Mrs. Baby Justina Luna V. Commissioner Of Police Rivers State Police Command & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI J. C. A. (Delivering the leading judgment)

This is an appeal against the decision of Federal High court 2, Port Harcourt Judicial Division presided over by A. O. Faji (Judge) dismissing the application of the Appellant for enforcement of her fundamental human right wherein the learned trial judge held as follows:

“The powers of the police under sections 214 and 216 of the constitution and sections 4 and 24 of the Police Act should not also be feterred by the court unless there is a good reason. It seems to me that any interference in the exercise of the powers must be clearly defined in the order authorizing same. The police cannot therefore be restrained from carrying out their functions for all time and for all subjects. That will be a blanket interference. such an order is vague and will definitely lead to confusion. Also having struck out prayer 1 which is the prayer for a declaration, there is nothing for the 2nd prayer, which seeks an injunction to stand on. Thus prayer 1 having failed, prayer 2 must also fail since prayer 1 is the basis for the legal right to the injunction sought. Having struck out the two prayers on the motion paper the motion itself is hereby dismissed. There shall be cost of N5,000.00 in favour of each of the 3rd – 5th Respondents.”

The facts of the case as can be gathered from the record are that: The Appellant as Applicant at the Court below filed a Motion Exparte for leave to enforce her fundamental human rights against the Respondents and the said leave was subsequently granted.

The Appellant thereafter filed the Motion on Notice to enforce her fundamental human rights as follows:

1. A declaration that the continuous intimidation, harassment, embarrassment and the arrest of the Applicant is unlawful, unconstitutional and constitutes an infringement of the fundamental right of the Applicant to personal liberty. Freedom of expression, freedom of movement and personal dignity.
2. An order of injunction restraining the Respondents, especially the 1st and 2nd respondents, either acting by themselves or through their servants, Agents or privies from arresting, intimidating, harassing, embarrassing or interfering in any manner whatsoever with the personal liberty, freedom of expression, dignity of the Applicant as guaranteed under the constitution of the Federal Republic of Nigeria.

The 3rd to 5th Respondents out of the five Respondents were ones who filed a counter affidavit to the said application. The 1st and 2nd Respondents refused or neglected to file counter affidavit and did not also appear either in person through a counsel to defend the action.

The case proceeded to hearing and arguments were taken by the learned trial judge and adjourned the matter for judgment to a later date. on the 29th January 2004, the learned trial judge delivered his verdict wherein the application of the Appellant was dismissed as stated a while ago.

Aggrieved by the decision of the learned trial judge, the Appellant, on the 26th day of February,2004 approached this court and filed a Notice of Appeal which contains four grounds from which four issues were distilled for determination. The issues are:

“1. Whether the learned trial judge considered at all the issue of the Appellant making out a case with respect to her fundamental rights.(This issue is distilled from ground 1 (one) of the grounds of Appeal).

2. Whether the learned trial judge was right when he held that relief 1 on the motion is not directed at anyone (This issue is distilled from ground 2 (two) of the grounds of Appeal.)
3. Whether the learned trial judge was right in concluding that relief 2 on the motion is too wide and vague (this issue is distilled from ground 3 (three) of the grounds of Appeal)
4. Was the learned trial judge right in awarding cost of N15, 000 against the Appellant or any cost at all. This issue is distilled from ground 4 (four) of the grounds of Appeal.)” For his part, learned counsel for the 3rd to 5th Respondents did not formulate any issue for determination but adopted the ones distilled by the Appellants as theirs.

On 11th January, 2010 when the appeal came before us for hearing, in accordance with the rules of this court, learned counsel for the Appellant adopted his brief dated and filed 4th of February 2005 and urged us to allow the appeal.

For his part, learned counsel for 3rd to 5th Respondent adopted his brief of argument dated 18th May 2006 but deemed filed on 2nd July 2007. He urged us to dismiss the appeal for lacking in merit.

In arguing issue No. 1, which is whether the learned trial judge considered at all the issue of the Appellant making out a case with respect to her fundamental rights, learned counsel submitted that the learned trial judge did not consider at all the issue of whether the Appellant has made out a case with respect to violation of her fundamental human rights even though the issue was part of what was submitted to the learned trial judge for evaluation and proper consideration.

It is the submission of the learned counsel that it is trite law that for a judge to produce a judgment which is fair and just on a case put up by two or more contending parties, he must fully consider the evidence proffered by all the parties before him, ascribe probative value it, it make definite findings of fact, apply the relevant law and come to some conclusion. He relied on the cases of LEKO VS SODA (1995) 2 NWLR (PT 378) P. 435, WOLUCHEM VS GUDI (1981) 5SC P. 29T AND OLUFOS OYE VS OLORUNFEMI. Learned counsel further submitted that failure to make such findings is capable of resulting in a miscarriage of Justice. He relied on the case of AGBANELO v. U.B.N. LTD (2000) TNWLR (PT 66) P. 540. He urged us to resolve this issue in their favour.

For his part, learned counsel for the 3rd to 5th Respondents, concedes that a trial court should consider all issues properly raised before it but failure to pronounce on all material issues is not necessarily fatal to a case if such failure did not occasion a miscarriage of Justice. He is of the further view that, a court is not bound to pronounce on an issue which had been subsumed in another issue that has been determined by that court. He relied on the case of DALARI v. SADIKWU (1998) L2 NWLR (pr. 576) p. 112 at 121H – 122A to buttress his submission on this point.