The Chief Of Naval Staff V. Lt. Cdr Stephen Ochepo Edeh (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court, Lagos Division delivered on 11th of November, 2011 awarding the 1st respondent a total sum of N3m only as exemplary and aggravated damages as well as some injunctive orders against the appellant.

The 1st respondent, as plaintiff, applied for his Fundamental Rights and claimed the following reliefs:

“1. A declaration that the arrest and continued detention of the applicant at the NNS Beercroft, Apapa, Lagos by the respondent on the 4th of August, 2011 constitutes a breach of the applicant’s fundamental right to freedom of movement, liberty and dignity of human person prescribed in Section 41, 35 and 34 respectively of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 5, 6 and 12 of the African Charter on Human and People’s Right Cap. A9, Laws of the Federation of Nigeria, 2004.

2. AN ORDER compelling the respondent to release the applicant from detention at the NNS Beercroft, Apapa, Lagos forthwith.
3. N100,000,000.00 (One Hundred Million Naira) being exemplary and aggravated damages against the respondents, jointly and severally for unlawful violation of the applicant’s fundamental right.
4. AN ORDER OF INJUNCTION restraining the respondents whether by themselves or by their officers, agents, servants, privies or others however described from further arresting or detaining the applicant and/or in any other manner infringing on the fundamental rights of the applicants on facts relating to this application.
5. AN ORDER OF INJUNCTION restraining the respondents whether by themselves or by their officers, agents, privies or others however described from infringing the applicant’s right to human dignity, liberty, personal liberty or in any other manner infringing on the fundamental rights of the applicant.”

The first day the application came up for hearing, the trial Judge was not satisfied that the originating processes had been served. The trial Judge ordered that the processes be served on all the respondents. On the next adjourned date, the trial Judge was seemingly satisfied that the originating processes had been served. The respondents were not in Court and judgment was entered for the plaintiff.

The respondents were unhappy with the judgment when they were served with the judgment. They immediately filed two motions. One was a motion to set aside which the trial Judge refused hearing. However, the trial Judge heard the motion for extension of time to appeal against judgment. This was granted, hence this appeal. The 1st respondent, as appellant, filed his Notice and 10 grounds of Appeal. The appellant also filed his appellant’s brief on 17th of January, 2013 and appellant’s reply brief on 7th of March, 2013.

The 1st respondent filed its brief on 26th of February, 2013. The other respondent filed no brief.

On the 3rd of November, 2014 when this appeal came up for hearing, the parties adopted their various briefs and urged the Court to allow or dismiss this appeal as per their respective briefs.

The appellant articulated eight (8) issues as follows:

“1. Whether the appellant’s right to fair hearing was not breached in the hearing and determination of the suit at the trial; (Grounds 1 and 3 of the Notice of Appeal).

2. Whether the suit initiated by the 1st respondent is not incompetent, the originating processes having been issued in total disregarded of Section 97 and 99 of the Sheriff and Civil Process Act; (Ground 2 of the Notice of Appeal).
3. Having regard to the different signatories on the originating processes purportedly signed by the same Anthony Omagbomi, whether the originating processes were competent; (Ground 4 of the Notice of Appeal).
4. In view of the Section 178 of the Armed Forces Act Cap. A20 LFN, 2004, whether the trial Court had the jurisdiction to entertain the suit of the instant appeal; (Ground 5 of the Notice of Appeal).
5. Whether the 1st respondent suit disclosed any reasonable cause of action and which is sustainable against the appellant in view of Section 34(2)(b)(c) and (e) of the Constitution of the Federal Republic of Nigeria, 1999; (Ground 6).
6. Whether the trial Court’s judgment which only reads “orders as prayed” is a good judgment which ought to be set aside in the instant appeal; (Ground 9 of the Notice of Appeal).
7. Whether the trial Court was not wrong to have delivered its judgment in favour of the 1st respondent based on the facts deposed to in the affidavit which were contradictory, potentially false and offends several provisions of the Evidence Act, 2011; (Ground 7 of the Notice of Appeal).
8. Whether the trial Court was right to have awarded the sum of N3,000,000.00 (Three Million Naira) as exemplary and aggravated damages against the appellant in the circumstances of the suit of the instant appeal; (Grounds 8 and 10 of the Notice of Appeal).”

The 1st respondent articulated his own five (5) issues for determination. They are as follows:

1. WHETHER IN LAW AND IN FACT THE APPELLANT WAS DENIED FAIR HEARING BY THE LOWER COURT (This issue is distilled from grounds 1 and 3 of the Appellant’s notice of appeal).
2. WHETHER THE ORIGINATING MOTION FILED BY THE 1ST RESPONDENT DATED 30TH SEPTEMBER, 2011 IS INCOMPETENT AND THEREBY DIVESTED THE LOWER COURT OF ANY JURISDICTION (This issue is distilled from grounds 2 & 4 of the Appellant’s notice of appeal).
3. WHETHER THE PROVISIONS OF SECTION 178 OF THE ARMED FORCES ACT, CAP. A20, LFN, 2004 IS APPLICABLE IN THE CIRCUMSTANCES OF THIS CASE (This issue is distilled from ground 5 of the Appellant’s notice of appeal).
4. WHETHER THE FACTS, GROUNDS AND CIRCUMSTANCES OF THE CASE WERE SUFFICIENT AND CREDIBLE TO SUSTAIN THE RELIEFS SOUGHT BY THE 1ST RESPONDENT AT THE LOWER COURT. (This issue is distilled from grounds 6, 7, 8 & 10 of the Appellant’s notice of Appeal).
5. WHETHER THE LOWER COURT WAS WRONG IN LAW TO HAVE ENTERED JUDGMENT BY MAKNG A PRONOUNCEMENT IN THE FOLLOWING MANNER- “ORDERS AS PRAYED” (This issue is distilled from ground 9 of the Appellant’s notice of appeal).

The two sets of issues can be streamlined as follows:

The appellant’s issue 1 is the same as respondent’s issue 1.

Appellant’s issues 2 & 3 are the same as respondent’s issue 2.