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.

On the second ground of the objection, learned counsel submitted that the appellants’ ground 3 is incompetent in that it does not qualify as a ground of law in an appeal. Relying on Thor Ltd. v. FCMB Ltd. (2002) 4 MJSC 179 at 181; (2002) 4 NWLR (Pt.757) 427 and 196, counsel urged the court to strike out both the ground and the issue for determination based on it.

The appellants have not filed any reply brief in response to the preliminary object on raised by the respondent both in his notice of preliminary objection and in his brief. Where an appellant fails to respond to a notice of preliminary objection to his appeal, he is deemed to have admitted all the issues raised and canvassed in the preliminary objection. See Goji v. Ewete (supra).Ordinarily, this would mean that the appellants have nothing to offer in answer to the preliminary objection in this appeal and I would have validly determined the preliminary objection on this score alone and dispose of this appeal. However, I feel obliged and indeed obligated to carefully consider the issues raised in the preliminary objection because of some observations I have made.

I observed that the first ground of the preliminary objection is premised on the appellants’ statement at page 1, paragraph 2.2 of their brief. This is rather unusual because the competence of an appeal is not dependent on statements made by an appellant in his brief but on his notice of appeal. Whether or not there is a competent appeal will definitely depend on whether the notice of appeal was properly and duly filed in accordance with the law. By the provisions of Order 3 rule 2(1) and 5 of the Court of Appeal Rules, all appeals shall be brought by notice (hereinafter called “notice of appeal”) to be filed in the registry of the court below and an appeal is deemed filed or brought when the notice of appeal has been duly filed in the registry of the court. See Ayoola v. Yahaya (2005) 7 NWLR (Pt.923) 122 at 135-136 and USA Ltd. v. Taan (1993) 4 NWLR (Pt.287) 368.

Secondly, I have carefully perused the notice of appeal which is at pages 41-46 of the record and I observed that it was properly and duly filed in accordance with the law on 9/10/01, barely 30 days after the court below delivered its ruling on 10/9/01. The ruling of the court below, delivered after hearing a motion on notice in a suit instituted under the Fundamental Rights (Enforcement Procedure) Rules, is a final decision because it finally determined the rights of the parties and finally of the matter or suit and the court below is now functus officio. See Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (Pt.622) 242; Menakanya v. Menakanya (1994) 5 NWLR (Pt.345) 515; Akpan v. Ekpo (2001) 5 NWLR (Pt.707) 502 at 511 and 512 and Lamurde v. Adamawa State JSC (1999) 12 NWLR (Pt.629) 82.

Now section 25(2)(a) of the Court of Appeal Act provides:

“25(2) The periods for giving of notice of appeal or notice of an application for leave to appeal are:

(a) In appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against final judgment.

(b)…

Having regard to the facts and circumstances of this appeal, it is clear that by virtue of the provisions of section 25(2) of the Court of Appeal Act, the appellants had three months after the delivery of the ruling of the court below, which is a final decision, within which to appeal. See Agaka v. Oladeji (2000) 13 NWLR (Pt.683) 135 and Enaleocha v. ACB Plc. (2001) 5 NWLR (Pt.683) 135 at 681. Accordingly, the appellants having filed their notice of appeal on 9/10/01, their appeal was very well within time. Therefore, there was no need for the appellants to apply for leave. This notice of appeal is duly and properly filed and this appeal is competent.

What the appellants stated in paragraph 2.2 of page 1 of their brief of argument must be considered as a mere slip, which is curable. Whatever blunder committed by the appellants in their brief, the attitude of the Court of Appeal is not to punish counselor parties for the mistakes they may make in the presentation of their appeal. In Odeleye v. Adepegba (2001) 5 NWLR (Pt.706) 330 at 343; this court held that it will overlook the lapses in bad briefs so as not to punish parties unduly and in the interest of justice. See also Ekpan v. Uyo (1986) 3 NWLR (Pt.26) 63 and Akpan v. State (1992) 6 NWLR (Pt.248) 439. A cursory glance at the record of proceedings presented before this court revealed that the learned counsel for the appellants, Chief Bolaji Ayorinde erroneously referred to the date on which the court below certified all the documents in the record of appeal, which were stamped on 10/1/2003. See pages 27-44 of the record. In the circumstances, it was palpably wrong for the respondent to capitalize on the error made in the appellants’ brief and present a misleading picture before the court. The duty of counsel as ministers in the temple of justice is to assist the court to do substantial justice in every case. In any case, whatever error, discrepancy or irregularity in the appellants’ brief cannot vitiate or nullify the notice of appeal, which was duly filed on 9/10/01. That is the only notice of appeal filed by the appellants in the record and it is the only one before this court. In the instant appeal, the appellants having filed their notice of appeal on 9/10/01 against the ruling of the court below delivered on 10/9/01, is deemed to have been duly filed and pending before this court since 9/10/01. The statement made by the appellants in their brief is immaterial and irrelevant. Therefore, the 1st ground of objection having been premised on a mere statement in the appellants’ brief has no leg to stand and it must fall. It follows therefore that the first ground of the preliminary objection is devoid of any substance or merit and I accordingly overrule it. See Nasco Mgt. Services Ltd. v. Amaku Trans. Ltd. (2003) 2 NWLR (Pt.804) page 290 at 327.

On the second ground of the objection, learned counsel for the respondent, Mrs. Nella Andem-Ewa contended that appellants’ ground 3 is incompetent because it does not qualify as a ground of law, rather it is a ground of fact and therefore the appellants ought to have sought for and obtained the leave of court before filing same.

Section 241(1)(a) of the 1999 Constitution provides:

“1. An appeal shall lie from the decisions of the Federal High Court or a High Court as of right in the following case.

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”

It is significant to point out and to note that the provisions of section 241, (a) -(f) are disjunctive and not conjunctive. I have already held that the ruling of the court below is a final decision in the sense that it disposed of all the issues in the suit before it and it finally determined the rights of the parties in the suit. There is nothing left to be adjudicated upon by the parties before the court below now. See further Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924 and Akinsanya v. UBA Plc (1986) 4 NWLR (Pt.35) 273. In fact, the parties in this appeal did not contest the issue and it was not made an issue in this appeal.

I have also held that by virtue of section 25(2) of the Court of Appeal Act, the appellants’ notice of appeal having been filed on 9/10/01 against the ruling of the court below delivered on 10/9/01 was well within the 3 months period prescribed for filing their appeal. It is therefore glaringly clear that having regard to the provisions of section 241(1)(a) of the 1999 Constitution, the appellants do not require any leave to file their appeal. It does not matter that ground 3 is a ground of law or ground of mixed law and fact or ground of fact alone. The case of Thor Ltd. v. FCMB (supra) has no relevance to the facts and circumstances of this appeal and it is inapplicable. I therefore, see no merit whatsoever in the second ground of the preliminary objection and I hereby overrule it.

Having overruled the preliminary objection, I shall now proceed to consider the main issues in this appeal.

On issue 1, the appellants contended that they were not served with the originating and other processes in the court below. It was argued that there was no proper service on the appellants, therefore, the defect is fundamental and it vitiates the entire proceedings as it was held in Ajidahun v. Ajidahun (2000) 8 WRN 17; (2000) 4 NWLR (Pt.654) 605; M.G.F. (Nig.) Ltd & Anor. v. Gwus Int. Ltd (2001) 24 WRN 148; (2001) 9 NWLR (Pt.718) 413 and O. U. Insurance Ltd. v. Marine & General Ass. Co. (2001) 9 NWLR (Pt.717) 92.

The appellants also urged that the court below did not have the jurisdiction to determine the suit as all the appellants were agents and or agencies of the Federal Government of Nigeria and were therefore not subject to the jurisdiction of the High Court of Cross River State by virtue of section 251(1)(r) of the 1999 Constitution. They relied on Mil. Adm. of Benue State v. Abayilo (2001) 5 NWLR (Pt.705) 19 at 35 and Govt. of Kwara State v. Gafar (1997) 7 NWLR (Pt.511) 51. Furthermore, the appellants argued that the appearance of the State counsel, Joseph Efa, Esq., on behalf of the respondent at the court below and his endorsement of the court processes vitiated the jurisdiction of the court below.

On issue 2, the appellants contended that the trial Judge was wrong to have granted reliefs in respect of No. 10, Ikot Esu Square, Diamond Hill, Calabar, when there was no such claim before it because the relief claimed was in respect of No. 20, Ikot Esu Square, Diamond Hill, Calabar. He referred to Eghaeuba v. Oruonghae (2001) 11 NWLR (Pt.724) 318; UBN Plc. v. Ekulo Farms Ltd. (2001) 7 NWLR (Pt.711) 21; Salalu v. Para-koyi (2001) 1 NWLR (Pt.695) 446 and Necha v. INEC (2001) 3 NWLR (Pt.699) 74.

On issue 3, it was the contention of the appellants that the trial Judge ought not to have granted the declaratory injunctive relief without hearing evidence as the respondent can only succeed on the strength of his own case. They relied on Kodilinye v. Odu (1935) 2 WACA 336; Idundu v. Okumagba (1976) 9 – 10 SC 227; Mil. Adm., Akwa Ibom State v. Obong (2001) 1 NWLR (Pt.694) 214 at 235 and Udo v. C. S. N.C. (2001) 14 NWLR (Pt.732) 116.

On the respondent’s issue 1, Mrs. Nella Andem-Ewa pointed out that this court had, on application by the respondent, admitted the proofs of service of court processes issued out of the court below to form part of the records of proceeding in this appeal. She then submitted that the proof of service is conclusive proof that the appellants were served with the court processes at the court below. She relied on Rector, Kano State Polytechnic v. Dan Agundi (2002) FWLR (Pt.127) 1058 at 1060 and 1067 and A.-G., Anambra State v. Okeke (2002) FWLR (Pt.1120) 175 at 190; (2002) 12 NWLR (Pt.782) 575

On the parties before the lower court, learned counsel submitted that the jurisdiction of the court is determined by the cause of action and not the parties and in the instant case on appeal, the cause of action before the court below is admittedly, the infringement of the respondent’s fundamental human rights. She referred to Western Steel Workers Ltd. v. Iron and Steel Workers Union of Nigeria & Ors. (1987) 1 NSCC 133 at 140; (1987) 1 NWLR (Pt.49) 284; Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) NSCC 226; (1983) SCNLR 296 Federal Mortgage Bank of Nig. v. Olloh (2002) 8 MJSC 82 at 91; (2002) 9 NWLR (Pt.773) 475 and A.-G., Abia State & Ors. v. A.-G., Federation (2003) FWLR (Pt.152) 131 at 201; (2003) 4 NWLR (Pt.809) 124 She contended that the court below had jurisdiction to entertain the respondent’s claim by virtue of section 46(1) of the 1999 Constitution.

On the respondent’s issue 2, Mrs. Nella Andem-Ewa submitted that the appellants are merely trying to magnify a slip of the pen or clerical/typographical error into an issue. She relied on Lebile v. The Registered Trustees of Cherubim and Seraphim Church (2003)1 SC (Pt.1) 25 at 36; (2003) 2 NWLR (Pt.804) 399; Ejeka v. The State (2003) 6 MJSC 83 at 86; Owhonda v. Ekpechi (2003) 12 MJSC 1 at 19; (2003) 17 NWLR (Pt.849) 326 and Ndulue v. Ibezim (2002) 12 MJSC 150 at 168, and submitted that only mistakes or errors which are so substantial as to result in a miscarriage of justice would be countenanced by the appellate court. She also contended that the parties are familiar with the identity of the property and where the parties are familiar with the land in dispute, the question of its identity or its certainty will cease to perplex the trial court. She argued further that it was a slip of the pen or a clerical error and the court below having visited the locus in quo was in no doubt as to the property it was referring to. She relied on Odofin v. Oni (2001) 1 DSCR 38 at 40; (2001) 3 NWLR (Pt. 701) 488.

Learned counsel referred to the appellants’ issue 3 and submitted that the respondent’s suit is founded upon the infringement of the respondent’s fundamental rights and all that the respondent needed to satisfy the court below was that his fundamental rights have been, is being or is likely to be contravened. She relied on F.R.N. v. Ifegwu (2003) 15 NWLR (Pt.842) 113 at 216 and concluded that the court below was correct in granting the reliefs sought.

Before proceeding further, it is important that I mention here that the appellants’ issues 2 and 3 are distilled from ground 4 alone. This is clearly wrong and contrary to the principle governing formulation of issues. One issue can be distilled from several grounds as the appellants did in respect of grounds 1,2 and 3 of their appeal.

But several issues cannot be formulated from a single ground. See Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88)275 and Akilu v. Fawehinmi No.2 (1989) 2 NWLR (Pt.102) 122. It is needless to formulate the two issues from a single ground of appeal. Both issues 2 and 3 could be conveniently taken as one because they are similar and compatible. Perhaps, that was why the respondent formulated two issues only. I have carefully considered and reflected on the two sets of issues formulated for determination and they are virtually the same in their substance and nature so much so that one can be taken for the other. However, it is my view that in the circumstances, the two issues formulated by the respondent are more concise, succinct, apt and derivable from the grounds of appeal filed. I have therefore chosen to adopt and rely on them in this appeal.

On issue 1, the appellants contended that they were not served with the originating and other process in the court below. No doubt the issue of service is very fundamental to the jurisdiction and competence of the court. If there is no proper service, it follows that the action is improperly constituted and the court is without jurisdiction. See Skenconsult & Anor. v. Ukey (1981) 1SC 6; Onwuka v. Owolewa (2001) 7 NWLR (Pt.713) 695 and Adisa v. Teno Eng. Ltd. (2000)1 NWLR (Pt.695) 633. However, from the records of proceedings supplied and presented before this court, it appears that there is proof of service on the appellants. This court, in the course of hearing this appeal, admitted the proofs of service of the court processes issued out of the court below to form part of the records of proceedings in this appeal on 10/11/2004. The proof of service is conclusive proof that the appellants were served with the court processes of the court below.

The trial Judge in his ruling of 10/9/01 at page 18 lines 21 – 28 of the record considered the issue of service and found that the appellants were duly served. The learned trial Judge stated clearly that the proof of service was in his record. There is therefore no room for doubt or speculation as to the fact that the appellants were duly served at the court below. The court below was perfectly entitled to take judicial notice of its own proceedings and records and also their contents. See Osafile v. Odi Ltd. (1990) 3 NWLR (Pt.137) 130. Where in a proceeding the question arises whether or not a process of court has been served in the proceedings, it will be a strange thing for the court to ignore the proof of service afforded by its own record in the proceeding and hold that such process has not been served. See A.-G., Anambra State v. Okeke (2002) (supra). At pages 190 and 197 of the report, the Supreme Court held that:

“An affidavit of service of a court process is normally a non-contentious document required to be put on record for information of the court and the parties as to the fact and date of service in the proceeding. It cannot be a reasonable proposition that in that same proceeding in which it was filed, the law requires that that self same document should be proved before the court before it can be relied upon.”

I am therefore very satisfied that the proof of service in the record produced and presented before us sufficiently proved that the appellants were duly served. The behaviour of the appellants before the court below is now being repeated before this court. After filing and exchanging briefs, neither the appellants nor their counsels appeared before this court whereas there is proof of service on them. This court will not be surprise if the appellants in future revert to type and seek to hide under the cloak of improper service of the court process or that they were not served at all. I, therefore, resolve this issue in favour of the respondent and against the appellants.

On the parties before the court below, it was submitted that having regard to the fact that appellants were agents and or agencies of the Federal Government of Nigeria, they were not subject to the jurisdiction of the High Court of Cross River State by virtue of the provisions of sections 251(1)(r) of the 1999 Constitution. The respondent submitted that though the appellants are agents and agencies of the Federal Government, it is the cause of action that determines the jurisdiction of the court and not the parties before the court.

It is a fundamental principle of law that it is the claim of the plaintiff that determines the jurisdiction of the court, which entertains the claim. See Western Steel Works Ltd. v. Iron & Steel Workers’ Union of Nig. & Ors. (supra) and Adeyemi & Ors. v. Opeyori (1976) 1 FWLR 149; (1976) 9-10 SC 31. In the instant case on appeal, it is clear and undeniable that the reliefs sought by the respondent are brought under the Fundamental Rights (Enforcement Procedure) Rules pursuant to the provisions of section 46(1) of the 1999 Constitution and Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules. Looking at the actual cause of action of the respondent and considering same carefully, I am satisfied that it was properly brought under the Fundamental Rights Procedure. The respondent clearly stated his grounds on which the reliefs were sought, namely, the forceful and unlawful ejection and the barbaric and wanton destruction embarked upon by the officers and men of the Nigerian Navy, which acts were not denied by the appellants. The respondent’s house was vandalised and plundered. There was no court order to that effect. He was held hostage for 8 hours on his property. He was told not to return to his property except to pack out his personal belongings. There is no doubt that the acts of the officers and men of the Nigerian Navy are not permitted by law and cannot be justified. It is also my considered view that the acts of the officers and men of the Nigerian Navy in this case are not within the contemplation of the section 251(1)(r) of the 1999 Constitution, section 1(1) & (4)(a) of the Armed Forces Decree No. 105 of 1993 (as Amended) or section 1(1) & (2) of the Navy Act Cap.288, Laws of the Federation of Nigeria, 1990, or any other provision of the Constitution or any other law. I know of no law that will empower anyone to take the law into his hands or their hands as the case may be. Principally, the Navy Act, (op cit) provide that:

“The Navy shall be charged with:

(a) the Naval defence of Nigeria;

(b) the duty of assisting in the enforcement of the customs laws of Nigeria;

(c) the making of hydrographic surveys;

(d) training in naval duties; and

(e) such other duties as the National Council of Ministers may from time to time direct.”

The above “charge” did not include unlawful and forceful ejection, damage to property and false imprisonment. These are clear breaches or violation of the fundamental rights guaranteed under Chapter IV of the 1999 Constitution. Everybody (including private individual, public individual, government or police) is forbidden to take possession or repossession of premises by self-help, force, and strong hand or with a multitude of people. Everyone entitled to possession or repossession of premises can only do so by due process of the law. They must not take the law into their hands. They must apply to the courts for possession and act on the authority of the court. When the appellants decided to eject the respondent Viet Armis and without any order of court, they were breaking the law of the land, which they swore to defend. See Ojukwu v. Gov., Lagos State (1985) 2 NWLR (Pt.10) 806. Furthermore, a Federal Government Officer (which include the present appellants), does not Carry the stamp of Federal Government agency on his forehead wherever he goes or whatever he does. Whether he qualifies as such depends on the function he performs and what act he did that gave rise to the cause of action. See Okoroma v. Uba (1999) 1 NWLR (Pt.587) 359 at 381. The acts of the officers and men of the Nigerian Navy, is unlawful, barbaric and cannot by any stretch of the imagination be described as “an executive or administrative action or decision by the Federal Government or any of its agencies.” To say the least, their acts are most unfortunate particularly at this time of our nascent democracy where the rule of law is supreme. The acts are flagrant violations of the fundamental rights of the respondent guaranteed under sections 34, 35, 37, 43 and 44 of the 1999 Constitution as alleged. I am therefore satisfied that the reliefs of the respondent were rightly and properly brought under the Fundamental Rights Procedure.

Section 46(1) & (2) of the 1999 Constitution provides:

“1. Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.

2. Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within the state of any right to which the person who makes the application may be entitled under this Chapter.”

The above section is a special provision giving special jurisdiction to a High Court in a State for the enforcement of fundamental rights enshrined in Chapter IV. Any person including the respondent, whose fundamental right is breached or is being breached or about to be breached may therefore apply to a High Court in that State for redress. See Olutola v. University of florin (2004) 20 NSCQR 256 at 279; (2004) 18 NWLR (Pt.905) 416

Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 defines a court as meaning, the Federal High Court or the High Court of a State. What this means is that both the Federal High Court and the High Court of a State have concurrent jurisdiction. An application may therefore be made either to the Federal High Court in the State or to the High Court of the State which the breach occurred, is occurring or about to occur. See Grace Jack v. University of Agriculture, Makurdi (2004) 17 NSCQR 90 at 100; (2004) 5 NWLR (Pt.865) 208 per Kastina- Alu, JSC; Ogugu v. State (1994) 9 NWLR (Pt.366) 1 and Zakari v. I.G.P. (2000) 8 NWLR (Pt.670) 666 at page 682. In the case of Grace Jack v. University of Agriculture, Makurdi (2004) (supra), it was held as follows:

“…I would like to point out that section 42(1) of the Constitution of the Federal Republic of Nigeria (which is similar to section 46(1) of the 1999 Constitution) which I have reproduced above has provided the court the power for enforcement of fundamental rights as enshrined in Chapter IV. A person whose fundamental right is breached, being breached or about to be breached may therefore apply to a High Court in that State for redress. Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which came into force on 1st January, 1980 defined Court as meaning “the Federal High Court or the High Court of a State.” What this means is this; both the Federal High Court and the High Court of a State have concurrent jurisdiction. An application may therefore be made either to the Judicial Division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur.” (Italics mine)

It is therefore glaringly clear that for the purpose of enforcing his fundamental rights under section 46(1) of the 1999 Constitution and by the virtue of the provisions of Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979, the High Court of a State is vested with special jurisdiction to entertain, hear and determine such application. So, the jurisdiction of the High Court of Cross River State here, in this instant case on appeal, is undisturbed and it is intact. Therefore, it has jurisdiction in this matter. A High Court of a State has jurisdiction to hear and determine any application made to it in pursuance of the provisions of section 46(1) & (2) of the 1999 constitution and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person who makes the application may be entitled under the chapter.

The appellants in their brief relied on the provisions of section 251 (1) (r) of the 1999 Constitution and submitted that the appellants are agents or agencies of the Federal Government, therefore, the Federal High Court has exclusive jurisdiction in the manner or on any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action of the Federal Government or any of its agencies. It is necessary that I examine the provisions of section 251(1)(r) of the 1999 Constitution at this stage. It provides:-

“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.

(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and…”

A careful perusal of the above provisions clearly reveal that there is nothing in it suggesting, indicating or implying that a person whose fundamental rights have been breached, is being or about to be breached should not prosecute his or her case under the fundamental rights procedure against the Federal Government or any of its agencies. Moreover, an action for the enforcement by a person of his fundamental rights is an action based upon an enactment, namely, the provisions of Chapter IV of the 1999 Constitution.

Section 46 of the 1999 Constitution is very clear, plain, simple and unambiguous. Being a Constitutional provision it should be interpreted so to give effect to the provision, and not to defeat it.

See Osahon v. F. R. N. (2003) 16 NWLR (Pt.845) 89 at 118 where this court held that:-

“Where the words of a statute are plain and unambiguous, the court’s function is simply to apply the words in their literary sense. This is because it is an abiding duty of the court not to introduce words into a piece of enactment and thereby defeat the purport of the enactment by giving a different colouration to it.”

Nowhere in section 251 of the 1999 Constitution was it stated that the provisions of section 46 is subject to section 251. In Grace Jack v. University of Agric. (supra) at pages 100-101, Kastina-Alu, JSC, said:-

“I have closely read Decree No. 107 of 1993 and I find nothing even remotely which has repealed or abrogated the provisions of section 42 of the 1979 Constitution. Rather a careful reading of the Decree reveals that the provisions of section 42 of the 1979 Constitution were preserved by Decree 107 of 1993. I would like to add that section 230(1) of Decree No. 107 of 1993 is a general provision relating to the jurisdiction of the Federal High Court while section 42 of the 1979 Constitution relates to the special jurisdiction for the enforcement of the fundamental rights provided for in Chapter IV of the 1979 Constitution. As I have already stated the High Court of Benue State has concurrent jurisdiction with the Federal High Court in matters of the enforcement of a person’s fundamental rights provided in Chapter IV of the 1979 Constitution.”

Also in Zakari v. I.G., of Police (supra), Oduyemi, JCA, at page 684 of the report had this to say:-

“It is clear that not only in the High Court of the Federal Capital Territory, Abuja, conferred with similar jurisdiction to those of State High Courts, there is no doubt that in matters of the enforcement of a person’s fundamental rights be it against another person, authority or against a State or a Federal Government Agency, it has like the High Court of a State concurrent jurisdiction with the Federal High Court.”

Furthermore, it is the principle of interpretation of statutes that general provisions do not derogate from special provision but special provision derogate from general ones. See Schroder v. Major (1989) 2 NWLR (Pt.101) page 1. In Governor, Kaduna State v. Kagoma (1982) 6 SC 87 at 108. It was held that where there are enactments, one making general provisions and the other specific provisions on a subject matter, the specific provisions are construed to be excluded by implication from the general provisions. See Zakari v. J.G. of Police (supra) at page 680. In Federal Mortgage Bank of Nigeria v. Olloh (2002) (supra) 82 at 91, it was held that:-

“The law is that where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject matter… The Latin Maxim is Generalis clausula non-porrigitur Ad ea quae antea specialiter sunt comprehensa (A general clause does not extend to those things which are before specially provided for.)”

From the foregoing, it is clear that section 46(1) and (2) of the 1999 Constitution is not made subject to section 251 (1)(r). Therefore, pursuant to section 46 of the 1999 Constitution and the provisions of Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, the High Court of Cross River State had jurisdiction to entertain the respondent’s claim before it. I therefore resolve this issue in favour of the respondent and against the appellants.

I now come to the appearance of Mr. Joseph Efa and his endorsement of Court processes on behalf of the respondent at the court below. The respondent apart from his submission on the validity of ground 3 in the second ground of his preliminary objection proffered no alternative submission on the issue in his brief of argument.

However, I have carefully gone through the case of I.B.WA. v. Imano & Anor. (1988) 2 NSCC 247; (1988) 3 NWLR (Pt.85) 633 cited by the appellants in their brief but the decision in the case is not in support of their submission. The relevant provision considered in the case is Rule 31 (a)(1) of the Rules of Professional Conduct. The Rule only prohibits members of the Bar who are in salaried employment from appearing as advocates in any court or and directors of a company who are members of the Bar from appearing as advocates on behalf of such company. It did not say anything about such appearance affecting the jurisdiction or competence of the suit or court. The fundamental rule of the interpretation of statutes is that where the words used are clear and unambiguous, they should be construed as they are given their ordinary plain meaning. It is not permissible to go beyond what the words themselves actually convey and to consider what other things they are capable of and could mean. Where the provision is unambiguous and clear, they contain the intention of the law maker. See I.B. WA. v. Imano Nig. Ltd. & Anor. (supra) at page 247.

In Akalonu v. Omokaro (2003) 8 NWLR (Pt.821) 190 at 209, this Court held that:-

“The representation of parties does not affect the competence or jurisdiction of the court. It is not the appearance of counselor the want of authority that confers on or removes jurisdiction from a court. Appearance of counsel may have something to do with adjudication but it has nothing whatsoever to do with the competence of court to adjudicate and therefore with jurisdiction. Madukolu v. Nkemdilim (1962) 2 SCNLR 341 referred to).”

In INEC & Ors. v. Kalu 1 E.P.R. 386, the issue there was whether the Attorney-General of Abia State can appear for the Governor of Abia State in his private capacity in an election petition. The court held that Attorney General cannot, and he was restrained from further appearing as counsel for the Governor. His previous appearance did not affect the jurisdiction of the court. The appellants should have objected in similar manner at the court below. It was for the appellants to have taken objection to the appearance of the said Mr. Joseph Efa. It is not for the court to challenge the appearance of counsel suo motu. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517. I observed at page 81 of the record lines 19 – 26 that one Patrick Opara appeared for the appellants on 13/12/01 at the court below. He did not object to the appearance of Mr. Joseph Efa. Ironically it was Mr. Joseph Efa who objected to the appearance of Mr. Patrick Opara for the appellants on the ground that being a private legal practitioner he needed the fiat of the Federal Attorney General in other to represent the appellants.

Now, a party who consents to the adoption of an irregularity or irregular procedure at the trial court will not be permitted to complain about same at the appellate court. In the instant case on appeal, the appellants did not complain at the trial court about the appearance of Mr. Joseph Efa or his endorsement of court processes or the respondent even though at a stage of the proceedings, one Mr. Patrick Opara represented them. In the circumstances, the appellants must be deemed to have consented to the irregular procedure, as they cannot be heard to complain now at the Court of Appeal. See Best Vision Cent. Ltd. v. UACN PDC Plc. (2003) 13 NWLR (Pt.838) 594; Noibi v. Fikolati (1987) 1 NWLR (Pt.52) and Adebayo v. Shonowo (1969) 1 All NLR 176.

I also observed from the record at page 84 lines 20 – 21 Mr. Joseph Efa stopped appearing and the respondent himself appeared for himself and continued to appear until the proceedings before the court below was concluded. From the foregoing, it is my decision that though the appearance of Mr. Joseph Efa for the respondent in parts of the proceedings and his endorsement of some court processes violated the rules, it did not affect or vitiate or rob the court below of its competence or jurisdiction. I, therefore, resolve this issue in favour of the respondent. On the whole I resolve issue one in favour of the respondent and against the appellants.

On issue 2, the main grouse of the appellants is that the respondent sought for reliefs to protect his interest in the property situate and known as 20 Ikot Esu Square, Diamond Hill, Calabar, but the court below granted reliefs in respect of No. 10 Ikot Esu Square, Diamond Hill, Calabar. I am inclined to agree with the respondent that the above is nothing but a mere slip which is curable and which has not caused any miscarriage of justice. It is not every mistake or error in judgment that will result in an appeal being allowed. It is only when the error is substantial in that it had occasioned a miscarriage of justice that an appellate court is bound to interfere. See Ndulue v. Ibezim (2002) 12MJSC; (2002) 12NWLR (Pt.780) 139; Owhonda v. Ekpechi (2003) 12 MJSC 1 at 19; (2003) 17 NWLR (Pt.849) 326 and Odofin v. Oni (2001) 5 NSCQR 67; (2001) 3 NWLR (Pt.701) 488. This Court can correct the slip or error or mistake in the ruling and the order of the court below.

In Odofin v. Oni (supra), the Supreme Court stated that courts are presided over by human beings and being human they are prone to mistakes and slips in the course of execution of their judicial functions. Such slips or errors are not swept under the carpet but are corrected and amended by the appellate courts in the interest of justice. Moreover, in this case on appeal, the parties are quite familiar with the property in dispute and they know the house or property in dispute, therefore, the question of the identity or its certainty will cease to perplex the trial court and also the appellate court. Neither party will be allowed to place a clog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land or property that is well known. See Odofin v. Oni (supra) per Okay Achike, JSC, at page 79.

It is mischievous for the appellants to submit that the trial Judge was wrong to have granted relief of No. 10 Ikot Esu Square, Diamond Hill, Calabar. This is nothing but a mere slip. Instead of No. 20 the trial Judge wrote No. 10 and this can be corrected without much ado. I see no merit in this argument, which is the realm of trivialities and frivolities.

On whether the respondent was entitled to the declaratory injunctive reliefs granted in his favour by the lower court, it is my view that in an application brought under the Fundamental Rights Procedure, it is sufficient if the applicant can show clearly that his fundamental rights have been violated or infringed. In Director, S. S. S. v. Agbakoba (1999) 3 NWLR (Pt.595) 314, the Supreme Court declared that:-

“It is not in doubt that declaratory and other reliefs can be obtained to enforce and protect fundamental rights by filing an action in a High Court.”

The fundamental rights entrenched in the Constitution are very important. An individual whose rights have been infringed or contravened has the right to seek redress in a competent court of law; in this case, the High Court in the State. All that the respondent needed to show in his application for the enforcement of his fundamental rights is that his rights have been physically violated or infringed. The respondent has done so sufficiently and his is eminently entitled to the reliefs claimed. The court below was so eminently qualified to grant the reliefs sought by virtue of section 46(1) & (2) of the 1999 Constitution and Order 1 rule 2(1), (3) and (6), Rule 3(1), Order 4 rule 1(1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. Moreover section 46 of the 1999 Constitution is a special provision giving a special jurisdiction to the court to hear and determine any application made to it in pursuance of the section and to make such orders, issue such writs and give such direction as it may consider appropriate for the purpose of enquiring or securing the enforcement within that state of any rights to which the person who makes the application may be entitled to under Chapter IV of the 1999 Constitution.

The appellants submitted that the affidavit evidence relied upon by the respondent in the lower court was not sufficient to entitle him to the reliefs granted in his favour and that the court ought not to have granted the declaratory reliefs sought without hearing oral evidence and being satisfied by such evidence. The submission is grossly misconceived having regard to the Fundamental Rights Procedure which is a special procedure different from that of ordinary civil proceedings. It will be recalled that the appellants, despite being duly served with the court processes by the court below, refused or neglected to appear before it. The appellants filed no counter-affidavit to challenge or controvert or contradict the averments in the respondent’s affidavit and statement in support of the application filed. The affidavit evidence before the court below was unchallenged, uncontroverted and contradicted. It is settled law that where the supporting affidavit to an application is not countered it must be deemed to be true and correct. See Azeez v. State (1986) 2 NWLR (Pt.23) page 541 at 545; Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.l35) page 688 and Agu v. NICON Insurance Plc. (2000) 11 NWLR (Pt.677) 187.

Furthermore, an affidavit in support of motion constitutes evidence which the trial court is perfectly entitled to rely upon. Affidavit evidence is quite different from averments in pleadings, which have to be supported by oral evidence. See Magnusson v. Koiki & Ors. (1993) 12 SCNJ 114; (1993) 9 NWLR (Pt.317) 287. The affidavit evidence before the court below being unchallenged, uncontroverted and uncontradicted must be accepted by the court. See Omo v. J.S.C. Delta State (2000) 12 NWLR (Pt.682) 444 and Otuedon & Anor. v. Olughor & Ors. (1997) 7 SCNJ 411; (1997) 9 NWLR (Pt.521) 355. Having disposed of all the issues raised, I resolve issue 2 in favour of the respondent and against the appellants.

The appeal is unmeritorious and I hereby dismiss it.

Accordingly, the ruling of Edem, Lin suit No. HC/MSC/183/2001 delivered on 10/9/01 is hereby affirmed. Pursuant to the provisions of section 16 of the Court of Appeal Act, the order made in respect of “No. 10 Ikot Esu Square, Diamond Hill, Calabar, is hereby amended to read, “No. 20 Ikot Esu Square, Diamond Hill, Calabar.

The appeal is hereby dismissed with N10,000.00 costs in favour of the respondent.

Other Citations: (2005)LCN/1786(CA)