The Nigerian Navy & Ors V. Lionel Okon Garrick (2005)

LawGlobal-Hub Lead Judgment Report

OMOKRI, J.C.A.

This is an appeal brought by the appellants against the Ruling of Michael Edem, J., of the High Court of Cross River State, sitting at Calabar, in suit No. HC/MSC/183/2001 delivered on 10/9/2001.

The present respondent was one of the applicants before the court below. He alleged that on 11/18/2001 at about 6.10 a.m. he and other occupants were forcefully and unlawfully thrown out of his residence at No. 20 Ikot Esu Square, Diamond Hill, Calabar, by officers and men of the Nigerian Navy. He also alleged that they destroyed his house and other properties and held him hostage on the said property for eight hours. Sequel to the flagrant and unlawful abuse of his fundamental rights, the respondent on the 13/8/01 filed a motion ex-parte before the High Court of Cross River State for leave for the enforcement of his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, 1979. Leave was granted to the respondent accordingly on the same day by the court below.

Thereafter the respondent on 15/8/01 brought a motion on notice where he sought for the same reliefs as in the motion ex-parte. On 10/9/2001, the court below delivered its ruling and granted all the prayers of the respondent. The enrolled Order at pages 27 -28 of the record is as follows:

“It is hereby ordered as follows:

1. That the applicant is entitled to the right of respect for the dignity of his person and shall not be subjected to inhuman or degrading treatment.
2. That the applicant is entitled to his right of personal liberty and as a free citizen of Nigeria cannot be deprived of such liberty.
3. That the applicant has a right of private and family life which includes his privacy and the privacy of his home which rights are guaranteed and protected by the Constitution of the Federal Republic of Nigeria.
4. That the applicant as a free citizen of Nigeria has a right to acquire and own immovable property anywhere in Nigeria.
5. That the moveable property of the applicant and his interest in the movable property situate at and known as No. 10 Ikot Esu Square, Diamond Hill, Calabar cannot be compulsorily acquired by the respondents except in the manner and for the purpose prescribed by the Constitution of the Federal Republic of Nigeria.
6. That the continued lock-out of the applicant from his place of abode at No. 10 Ikot Esu Square is unconstitutional, unlawful, illegal, null and void.
7. That the applicant is entitled to re-enter his property and the respondents are hereby ordered to give effect to the right.
8. That an Order of perpetual injunction shall be and is hereby issued restraining the respondents whether by themselves, their agents, officers, servants and or persons acting in any manner whatsoever with the applicant’s enjoyment of his fundamental rights in issue herein.
9. And that the sum of N50,000,000.00 (Fifty Million Naira) is assessed and fixed as general damages for the applicant against all the respondents.”

Dissatisfied with the ruling and orders of the court below, the appellants appealed to this court on 4 grounds in their notice of appeal duly filed on the 9/10/01. From the 4 grounds of appeal the appellants distilled 3 issues for determination in their brief on 22/9/03.

“1. Whether the lower High Court had jurisdiction to hear this case. This issue relates to grounds 1, 2 and 3.

2. Whether the learned trial Judge ought to have granted the respondent’s relief not claimed by the respondent. The issue is related to ground 4.
3. Whether the respondent was entitled to the declaratory injunctive reliefs granted in his favour by the lower court. This issue is related to ground 4.”

The respondent brought a notice of preliminary objection dated 28/6/04 and filed on 29/6/04 pursuant to Order 3 rule 15 of the Court of Appeal Rules, 2002. He also raised same at page 4 in his brief filed on 22/6/04. In the alternative, the respondent at page 7 of his brief formulated 2 issues for determination. The issues are:

“1. Whether the High Court of Cross River State had jurisdiction to hear this case.

3. Whether the respondent is entitled to the reliefs granted by the High Court.”

Before proceeding further in this judgment I must point out that since the parties in this appeal filed and exchanged their briefs of argument, the appellants and their counsel have not put up any appearance before this court despite their being served on several occasions with hearing notice for this appeal. Having carefully examined the proofs of service in the courts file as the court is entitled to do following the case of Okafor v. Okafor (2000) FWLR (Pt.1) 17 at 19; (2000) 11 NWLR (Pt.677) 21; and being satisfied that the appellants were duly served with the notice of hearing of this appeal but they have refused, failed or neglected to appear before this court to present oral arguments, I shall treat the appeal as having been duly argued pursuant to Order 6 rule 9(5) of the Court of Appeal Rules, 2002.

At this juncture, I must point out that whenever a preliminary objection is properly raised attacking the competence of an appeal, it should be considered and determined or resolved first by the court at the preliminary or initial stage before going into the merits of the appeal. See Goji v. Ewete (2001) 15 NWLR (Pt.736) 273 at 280; Onyekwulunye v. Animashaun (1996) 3 NWLR (Pt.439) 637; NNB Plc. v. Imonikhe (2002) 5 NWLR (Pt.760) 294 and Yawe v. UBA (2000) 8 NWLR (Pt. 670) 739. I shall therefore consider the preliminary objection now.

The preliminary objection is predicated on two grounds namely:

“1. That this appeal is filed out of time and without leave to file out of time having first been obtained from this Honourable Court; and

2. That ground 3 of the Notice and Grounds of Appeal does not qualify as a ground of appeal.”

Learned counsel for the respondent, Mrs. Nella Andem-Ewa contended that the appellants stated at page 1 of their brief that the ruling was delivered on 10/9/2001 and the appellants filed their notice of appeal on 10/1/03, therefore, the appeal was filed outside the 3 months period prescribed by section 25 of the Court of Appeal Act. She submitted that in the circumstances, it is a condition precedent to the exercise of jurisdiction to hear the appeal by this court for the appellants to apply for leave. In other words, leave is a condition precedent to the exercise of the right of appeal where leave is required. She relied on NBCI v. Abiokwe (1997) 11 NWLR (Pt.527) 25 at 31; Njika v. Chiejina (2002) FWLR (Pt.117) 1178 at 1182 and 1195; Shaka v. Salisu (1996) 2 NWLR (Pt.428) 22 at 23 and Ayansina & Anor. v. Co-Operative Bank Ltd. (1994) 5 NWLR (Pt.347) 742 at 754. She then concluded that the appeal is incompetent.