The Assistant Inspector General of Police & Anor V. Alhaji Ibrahim Isa Gombe (2016)

LawGlobal-Hub Lead Judgment Report

SAIDU TANKO HUSSAINI, J.C.A.

This appeal is against the Judgment delivered at the Federal High Court, sitting in Yola, on 9th June 2015 coram: Justice Bilkisu Bello Aliyuin Suit No. FHC/YL/CS/2015.

The respondent as Plaintiff had by an Originating Summons filed by him at the Federal High Court registry on the 19th February, 2015 sought the several reliefs set out in the originating process to wit:
A declaration that the 1st defendant has no power to investigate a valid Judgment of Upper Area Court 2 Yola in Suit No. UA2Y/CV/19/322/2013 which has not been set aside by the same Court or on appeal.
(i) A declaration that the 1st respondent has no power to investigate a valid auction conducted by the Upper Area Court 2 pursuant to its Judgment delivered on 23rd December, 2014 which has not been set aside
(ii) An Order of Court directing the 1st respondent to release plaintiffs property that was seized which is in custody of the 2nd Defendant.
(iii) An Order of Court directing the 2nd defendant to immediately release the (sic) plaintiff?s property in its custody.

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The affidavit deposed to in support of the application at the Court below contain diverse facts and circumstances relied upon by the plaintiff to sustain the reliefs sought by him. It is apparent that respondent did not depose to any counter-affidavit in opposition to the Originating Summons as the Court below had struck out on ground of incompetence the application filed by them seeking as it were, an extention of time to file their counter-affidavit. The case, thus proceeded into hearing at the end of which the Court below in a considered Judgment delivered on 9th June, 2015 granted all the reliefs sought by the appellants the plaintiffs before that Court.

Dissatisfied with the Judgment rendered at the Court below, the defendants appealed to this Court vide the Notice of Appeal filed on the 11th June, 2015 containing two (2) grounds of appeal and reflected at pages 87 ? 89 of the record of appeal. The said record was transmitted to this Court on the 26th August, 2015. For clarity of purpose I should set out the 2 grounds as follows:
GROUNDS OF APPEAL No. 1:
The learned trial Judge of the Federal High Court erred in law and on the facts, when

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he held that the appellants were investigating a Judgment and its execution of the Upper Area Court.
PARTICULARS OF ERROR
(a) It was unconstitutional to deliver the Judgment.
(b) The hearing and the determination of the Originating Summons filed by the respondent foreclosed the fundamental human right of the appellants.
(c) The counter-affidavit sought to be file as response on Respondent?s originating summons discloses substantial facts which assist the trial Court in arriving at a just and fair decision.
GROUND OF APPEAL No. 2.
The learned trial Judge erred in law when he adjourned the matter to 13th May, 2015 within which to enable the respondent file his written address on one hand, but on the other hand refused to entertain application from the appellant.
PARTICULARS OF ERROR
(a). The learned trial Judge erred in law when he proceed and deliver Judgment against the appellants without hearing their response inspite, the pendency of a letter of adjournment dated 13th May, 2015.
(b). The learned trial Judge was bias in her Judgment.
(c). The appellants were not given the opportunity to respond on the

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originating Summons filed by the respondent.
(d). The trial Judge did not allow the appellants to respond on the originating Summons which was filed by the respondent after discovering its defects/incompetency
(e). Already the neutrality of the trial Judge has been stained based on her disposition.

Briefs of argument were prepared filed and exchanged between counsel on both sides. The brief prepared for the appellants dated the 19th/10/2015 and filed the same date has the following two (2) issues distilled by counsel, at pages 5 ? 6, namely:-
ISSUE ONE:
Whether the appellants were given opportunity to defend this suit by the Court and whether learned trial Judge was not wrong in law when he struck out the appellants? Motion on Notice dated 5th March, 2015 which Motion was attached with the appellants? counter affidavit and written addresses in response to the respondents? Originating Summons.
ISSUE NO.TWO
Whether failure to comply with the Rules of the Court, justified the decision of same to close doors for a litigant particularly, the appellants? right to be heard, bearing in mind the

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principle of natural justice, equity and fair hearing as captured by chapter 5 of the 1999 Nigeria Constitution vis–vis whether the trial Judge was bias while presiding over this matter. (Distilled from the two grounds filed by the appellants in their Notice of Appeal).

Respondents on the other hand formulated just 1 (one) issue for determination, that is:
Whether the Appellants were granted fair hearing by the Lower Court.