Cyprain E. Ibeneme V. MR. Awolabi & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A (Delivering the Leading Judgment)

This is an Appeal against the decision of the Abia State High Court, in suit No. HOB/37M/06, delivered on 5/2/2007 by Hon. Justice S.M. Analaba, wherein the court dismissed the Fundamental Rights application, taken out by the Appellant, (Applicant at the Court below), saying that Applicant did not establish that:

“the Respondents engaged the services of the Bakassi men to invade, brutalise, arrest and detain them.”

In the application, at the trial court, filed pursuant to Order 1 Rule 2 (1) (3) of the Fundamental Rights (Enforcement procedure) Rules, 1979, Applicant had sought a declaration that the invasion of his residence at No. 15 Brass Street, Aba, arresting and detention by persons, who acted at the instance and/or instructions of the 1st and 2nd Respondents was unconstitutional, in that the same constituted infringement of his fundamental right; and that his humiliation and disgrace, in the hands of the said agents of the 1st and 2nd Respondents, acting in the course of their employment by the 3rd Respondent, was unconstitutional, as it infringed his rights to dignity of his person. He sought an order compelling the Respondents to pay to him the sum of One Million Naira (N1, 000.000), as compensation.

Appellant had filed all the necessary processes and served same on the Respondents, who also filed a joint counter affidavit, denying the allegations made by the Applicant. The trial court believed the Respondents and dismissed the application.

Appellant filed Notice of appeal on 16/4/2007 and an Amended memorandum of grounds of appeal on 5/3/2012, with the leave of this court. He raised 4 grounds of appeal altogether (2 grounds on each) He filed his brief of argument on 7/3/12 (which was deemed duly filed on 3/7/12), and formulated a single issue for determination, namely,

“Was the learned trial Judge correct to hold that the Applicant failed to prove that the Respondents engaged the services of Bakassi men, who invaded the house of the Appellant, brutalized, arrested and detained the Applicant?”

The Respondents filed their brief on 27/2/13, with the leave of this court, granted on the same date (27/2/13). The Respondents adopted the lone issue formulated by the Appellant for the determination of the appeal, but they added an addition:

“Whether the trial court’s jurisdiction was not vitiated by (a) Non – direct or personal service of the Application on the Respondents as provided by Order 2 Rules 3 and 4 of Fundamental rights (Enforcement Procedure) Rules 1979, and (b) Non – Filing of the facts relied on by the Appellant at the lower court contrary to Order 1 Rule 2 (3) of Fundamental Right (Enforcement procedure) Rules, 1979. (c) Non – inclusion of the illegal Bakassi persons that allegedly arrested, detained and tortured the Appellant as parties in the matter.”

The Respondent did not relate his additional ground to any of the grounds of appeal raised by the Appellant, and, infact, the issue does not distill from any of the grounds of appeal. The said additional issue, raised the by Respondents, is therefore a stranger to this appeal as the same is floating, not having any base to hang, or settle.

The law is that an issue for determination must be distilled from ground(s) of appeal, which must, in turn, arise or flow from the judgment appealed against. See the case of OSSAI v FRN (2013) 13 WRN 87; Unilorin v. Olawepo (2012) 52 WRN 42; Shettima vs Goni (2011) 18 NWLR (pt 1297) 413; Oseni v. Bajulu (2010) All FNLR (pt.511) 813; Shuaibu Abudu v. The State (2014) LPELR 22562 (CA), Page 49.

The said additional issue by the Respondent, being incompetent, is hereby struct out, with the arguments there under.

If the Respondent had really wanted to argue that issue, he needed to have filed a Respondent’s Notice, to raise it as a fresh issue not contempted in the grounds of appeal by Appellant.

Arguing the Appeal on 28/5/2014, the Appellant’s Counsel, Chief Eze Duruihuoma S.A.N., who settled the brief, referred us to the case of “CCC Thrift and Credit Society V. Ekpo (2000) 17 NWLR (Pt.748) 649, which the trial court relied on, and argued that the inference the trial court made of the above case, in con of resolving conflicts in affidavit was wrong; that the impression given by the trial judge was that the above case dealt with a situation where a party, after filing an original counter – Affidavit, failed to controvert new facts disclosed in a further and better Affidavit.