Failure to endorse originating process for enforcement of fundamental human rights procedure cannot wrest jurisdiction from the court
IGP & ORS v. JULIUS BERGER (NIG) PLC & ANOR CITATION: (2018) LPELR-46121(CA)
IN THE COURT OF APPEAL
(OWERRI JUDICIAL DIVISION)
ON WEDNESDAY, THE 5TH DAY OF DECEMBER, 2018
Before Their Lordship
Suit No: CA/OW/266A/2013
RAPHAEL CHIKWE AGBO J.C.A
AYOBODE OLUJIMI LOKULO-SODIPE J.C.A
RITA NOSAKHARE PEMU J.C.A
1. THE INSPECTOR GENERAL OF POLICE
2. THE ASISTANT INSPECTOR GENERAL OF POILICE ZONE 9 UMUAHIA
3. ASP P. S. NJOKU, PROSECUTING OFFICER IN CHARGE NO: OW/373C/2011, ZONE 9, UMUAHIA
4. PETER B. OGUNYANWO, DCP ZONE 9 UMUAHIA………. APPELLANT(S)
1. JULIUS BERGER NIGERIA PLC
2. BARR. EMEKA OZOANI………………….. RESPONDENT(S)
LEAD JUDGMENT DELIVERED BY RITA NOSAKHARE PEMU, J.C.A.
FACTS OF THE CASE
This is an appeal against the judgment of the Imo State High Court, delivered on the 27th day of February, 2013 in suit No. HOW/654/2012.
The 2nd Respondent Emeka Ozoani, had on the 3rd of October, 2012 filed an application in the High Court, for the enforcement of his Fundamental Rights and sought certain declaration; an order of interim injunction; an order to set aside the declaration of the Applicant as a category “A” wanted person by the respondents as contained in “Thisday’s newspaper” of September 4, 2012; an order for perpetual injunction, and an order directing the respondents to jointly/severally tender an apology to the applicant. Also he had claimed the sum of N50billion being special, general and exemplary damages against the respondents jointly and severally for the unlawful violation of the Applicant’s Fundamental Rights.
As is usual in such proceedings, the respective parties had presented their cases by affidavit evidence, with exhibits attached thereto. The High Court in its well considered decision awarded N25million jointly and severally against the 2nd – 5th appellants in favour of the respondents with N200,000 costs.
The appellants were dissatisfied with the judgment and thus appealed against it. The respondents also filed a Cross-Appeal.
ISSUES FOR DETERMINATION:
The Court of Appeal determined the main appeal on these issues couched as follows: 1. That the 2nd to 5th appellants being police officers are Federal Public Servants I.E. agents of the Federal Government cannot be sued in the State High Court, hence the trial High Court lacked the jurisdiction to entertain this suit pursuant to section (I)(P), (Q) (R) of the CFRN 1999 (as amended).
2. The second ground of objection is that the 2nd respondent failed to seek and obtain the leave of the Lower Court to issue and serve the process out of jurisdiction on the respondents who live and work outside the jurisdiction of the Trial High Court of Imo state in compliance with Section 97 and 98 of the Sheriffs and Civil process act 56 lfn 2004 all the respondents worked and live at Abuja and Umuahia respectively.
3. Thirdly, our further objection is that the writ summons was not endorsed for service out of Jurisdiction on the appellants as held in the case of Bello V. National Bank of Nigeria (1992) 6 NWLR (Pt. 246) 206 @ 217-218.
4. Whether the decision of the Trial High Court was confined to the respondent’s claim under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria.
The Court also determined the Cross-Appeal on these issues couched as follows: Issue I. Whether The Counter Affidavit And Written Address Of The Appellant/Cross Respondent Filed Outside The Statutory Prescribed Period As Provided Under The Fundamental Rights (Enforcement Procedure) Rules 2009 Are Not Incompetent In The Absence Of An Application For Enlargement Of Time Being Filed And Granted By The Trial High Court.
Issue II. Whether The Sum Of N25,000,000.00 Awarded To The Cross-Appellant By The Learned Trial Judge Was Not Grossly Too Low In The Circumstances Of The Case.
On issue 1, it was the contention of the Appellants that the Imo State High Court lacked the jurisdiction to entertain the suit against the 1st set of Respondents because they are agents of the Federal Government and particularly because the suit, the subject matter of this appeal is challenging the executive action of the 1st set of Respondents as Police Officers, who attempted to arrest the 2nd Respondent upon allegation of forgery against alleged crime by the Appellants. It was further argued that in attempting to arrest the 2nd Respondent he did so in the due discharge of their statutory duties under Section 4 of the Police Act Cap p19 LFN 2004. Also, that by the provisions of Section 251 (i) (p) (q) (r) of the Constitution of the Federal Republic of Nigeria (as amended) the state High Court is divested from exercising jurisdiction over the matter in that suit.
In respect of issue 2, the Appellants argue that in issuing and serving originating process out of jurisdiction, leave of Court must be sought and obtained. They submitted that if the service of a writ is basically and fundamentally defective, the Court lacks jurisdiction to adjudicate, and anything done thereupon is null and void. It was further submitted that the 2nd Respondent, having not complied with this condition, the originating process issued and served, was manifestly defective and incompetent.
On issue, the Appellants argued that the summons was not properly endorsed because the requirement of Order 3 Rule 9 (i) of the High Court (Court Procedure) Rules Imo State 2008 that a writ of summons or other originating processes issued by Court for service in Nigeria but outside Imo State shall be endorsed by the Registry of the Court thus: “This summons (or as the case may be) is to be served out of Imo State of Nigeria and in the —- State” was not complied with.
In the 2nd Respondents brief of argument, it was submitted with regards to issue 4 that the Court below had a grasp of the issues before it and merely reframed the issues before it, as to accommodate the numerous issues formulated by the parties. It was further canvassed that a Court can reframe issues before it for the best determination of the case. It was further submitted that irrespective of the claim of a party to a suit, the Court can only award that which the party is entitled to and properly claimed.
On issue 1, the Court pointed out that the law is replete with authorities that in cases such as the present one, both the High Court and the Federal High Court has concurrent jurisdiction; and that whatever the Police is alleged to have done or failed to do in such circumstances as pertaining to breach of Fundamental Rights, cannot be said to be within the ambit of administrative and executive actions, envisaged in the provisions of Section 251 (i) (r) (q) of the Constitution of the Federal Republic of Nigeria 1999 .
The Court further observed that there is no doubt that the Appellants are Federal Public Servants. But in the matter of breach of Fundamental Rights, they cannot be said to be performing administrative and executive actions, particularly where they are alleged to have manhandled a person without cause.
On issues 2&3, the Court reiterated that it is the Registrar that endorses a Writ and not the judge, nor the litigant. Again, that this matter has to do with Fundamental Rights Enforcement Procedure, and the law as it is today, is that failure to endorse the writ cannot wrest jurisdiction from the Court, as the Court can even validate the writ.
On issue 4, the Court upheld that the applicant in the trial Court had a right to elect what action he chose. The Court also confirmed that Fundamental Rights Enforcement Procedure can be joined to an action in tort and that a Court can only award what a party is entitled to, in his claim.
The cross appeal was also duly considered by the Court.
The Appeal failed and same was dismissed by the Court. The decision of the Imo State High Court, Owerri Judicial Division delivered on the 27th of February, 2013 in suit No: OW/654/2012 was consequently affirmed by the Court and N50,000 costs was awarded in favour of the 2nd respondent only.
Nicodemus u. Omeje (SP) For Appellant(s)
Agene Mathew (DSP) for Appellants/Cross
B. N. Kumbe, Esq. with him, G. B. Nwikpo, Esq., T. N. Gboeloh, Esq., V. D. Yaagua, Esq., L. O. Wifa (Miss) for Respondents/Cross Respondents.
Emekaozoani, Esq. for Respondents/Cross Appellants For Respondent(s)
Compiled by: LawPavilion
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