Denca Services LTD V. Leo Oleka & Sons LTD & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

At the Federal High Court Lagos, the 1st and 2nd respondents as applicants commenced proceedings in suit no FHC/L/CS/345/07 against the appellant as 2nd respondent and the 3rd respondent herein as 1st respondent for enforcement of their fundamental rights by first filing a motion ex parte for leave on 5/4/07. After leave was granted on 14/5/07, the 1st and 2nd respondents filed their motion on notice in which they prayed for the following reliefs:

1. “A declaration that the arrest and detention of the Applicants’ Truck/Trailer with Registration Number AW 213 EKY by the Respondents from 8th day of April 2005 till date of release is illegal and unconstitutional.
2. A declaration that the continued arrest and detention of the Applicants’ Truck/Trailer since the 8th day of April 2005 amounted to an illegal and unconstitutional threat to the property and lives of the Applicants and their workers without any reasonable or legal justification.
3. An Order of this Honourable Court awarding the sum of N5,000,000.00 (Five Million Naira) general damages in favour of the Applicants and against the Respondent for their unlawful arrest and detention of the Applicants’ Truck/Trailer rights to their property and since the 8th day of April 2005 amounting to wicked violation of the Applicants right to their property and their means of livelihood.
4. An order of this Honourable Court commanding the second respondent to pay all their outstanding bills to the applicants with effect from the 8th day of April 2005 to date of release of the said Truck/Trailer.”

The 1st Respondent is in the transport business of haulage of goods within Nigeria particularly in Lagos State. The 2nd respondent is its Managing Director. On the 8th day of April 2005, the Appellant hired the services of the 1st Respondent through the 2nd Respondent for the haulage of a 20ft container from SCOA Kirikiri terminal to No. 53 Kosoko Street, Lagos. The Appellant had through a way bill misrepresented to the 1st and 2nd Respondents that the contents of their 20ft container were padlocks.

It turned out that the contents were contraband goods – lace materials. The truck was arrested in transit by the 3rd respondent claiming that it had a tip off that the truck was carrying contraband goods. The 1st and 2nd respondents claim that it was all a conspiracy as the 20ft container had been in the possession of the 3rd respondent long before then and they decided to release it to the appellant only to turn round and arrest their truck. Even after the arrest, the prohibited lace materials were released to the appellant but the 3rd respondent refused to release the truck.

They further claimed that the 3rd Respondent deliberately neglected to carry out any form of investigation in respect of the unlawful arrest and detention of the 1st and 2nd Respondents truck. The 3rd Respondent detained the truck for two years and refused to release the truck despite series of appeals from the 1st and 2nd respondents. The truck was finally released on the 10th day of May 2007 after the institution of this suit and the service of the processes on the 3rd respondent.

On being served with the Originating Processes, the appellant raised a Preliminary Objection to the suit on the grounds that:

1. The reliefs sought being reliefs relating to temporary possession justified under Section 44 (k) of the Nigerian Constitution, can only be procedurally commenced with a Writ of Summons.
2. The Applicants/Respondents have no right whatsoever breached or likely to be breached with respect to Truck/Trailer with Registration Number AW 213 EKY.
3. The provisions of the Federal High Court (Civil Procedure) Rules 2000, which rules regulate the said applicants’ reliefs were not followed by the applicants in asking for the reliefs.
4. By virtue of the combined effect of grounds 1, 2 and 3 above, the condition precedent to this honourable court assuming and exercising jurisdiction in respect of the said reliefs has not been fulfilled.
5. Consequentially, this honourable court lacks jurisdiction to entertain the Applicants/Respondents claims with respect to the Reliefs.

The 3rd respondent, though duly served did not participate in the trial. The Hon trial Judge A.R. Mohammed J heard the Motion on Notice and the Preliminary Objection together, and in a reserved Ruling on 29/03/10 dismissed the Preliminary Objection and granted reliefs 1 & 2 of the motion on notice dated 17/5/07 and N2million as compensation in favour of the applicants against the respondents for the violation of the applicants’ right to property guaranteed under Section 44(1) of the Constitution of the Federal Republic of Nigeria 1999.

Dissatisfied with the ruling, the appellant by Notice of Appeal dated 04/05/10 appealed against the Ruling. From his four grounds of appeal, three issues were formulated as follows:

(a)In view of S. 44(1) & (2)(k) of the Nigerian Constitution, was the Applicants/Respondents’ action for arrest and detention of truck number AW 213 EKY competently commenced by way of Fundamental Rights Enforcement Procedure and if so was the action not time barred thus impairing the jurisdiction of the trial court over the action?

(b) Was the trial court’s decision in this suit not perverse, when after exonerating the Appellant from arrest and detention of truck number AW 213 EKY turned around and awarded N2million conjunctively to the liability of the Appellant?

(c) Whether leave granted ex parte to enforce Applicants/Respondents fundamental rights, ipso facto extinguished Appellant’s constitutional right to raise preliminary objection to the initiating procedure to this suit and/or discharged the trial court from its judicial duty to resolve judicially the issues of time-bar and purport of S 44(2) (k) of the Nigerian Constitution properly raised before it in this action.

The 1st and 2nd respondents’ brief was settled by N.N. Nwokorie Esq. The brief is defective. Counsel did not formulate any issues and did not indicate that he was adopting the issues formulated by the appellant. Counsel went on a tangent of his own arguing issues at large when he neither filed a cross appeal nor a respondent’s notice. In his reply brief, learned counsel for the appellant relying on the cases of Orji vs. Zaria Industries Ltd (1992) 1 NWLR (Pt. 216) 124 @146 and Opara vs. Dowell Schlumberger (Nig) Ltd (1995) 4 NWLR (Pt. 390) 440 urged us to strike out the 1st and 2nd respondent’s brief.

In Orji vs. Zaria Industries Ltd (supra) @146 G, Akpata JSC observed:

“It is to be noted that in the respondent’s brief issues for determination were not formulated. Neither were the issues proffered by the appellant adopted. Besides, counsel for the respondent inevitably fell into a further grave error by basing his arguments on the grounds of appeal without regard to the issues formulated in the appellant’s brief. Failure to formulate issues in a brief is sufficient by itself to render the brief incompetent, and arguments canvassed therein would therefore be of no consequence. The brief becomes irredeemably bad if, as in this case, arguments are not based on any issue or issues or semblance of them.”