Lt. Col. Eric Oseni (Rtd) V. Dele Oloje Esq. & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the Ruling of the Kaduna State High Court in suit No. KDH/KAD/486/2006, delivered by Hon. Justice M. Ladan on 12/5/2008, wherein the Court held for the 1st Respondent, who was the Applicant in the Fundamental Rights Enforcement Proceeding.

The 1st Respondent had filed an action for the enforcement of his fundamental rights under Fundamental Rights (Enforcement Procedure) Rules, 1979 and his claims were predicated on the action of 2nd Respondent, and of Appellant, who had lodged a complaint in writing with 2nd Respondent against the 1st Respondent.

The complaint was that the 1st Respondent (who had earlier been Counsel of the Appellant) made him (Appellant) to buy a plot of land from one Mr. Bashiru Bello at the cost of N350,000.00, when he (1st Respondent) did not properly conduct investigation into the title of Mr. Bello; that it turned out that the land belonged to the Nigerian Railway Property Ltd. Upon receipt of the Appellant’s complaint, the 2nd Respondent (Commissioner of Police) invited the 1st Respondent for questioning and the 2nd Respondent directed the 1st Respondent to report back after issuing threats.

The 1st Respondent in the bid to avoid the infringement of his fundamental rights filed the action to secure the protection of his rights. At the conclusion of evidsence and in a considered ruling, the trial Court granted the relief sought and awarded damages in the sum of N500,000.00 against the Appellant to the 1st Respondent.

That is the judgment Appellant appealed against and filed his Notice of Appeal on 30/6/2008, disclosing 2 grounds of Appeal, as per the last 3 pages of the main Records of Appeal. The grounds of appeal were:

“Ground One:

The learned trial Judge erred in law when he held that the 1st Respondent’s affidavit of service, dated 2nd May, 2007, was in compliance with the requirements of Order 2, Rule (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, when that affidavit is not an affidavit of service.

PARTICULARS

(i) The 1st Respondent deposed to the said affidavit of service that he personally effected service of the originating processes on the Appellant through his Counsel, Z. Oche & Co.

(ii) The Court Bailiff, Mal. Garba Mohammed sworn (sic) to an affidavit dated 1st November, 2006 that he served the Appellant with the originating processes on 31st October, 2006 at about 3.10 pm.

(iii) The originating processes are usually served by Court Bailiffs on the party affected personally.

(iv) The Law Firm of Z. Oche & Co. did not at any time undertake to receive the originating processes on behalf of the Appellant.

“Ground Two: