had submitted should be resolved by oral evidence in order to act on such evidence, our case law is replete with authorities that where a matter is being tried on affidavit evidence and Court is confronted with conflicting or contradictory evidence relied on by parties on a material issue before the Court, it is the law that the Court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of the conflict.

See Uku v Okumagba [1974] 3 SC 35, Eboh v Oki [1974] 1 SC 179, Olu-Ibukun v Olu-Ibukun [1974] 2 SC 41, Falobi v Falobi [1976] 1 NMLR 169 and Nwosu v Imo State Environmental Sanitation Authority [1990] 2 NWLR (pt.135) 688. The most important qualification here is “material facts.” The test, therefore would be, whether the oral evidence, if allowed, will likely resolve crucial issues in the substantive action.

In the appeal before this Court, indeed, there was a sharp dispute as to the proper handling of the documents for dispatch and the presence of the staff (whose account the fraud was sought to be perpetrated upon) at the bank on that day, in the affidavit of the parties. However, this case commenced as a fundamental rights action, where the respondent herein sought enforcement of his fundamental rights.

The material facts that ought to be in conflict must relate to the respondent’s arrest and detention contrary to Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to warrant the Court’s intervention by calling oral evidence. The arrest and detention of the appellant for seven days at the Ikoyi Police station was a material fact that was not disproved by the appellants in their counter-affidavit.

It does not appear to me that the determination of whether the transfer forms were left on the table or on a printer or were personally handed over to the dispatch rider, will resolve this issue. ​ I find no reason to disagree with the Court below when it held that the conflicts in the affidavits are immaterial to the determination of the real issues of controversy between the parties.

It is for these, and the fuller and more elaborate reasons in the leading judgment, that I, too, shall enter an order allowing this appeal in part.

UWANI MUSA ABBA AJI, J.S.C.: The Respondent, a dispatch rider for delivering documents specified by his superior officers within the Bank and other places around Lagos, was eventually instructed to dispatch 4 funds transfer forms from the account of OLAM NIGERIA LIMITED to the Operations Manager at the head office for the transfer of N355 million into 4 corporate accounts.

After the dispatch, he was summoned to the office where after, the 2 Appellants caused him to be detained at the Lion Building Police Station because he refused to agree that he submitted the transfer funds in error to the Operations Manager. He was therefore detained for 2 days at the Lion Building Police Station cell and bailed the 3rd day. Subsequently on same night, on the instruction of the Appellants, the First Bank security got the Respondent detained at Ikoyi Police Station for 7 days and charged to Court on 4/10/2013.

After several adjournments, the Magistrate’s Court struck out the case for lack of diligent prosecution. This propelled the Respondent to institute proceedings for the enforcement of his fundamental rights to personal liberty and dignity and for damages for his unlawful detention. Both the trial and lower Courts gave judgment in favour of the Respondent, hence this appeal by the Appellants.

Being a concurrent decision, I unreservedly agree with my learned brother, Helen Moronkeji Ogunwumiju, JSC, on his interference with the quantum of damages when he held thus in the lead judgment: “…the Court below in reviewing this point held that the trial Court was wrong when it decided that the Respondent had been incarcerated for 52 days whereas, by the initial finding of the Court, the detention at Lion Building was for 3 days and found not unconstitutional whereas the detention at Ikoyi Police Station for 7 days without any charge being laid against the Respondent was found unconstitutional.

Thus, the claim only entitled the Respondent to compensation for detention for 7 days and not 52 days. The trial Court misdirected itself on this point and it is apparent on the record that this misdirection affected the quantum of damages awarded by the trial judge.” ​ In calculating damages, you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him. See Per IBEKWE, JSC, in SOETAN & ANOR V. OGUNWO (1975) LPELR-3089(SC) (PP. 9-10 PARAS. D).

My learned brother rightly pried into the facts and spotted a misdirection in the award of damages to the Respondent based on the correct and true facts. I therefore concur with the reviewed damages to N5 million against the 1st Appellant and N2.5 million against the 2nd Appellant respectively. The appeal succeeds in part.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JSC I am in complete agreement with the reasoning and conclusion contained therein.

Aggravated damages are damages in a class of its own. It is damages on an increased scale over and above the damages usually awarded. Aggravated damages are generally awarded to compensate the Plaintiff or Applicant for any aggravated harm done to him by the Defendant or Respondent, as the case may be. Such conduct that may warrant the award of aggravated damages include conducts that are sufficiently outrageous or that discloses malice, insolence, flagrant disregard of the law, etc. See MMA INC & ANOR V. NMA (2012) LPELR-20618 (SC), G.K.F. INVESTMENT (NIG) LTD V.

NITEL PLC (2009) LPELR-1294 (SC) AND ODIBA V. AZEGE (1998) LPELR-2215 (SC).

The facts and circumstances in this case as can be gleaned from the affidavit evidence of the parties, point to the conclusion that the conduct of the Appellants was tainted with mala fide. The fact that the Respondent was detained beyond the constitutionally allowed time limit at Ikoyi Police Station was not controverted by the Appellants in their counter-affidavit. When the Respondent was released from Lion Building Police Station, he was quickly dumped at Ikoyi Police Station.

The Appellants did not disclose in the affidavit how they assisted the Police in the investigation of the matter, if at all they did so. When the Respondent was eventually charged to Court, the Appellants did not show up to testify, despite the Appellants deposing in their affidavit that they could only be witnesses in the matter.

For the above-stated reasons, there is no gainsaying the fact that the Respondent is entitled to aggravated damages due to the high-handed, malicious and oppressive nature of the Appellants’ conduct towards him.

The trial Court was however in error when it considered the period of time for which the Respondent was in detention before he was able to perfect his bail as that was not the basis of the Respondent’s claim. His claim bordered on the time he spent in both Police stations. I am therefore of the opinion that the aggravate damages awarded to the Respondent ought to be subjected to a downward review as the learned trial Judge in awarding the damages took into account irrelevant factors. See NCC v. MOTOPHONE LTD & ANOR (2019) LPELR-47401 (SC), STIRLING CIVIL ENG. (NIG.) LTD. V.

YAHAYA (2005) 11 NWLR (PT. 935) 181.

For the above reasons and the more elaborate ones contained in the lead judgment, I join my learned brother in allowing the appeal in part. I abide by the consequential orders made in the lead judgment.

Judgment

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by Defendant against the Judgement of High Court of Edo, Benin Judicial Division delivered in suit No.B/167/0S/2016 on 12/03/2018. By her originating summons, the claimant sought the determination of the following questions: 1.

Whether the Defendant’s act of publishing or permitting the publication of a photograph of the claimant’s face photoshopped on another girl’s naked body (with words therein stating that the claimant was caught whilst stealing a Mobile Telephone in Oba Market in Benin City, Nigeria) and circulating or permitting the circulation of the said photograph and words among several persons on its widely used website www.facebook.com worldwide, including Benin City in Edo State, without the claimant’s prior knowledge or consent is not a gross violation of the claimant’s Right to Privacy guaranteed by Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and illegal and actionable. ​2.

Further, or in the Alternative, whether the Defendant’s act of publishing or permitting the publication of a photograph of the claimant’s face photo shopped on another girl’s naked body (with words therein stating that the claimant was caught whilst stealing a Mobile Telephone in Oba Market in Benin City, Nigeria) and circulating or permitting the circulation of the said photograph and words among several persons on its widely used website www.facebook.com worldwide, including Benin City in Edo State, is not a defamation of the character and person of the Claimant. 3.

Whether this Honourable Court has the power to grant the reliefs sought by the claimant to remedy the Defendant’s action. The claimant consequently sought the following reliefs: a.

A DECLARATION that the Defendant’s act of publishing or permitting the publication of a photograph of the claimant’s face photo shopped on another girl’s naked body (with words therein stating that the claimant was caught whilst stealing a Mobile Telephone in Oba Market in Benin City, Nigeria) and circulating or permitting the circulation of the said photograph and words among several persons on its widely used website www.facebook.com worldwide, including Benin City in Edo State, without the claimant’s prior knowledge or consent is not a gross violation of the claimant’s Right to Privacy guaranteed by Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and illegal and actionable is unlawful, illegal and breach of the claimant’s Right to Privacy guaranteed by Nigeria law and Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). b.

Further, or in the Alternative, a Declaration that the Defendant’s act of publishing or permitting the publication of a photograph of the claimant’s face photo shopped on another girl’s naked body (with words therein stating that the claimant was caught whilst stealing a Mobile Telephone in Oba Market in Benin City, Nigeria) and circulating or permitting the circulation of the said photograph and words among several persons on its widely used website www.facebook.com worldwide, including Benin City in Edo State, is not a defamation of the character and person of the Claimant. c.

A MANDATORY ORDER OF INJUNCTION compelling the Defendant to remove the offending/defamatory picture and words from its website (www.facebook.com) within 14days of the judgment of this Honourable Court. d. AN AWARD of the sum of N1,000,000,000.00 (One Billion Naira) as General and/or Exemplary Damages against the Defendant for flagrant breach of the Claimant’s constitutionally guaranteed Right to Privacy and /or for the Tort of Defamation of the Claimant. e. INTEREST on the Judgment sum at the rate of 10 percent per annum from the date of Judgment until entire Judgment sum is liquidated. f.

A PERPETUAL INJUNCTION restraining the defendant, by itself, its servants, agents, assign and/or privies from further publication of the offensive picture and Defamatory words of the Claimant on its website www.facebook or on any other associated website. g. COST The summons was supported by 37 paragraphed affidavit sworn to by the claimant and another 15 paragraphed affidavit sworn to by one Patience Bagudu and written address.

The defendant vide a motion on notice prayed for an order dismissing or striking out the originating summons comprised in the suit in its entirety as same was incompetent ab initio and that the lower Court lack the jurisdiction to entertain the suit. The grounds for application for dismissal are: “i. This suit was commenced in the High Court of Edo State by the Claimant/Respondent via an Originating Summons. The Claimant/Respondent is seeking the determination of three (3) questions as set out on the face of her Originating Summons.

The Claimant/Respondent has also sought various declaratory, injunctive, and punitive reliefs from this honourable Court as evident in the prayer set out in her originating Summons. ii. From the totality of the claim as made out in the Claimant/Respondent’s Originating Summons and the supporting affidavits, It is beyond doubt that the main plank of the Claimant/Respondent’s cause of action is premised on tort of defamation. iii. The suit is grossly incompetent as the Claimant/Respondent has sued the wrong party. The Claimant/Respondent has sued Facebook Inc.

Facebook Inc. is not the entity responsible for the control and management of the facebook service in Nigeria. iv. By clause 15 (2) of Facebook’s Statement of Rights and responsibilities, which the Claimant/Respondent has agreed to be contractually bound by, the Claimant/Respondent has agreed that the venue for the adjudication of this suit would be outside Nigeria. Therefore, this Honourable Court lacks jurisdiction to entertain this suit.” ​ In opposition, the claimant filed 20 paragraphed affidavit and written address. The defendant further filed a further affidavit containing 24 paragraphs.

After hearing the parties, the learned trial Judge ruled that: (i) the proper parties were before the Court. (ii) and that the action was wrongly commenced by Originating Summons. (iii) and ordered parties to file pleadings. Dissatisfied with the said ruling, the defendant filed Notice of Appeal containing two grounds of appeal. After transmission of record of appeal to this Court, parties filed and exchanged briefs of argument.

The Appellant Amended Brief of Argument was filed on 25/03/2022 but deemed properly filed on 03/11/2022, the said brief was settled by counsel for the Appellant OBAFEMI AGABA. BAMIDELE UCHE IGBINEDION for the Respondent in response filed Respondent’s Brief of Argument on 02/11/2022 which was deemed properly filed on 03/11/2022. OBAFEMI AGABA later filed Amended Appellants Reply Brief on 03/11 2022.

SUBMISSIONS OF THE COUNSEL APPELLANT’S BRIEF OF ARGUMENT ARGUMENT ON ISSUES ONE Learned Counsel to the Appellant submitted that for a Court to be competent and have jurisdiction over a matter, proper parties must be identified. The counsel further submitted that before an action succeeds, the parties to it must be shown to be proper parties to whom right and obligation arising from the cause of the action attach. He cited G & T INVESTMENT LTD. V. WITT & BUSH LTD.(2011) NWLR (pt. 1250) PG 500 at PG538 PARAS F, AMUDA V. AJOBO (1995) NWLR (PT. 406) PG 170 AT 182, AKINDELE V.

ABIODUN (2008) LPELR -8557 (CA). Learned Counsel to the Appellant contended that since the appellant is not a proper party, the only option left for the Court to decide is to dismiss or strike out the case against appellant for lack of Jurisdiction. He relied on G & T INVESTMENT LTD. V. WITT & BUSH LTD.(supra) RESPONDENT’S BRIEF OF ARGUMENT ARGUMENT ON ISSUE ONE Learned Counsel to the Respondent submitted that the appellant who owns and operates the website is proper party to be sued.

The counsel further submitted that it has cause of action against the appellant who caused the offensive Publication circulated on its website www.facebook.com is the proper party to be sued. He cited OMEGA BANK PLC. V. GOVERNMENT OF EKITI STATE (2007) ALL FWLR (pt. 386) 658 at 682, PARA B –G (CA). Counsel for the Respondent in his brief raised preliminary objection which he argued in his brief. Counsel for the Appellant responded to the preliminary objection in PART A of Appellant’s Amended Reply Brief.

I have noted the objection of the appellant to the preliminary objection of the Respondent to the effect that the necessary filing fees to activate the jurisdiction of this Court to hear and determine the preliminary objection Order 10, Rule 1 of COURT OF APPEAL RULES 2021 makes it mandatory for Notice of Preliminary Objection to be filed. Filing Fees as specified under ORDER 12 Rule 1(1) of the Rules must mandatorily be paid unless as provided by the rules. Where such is not done, the process so filed is incompetent and should be struck out. It deprives the Court of the jurisdiction.

See OKOLO VS UBN LTD (2004) 3 NWLR (PT.859) page 87, NIGERIA AGIP OIL CO. LTD vs. NKWEKE & ANOR, (2016) 7 NWLR (Pt. 1512) P. 588. See also FIRST BANK OF NIGERIA PLC vs. ALHAJI ISIYAKU YAKUBU suit No. CA/YL/50/2012 PER JAURO JCA. In view of the above, this preliminary objection not having been filed and appropriate filing fees not having been paid is struck out on ground of incompetence.

MAIN APPEAL GROUNDS OF APPEAL GROUND ONE The learned trial Judge erred in law when he failed to give judgment in favour of the Appellant in terms of the Appellant’s claims before the lower Court or such part of it as the Appellant established and instead ordered parties to file and exchange pleadings. GROUND TWO The learned trial Judge erred in law when he did not resolve (whatever conflict was apparent) by resort to documentary evidence before the Court.

GROUND THREE The learned trial Judge erred in law when he failed to give judgment on the Originating Summons in favour of the Appellant. ​ Learned counsel for the Appellant OBAFEMI AGABA in his Amended Appellant’s Brief of Argument crafted two issues for determination as follows: 1. WHETHER THE APPELLANT IS A PROPER PARTY IN THE PROCEEDINGS IN SUIT NO B/167/0S/2016. 2. WHETHER THE LOWER COURT LACKED JURISDICTION TO ENTERTAIN SUIT NO B/167/0S/2016. BAMIDELE UCHE IGBINEDION for the Respondent in this Respondent’s Amended Brief of Argument also donated similar issues for determination.

Before proceeding to determine this appeal there is need for me to state that it is an interlocutory appeal against the decision of lower Court ordering that the parties should file pleadings in line with ORDER 3 RULE 3 of the Edo State High Court (Civil Procedure Rules, 2012. The statement of NWEZE JSC in CBN vs AKINGBOLA (2019) LPELR – 48807 (SC) is very apposite at this juncture. His Lordship opined thus: “Prudence … ought to have dictated to him to await the conclusion of the trial; thenceforth, he would, if dissatisfied with the judgment in substantive case, proceed to appeal against it.

INTERNATIONAL AGRIC, IND. (NIG) LTD & ANOR v. CHIKA BROTHERS LTD (1990)1 NWLR (T. 124) 70 P1, DAIRO vs UNION BANK OF NIGERIA PLC & ANOR (2007) ALL FWLR (Pt. 392) 1846, 1906. We shall continue to look askance at situations, such as those engendered by the said interlocutory appeal, which occasion frustration of proceedings at trial Court. They should no longer be condoned or brooked. INTERNATIONAL AGRIC, IND. (NIG) LTD & ANOR v. CHIKA BROTHERS LTD; DAIRO vs UNION BANK OF NIGERIA PLC & ANOR (supra).

They scandalise the integrity of judicial process.” Interlocutory Ruling was delivered by the lower Court in the matter now on appeal on 12/03/2018. The appellant ought to have waited till final determination of substantive action before appealing to this Court.

I am however mindful of the fact that this is an interlocutory appeal and it is not permissible in law at this stage to make comments on the merit of the substantive case. See EHINDERO V. FRN & ANOR (2018) 5 NWLR PART 1612 P. 301. RESOLUTION OF ISSUES Whether the Appellant is a proper party The contention of the claimant in the originating summons is that the appellant is the proper party to be sued. See paragraphs 29 & 30 of the affidavit in support: “29.

That the picture of my face on the naked body of me increased the traffic to the Defendant’s website, thus contributing to their profit. 30.

That the Defendant operates the commercial website where it offers people all over the world including the unknown person who posted the naked photograph of my face on somebody’s naked body, the opportunity to post naked photographs and pornographic information about other people (including me), without ensuring that any photograph being posted had the prior consent of the person shown in it.” And see paragraphs 6-15 of counter-affidavit to undated affidavit of Oloruntobi Joledo: “6.

That in specific reply to paragraph 7(iii) of the Affidavit of Oloruntobi Joledo, I have never seen or hear of the Defendant/Applicant’s Statement of Rights and responsibility until I saw it attached to the affidavit. It was not contained on the facebook page where my picture was superimposed on a naked picture of another girl, which I am complaining against in this case, nor did it appear in all the pages where my picture was copied to, read, shared and distributed. 7.

That in specific reply to paragraph 7(iv) of the Defendant/applicant’s Affidavit, I know that the said document attached a Exhibit AU1 does not in any way stipulate that facebook Ireland limited is the publisher or owner of the website where the publication against me was made. In addition, the said document does not say that the rights, responsibilities and liabilities of www.facebook.com belongs to facebook Ireland Limited. 8. That further to paragraph 7(iv) of Oloruntobi Jolede’s Affidavit, I know that Facebook Ireland Limited did not publish the material which I am complaining against.

I therefore cannot see the relevance or role of facebook Ireland Limited in the events. Even then, I am not a Facebook user, but a victim of their publication. 9. That in specific reply to paragraph 7(v) of Oloruntobi Jolede’s, Affidavit, I did not enter any agreement with the Defendant/Applicant to publish a photograph of my face superimposed on the naked picture of another girl, or in any way however. 10.

Further to the above the contents of the Publication which is the subject matter of the suit before this Honourable Court was posted on the Defendant/Applicant’s website www.facebook.com by one Efosasere Raymond. 11. That the said Efosasere Raymond is unknown to me I have no knowledge of where he resides. 12. That in specific reply to paragraph 7(vi) the Defendant/Applicant operates the website www.facebook.com and the publication was made on the Defendant/Applicant website. 13.

That in specific reply to paragraph (i) I have never seen the Defendant/Applicant’s claimed Statement of Right and Responsibilities and I could not have agreed to the contents of a documents which I have never seen. In addition, I did not have any form of agreement with www.facebook.com when I searched the internet to confirm the publication made on the Defendant/Applicant’s website nor did I agreed to or consent to any agreement whatsoever howsoever, the existence of alleged Statement of Rights and Responsibilities is alien to me. 14.

That the said Publication was read and seen on the Facebook page of Efosasere Raymond on the Defendant/applicant’s website www.facebook.com even by people who did not own or operate a facebook page. 15. That contrary to paragraph (ii) (sic) I did not agree to any of the condition stated in or on the entire Statement of Rights and Responsibilities and the said statement never display to me when I searched the internet using my Blackberry Bold 5 smartphone to search the facebook account of one Efosasere Raymond on the thread http://www.facebook.com/eferayenice?fret=tsm .

The Defendant in its counter-affidavit controverted the above averment in paragraphs 7-12 of its further affidavit: “7. The Defendant/Applicant is a company registered in United States of America having its registered office address at 1 Hacker Way, Menlo Park, California. 8. The Defendant/Applicant is not responsible for operating or controlling the face book service in Nigeria or in any other territory besides the United States and Canada. 9.

Facebook Ireland limited (“Facebook Ireland”), a company registered under the laws of Republic of Ireland, is the entity that operates and controls facebook services for user outside the United State and Canada, including Nigeria, Exhibit OEO 1 attached herewith is a copy of facebook Ireland’s Certificate of Incorporation on conversion to a Private Company Limited Shares. 10. Facebook Inc. provides the Facebook services to the Users in the United States and Facebook Ireland provides services to users outside the United States and Canada, including Nigeria. 11.

Exhibit OEO 2 attached herewith is a screenshot from the Facebook website at URL http://www.facebook.com/policy.php, which confirms that Facebook Ireland is the data controller for users residing outside the United States and Canada, accordingly, any enquiries regarding Facebook services outside the United States and Canada, including Nigeria, should be directed to Facebook Ireland. 12. Accordingly, Facebook Ireland is the data controller for the Facebook services in Nigeria.

In other words, the Defendant/Applicant, Facebook Inc., does not operate or control the Facebook service that is accessible to users in Nigeria.” The averments in the affidavits are seriously conflicting, oral evidence is needed to resolve the conflict. The conflict is on the one of the core issues before the lower Court. The required evidence has not been adduced. In taking this appeal, there is the need for circumspection in order not to predetermine the matter before the lower Court.

AUGIE JSC, had this to say on this point” “It is the opinion appealed against that is affirmed or reversed and this Court cannot undertake decision which may be of most importance without hearing what the Court below had to say about it. See UOR VS. LOKO (1988) 2 NWLR (PT 77) 430 (SC), AJUWON V. ADEOTI (1990) 2NWLR (PT. 131) 271 SC.” ISSUE TWO Whether the lower Court lacked jurisdiction to entertain Suit No. B/167/0S/2016. This issue is contingent upon the final resolution of issue one in that it is closely intertwine with the issue of proper party in the case before the lower Court.

In resolving this issue, who the defendant is and whether or not the defendant operates its business in Nigeria have to be determined. It must also wait otherwise it becomes a predetermination of the case before the lower Court. In the circumstance, I shall in line with ORDER 23 Rule 11 of the Court of Appeal Rules, Section 15 of Court of Appeal Act (as amended) of 2005 remit this appeal back to the lower Court for the conclusion of hearing by the High Court of Justice Edo State. In the circumstance, Suit No. B/167/0S/2016 between MISS FAVOUR OMOYE EMMANUEL VS.

FACEBOOK INC., is hereby remitted back to the lower Court for re-assignment by the Honourable Chief Judge, Edo State to another High Court judge for hearing and final determination. Cost of N300,000.00 (Three Hundred Thousand Naira) is awarded in favour of the Respondent.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

SYBIL ONYEJI NWAKA GBAGI, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, TUNDE OYEBAMIJI AWOTOYE, JCA. My learned brother has dealt extensively well with the issues raised. I have nothing to add nor subtract. I am in agreement with his reasoning and conclusions. I abide by the orders in the lead judgment.

Judgment

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This interlocutory appeal is against the ruling of the National Industrial Court of Nigeria delivered on 1st November, 2018 by Sanusi Kado, J., in Suit Number: NICN/ABJ/31/2016 wherein the learned trial Judge nullified the 2nd Appellant’s National Delegates Conference and ordered committal summons to be issued against the 1st Appellant. The 1st and 2nd Respondents herein at the trial Court instituted an action by an Originating Summons filed on 27th January, 2016.

By an order of Court that pleadings be filed, the 1st and 2nd Respondents converted the originating summons into a Complaint wherein they sought inter alia; an order nullifying the expulsion of the 1st Respondent from the union; an order that the office of the president of the 2nd Appellant be declared vacant and that the 2nd Respondent be appointed to that office pending when elections would be conducted, etc. ​The 1st and 2nd Respondents also filed a motion for interlocutory injunction to restrain the Appellants from holding a National Delegates Conference and from conducting an election into executive positions of the 2nd Appellant at the said conference as the same will allegedly render the judgment of the Court when delivered nugatory.

The Court ordered that no party should do anything to affect or jeopardize the hearing of the application. The Appellants on 25th and 26th January, 2018 in disobedience to this Court order purportedly conducted a Delegates conference wherein it conducted elections and appointed new executives for the 2nd Appellant. Subsequently, the Court on 6th February 2018 delivered its ruling which restrained the Appellants from holding the National Delegates Conference and from conducting elections pending the determination of the substantive suit.

Meaning, the Appellant having already held the National Delegates Conference and elected new executives rendered the ruling of the trial Court on the interlocutory application nugatory. Aggrieved by this act of the Appellants, the 1st and 2nd Respondents brought an application seeking a committal order against the Appellants.

Consequently, the learned trial judge nullified the Delegates Conference of the 2nd Defendant held while there was a subsisting valid Court Order and ordered for summons to be issued against the 1st Appellant to appear before the Court to show cause why he should not be sanctioned by the Court for disobedience of a Court order. Dissatisfied with the ruling of the trial Court, the Appellants approached this Court via a Notice of Appeal dated 10th December, 2018 and filed on 11th December, 2018.

The learned Counsel on both sides filed relevant processes as required by the rules of the Court, the appeal was then heard on 2nd December, 2021. Olumide Philips, Esq., appearing with I. D. Bob Manuel Esq., represented the Appellants. Chinyere Moneme, Esq., appearing with Mukeng Nathan, Esq. was for the 1st Respondent. Mohammed Ndarani Mohammed, SAN appeared with Michael Eleyinmi, Esq., Clement Chukwuemeka Esq., Stephen Apeh Esq., Uchenna Chukwuemeka, Esq. and Raphael Ashwe Esq., for the 2nd Respondent. The 3rd Respondent was not represented.

The Appellant applied to withdraw the appeal against the 3rd Respondent, it was granted. The name of the 3rd Respondent was accordingly struck out. The appeal was then argued. ​ Olumide Philips, Esq., for the Appellant adopted and relied on the Appellant’s brief of argument field on 1st April, 2019 and reply brief filed on 1st December, 2021 but deemed properly filed and served on 2nd December, 2021 in praying the Court to allow the appeal. The Appellants donated 2 issues for determination to wit: 1.

Considering the substantive reliefs sought before the lower Court, whether the lower Court has the jurisdiction to grant any relief restraining the Appellants from holding a delegates’ conference or nullifying such a conference. 2. Whether the lower Court was clothed with the requisite jurisdiction to order summons to be issued to the 1st Appellant to show cause why he should not be committed to prison and determine the committal proceedings where the Respondent did not issue and serve Forms 48 and 49 against the Appellants as required by law.

Chinyere Moneme, Esq., for the 1st Respondent adopted and relied on the 1st Respondent’s brief filed on 29th May, 2020 but deemed properly filed and served on 2nd December, 2021 in urging the Court to dismiss the appeal. The 1st Respondent formulated 2 issues for determination as follows: 1. Whether the Court had the inherent/disciplinary jurisdiction under Section 6(6) of the 1999 Constitution to sanction the appellants by restoring the status quo antebellum in the suit after nullifying the delegates conference held by the appellants. 2.

Whether the lower Court was clothed with the requisite jurisdiction to order summons to be issued to the 1st Appellant to show cause why he should not be committed for contempt and whether the respondents issued and served Form 48 and Form 49 against the appellants as required by law. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent adopted and relied on the 2nd Respondent’s Brief filed on 23rd June, 2020 in urging the Court to dismiss the appeal.

The 2nd Respondent submitted a sole issue for determination to with: WHETHER A COURT OF LAW HAS THE INHERENT POWER TO SANCTION OR PUNISH ERRING PARTIES IN A SUIT FOR FLAGRANT DISRESPECT AND DISOBEDIENCE OF ITS ORDER, IN ORDER TO MAINTAIN SANCTITY AND RESPECT OF THE JUDICIARY. From the grounds of appeal, I view that the sole issue raised by the 2nd Respondent will satisfactorily determine this Appeal. I shall proceed to determine the appeal based on the said sole issue.

SUBMISSIONS ON SOLE ISSUE WHETHER A COURT OF LAW HAS THE INHERENT POWER TO SANCTION OR PUNISH ERRING PARTIES IN A SUIT FOR FLAGRANT DISRESPECT AND DISOBEDIENCE OF ITS ORDER, IN ORDER TO MAINTAIN SANCTITY AND RESPECT OF THE JUDICIARY. Olumide Philips, Esq., on this issue submitted that what determines the jurisdiction of the Court is the reliefs before it and that for a Court to have jurisdiction to grant interlocutory reliefs, such interlocutory reliefs must flow from the substantive reliefs sought in the statement of Claim. He relied on TUKUR V.

GOVERNMENT OF GONGOU STATE (1989) 4 NWLR (PT. 117) 517. The learned counsel contended that from the Respondent’s Motion on Notice that gave rise to this appeal, there is no relief that asked for nullification of the Appellants’ Delegate Conference and submitted that the Court cannot grant an order that is not sought for and that reliefs granted by a Court must not be inconsistence with a party’s case and claim. He cited EMAVWORHE ETAJATA & ORS V. PETER IGBINI OLOGBO & ANOR (2007) 16, NWLR (PT. 1061) 554, (P.34, PARAS C-F); YUSUF V.

OYETUNDE (1998) 10 SCNJ 1 AT PAGE 20; (1998) 12 NWLR (PT.579) 483 AT 498-499, PARAS. H-A; EDEBIRI V. EDEBIRI (1997) 4 SCNJ 177 (1997) 4 NWLR (PT.498) 165; ETIM EKPENYONG & ORS V. INYANG EFIONG NYONG & ORS (1975) LPELR-SC 161/1974. Olumide Philips, Esq., also submitted that an interlocutory application must flow from the substantive reliefs in the Writ of Summons and statement of claim. He cited AKHIGBE & ANOR V. ASHIMEDUA (2002) LPELR-7136 AT PP 11-13 PARAS. C-H.

He further submitted that a close examination of the bench advice of the lower Court on 6/12117 alluded to by the lower Court will show that the lower Court did not restrain the Appellants from holding a delegates’ conference as same is not one of the substantive reliefs sought at the lower Court.

The learned counsel also submitted that committal for contempt is a quasi-criminal proceeding and the law requires the accuser to strictly follow the procedure laid down by law and that the failure to issue and serve Form 48 and Form 49 personally on the alleged contemnor will invalidate the whole contempt proceedings. He cited FCMB V. ABIOLA & SONS LTD (1991) 1 NWLR (PT. 165) 14 AT 31, AGU V ANYALOGU (2002) 14 NWLR (PT. 787) 294 AT 309, EFCC, CHAIRMAN V.

ONWU (2016) 2 NWLR (PT. 1495) 74 AT PAGES 87 PARAS A-C; SECTION 72 AND 95 OF THE SHERIFFS AND CIVIL PROCESS ACT, LFN, 2004; ORDER 62 OF THE NATIONAL INDUSTRIAL COURT RULES; ORDER 35 OF THE HIGH COURT RULES. Olumide Philips, Esq., of counsel contended that the requisite Forms 48 and 49 were not served on the Appellants at all and that the only process served on them which is the Motion on Notice was also not served on them personally as required by law but on their counsel. He submitted that this robs the Court of the jurisdiction to hear the suit. He relied on INEC & ANOR V.

EJIKE OGUEBEGO & ORS (2017) LPELR- 42609 (SC); BAFARAWA V. STATE (2014) LPELR-22321 (CA). Olumide Philips, Esq., further submitted that for a Court to commit a party for contempt, the Applicant must establish what order of Court the alleged contemnor failed to obey as such order of Court is the conditions precedent to the hearing of a contempt application. Such order must be clear and unambiguous. He relied on ABBAS V. SOLOMON (2001) 15 NWLR (PT. 735) 144 A 166, PARAS G.

He contended that the order of 6th December, 2017 does not qualify as such because the terms are not clear and unambiguous and that the onus of proving otherwise is on the Applicant. Hence, the Court lacked the requisite jurisdiction to hear the contempt jurisdiction and urged the Court to resolve the issue in favour of the Appellant and set aside the judgment of the trial Court.

Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that the National Delegates Conference held on 25th and 26th January, 2018 was an abuse of Court process as the same was held in violation of a Court order for parties to maintain status quo pending the delivering of the ruling on the interlocutory injunction. The learned counsel contended that the reliefs sought for in the 1st & 2nd Respondents’ motion before the trial Court are appurtenant and relate to the reliefs claimed in the substantive suit and that this case is on all fours with the case of COMM.

EDUCATION, IMO STATE V AMADI (2013) 13 NWLR (PT. 1370) P. 149 – 150 PARAS H-C. Chinyere Moneme, Esq., further contended that even if the interlocutory reliefs as couched in the Respondents motion did not flow from the substantive relief contained in the respondent’s complaint, the trial Court had the inherent powers to invoke its disciplinary jurisdiction under the constitution to sanction the Appellants for violating its order(s). In fact, the Court can invoke its inherent powers and modify the relief in order to do substantial justice. He relied on EZEGBU V.

F.A.T.B LTD (1992) 1 NWLR (PT. 220) 725 C-D, ANYAOHA V. OBIOHA (2014) 6 NWLR (PT.1404) PP 481- 482 G-B; N.S.T.I.F. V. LYON (2014) 9 NWLR (PT 1422) PP 349-350. PARAS H-A, F- H; ANYAOHA V. OBIOHA (SUPRA) AT P. 481 PARA E-G; UNIVERSAL OIL LTD V. NDIC (2008) 6 NWLR (PT. 1083) 254; ABACHA V STATE (2001) 3 NWLR 699) 35; IKECHUKWU V. NWOYE (2014) 4 NWLR (PT. 1397) P. 239 PARAS B-C. The learned counsel contended that it is statutory that Courts should have power to enforce its judgment to avoid abuse of Court process.

Thus, the trial Court should have powers to command obedience to its orders and to punish erring parties. He submitted that the Court rightly invoked its constitutional powers to punish erring parties who wanted to frustrate the ruling of the Court. He cited MODILE V. GOVERNOR LAGOS STATE (2004) 12 NWLR (1887) 354 AT 363 P. IN STATOIL (NIG) LTD V. S.D.W.P (2015) 17 NWLR (PT. 1489) P. 551 PARAS F-G; EZENWANKWO V. STATE (2015) 2 NWLR (PT.1443) P279. PARA B; EZEGBU V. F.A.T.B (1991) 1 NWLR (PT. 220) 669, ABIODUN V CHIEF JUDGE, KWARA STATE (2008) ALL FWLR (PT.448) 340; ADEFARATI V.

GOVERNOR OF ONDO STATE (2006) 1 NWLR (PT. 960) 145; BASS. & MATT. ENG. (NIG) LTD V. KEYSTONE BANK LTD (2015) 1 NWLR (PT. 1441) P. 624 PARAS A-C. The learned counsel finally submitted that the trial Court had jurisdiction to determine committal proceedings against the 1st Appellant who was served with forms 86 and 87 as required by law, hence, the contempt proceeding was properly commenced. He cited EZENWANKWO V. STATE (2015) 2 NWLR (PT. 1443) P 279, PARA B; DR RABIU KWANKWASO V. THE GOVERNOR OF KANO STATE & ORS. (2006) 14 NWLR (PT. 1000) 444.

He urged the Court to dismiss the appeal for lacking in merits. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response submitted that the Court of law has the inherent jurisdiction to sanction or discipline erring parties in a suit in order to maintain the sanctity and respect of the judiciary, and to also redesign the reliefs of the parties in a suit. He contended that any act done during the pendency of a suit in order to render a suit nugatory and/or in flagrant disrespect and disobedience of a Court order as in this case, cannot be qualified as nothing but a contempt of Court.

He cited N.S.T.I.F V. IYON (2014) 9 NWLR 9 (PT 1422) PP 3429-350, Paras H-A; MUHAMMED BUHARI & 2 ORS V. CHIEF OLUSEGUN OBASANJO & 267 ORS (2003) 17 NWLR (PT 850) 587 SC; EE IBERIA TRUST LTD V. FOUNDERS TRUST & INVESTMENT CO. (1932)2 KB. 87, ALSO THOMAS V. MOULD (1968) ER 963. The learned silk contended that when an injunctive order is made, it operates until it is revoked on appeal or by the Court itself and it has to be obeyed whether or not it should have been granted or accepted in the first place. He cited ROSSEK V. A.C.B. (1993) 8 NWLR (PT 312) 382 AT 389.

Mohammed Ndarani Mohammed, SAN submitted that the principles enshrined in the law of contempt are there to uphold and ensue the effective administration of justice. He cited ACHIKE J.S.C CANDIDE V. EDIGUN (1990) 1 NWLR (PT 129) 659 AT 668; EZEKIEL HART V. EZEKIEL HART (1990) 1 NWLR (PT. 126) AT 289. He finally submitted that the case of the Appellant is a pure case of contempt of Court order, and the Court has the inherent jurisdiction to sanction any erring party and urged the Court to so hold.

Olumide Philips, Esq., in his reply contended that though the trial Court has inherent judicial powers, it nevertheless did not have the jurisdiction to exercise its inherent judicial powers as they are two different things. He submitted that inherent judicial powers cannot expand or extend the jurisdiction of a Court. He relied on GOMBE V. PW. NIG. LTD. 1995 7 S.C.N.J. 19 AT 37 – 38; IBERO V. OBIOHA (1994) 1 S.C.N.J. 44 AT 52. He further submitted that the Court acted without jurisdiction when it tried the Appellants summarily. He cited NZIDEE & ORS V.

KOOTU & ORS (2006) LPELR-5519 (CA); SECTION 6 (6) OF THE CONSTITUTION (CFRN 1999); SECT10N 72 OF THE SHERIFFS AND CIVIL PROCESSES ACT, LFN, 2004 AND ORDER IX RULE 13 OF THE JUDGMENT (ENFORCEMENT) RULES. He contended that the Appellants’ alleged contempt was not before the trial Court hence it is ex-Facie and requires personal service which was not complied with. He cited ATAKE V. AG OF THE FEDERATION & ANOR (1982) LPELR-586(SC); DIKIBO V. IBULUYA (2006) 16 NWLR (PT. 1006) 563 AT 577-579 PARAS H-B. He urged the Court to allow the appeal.

RESOLUTION OF SOLE ISSUE Jurisdiction is the threshold and life wire of any matter. See GOLIT V. I.G.P. (2020) 7 NWLR (PT. 1722) 40 (P. 55, PARA. G) (SC). In determining the jurisdiction of a Court, what the Court considers is the Originating Process and the Statement of Claim of the Plaintiff. In the instant case where the Originating Process is an Originating Summons, which was letter converted to a complaint, the Court will look at the reliefs as endorsed therein to determine its jurisdiction. See CRESTAR INT. NAT. RES. LTD. V. S.P.D.C.N. LTD (2021) 16 NWLR (PT. 1800) 453 (SC); C.B.N. V.

RAHAMANIYYA G.R. LTD. (2020) 8 NWLR (PT. 1726) 314 (SC). Jurisdiction is a question of law and it can be procedural or substantive. It is fundamental and so can be raised at any time and once it is raised, it must be addressed to clear the way for further steps. See BAKARI V. OGUNDIPE (2021) 5 NWLR (PT.1768) 1 (SC); BELGORE V. F.R.N (2021) 3 NWLR (PT. 1764) 503 (SC). Jurisdiction connotes the authority, competence and legal power which a Court of law or Tribunal wields to hear a matter before it and reach a decision on such a matter.

A Court of law is vested with jurisdiction to hear a matter when: (1) it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case came before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

These three ingredients must co-exist in order to vest jurisdiction in a Court. Once a Court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is irreparable in law. See MADUKOLU V. NKEMDILIM (2006) 2 LC (2081961) NSCC (VOL. 2) 374 AT 379; TUKUR V.

TARABA STATE (1997) 6 SCNJ 81. ​ Herein, it is the argument of the Appellants that the trial Court lacked the jurisdiction to try them for contempt as there was no Court order to be disobeyed and the requirements of the law was not complied with as regards procedure for committal for contempt. Now, on the first leg of their argument; that there was no valid Court order to be disobeyed. One may want to ask what a Court order is. A Court order is a direction issued by a Court requiring a person to do a thing or restraining a person from doing a thing.

It is the pronouncement of the Court on any issue before it. It can come as a directive or as a pronouncement. It is binding on all parties until it is set aside either by way of appeal or by the same Court that made the order. The argument of the Appellants is that the order of the Court issued on 6th December, 2017, upon which the application for contempt is predicated does not qualify as a Court order, rather, it is a bench advice.

From the record of proceedings before this Court, specifically pages 191-192 of the Record, the Court on 6th December, 2017 after hearing the motion for the interlocutory application said: “This suit is adjourned to 6/2/18 for ruling. Meanwhile, parties should not do anything that will in any way affect or jeopardize the consideration of this application. Hearing notice should be issued and served on the 3rd Defendant.

Proof of service to be kept in the case file.” Flowing from the above, the fact that the Court ordered parties not to do anything that will affect its ruling appears obvious to me. In other words, the Court intended that parties should maintain status quo so as not to render its ruling unenforceable. In fact, even without any directive from the Court, it is already settled in law that once an issue is before a Court for determination, parties are to restrain from doing anything that will render the decision of the Court unenforceable. The Apex Court in ABOSELDEHYDE LAB. PLC V. UM.B.

LTD. (2013) 13 NWLR (PT. 1370) 91 (SC) held that: “Every order of a Court which commands or forbids is an injunction.” In the instant case, the injunction adjourned for ruling was seeking to restrain the Appellants from holding national delegates conference with a view to instituting new leadership. The act of doing the same thing which is sought to be restrained and which issue is already pending for determination before a Court of competent jurisdiction seems to be a flagrant abuse of Court process; disobedience and disrespect to the Court system.

It is the position of the law that a decision of a Court not appealed against remains binding and subsisting for and or against parties thereto irrespective of whether the decision feels right or wrong. See O & O NETWORKS LTD V. BROAD COMMS. LTD. (2021) 5 NWLR (PT. 1770) 454 (CA); ECOBANK TRANS INC. V. BROAD COMMS. LTD. (2021) 5 NWLR (PT. 1769) 209. Therefore, the decision of the trial Court that parties should not do anything that will affect or jeopardize the consideration of the application is binding on all the parties herein. I hold that the disobedience of the same suffices as contempt.

Contempt of Court is an affront or challenge to the authority and dignity of the Court. It can be either contempt ex facie curiae or contempt in facie curiae and the Court has different procedure for dealing with each type of contempt. See BRITTANIA-U (NIG.) LTD. V. SEPLAT PET. DEV. CO. LTD. (2016) 4 NWLR (PT. 1503) 541 (SC). Contempt of Court is any act or conduct which interferes with the course of justice, and tends to bring the authority and administration of law into disrespect.

It is a contempt to disobey an order either to do a specified act within a specified time or to abstain from doing a specified act. It is obvious that the administration of justice can only be effective if the Court has the means to enforce its judgments or orders which the Appellants herein have made impossible for the Court by conducting the national delegate conference and electing new executives, the same acts sought to be restrained. The acts of the Appellants is such that renders the effort of the Court hopeless.

Contempt in facie curiae is contempt in the face of the Court and it is punishable summarily for the sake of maintaining the dignity and the authority of the Court. While contempt ex facie curiae being a contempt committed outside the Court is criminal in nature and may not be punished summarily. In the instant case, the Respondents’ complaint was that the Appellants violated the order of the trial Court restraining the parties from doing anything that will affect the ruling of the Court when the Appellants went and held the National Delegates Conference and conducted the election.

It is contempt ex facie curiae. Hence, it cannot be tried summarily. ​ The Appellants have argued that the application for contempt was not served on them personally. The requirement of the law is that application for contempt ex facie curiae must be served on the parties personally or through their counsel. See Order 63 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.

The Respondents herein had at the trial Court averred in an affidavit as contained at pages 106-109 of the Records of Appeal, specifically at page 109, paragraph 17 that the application was served on the Appellants through their counsel, Dr. Baba Tetengi, SAN. The Appellants herein in their counter-affidavit as contained at pages 126-128 never disputed this averment.

The position of the law is settled that the content of an affidavit can only be challenged by a counter-affidavit. The Court is required to treat unchallenged and uncontroverted depositions of facts in an affidavit as duly established. See MABAMIJE V. OTTO (2016) 13 NWLR (PT. 1529) 171 (SC), OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (PT.966) 205 (SC), UJOMU V. OLAFIMIHAN (2021) 19 NWLR (PT. 1784) 331 CA. The Appellants having failed to challenge the service through a counter-affidavit, the same remains uncontroverted and hence admitted.

I hold that the service was effected through their counsel and it is a proper service. In conclusion, I agree with the submission of learned counsel for the 1st Respondent and the learned senior counsel for the 2nd Respondent that the Court has jurisdiction to hear the application for committal for the disobedience of the order of the Court made on 6th December, 2016 which was an affront to the powers of the Court. I further hold that the requirement of the application for committal for contempt was duly complied with.

This issue is resolved in favour of the Respondents and against the Appellants. Accordingly, this appeal lacks merit and the same is hereby dismissed. The ruling of the National Industrial Court of Nigeria delivered on 1st November, 2018 by Sanusi Kado, J., in Suit Number: NICN/ABJ/31/2016; wherein the learned trial Judge ordered committal summons to be issued against the 1st Appellant is hereby affirmed. Costs of N100,000.00 in favour of the 1st and 2nd Respondents respectively.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment just delivered by my learned brother, UCHECHUKWU OYENMENAM, JCA. I agree that the appeal be dismissed as it lacks merit and I also hereby dismiss it. I abide by orders in the leading judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is accordingly dismissed. I abide by the consequential order of costs assessed at N100,000.00 only in favour of the 1st and 2nd Respondents.

Judgment

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the ruling of the Ogun State High Court of Justice, Ota Judicial Division in Suit No. HCT/116/2014 BETWEEN: (1) CHIEF SARAFA LAWAL (2) ALHAJI TAJUDEEN OSUNBA (3) SURAJU AFOLABI ODUNSI (For themselves and on behalf of Isosanyin Family of Isheri Olofin, Ogun State) AND (1) MR. IYANDA SANNI ISIAKA (2) MR. KOLAWOLE OLUWOLE ADEOYA (3) OSHE PLAZA (4) OUR LADY CHURCH (5) MR. SANTANA DEFENDANTS AND IN RE: (1) MR. WILSON NUBI (2) MRS. OLUREMI OMOSOLAPE NUB APPLICANTS delivered on 6th of October 2016.

A summary of the facts leading to this appeal are as follows: By a judgment delivered in Suit Nos: HCT/237/2001 BETWEEN: CHIEF ODUNSI & ORS. VS. KADIRI BURAIMO AKINYEMI & ORS. on the 10th of March 2014, the lower Court (Coram: A. A. Akinyemi J.) granted amongst others a declaration that the Appellants’ Family are the owners of the parcel of land lying being and situate at Isheri Olofin more particularly delineated in Survey Plan No. DSC/OG/19A dated 20th June, 1980.

Pursuant to the said judgment, the Appellants took out a Writ of Summons at the lower Court wherein they sought for an Order granting them possession of the land occupied by named persons on Isosanyin Family, damages and the cost of the action. The named Defendants did not defend the action. After taking the evidence of the Appellants’ sole witness, the learned trial judge, (O. S.

Olusanya J.) in a considered judgment delivered on the 11th of April 2016 made an order granting possession of the land claimed to the Appellants and awarded the sum of N250,000.00 as general damages against each of the named Defendants. The Appellants caused a Writ of Attachment/Possession to issue against the instant Respondents who were not named as Defendants in the action and proceeded to execute the judgment against them. In reaction to the above development, the instant Respondents as Applicants filed a Motion on Notice on 28th of June, 2016 wherein they sought the following Reliefs: 1.

An Order of Court setting aside the Order of Possession granted in favour of the Claimants pursuant to the judgment of the Court delivered on 11th of April 2016 as far as it concerns the Applicants. 2. An Order of this Honourable Court setting aside the Writ of Attachment/Possession issued and levied against the Applicants’ properties situate, lying and being within 2km Acquisition, off Lagos-Ibadan Expressway, Isheri-Olofin, Ifo Local Government Area, Ogun State comprised in Certificates of Occupancy No. 4/4/667 and No. 33/33/700 of the Lands Registry Office at Abeokuta on 22nd June 2016. 3.

An Order setting aside the execution of judgment levied on the Applicants’ properties mentioned above on 22nd June 2016. 4. An Order of Court restoring the Applicant back into possession of the properties situate, lying and being within 2km Acquisition off Lagos/Ibadan Expressway, Isheri, Ifo Local Government, Ogun State and comprised in Certificates of Occupancy No. 4/4/667 and No. 33/33/700 of the Lands Registry Office at Abeokuta.

After hearing the parties, the lower Court in a ruling delivered on the 6th of October 2016 granted all the Reliefs sought by the instant Respondents who were the Applicants. The Appellants who were the Respondents in the Motion are dissatisfied with the ruling. They filed a Notice of Appeal containing three grounds of Appeal on the 28th of December 2016. The Record of Appeal was transmitted to this Court on the 24th of February 2017. The original Notice of Appeal was with leave of this Court amended.

The Amended Notice of Appeal filed on the 26th of October 2021 was deemed as properly filed on the 12th of January, 2022. In line with the extant Rules of this Court, parties filed and exchanged Briefs of Arguments as follows: 1. The Amended Appellants’ Brief of Argument settled by T.G. Adeosun, Esq. filed on 28th of October, 2021 was deemed properly filed on 12th of January, 2022. 2. The Amended Respondents’ Brief of Argument settled by Johnson Fabilola, Esq. filed on 18th of November, 2021 was deemed properly filed on 12th of January 2022. 3.

The Reply Brief of Argument filed on 17th of March, 2022 was deemed properly filed on 10th of May, 2022. At the hearing of this appeal on the 10th of May, 2022, Counsel on both sides adopted and relied on their respective Briefs of Argument in urging us to allow/dismiss this appeal. Learned Counsel to the Respondents in Paragraph 2 Pages 3 to 7 of the Amended Respondents’ Brief of Argument raised what he titled “OBSERVATIONS ON THE GROUNDS OF APPEAL”. The submission made under this observation is a complaint against grounds 2 and 3 of the Notice of Appeal.

Furthermore, at the commencement of his argument on Issues Nos. 1 and 3 distilled from Grounds 2 and 3 respectively he canvassed the same arguments which borders on complaints against the grounds of Appeal. These arguments of Counsel to my mind are in the nature of a Preliminary Objection. It is trite that a Preliminary Objection is raised to the hearing of an appeal and not to a few grounds of Appeal. The purpose of a Preliminary Objection is to truncate the hearing of an appeal in limine.

Where there are other grounds to sustain the appeal other than those complained about, what is required of the Respondent is to file a Motion on Notice. The complaint of the Respondent in the instant appeal is against some grounds of Appeal and was found meritorious it would not terminate the appeal. This procedure adopted by the Respondents is incompetent and I so hold. ​A competent Preliminary Objection is one raised in accordance with due process of law. See AJUWON VS. GOVERNOR OF OYO STATE (2021) 16 NWLR (PT. 1803)485; NIGERIAN UNION OF TEACHERS, TARABA STATE VS.

HABU (2018) 15 NWLR (PT. 1642)381; ADEJUMO VS. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252 AND NIGERIAN NATIONAL PETROLEUM CORPORATION VS. FAMFA OIL LIMITED (2012) 17 NWLR (PT. 1328) 148. It is further the law that where a Respondent raises a Preliminary Objection in his Brief of Argument, such Objection cannot be deemed argued along with the Brief. The Respondent is required to seek leave of Court to move the objection before the appeal is argued. Where a Respondent fails to seek the leave to argue his Preliminary Objection, it is deemed abandoned and liable to be struck out.

See SUBERU VS POLARIS BANK LIMITED (2020) 9 NWLR (PT. 1728)79; ABDULKADIR VS. MOHAMMED (2019) 12 NWLR (PT. 1687)450; UCHA VS ELECHI (2012) 13 NWLR (PT. 1317)330 AND ATTORNEY-GENERAL RIVERS STATE VS. UDE (2006) 17 NWLR (PT. 1008)436. Learned Counsel to the Respondents did not seek the leave of Court to argue the Preliminary Objection incorporated in the Respondents Brief of Argument. It is therefore deemed abandoned. The Preliminary Objection contained in the Respondents’ Brief of Argument is incompetent and also deemed abandoned. It is accordingly struck out.

As I indicated earlier, the Appellants filed a Reply Brief of Argument. The Appellants’ Reply Brief in the main contains response to the objection raised in the Amended Respondents’ Brief of Argument against Grounds 2 and 3 of the Notice of Appeal. Since the said objection has been struck out, submissions in response are therefore of no moment and are hereby discountenanced. ​Learned Counsel to the Appellants submitted the following three issues for the determination of this appeal: 1.

Whether photocopies of public documents (Certificate of Occupancy and Letters of Allocation) not duly certified in accordance with the law are admissible and can be relied upon by the trial Judge to grant the relief of the Respondents. 2. Whether the Respondents have proved their case before the trial Court by placing material evidence before the Honourable Court that their land did not fall within the land awarded to the Appellants in Survey Plan No. DSC/OG/19A dated 20th June, 1980 and drawn by D.A.

Nzenwa, Licensed Surveyor and whether the onus of proof is on the Respondents who sought the relief before the Court. (Ground 2) 3. Whether the Respondents from the record denied the case of the Appellants that the land in dispute falls within the land the Appellants were adjudged as the owners and indeed that the judgment debtors sold the portion in dispute to one Mr. Olumba who in turn sold the land to the Respondents herein. (Ground 1) Learned Counsel to the Respondents adopted the three issues distilled by the Appellants as his and argued them in the Amended Respondents’ Brief of Argument.

I shall determine this appeal on the three issues formulated by the Appellants. Issue No. 1 is on the admissibility of the Certificate of Occupancy and Letter of Allocation relied upon by the Respondents in proof of his case at the lower Court. It is the contention of Appellants’ counsel that the said certificate which is a public document is not admissible in evidence as it was not certified. ​He relied on the provisions of Sections 87, 88 and 102 of the Evidence Act and the cases of TALBA VS. TALBA (2010) ALL FWLR (PT. 522)1803; ARAKA VS. EGBUE (2003) FWLR (PT. 175)507; OKOTIE VS.

OKOTIE-EBOH (1986) 1 SC 479; NZEKWU VS. NZEKWU (1989) 2 NWLR (PT. 601) 373; MAVOLO VS. MARAM (1994) 3 NWLR (PT. 331)201; ONOBRUCHERE VS. ESEGINE (1986) 12 NSCC (PT. 1)343; OGBU VS. ANI (1994) 7 NWLR (PT. 355)128; MINISTER OF LANDS, WESTERN NIGERIA VS. AZIKWE (1969) 1 ALL NLR 49 AND FAWEHINMI VS. I.G.P. (2000) FWLR (PT. 12) 2015 to submit that only certified true copies of public documents are admissible in evidence.

He therefore urged us to hold that the Certificate of Occupancy and Letter of Allocation relied on by the Respondent which are photocopies are inadmissible in evidence and resolve this issue in favour of the Appellants. Issue No. 2 is whether the Respondents placed sufficient materials before the lower Court to demonstrate that the disputed land did not fall within the land adjudged as that owned by the Appellants. He referred us to a judgment delivered on 10th of March, 2014 in Suit No. HCT/237/2001 BETWEEN: CHIEF AFOLABI ODUNSI & ORS. VS.

CHIEF IBRAHIM & ORS. wherein the Appellants were declared as the persons entitled to a Statutory Right of Occupancy over the land covered by Survey Plan No. DSC/OG/19A dated 20th of June, 1980. ​He submitted the Respondents who had a duty to place credible evidence before the lower Court to demonstrate that their land is outside that awarded to the Appellants failed to discharge that burden.

He reiterated the settled position of law that he who asserts must prove and submit that the Respondents who were expected to file a Survey Plan to show the relationship between the two lands failed to do so. On Issue No.3, Appellants’ Counsel submitted that the predecessors in title of the Respondents lost their claim to the dispute in the earlier case with SUIT NO: HCT/237/2001. He finally urged us to allow the appeal.

Arguing per contra, learned Counsel to the Respondents submitted that the Appellants who did not raise the issue of the admissibility of the Certificate of Occupancy and Letter of Allocation before the lower Court cannot do so before this Court without seeking the leave of Court to so do. He submitted the issue is a fresh issue for which the Appellants must seek and obtain leave to raise. He called in aid of his submissions the cases of GBEJE & ORS VS. OKE & ANOR (2017) LPELR-42662(CA) AND FCDA & ORS. VS. UNIQUE FUTURE LEADERS INT.

LTD (2014) LPELR- 23170 (CA) and urged us to discountenance the arguments of Appellants’ Counsel on this issue. He argued in the alternative that the Certificate of Occupancy and Letter of Allocation relied on by the Respondents did not require Certification as they were attachments to an affidavit. He submitted that the position of the law is that documents attached to an affidavit cannot be objected to and that public documents attached to an affidavit did not require Certification.

On the argument of Appellants Counsel that the Respondents failed to discharge the onus of proof placed on them, he submitted that the Respondents deposed to facts in their affidavit that the disputed land was allocated to them by the Ogun State Government and cannot be part of the Appellants’ land. He therefore urged us to hold that the Respondents discharged the onus placed on them by law. He finally urged us to hold that the appeal lacks merit and should be dismissed.

The ruling the subject of this appeal is sequel to a Motion on Notice filed by the instant Respondents wherein they sought the following Reliefs: 1. An Order of Court setting aside the Order of Possession granted in favour of the Claimants pursuant to the judgment of the Court delivered on 11th April 2016 as far as it concerns the Applicants. 2.

An Order of this Honourable Court setting aside the Writ of Attachment/Possession issued and levied against the Applicants’ properties situate, lying and being within 2 km Acquisition, off Lagos-Ibadan Expressway, Isheri-Olofin, Ifo Local Government Area, Ogun State comprised in Certificates of Occupancy No. 4/4/667 and No. 33/33/700 of the Lands Registry Office at Abeokuta on 22nd June 2016. 3. An Order setting aside the execution of judgment levied on the Applicants’ properties mentioned above on 22nd June 2016. 4.

An Order of Court restoring the Applicant back into possession of the properties situate, lying and being within 2 km Acquisition off Lagos/Ibadan Expressway, Isheri, Ifo Local Government, Ogun State and comprised in Certificates of Occupancy No. 4/4/667 and No. 33/33/700 of the Lands Registry Office at Abeokuta. ​Attached to the Affidavit in Support of the Motion as Exhibits M01 and M02 are two Certificates of Occupancy issued to the 1st Respondent and 2nd Respondent respectively.

Also attached to the Further Affidavit and Reply to Counter Affidavit as Exhibits M04 and M05 are two letters of Re-Allocation issued to the 1st and 2nd Respondents. The complaint of the Appellants is that Exhibits M01, M02, M04 and M05 which were relied on by the Respondents in proof of their case are not certified and therefore inadmissible because they are public documents. The law is that only certified true copies of public documents are admissible in legal proceedings.

It is however further the law that documents attached to an affidavit form part of the affidavit and constitute admissible evidence which must be given weight where the contents thereof are not in dispute. See ZAKHEM OIL SERVE LIMITED VS. ART-IN-SCIENCE LIMITED (2021) 18 NWLR (PT. 1808) 341; EZEANOCHIE VS. IGWE (2020) 7 NWLR (PT. 1724)430; EZECHUKWU VS. ONWUKA (2016) 5 NWLR (PT. 1506)529; SHITTA-BEY VS. ATTORNEY-GENERAL OF THE FEDERATION (1998) 10 NWLR (PT. 570)392 AND SOUTH-EASTERN STATE NEWSPAPER CORPORATION & ANOR VS. ANWARA (1975) LPELR- 3107 (SC). ​In AONDOAKA VS.

OBOT (2022) 5 NWLR (PT. 1824) 523 AT 599, PARAGRAPHS B-F, PETER-ODILI, JSC held as follows: “The Appellant had taken exception to the admissibility of Exhibits B, C, D since they were photocopies of public documents. The point has to be made that copies of public documents attached to an affidavit as Exhibits need not be certified true copies because the documents already form part of the evidence adduced by the deponent before the Court and are available to the Court to use once it is satisfied that they are credible.

Again to be said is that such, documents need not be certified true copies where the contents of the documents are not in dispute as in this case because the Appellant did not disown his signature on the document he is contending ought to have been certified. I refer to ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) 799; NZEKWU VS. NZEKWU (1989) 2 NWLR (PT. 104) 373; ARAKA VS. EGBUE (2003) 17 NWLR (PT. 848)1; OGU VS. M.T. & M.C.S. LTD. (2011) 8 NWLR (PT. 427) 713; ILORIN EAST L.G. VS. ALASINRIN (2012) LPELR 8400 AND B.A.T. (NIG.). LTD. VS. INT’L TOBACCO CO.

PLC (2013) 2 NWLR (PT. 1339) 493.” The ruling, the subject of this application was delivered pursuant to a Motion on Notice. It was not a full trial. It is trite that proceedings in application brought by way of a Motion on Notice are conducted vide affidavit evidence and that documents attached to the affidavit constitute admissible evidence. It follows therefore that Exhibits M01, M02, M04 and M05 attached to the affidavits of the Respondents form part of the affidavit and the need to certify them as true copies of the original does not arise.

It is significant to note that the Appellants did not dispute the contents of the said Exhibits. The learned trial Judge was therefore right when he relied on them in arriving at his decision. Issue No. 1 is resolved in favour of the Respondents and against the Appellants. The crux of the complaint of the Appellants in Issue No. 2 is that the Respondents did not place sufficient materials before the lower Court to support their claim that their land does not fall within the land covered by Survey Plan No. DSC/OG/19A dated 20th June, 1980 and drawn by D.A.

Nzenwa, a licensed Surveyor awarded to the Appellants in Suit No. HCT/237/2001. ​In resolving this issue, it is pertinent to reproduce some relevant Paragraphs in the affidavit in support of the application. Paragraphs 2 and 3 of the Affidavit are as follows: “2. That I was informed by the 1st Applicant- Mr.

Wilson Nubi on 23rd June, 2016 at 11am at our offices on 57, Marina, Lagos and I verily believe him as follows: (1) That he is the registered owner of the property lying and situate at Isheri-Olofin, Ota Local Government Area, Ogun State by virtue of Certificate of Occupancy No. 4 at Page 4 in Volume 667 of the Lands Registry Office at Abeokuta issued by the Ogun State Government.

The said Certificate of Occupancy is attached and marked Exhibit MO1. (2) That the land covered by the said Certificate of Occupancy was previously acquired by the Ogun State Government and was excised and re-allocated by the Ogun State Government to the 1st Applicant. (3) That the land is contiguous to and beside the land belonging to the 2nd Applicant, (the 1st Applicant’s wife) which is also comprised in Certificate of Occupancy registered as No. 33 at Page 33 in Volume 700 of the Lands Registry Office at Abeokuta. 3. That I was informed by Mrs.

Omosolape Nubi- the 2nd Applicant on 23rd June, 2016 at 11:15am at our offices at 57, Marina, Lagos and I verily believed her as follows: (1) That she is the registered owner of the property lying at Isheri Olofin, Ifo Local Government Area, Ogun State by virtue of Certificate of Occupancy registered as No. 33 at Page 33 in Volume 700 of the Lands Registry Office at Abeokuta.

The said Certificate of Occupancy is attached and herein marked Exhibit MO2. (2) That the land comprised in the Certificate of Occupancy mentioned above was previously acquired by the Ogun State Government and was excised and re-allocated to the 2nd Applicant. (3) That the land is beside and contiguous with the land of the 1st Applicant which is comprised in Exhibit MO1.” The Appellants in Paragraphs 5, 6, 7 and 8 of their Counter affidavit deposed as follows: “5. That I deny paragraphs 2, 3, 4, 5, 6, 7, & 8 of the affidavit in support of the Motion Paper. 6.

That in further denial of paragraph 2(i), I state that the land of the 1st applicant is within the land of the Claimants/respondents though both the applicants have surreptitiously obtained Certificates of Occupancy on the land while the case was going on precisely in year 2007, about six years after this case had been instituted. The applicants are hereby challenged to produce the applications for Certificate of Occupancy. 7.

That in further denial of paragraph 2(ii), the land upon which the 1st applicant had trespassed had been excised and granted to the claimants/respondents family to the best knowledge of the 1st applicant. 8. That the 1st and 2nd applicants’ land is within the land of the claimants/respondents’ family, indeed the applicants purchased their portion from one Mr. Olumba who had earlier purchased their portion from the Judgment debtors (the Paseda family).

The applicants are hereby challenged to produce receipts/agreements obtained from the family who sold to them.” Undoubtedly, the case of the Respondents is that the disputed land falls within the land acquired by the Ogun State Government and which was subsequently allocated to the 1st and 2nd Respondents respectively.

The 1st and 2nd Respondents attached Exhibits M01 and M02 which are Certificates of Occupancy in support of the facts deposed in their affidavit. ​The Appellants who did not deny the facts of the Acquisition by the Ogun State Government insisted the disputed land form part of their family land. They claim the Respondents purchased the land from one Mr. Olumba who had purchased it from the Paseda Family.

The Respondents filed a further affidavit in response to the Counter affidavit of the Appellants to which they attached Exhibits M04 and M05 which are Letters of Re-Allocation of Land issued to them by the Ogun State Government. The Appellants did not controvert the facts contained in Paragraph 2(2) and 3(2) of the affidavit in support of the application. They were evasive on these facts.

The Respondents in paragraphs 2(2) and 3(2) of the affidavit in support deposed as follows: “2(2) That the land covered by the said Certificate of Occupancy was previously acquired by the Ogun State Government and was excised and re-allocated by the Ogun State Government to the 1st Applicant. 3(2) That the land comprised in the Certificate of Occupancy mentioned above was previously acquired by the Ogun State Government and was excised and re-allocated to the 2nd Applicant”. ​It is trite that uncontroverted facts contained in an affidavit are taken as true and require only minimal proof.

See UNION BANK OF NIGERIA PLC VS. PETRO UNION OIL & GAS CO. LIMITED (2022) 7 NWLR (PT. 1829)199; DANIEL VS. AYALA (2019) 18 NWLR (PT. 1703)25; PLATEAU STATE HEALTH SERVICES MANAGEMENT BOARD VS. GOSHWE (2013) 2 NWLR (PT. 1338)338; CAPPA AND D’ALBERTO LIMITED VS. AKINTILO (2003) 9 NWLR (PT. 824)49. The Appellants who did not specifically controvert the fact that the disputed land was acquired by the Ogun State Government are deemed to have admitted the fact.

The law is that once there is a compulsory acquisition of land, the title of the former owners become extinguished by the reason of the acquisition. See Section 28(7) OF THE LAND USE ACT, LAWS OF THE FEDERATION, 2004 AND YUSUF VS. OYETUNDE (1998) 12 NWLR (PT. 579)483. The case of the Respondents is that the disputed land was compulsorily acquired by the Ogun State Government who allocated it to them and granted them Certificates of Occupancy.

In other words, the Respondents traced their root of title to the Ogun State Government. ​It is further the law that a Certificate of Occupancy properly issued raises a presumption that the holder is the owner and in exclusive possession of the land and that at the time it was issued there was not in existence a Customary owner whose title had not been revoked. See AGBOOLA VS. UNITED BANK FOR AFRICA PLC (2011) 11 NWLR (PT. 1258)1; MADU VS. MADU (2008) 6 NWLR (PT. 1083)296; EZEANAH VS. ATTA (2004) 7 NWLR (PT. 873)468; GANKON VS.

UGOCHUKWU CHEMICAL INDUSTRY LIMITED (1993) 6 NWLR (PT.297) 55. ​Exhibits M01 and M02 raise a presumption that the Respondents are in exclusive possession of the disputed land and are entitled to hold it to the exclusion of any other person. The Exhibits raise the presumption that any other previous title had been revoked by the Ogun State Government. The Appellants did not place any evidence before the lower Court to warrant the setting aside of Exhibits M01 and M02.

I therefore agree with the learned trial Judge when he held as follows: “In this application, the Applicants have exhibited their Certificate of Occupancy Exhibit ‘M01’ and ‘M02’, which Certificates were duly issued to them by the Government of Ogun State. They have also exhibited letters from the Ogun State Government re-allocating the lands to the Applicant- Exhibit ‘M05’ refers.

I am therefore of the view that the Applicants have placed enough material before the Court to warrant the granting of this application” (See Page 170 of the printed Record) It is for all of the foregoing that I also resolve Issue No. 2 in favour of the Respondents and against the Appellants. Issue No. 3 is whether the Respondents denied that the land in dispute falls within the Appellants’ family land. The Appellants contend that the Respondents are privies of the Defendants in Suit No. HCT/237/2001. In AGBOGUNLERI VS.

DEPO (2008) 3 NWLR (PT. 1074)217 AT 239, PARAGRAPHS B-E, the Supreme Court, per MUHAMMAD, JSC held as follows: “the general principle of the law relating to privy in title is that in transactions relating to land, any person who derives title from or takes an assignment from, or is let into possession by, or otherwise claims or “comes in” under the actual representor, is bound by the same representation, and consequent estoppel, as that which binds such actual representator. See: Tylor v.

Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book: Estoppel by representation, third edition, Butterworth, London, 1977, pages 123-124. There is no way I can brush aside the submission of learned counsel for the respondents and the conclusion reached by the learned trial Judge, affirmed by the lower Court on the issue of parties, that the parties, on the principle of privity of transactions are from all intents and purposes, the same in both suits. Each of the parties from both sides must bear the consequence of his/its predecessor in title and be bound by it. See: Odua v.

Nwanze (1934) 2 WACA 98; Shonekan v. Smith (1964) 1 All NLR 168; Omokhafe v. Esekhomo (1993)8 NWLR (Pt.309) 58.” ​The effect of the above is that in transactions relating to land, any person who derives title from or takes an assignment from or is let into possession by or comes in under the actual representor, is bound by the same representation. Parties must bear the consequence of the act of their predecessors-in-title and be bound by it. The question which now begs for an answer is whether the Respondents are privies to the Paseda family who were Defendants in Suit No. HCT/237/2001.

A “privy” is a person whose title is derived from and who claims through a party. Privies are of three classes, namely: (i) privies in blood, such as ancestor and heir; (ii) privies in law, such as testator and executor, intestate and administrator; (iii) privies in estate, such as testator and devisee, vendor and purchaser, lessor and lesser, or assignor and assignee. See ADONE VS. IKEBUDU (2001) 14 NWLR (PT. 733)385; BALOGUN VS. ADEJOBI (1995) 2 NWLR (PT. 376)131; OKOROMAKA VS. ODIRI (1995) 7 NWLR (PT. 408)411; NWOSU VS. UDEAJA (1990) 1 NWLR (PT. 125)188.

It is evident from the affidavits of the Respondents that they did not trace their root of title to either Mr. Olumba or the Paseda Family. The general rule is that in civil cases the burden of proof rests upon the party who asserts the affirmative. See AMINU VS. HASSAN (2014) 5 NWLR (PT. 1400) 287; EWO VS. ANI (2004) 3 NWLR (PT. 861)610; OYOVBIARE VS. OMAMURHOMU (1999) 10 NWLR (PT. 621) 23. It follows therefore that the Appellants who asserted positively that the Respondents are privies of the Paseda family have the burden to prove this fact to the satisfaction of the Court.

They failed to do so. As stated earlier, the Respondents traced their root of title to a re-allocation from the Ogun State Government. There is nothing to suggest the Ogun State Government was privy to the earlier cases with Suit No. HCT/237/2001 and HCT/116/2014. It is for this reason that I hold that the Respondents who are not parties to the said suit are also not privies as claimed by the Appellants. It is trite that an Appellate Court will not interfere with the discretion of a lower Court properly exercised.

It will however interfere in the following instances: (1) Where the discretion was not exercised in accordance with the law. (2) Where the discretion of the lower Court is perverse. (3) Where the lower Court acted under a misapprehension of the law. (4) Where the lower Court acted under a misapprehension of the facts. (5) Where the lower Court omitted to take into account matters that are relevant. (6) Where the discretion is exercised on wrong or inadequate materials. (7) Where it is in the interest of justice to interfere or prevent miscarriage of justice. ​See WAZIRI VS.

GUMEL (2012) 9 NWLR (PT. 1304)185; UKWU VS. BUNGE (1997) 8 NWLR (PT. 518)527; IN RE ALASE (2002) 10 NWLR (PT. 776) 553 AND CHIGBU V. TONIMAS (NIG.) LTD. (1999) 3 NWLR (PT. 593) 115. The Appellants failed to demonstrate the existence of any of the foregoing factors. I also find no reason to interfere with the discretion of the learned trial Judge which was exercised judicially and judiciously. In conclusion, having resolved all three issues in favour of the Respondents it follows that this appeal lacks merit and should be dismissed. It is accordingly dismissed.

Consequently, the ruling of the Ogun State High Court in Suit No: HCT/116/2014 delivered on 6th October, 2016 is hereby affirmed. The Appellants shall pay to the Respondents N100,000 as costs. BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Folasade Ayodeji Ojo, JCA. I am in full agreement with the lucid reasonings expressed therein and the conclusion thereby reached. I adopt those reasonings as mine; by which I too find no merit in this appeal.

For emphasis, the Appellants, with respect, appears to have trivialised the discretionary power of the trial Court. The sum total of all the authorities on this point is that unless the trial Court’s exercise of judicial discretion is shown to be influenced by irrelevant considerations or premised upon views that are neither judicial nor judicious, this Court will not, without more, interfere with the trial Court’s decision; because discretionary power is intrinsic in its existence and function. See Section 6 (6) (a) of the Constitution FRN 1999 as amended; Anyah vs.

African Newspapers of Nigeria Ltd (1992) LPELR- 511 (SC); Ndayako & Ors. vs. Dantoro & Ors. (2004) LPELR- 1968 (SC). ​The Appellants have failed to impress us that the lower Court misapplied the correct principles of law or that it indulged in irrelevant considerations or that its views and findings were neither judicial nor judicious.

Furthermore, the Appellants, having failed to controvert the Respondents’ critical facts in paragraph 2(2) of the Affidavit in support of the Application, cannot now be heard questioning the trial Court’s well considered findings on those facts, as it is settled law that facts that are undisputed are deemed admitted. See Section 123 of the Evidence Act 2011; Balogun vs. UBA Ltd (1992) LPELR- 728 (SC); A. G. Rivers State vs. Ude (2006) LPELR- 626 (SC).

May I also add by way of emphasis that the Appellants’ strenuous attempt to discredit the worth of the Respondents’ Certificates of Occupancy i.e. Exhibits “M01” and “M02” issued by the Ogun State Government, on the sole ground that they are not certified, is one that cannot fly; because they are documents forming an integral part of the Affidavit to which they are attached. Secondly, it is an erroneous notion to regard those documents as though they were being tendered in evidence in a regular hearing by oral evidence. Once their credibility is ascertained, the trial Court can rely on same.

See Ezechukwu Anor. vs. I. O. C. Onwuka (2016) LPELR-26055 (SC); Abah vs. UBN Plc & Ors (2015) LPELR- 2478 (CA). On the whole and for the fuller reasons articulated in the leading judgment, I too dismiss the appeal as unmeritorious. I abide by the order on cost made in the leading judgment.

KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in advance, the lead judgment of my learned brother; FOLASADE AYODEJI OJO, JCA. I agree with the reasons given therein and the conclusion reached. I also dismiss this appeal. I abide by the order as to cost.

Judgment

AMINA AUDI WAMBAI, J.C.A. (Delivering Leading Judgment) : The Appellant, a farmer, instituted suit No KDH/KAD/632/2019 at the Kaduna State High Court before Hon.

Justice Mairo Muhammad, against the Governor of Kaduna State, the Attorney General and Crown Flour Mills Ltd as 1st, 2nd & 3rd defendants respectively seeking among other declaratory and injunctive reliefs a declaration that the Appellant (as plaintiff) is the holder and beneficial owner of the farmland measuring about 14 hectares at Duste Kilometer 23-25 Kaduna- Abuja express way allegedly forcefully taken away from him by the 1st defendant and given to the 3rd defendant without payment of compensation.

Several other farmers equally affected by the takeover of their farmlands also instituted similar suits. During the pendency of the various suits including suit KDH/KAD/632/2019, the Appellant and the other affected land owners were invited for several meetings at the palace of Sa Gbagyi, all of which were inconclusive. On 23/07/2019 one of the affected land owners, Alhaji Umar M. Farouq and his eldest son Alhaji Abba Umar Farouq, were arrested and detained.

Sequel to this development, on the 28/08/2019, the Appellant by a motion on Notice before Hon. Justice D. H. Kbobo, in suit NO: KDH/KAD/741/2019, the subject of this appael, commenced an action for the enforcement of his fundamental rights pursuant to Order II Rules 2, 3, 4 & 5 of the Fundamental Right (Enforcement procedure) (Rules,) 2009, (the FREP) Rules, Sections 34(1) (a) 35 (1) &(b) & 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), praying for the following reliefs. 1.

A DECLARATION that the continuous invitation of the Applicant by the Respondents under the guise of meetings over a purely civil matter pending at the High Court of Kaduna State in suit No: KDH/KAD/632/2019 IBRAHIM MADAMI V. THE GOVERNOR OF KADUNA STATE & 2 OTHERS is unconstitutional and constitute a likely infringement of the Applicant’s fundamental human rights as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria as amended and the African Chatter on Human and Peoples Rights (Ratification Act) 2.

A DECLARATION that the continuous invitation of the Applicant by the Respondents under the guise of meetings is putting the applicant in apprehension of the likely contravention of his fundamental human rights pursuant to Section 46 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). 3.

AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents either by themselves or by their agents, or servants from further inviting the Applicant to any purported meeting or invading the privacy of the applicant using Policemen or security personnel of government in respect of any or all issues concerning or relating to the dispute between the applicant and the Governor of Kaduna State and 2 others in suit NO: KDH/KAD/632/2019, and from further intimidation, and harassment of the Applicant. 4.

AN ORDER directing the Respondents jointly and severally to pay the applicant the sum of Two Million Naira (N2,000,000.00) only each being exemplary/aggravated damages for the infringement of the Applicant’s Fundamental Human Rights as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 and he African Charter of Human and Peoples Rights (Ratification Act). ​The motion was supported by a statement, a 21 paragraphed affidavit, three annexures marked exhibits A, B & C, an 11 Paragraphed further affidavit and a written address.

The Respondents were granted extension of time to file a counter-affidavit (of 6 paragraphs) and a written address in opposition to the motion. They attached one exhibit marked MOJ I. The learned trial Judge considered the affidavits and the exhibits before the Court and found that the Appellants did not prove the alleged threat to violation of his fundamental right to entitle him to the reliefs claimed and therefore dismissed the Appellant’s claims. Aggrieved, the Appellant approached this Court for intervention vide his notice of appeal filed on 21st July, 2020 predicted upon 6 grounds. F.O.

ADENEYE ESQ. who settled the Appellant’s brief of argument filed on 20/10/2020 but deemed on 31/01/2022 raised 3 issues for determination to wit:- a) Whether the learned trial Judge of the lower Court was right when he held “in cases of allegation of violation of fundamental right, such as the instant case, the law is settled that mere allegation or deposition on an affidavit is not sufficient to constitute proof of infringement or infraction on the right of the applicant;

the specific facts of the alleged breach must be proved in substantial details and further went ahead to hold that the Appellant has a higher responsibility to prove his declarative reliefs in a fundamental right proceeding. (Distilled from Grounds 1 & 3 of the Grounds of Appeal) b) Having regard to the facts and circumstances of this case leading to this appeal, whether the learned trial Judge of the lower Court was right when he resolved the conflicts in the affidavit evidence in favour of the respondents particularly on the payment of compensation to the Appellant, without calling the parties to address him as the issue of compensation was not for the trial Court to decide. (Distilled from Grounds 2, 4 & 5 of the Grounds of Appeal) c) Having regards to the provisions of Section 41 & 46 of the 1999 Constitution of the Federal Republic of Nigeria, as amended and Articles 2, 4 & 12 of the African Charter, Human and Peoples Rights, Ratification and Enforcement, whether the Appellant must be arrested or obligated to exhibit an order of Court before he can enforce his rights under the fundamental rights proceedings and obtain the protection of the Court. (Distilled from Ground 6 of the Grounds of Appeal) In the 1st Respondent’s brief of argument settled by Usman Sani Esq. and filed on 23/8/2021 but deemed on 31/1/2022, three (3) issues were also nominated for determination, namely:- 1.

Whether the learned trial Judge was right when he held that “in cases of allegation of violation of fundamental human rights such as the instant case. The law is settled that mere allegation or deposition in an affidavit is not sufficient to constitute proof of infringement or infraction on the right of the applicant, the specific fact of the alleged breach must be proved in substantial details”? 2.

Whether, having regards to the facts and circumstances of this case leading to this appeal, there exists any conflict in the affidavit filed by both parties, especially in respect to the payment of compensation to the Appellant? 3.

Whether the learned trial Judge was right to have held that the Appellant did not satisfy the legal requirements for proofs in matters of declaratory reliefs he asked for? ​Abdulfatai Oyedele Esq who settled the 2nd – Respondent’s brief of argument filed on 12/03/2021 but consequentially deemed on 31/1/2022 adopted the 3 issues as distilled by the Appellant’s Counsel.

Looking at the three issues nominated for determination by the learned Appellant’s Counsel, the Appellant’s complaint centres on the holding of the learned trial Judge that mere allegation or deposition in affidavit do not constitute sufficient proof of infringement of fundamental human right under the FREP Rules, 2009, and the resolution of conflicts in the affidavits including the question of compensation, without calling for counsel’s address. A sole issue encompassing the three issues as crafted below, is in my view, sufficient to determine the appeal.

The issue is:- WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE HELD THAT MERE ALLEGATION OR DEPOSITION IN AFFIDAVIT DO NOT CONSTITUTE SUFFICIENT PROOF OF INFRINGEMENT OF FUNDAMENTAL HUMAN RIGHT, AND TO HAVE RESOLVED CONFLICTS IN AFFIDAVITS WITHOUT ORAL EVIDENCE. APPELLANT’S SUBMISSION In arguing his issues 1, 2, and 3 and contending that the learned trial Judge is wrong to have taken the position that the Appellant needed to have exhibited the written order of arrest by the Governor of Kaduna State or revealed to whom the order was directly given and to have relied on the cases of BELLO VS.

EMEKA (sic) (EWEKA (1981) 1 SC 101, NASKO TOWN PLC VS.NWARUEZE (2015) ALL FWLR (Pt. 780) 1209, KODILINYE VS. MBANEFU ODU (1935) 2 WACA 336 AT 337 in dismissing his case, Counsel quoted part of the judgment of the lower Court at page 92 of the record and reproduced the provisions of Section 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to submit that it is neither the requirement of the law that the arrest order be exhibited before an applicant can ventilate his grievances and enforce his right, citing the cases of A. G. F V.

KASHAMU and 11 ORS (2020) 3 NWLR (Pt. 1711) 209, THE GOV. OF BORNO STATE 2 ORS V. GADANGARI (2016) 1 NWLR (Pt. 1493) 417, nor does the learned trial Judge’s construction of the provision take cognizance of the 3rd arm of the section which permits an applicant to seek protection against a likely infringement of his fundamental human right.

He pointed out that since the responsibility of the 2nd Respondent is to prevent crime and his joinder pre-supposes that the arrest/written order was given to him or his agents, it was wrong for the lower Court to have dismissed the Appellant’s case on ground of absence of the order. That the cases of BELLO V. EMEKA (sic) (EWEKA) (supra) and KODILINYE V.

ODU (supra) which pertain to declaration of title to land do not apply to enforcement of fundamental right proceedings, stressing that the trial Judge failed to understand that the case of the Appellant was that of likelihood of infringement and not actual infringement and thus failed to consider the Appellant’s protected right under Section 46 (1). Similarly, the common law principle of award of damages Counsel argued, does not apply to cases under the enforcement of fundamental right proceedings, JIM JAJA V. C.O.P RIVER’S STATE (2013) 6 NWLR (Pt. 1350) 225 AT 254.

The learned trial Judge was also faulted when in distinguishing the case of Alhaji Umar Farouq from the Appellant’s he stated that while Alhaji Umar Farouq was arrested and detained for denying the receipt of any penny as compensation, the Appellant did not deny the issue of compensation and submitted that the issue of compensation was not only wrongly decided by the lower Court issues having not being joined on same in the suit leading to this appeal, but was also unfairly so decided without giving the Appellant a fair hearing. He submitted further that assuming the case of Alh.

Umar Farouq can be distinguished or is distinct from the Appellant’s, the case of his Son Alh. Abba Umar who was invited for settlement and arrested and detained at the office of the Governor without a Court order, a naked show of abuse of executive power and arbitrariness he described the act, citing the case of GOVERNOR OF LAGOS STATE & ANR V. OJUKWU (1986) 1 NWLR (pt. 18) 621, 636, is not different from that of the Appellant and that it is not the duty of the lower Court to resolve the material conflict in favour of the Respondent.

Moreover, the procedure for enforcement of fundamental right was enacted to protect the citizen’s fundamental right from abuse and violation by authorities and persons citing again, the case of JIM JAJA V. COP. RIVER STATE (SUPRA).

Still on the materially conflicting affidavits which Counsel contends the learned trial Judge resolved without taking oral evidence, reference was made to paragraphs 15 of Appellant’s affidavits where it was deposed that all claimants whose farmland have been compulsory acquired have been directed by the Governor to be arrested and detained vis a vis paragraph 4 (c) (XV) of the Respondent’s counter-affidavit which denied the Appellant’s deposition and submitted that oral evidence must be led to resolve the conflict except there is a documentary evidence to tilt the scale which is absent in the present case citing the cases of EIMSKIP LTD V.

EXQUISITE INDUSTRIES (NIG) CA/K/200/2020 AMINA AUDI WAMBAI, JCA Page 10 OF 34 LTD (2003) 4 NWLR (Pt.809) 88 AT 121-122 H-C OKADA AIRLINES LTD V. F. A. A of NIG. (2015) 1 NWLR (Pt.1439), AT 25 among others. He submitted that the lower Court having resolved the conflict without any form of documentary evidence backing up its decision, the Court descended into the arena of litigation rather than being an impartial umpire in the administration of justice.

On the other hand, he submitted that paragraph 9 of the Appellant’s affidavit that he was only paid a transfer fee remained un-countered by the Respondents.

We were urged to invoke the provisions of Section 15 of the Court of Appeal Act to correct the errors allegedly committed by the lower Court. 1st RESPONDENT’S SUBMISSION In responding per contra and contending that the learned trial Judge was right in holding that the Appellant did not by credible and verifiable evidence prove his case the burden of proof being on one who asserts, learned Counsel for the 1st Respondent Usman Sani ESQ submitted that the question of infringement of fundamental right is largely a question of fact on affidavit evidence rather than on legal argument such that an applicant must succeed on the strength of his case and not on admission on pleadings or weakness of the defendant, N.F.F AND ORS V.

AHMADU (2020) LPELR-50317 (CA). He submitted that the Appellant only made several allegations of likelihood of breach of his fundamental Right without sufficient evidence to prove the specific facts of the alleged breach or events making him to be apprehensive. But the Appellant’s depositions are not sufficient to constitute proof of infringement or infraction of his right. ADESANYA V. FRN AND ANOR (1981) LPELR-147 (Pt. 63) D-E.

That contrary to the submission of the Appellant’s counsel which is the crux of his argument that Appellant needed not to exhibit the written order or to reveal to whom it was given, the Appellant having made a categorical Statement at paragraph 15 of his affidavit that the Governor of Kaduna State gave an order that all claimants whose farmland had been compulsory acquired for Crown Flour Mill LTD be arrested, it is incumbent on the Appellant to support that assertion by documentary evidence or instrument as the Court does not act on mere suspicion but on evidence. AKAYEPE AND ANOR VS.

AKAYEPE (2009), LPELR-326 (SC). Moreover, he added, the learned trial Judge did not base his decision only on the non-exhibition of the order but gave other reasons and made other findings of facts on material issues before arriving at a logical conclusion but the Appellant’s counsel only chose to pick on the non-exhibition of the order alone.

He referred to the finding of fact by the lower Court that the Appellant attended three meetings with the officials of Kaduna State Geographic Information System (KADGIS) at the Sa Gbagyi’s palace after the Appellant’s counsel obtained an interim order from the High Court and contended that if the Appellant had been apprehensive, he would not have attended the meetings.

Counsel contended that the events and circumstances leading to the arrest and detention of Alhaji Umar Farouq and his eldest Son Alhaji Abba Umar Farouq upon which the Appellant hinged his application as held by the lower Court, are quite distinct from the Appellant’s application (apprehension) which he argued, has no nexus with the Umar’s arrest.

According to him, in the entire affidavit and further affidavit the Appellant never mention that the Respondents were the persons who invited him to the palace of Sa Gbagyi on the three occasions (on the 19th, 20th & 21st August 2019) or that the Respondents were present at the meetings and that the Appellant ought to have been apprehensive of and filed the suit against the Governor of Kaduna State, the Sa Gbagyi or officials of Kaduna Geographic Information System (KADGIS) and not against the Respondents, urging us to discountenance Appellant’s submission at paragraphs 4.6-4.8 of Appellant’s brief of argument and to hold as misconceived the Appellant’s argument that the case of BELLO V.

EWEKA (SUPRA) relied upon by the lower Court are inapplicable since the principle applies equally to the case at hand. Additionally, he submitted, as the learned trial Judge drew a distinction between the two scenarios the arrest and detention of Alhaji Umar Farouq was pursuant to a Court ordered investigation arising from his (Alh.

Umar’s) denial of receipt of any penny as compensation but the same issue never arose in the case of the Appellant before the institution of the suit to justify the apprehension of his arrest thereby making the two cases different. ​Learned Counsel contended that the issue of compensation was made in passing only for the purpose of drawing a distinction between the two scenarios of the arrest of Alh. Umar Farouq and the Appellant’s apprehension.

More so that the Court did not award compensation to any party, thus, he argued, grounds 4 and 5 of the Notice of appeal did not relate to or arise from the decision of the lower Court and ought to be struck out as well as issue 2 distilled therefrom, the subject matter not being in controversy – between the parties and thus therefore incompetent, NWANKWO V. E. D. C. S. U. A. (2007) 5 NWLR (Pt.1027) 377; AT 395 SARAKI V. KOTOYE (1992) 9 NWLR (Pt.264) 156 AT 183, 184; HONIKA SAWMILL (NIG) LTD V. HOFF (1994) 2 NWLR (Pt. 326) 252 AT 261, NWACHUKWU V.

STATE (2007) 17 NWLR (Pt. 1062) 31 AT 61-62 H-B.

On the Appellant’s contention that the learned trial Judge resolved the materially conflicting depositions in the affidavit particularly on the issue of compensation without calling for oral evidence, learned Usman Sani Esq. for the 1st Respondent belied any conflict between paragraph 15 of the Appellant’s affidavit and paragraph 4 (c) (xv) of the Respondent’s counter-affidavit but that assuming there is any such conflict, the Court Order (Exhibit MOJ I) attached to the Respondents counter-affidavit is sufficient documentary evidence to resolve the conflict, showing that if there was any arrest and detention of Alh.

Umar Farouq, same was ordered by the Court and not by the Governor which evidence was not challenged, EZECHUKWU AND ANOR V. ONWUKA (2016) 101 252 LRGN, S2 F-Z, OZAH V. EFCC (2018) ALL FWLR (Pt. 953) 257. E-G. We were urged to resolve the issue in favour of the Respondents.

Second Respondents Submission. Learned Counsel for the 2nd Respondent as the 1st Respondent’s Counsel also endorsed the holding of the learned trial Judge that an applicant has to prove his assertion by credible supporting affidavit and exhibits even in cases of actual violation as it is not the law that even in FREP proceedings controverted depositions become facts.

He contended that the Appellant did not place sufficient material facts with necessary particulars and ingredients from which the Court could ascertain the likelihood or actual threat of arrest or the breach of the Appellant’s right, stressing that the Court should not believe bare depositions not supported by documents FAJEMIROKUN V. COMMERCIAL BANK NIG. LTD (2009) LPELR-123 (SC), MOKWE V. EZEUKO (2000) 14 NWLR (Pt. 686) 143. He submitted that a party who seeks Court Order must do all it takes to establish that he deserves such an order NACHPN V.

MHWUN (2010) 2 NSCR 101 but that the Appellant failed to discharge the onus.

On the Appellant’s contention that the learned trial Judge was wrong to have required the Appellant to exhibit the arrest order before he can enforce his right, Counsel submitted that there is nothing in the three scenarios or instances in Section 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Order 2 Rule 1 of the FREP (Rules) 2009 or any other statute which exempts an applicant from proving his claim of threats to violation of his fundamental right, as mere allegation cannot sustain a suit.

That Section 46 (1) only provides for instances that will necessitate the institution of an action for infringement but not how the proceedings are to be conducted or for rule of evidence or that reliefs will be granted without proof, thus he argued, a distinction must be drawn between a genuine likelihood of breach and actual breached from fictitious or suspicious likelihood bored on speculation. ZABUSKY V. ISRAEL AIRCRAFT IND. (2008) 2 NWLR (Pt. 1070)109 at 133 F-G He therefore submitted that the cases relied upon by the Appellant are not relevant.

On the issue of compensation, the learned Counsel submitted that joinder of issues can be by dissenting positions in affidavits as between paragraph 6 of the Appellants affidavit and paragraphs 4 (C) (iv)-(vi) of Respondent’s counter-affidavit which gives the Court the right to reference the issue of compensation but does not amount to a declaration of rights of the parties on compensation. That it is merely an “obiter dictum” through which the Court drew a distinction between Alh. Farouq’s case and that of the Appellant.

That the said remark being an obiter is not essential to the decision and not legally binding since no finding of fact was made on the issue of compensation to entitle the Appellant lodge a valid complaint against same. KEHINDE V. ENEH (2017) LPELR-43155 (CA), ISEZUO AND ANR V. SANNI AND ANR (2013) LPELR-21974 (CA). It was his submission that the Appellant’s initial claim that it was the Governor who ordered the arrest of Alh. Umar Farouq was rubbished by Exhibit MOJ I and urged the Court to resolve the issue in favour of the Respondents.

RESOLUTION OF APPEAL The issue thrown up for consideration and determination in this appeal is the correctness or otherwise of the holding of the learned trial Judge that the Appellant did not prove his case of threat to violation of his fundamental right by the Respondents, as alleged.

His complaints are that (1) the learned trial Judge was wrong to have held that cases of violation of fundamental human rights are not proved by mere allegation or depositions in affidavit and to have required the Appellant to exhibit the written order of the Governor (2) the learned trial Judge wrongly decided the issue of compensation not placed before it in the suit and (3) the learned trial Judge was wrong to have resolved material conflicts in the affidavit in favour of the Respondents without oral evidence. I will consider the complaints.

The 1st complaint relates to the position of the lower Court on what constitutes proof of an allegation of infringement of fundamental right (Enforcement Procedure) Rules, 2009.

This position of the learned trial Judge in his holding as shown at page 93 of the record reads: “in cases of allegation of violation of fundamental right, such as the instant case, the law is settled that mere allegation or deposition on an affidavit is not sufficient to constitute proof of infringement or infraction on the right of the applicant; the specific facts of the alleged breach must be proved in substantial details…” ​It is the above holding by the lower Court which is the subject of Appellant’s issue No.1 that has stirred up the storm of Appellant’s agitation.

It is common ground that the Appellant’s application for enforcement of his fundamental right was brought among other provisions, pursuant to Section 46 (1) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended) and the fundamental Rights (Enforcement Procedure) Rules, 2009.

Section 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) hereinafter simply referred to as “the constitution”, reads: “Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress” And by virtue of Order II Rule I of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (hereinafter simply called the FREP Rules, 2009, any person who alleges that any of the fundamental rights provided for in the Constitution or the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act to which he is entitled has been, is being or likely to be infringed may apply to the Court in the state where the infringement occurs.

See IKPE V. EFFIONG (IPO) N.P.F ONNA DIVISION (2014) LPELR-23036 (CA). The infringement in the case at hand is alleged to have occurred in Kaduna State, hence the initiation of the action at the lower Court pursuant to the said Rules. Now, it is a cardinal principle of our law and I dare say of the divine law that any person who asserts the existence, occurrence, or condition of any fact must bear the burden of proving what he asserts. This has been codified in relation to civil matters in Section 131 (1) & (2) of the Evidence Act, 2011.

To entitle the person to judgment of the Court he must not only prove what he asserts but must succeed on the strength of his case not on the weakness of the defendant’s case or upon admission on pleadings. This entrenched principle of law is not a respecter of actions for enforcement of fundament human rights under the FREP Rules, 2009. In other words, an applicant for the enforcement of fundamental right is not exempted from proving his allegation. See A. G. F V. KASHAMU and 11 ORS (2020) 3 NWLR (Pt. 1711) 209.

He must satisfy the Court that his case comes within the provision and can seek redress under any of the 3 limbs of Section 46(1). That is to say that his fundamental right under Chapter IV of the Constitution has been breached, or is being breached or is likely to be breached by the Respondents. The rule of evidence requiring proof of fact as in civil matters and in the case of Section 46 (1) of the Constitution, in the manner prescribed by the FREP Rules, 2009, applies with equal force to actions for enforcement of fundamental right.

This is so because it is the proof of a fact that takes an assertion out of the realm of a mere allegation to the elevated and coveted realm of evidence capable of being acted upon by the Court. The use of the word “alleges” in Section 46 (1) subjects the substantive constitutional provision creating the right to the adjectival law of evidence through which the right can be enforced.

Thus, while Section 46 (1) of the constitution creates, defines and limits the right of citizens to approach the Court for the enforcement of their rights, the Evidence Act and the specially designed procedure for enforcement, the FREP Rules, 2009, provide the mechanism or manner and the procedure by which the right can be enforced. By Order xii of the FREP Rules, 2009, application for enforcement of fundamental rights are heard and determined by affidavit evidence of the parties and written addresses of Counsel.

In other words, this type of application is fought and contested on affidavit evidence. It follows therefore and this is trite, that the back bone or more appropriately, the life-wire of Fundamental Right Enforcement application are the combination of the statement, the affidavit in support of the application and the exhibits attached in support of the affidavit(s).

This procedure therefore as is the intendment of the framers of the Rules, facilitates the desired speedy but fair determination and disposal of such applications expeditiously bearing in mind the main objectives of the FREP Rules and thus renders the Rules an effective and speedy judicial process for the determination and enforcement of fundamental rights of citizens available under Chapter IV of the Constitution. ​However, the point must be clearly made and emphasized that while it is true that in order to give effect to the FREP Rules, 2009 and not to defeat the purpose of Section 46 (1) of the Constitution the standard of proof of an action brought under the Rules should not be elevated to the standard required in criminal trials, the law still remains that to succeed in such an action the applicant must satisfy the Court by credible affidavit evidence that his right has been, is being, or likely to be contravened to entitle him to the relief or protection sought from the Court under the section.

Thus, the importance of affidavit evidence in of an action for enforcement of fundamental right cannot be overemphasized, as it is the affidavit that must set out the facts upon which the application is made. See UWA V. AKPAN AND ANOR (2010) LPELR-5079. It is for this reason that Order ll Rule 3 enjoins the applicant to support his application with an affidavit which shall set out the facts upon which the application is made. Simply put, the affidavit constitutes the evidence upon which to hinge the application.

It follows that the absence of or insufficiency or weakness in the affidavit evidence in support of the application would be fatal in that there would be nothing to support the reliefs claimed. Such application would be liable to a dismissal. The claim of the Appellant is that his right to approach the Court falls within the 3rd arm of Section 46 (1) of the Constitution. The section has earlier been reproduced. That notwithstanding, for a better appreciation of the discourse here, it is again brought forth.

“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress” It has 3 segments or parts. These segments are the three stages when a person can approach the Court to seek redress for an infringement or threatened infringement of his fundamental right. ​The first segment deals with the actual contravention of the person’s right, when the right has been contravened. In this 1st segment, the act of contravention has already been done.

The act constituting the infringement has been successfully and fully completed and there is nothing more on the part of the respondent in the accomplishment of the contravention of the person’s fundamental right. The violator’s act accomplished and the violated goes to Court to seek judicial redress. This is the clearest of all the 3 segments and the easiest in proof. The second segment deals with when the right is in the process of being contravened, that is, the contravention process has begun though may or may not have been completed. This is not as easy to prove as the first.

The third segment which is the preventive stage and the most difficult to prove provides for a probable futuristic occurrence of the contravention, that is, the “likelihood” of the contravention of the applicant’s right. This 3rd segment affords an applicant the right and opportunity to apply to the Court for the protection of his fundamental right before infringement and the Court the power to avert the violation before it actually takes place. This is the stage of an attempt to breach the fundamental right of another.

It involves the doing of overt act or acts with intent to infringe the right of another. Substantial steps must have been taken short of the actual contravention. Thus, before this third limb of the section can be invoked, there must be placed before the Court enough positive acts on the part of the Respondent aimed towards the contravention of the applicant’s right to a very proximate point such that the applicant’s right must be in danger of being violated.

The Respondents must have taken substantial steps but the last act that will consummate the actual contravention before an action founded on this segment can succeed. Such acts in the instant case, must unequivocally point towards the arrest and detention of the Appellant short of the actual arrest and detention. In UZOUKWU AND ORS V.

EZEONU II AND ORS (1991) 6 NWLR (Pt. 200)708 at 784, the apex Court stated inter alia: “before a plaintiff invokes the 3 limb, he must be sure that there are enough facts on the part of the Respondent aimed essentially and unequivocally towards the contravention of his rights. A mere speculative conduct on the part of the Respondent without more, cannot ground an action under the 3rd hink. See also A.G.F V. KASHAMU (SUPRA). The Appellant herein relies on his affidavit, further affidavit and exhibit C. Learned counsel cited in particular, paragraphs 14-17 of the affidavit.

They are hereunder reproduced. “14. That Alhaji Umar M. Farouk and his eldest son, Alhaji Abba Umar Farouk were invited for out of Court settlement on 23/7/2019 at Government House Kaduna but were arrested and detained. 15. That all claimants whose farmland have been compulsorily acquired for Crown Flour Mills Ltd have been directed by the Governor of Kaduna State to be arrested and detained including me and our counsel Dr. R. O. Atabo. 16. That pursuant to paragraph 15 ante, Dr. R. O.

Atabo had filed an action at the High Court of Justice of Kaduna State and obtained an order of interim injunction against the Respondents. A copy of the Order is attached and marked Exhibit C. 17.

That at this juncture, I am apprehensive of the likelihood of the contravention of my fundamental rights as the purported meetings are not making any head way and the continuous invitation puts me at risk of being harassed, intimidated and/or detained by the Respondents. ​The above paragraphs particularly 15 & 17 sum up the cause of the Appellant’s apprehension, viz that all claimants whose farmland have been compulsorily acquired have been directed by the Governor of Kaduna State to be arrested and detained; that the continuous invitation to meetings puts him at the risk of being harassed, intimidated and detained.

But these are not the only relevant depositions. Paragraphs 11-14 add up the sequence of events leading to the depositions in paragraphs 15-17 (supra). The summary of depositions at paragraphs 11-13 is that on 19th, 20th and 21st August, 2019, meetings were held on each of the 3 days at the Sa Gbagyi’s palace attended by officials of Kaduna Geographic Information System (KADGIS) and the Appellant. On 23/7/2019 Alh. Umar M. Farouq and his eldest son Alhaji Abba Umar Farouq were invited for out of Court settlement at Government House Kaduna but were arrested and detained (paragraph 14).

On the assertion that the constant invitation to the meetings and the arrest of Alhaji Umar Farouq gave rise to the apprehension that the Appellant would also be arrested, it is abundantly clear from the said paragraphs of the affidavit that the facts giving rise to the Appellant’s apprehension of being arrested and having the same fate that befell Alhaji Umar M. Farouq and his son, Alh. Abba U. Farouq are quite different. ​Firstly, the meetings to which the Appellant was invited were held at the palace of Sa Gbagy not in the Government House.

There is no suggestion that either the 1st or 2nd or both of the Respondents were in attendance at the meetings or that the meetings were held at their instance. At parags 4 (X) of the Respondents counter affidavit, the Respondents deposed they were not even aware of the meetings.

Secondly, the meetings were held between 19th and 21st August, 2019 while Appellant’s Counsel had on 14/08/2019 obtained an interim order of injunction (Exhibit C) restraining the Respondents either by themselves or by their agents or servants from arresting, detaining, inviting the Appellant five days before the meeting of the 19th August 2019. Having obtained the order of interim injunction, the fury of apprehension of arrest or detention no longer existed. On the other hand, if the appellant was still apprehensive why then did he attend the meetings? Thirdly, the arrest of Alh.

Farouq on the 23/8/2019, (after the meetings attended by the Appellant on 19th-21st August, 2019) was not at the instance of the Respondents or even of the Governor of Kaduna State but was a Court ordered arrest as shown on exhibit MOJ I attached to the Respondents’ counter-affidavit. Exhibit MOJ 1 was not been challenged. That fact was not countered by the Appellant. Contrary to the Appellant’s assertion, on the face of Exhibit MOJ, Alhaji M. Farouq was arrested by the order of the Magistrate for the offence of cheating and not on the orders of the Governor.

Furthermore, counsel’s argument at one breadth that the deposition at paragraph 15 that all claimants whose farmland were compulsorily acquired for Crown Flour Mills Ltd were directed to be arrested and detained by the governor is uncontroverted, is a fallacy having regards to paragraph 4 (C) (XV) of the counter affidavit which unequivocally denied the said deposition.

It reads “that the Gov. had never directed that the Appellant or anyone should be arrested”. ​It is difficult on the basis of the above analysis to justify the Appellant’s apprehension of likelihood of being arrested without any further evidence to support the claim. His deposition at paragraph 9 of the further affidavit that the fate that befell Alh. Umar Farouq likely awaited him in view of what has been stated above is also a bare deposition that requires further facts or documents to back it up.

Similarly, the assertion that the Governor directed the arrest of all claimants including the Appellant has not been supported by concrete evidence. The Respondents having denied the allegation and the arrest of Alh. Farouq alleged to have been ordered by the Governor having been belied by Exhibit MOJ I, the Appellant needed to show, beyond the deposition that the Gov. had ordered for their arrest. The learned trial Judge so righty found and held.

On the submission that the learned trial Judge resolved material conflicts in the affidavits, without calling oral evidence, the law generally is that where there are conflicts in the affidavit evidence of contesting parties on fundamental issues in a matter, the Court should have recourse to oral evidence to resolve the conflict. The Court is not permitted to prefer one deposition to the other. See MAY MEDICAL CLINIC AND DIAGNOSTIC CENTRE LTD. V. FIRST BANK PLC. (2001) 9 NWLR (PT. 717) 28. SEE ALSO EIMSKIP LTD V. EXQUISITE INDUSTRIES (NIG) LTD (supra) cited by the Appellant’s Counsel.

However, there are exceptions to this general principle of law. One of such exceptions is where there is/are documentary evidence before the Court from which to resolve the conflict, the oral evidence may be dispensed with. Indeed, it becomes unnecessary and the Court can resolve the material conflict by resorting to the documentary evidence that supports one of the affidavits. See OLU-IBUKUN V. OLU-IBUKUN (1974) 2 SC 41, U.B.A. PLC. V. OKON EFFIONG (2011) LPELR-8939, DANA IMPEX LTD V. AWUKAM (2006) 3 NWLR (Pt. 968) 544.

In the case at hand, the learned trial Judge resorted to MOJ I which supports the Respondents’ case that CA/K/200/2020 AMINA AUDI WAMBAI, JCA Page 30 OF 34. ​Alhaji Umar M. Farouq was not arrested by or on the orders of the Governor of Kaduna State but by the order of a Magistrate Court. It was thus not necessary to take oral evidence to resolve the conflicts. Undoubtedly, by Exhibit MOJ 1 the case of Alhaji Umar M. Farouq is distinct from that of the Appellant. It is thus preposterous, as earlier stated, for the Appellant to argue that the arrest of Alhaji U. M.

Farouq who per Exhibit MOJ I was arrested for cheating, was by the order of the Governor or that the same fate befall the Appellant. The fall out of all these is that the involvement of the Respondents in the continuous invitation of the Appellant to the inconclusive meetings which together with the arrest of Alhaji M Farouq the Appellant contends heightened his apprehension of harassment, intimidation and detention by the Respondents, has not been shown nor does the arrest of Alhaji Umar Farouq on a different ground have any nexus with the case of the Appellant.

The lower Court was thus right in holding that the events and circumstances leading to the arrest and detention of Alh. Farouq is distinct from the Appellant’s case. Where then lies the apprehension for the likelihood of the contravention or violation of the Appellant’s fundamental right to justify the grant of his prayers before the lower Court? ​It would appear that what is left of the Appellant’s case are mere assertions and speculations. Assertion and suspicion no matter how strong do not constitute evidence. Speculation has no place in our Courts.

The Court is not permitted to speculate or act on speculation. The Court only acts on empirical facts provided by parties. See AKAYEPE & ANOR V. AKAYEPE (SUPRA) PLATEAU STATE GOVERNMENT V. A.G.F. (2006) 3 NWLR (Pt. 967) 346. Breach or likelihood of breach of fundamental right where alleged, must flow from the facts in the affidavit. It is from the facts deposed in the affidavit that the apprehension of likelihood of the breach draws its inspiration.

In the case at hand, from what is left of the affidavits, the Appellant’s apprehension of arrest was not predicated on concrete and solid grounds but on mere speculations which have no place in our Courts. Courts are not allowed to speculate and It will be speculative for this Court to hold that because Alh. Farouq was arrested by the order of Court the Appellant was likely to be arrested on the orders of the governor. The Court must confine itself to proved facts and not sail on the ocean of speculation howsoever alluring or attractive the voyage seems.

The ship will surely sink into the deep ocean.

Obviously, without sufficient credible and admissible evidence backing up the Appellant’s assertion it will be difficult, nay legally wrong to grant the declaratory reliefs sought. The law is settled that declaratory relief cannot be granted even upon admission. The party claiming must adduce cogent evidence to show his entitlement to the declaration sought. See the locus clasicus case of BELLO V. EWEKA (SUPRA) also reported as (1981) NSCC (VOL. 12) 48 and KWAJAFFA & ORS. V. B.O.N. LTD(2004) 13 NWLR (Pt. 889) 146.

The learned trial Judge was therefore right to hold that Appellant did not prove his case to entitle him to the declaration sought and also in relying on the case of BELLO V. EWEKA (SUPRA) inter alia. ​On the complaint that the lower Court decided the issue of compensation which was not placed before the Court, it is contextually not in doubt that the statement on compensation was made in passing for the purpose of distinguishing the case of the Appellant with that of Alhaji Umar M. Farooq relied upon by the Appellant.

The Court made no finding of fact on the issue of compensation in relation to the live issue before it. The statement was at best an obiter dictum which has nothing to do with the live issue before the Court. It therefore has no effect on the decision of the lower Court. The mere statement in passing that while Alh. Farouq denied being paid a penny as compensation and the Appellant did not deny payment of compensation does not add to vary or modify the Appellant’s reliefs before the Court which does not directly or indirectly include the question of compensation.

It therefore has no effect whatsoever on the judgment of the lower Court. On the invitation to invoke Section 15 of the Court of Appeal Act, I find no basis for yielding to that invitation the lower Court having rightly decided the case in accordance with the law and the evidence placed before it. On the whole therefore, the sole issue in this appeal is resolved against the Appellant and in favour of the Respondents. There is thus no merit in this appeal and it is accordingly dismissed. The judgment of the lower Court delivered on 20th May, 2020 by Hon. Justice D.H. Khobo is affirmed.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading in draft form, the judgment just delivered by my learned brother A.A. WAMBAI, JCA. I agree with and adopt as mine the finding and conclusion by my learned brother that this appeal is bereft of merit. I join my brother in also dismissing the appeal and affirm the decision of the lower Court in Suit No. KDH/KAD/632/2019 delivered on 20/5/2020.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Amina Audi Wambi, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.