1. THE ASST. INSP. GEN. OF POLICE(ZONE 3 COMMAND, YOLA)
2. MR. JAMES OMOTAYO(DIVISIONAL POLICE OFFICER, NUMAN)?
1. ALHAJI IBRAHIM ISA GOMBE
(DELIVERED BY SAIDU TANKO HUSAINI, JCA)
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, 2014which 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) plaintiffs property in its custody.
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, 2015granted 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, 2015containing 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 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 Respondents 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 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:-
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.
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 principle of natural justice, equity and fair hearing as captured by chapter 5 of the 1999 Nigeria constitution vis-à-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.
On the 4th April, 2016 when the appeal came up for hearing, neither the appellant nor counsel representing them appeared to adopt their brief of argument but counsel on the opposite side was on hand. Mr. C. K. Atiman, counsel for the respondent, in hisshort address, invited our attention to the Notice of Preliminary Objection raised by them at paragraph 2. 00 2. 03 in his brief of argument and arguments canvassed thereto at paragraphs 2. 04 2. 07 to urge us uphold their objection and dismiss the appeal in lamine. He similarly urged us to dismiss the appeal if this court is minded to hear the appeal on merit.
Appellants brief of argument, as indicated before, was filed on the19th October, 2015. Therefore the absence of counsel or appellants themselves on the date the appeal was fixed for hearing will not lead to that appeal being struck out if there is in existence, a brief of argument filed on their behalf over which the court can take cognizance of and can deem same as duly argued and or adopted in line with Order 18 rule 9 (4) of the Court of Appeal Rules, 2011. Consequently the brief of argument for the appellants filed on the said date is accordingly hereby deemed as duly argued.
To start, are issues raised by the respondent in his brief of argument by way of the Preliminary Objection, Notice of which is contained at paragraph 2. 00 of the said brief. The grounds of objection are as set out in the brief at paragraph 2.01 2. 03 as follows:
Issue No. 2 formulated for determination by the appellant covers grounds 1 and 2 the only 2 grounds of appeal rendering issue No. 1 incompetent.
Both grounds 1 and 2 that were argued as issue No. 2 are incompetent as both grounds are centered on the decision of the lower court to strike out Appellant Motion on Notice on 6th May, 2015.
Issue that covers competent and incompetent ground of appeal argued together is liable to be struck out.
Submissions made in relation to the 1st ground of objection is that issue 1, standing aloof and not having been distilled for any ground of appeal was incompetent and this is even more as that, the appellant having already distilled issue No. 2 from the 2 (two) available grounds of appeal filed by them, there was nothing left, not in the least, a ground of appeal from which issue 1 can be derived or formulated, citing decisions in Agulu V. Egwere (2010) All FWLR (Pt. 532) 1609, 1633 and Ezerioha V. Ihezio (2010) All FWLR (Pt. 540) 1259, 1267.Learned counsel submitted that issue No. 1 is incompetent so far as same was not covered by any of the two grounds of appeal. He urged us to strike out the said issue No. 1 formulated by the Appellant.
The second ground of objection similarly questioned the competence of issue No. 2 which issue was distilled from grounds 1 and 2 of the Notice of appeal. The submission made by counsel is that issue No. 2 and arguments canvassed thereto by the appellants in their brief all relate to the proceedings of the 6thMay, 2015 wherein the trial court at page 73 of the record of appeal struck out the Motion on Notice dated the 5th May, 2015 on account of same being incompetent for failure to pay filing fees. Counsel for the respondents has argued that, there being no appeal against that order of court striking out the application it follows that issue No. 2 was incompetent.
Learned respondents counsel further submitted that the application before the trial court being interlocutory in nature, leave of court was required to appeal against such interlocutory Order of court and since leave was neither sought nor obtained to appeal the ruling, ground 2 and issue distilled therefrom were incompetent. Learned respondents counsel in his brief of argument referred us to paragraphs 4.03 4.13 and 4. 21 in the appellants brief of argument to establish that fact that arguments canvassed thereto by the appellants all relate to the complaints on the failure of the court below to hear the Motion on Notice which the court struck out on the6th May, 2015. He urged us therefore to uphold this ground of objection as there is no competent ground of Appeal over those interlocutory proceedings at the trial court.
In relation to ground 3 of the grounds of objection, learned counsel for the respondent reiterated his submissions under ground 2 of his grounds of objection for ground 3 of the objection stating that ground 2 of the grounds of appeal is incompetent. According to him, to argue the said ground 2 together with ground 1 of the ground of appeal made Issues 1 and 2 argued together as incompetent. He urged us to so hold citing the decision in Anagu V. INEC (2012) All FWLR (Pt. 652) 1689, 1711 and Oyebandejo V. Olanniti (2000) FWLR (Pt.5) 829, 346.
Those weighty allegations raised by way of Preliminary Objection command a corresponding response by way of a Reply brief being filed to address each and every point of objection raised by respondent but as can be observed no such Reply brief was filed and this failure I think is contrary to what the rules provide for in times like this. Order 18 rules 5 and 10 of the Rules of this Court, 2011 provide thus:-
5 The Appellant may also, if necessary, within fourteen days of the service on him of the Respondents brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondents brief.
10-(1) Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the court, the Respondent may apply to the court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument. Where an appellant fails to file a reply brief within the time specified in Rule 5 he shall be deemed to have conceded all the new points or issues arising from the respondents brief.
There can be no question that points of Preliminary Objection raised by Respondent in his brief of argument being new issues, raised for the first time, in the said brief demand a corresponding response from the appellants and failure to react to those issues, the appellants will be deemed to have conceded all issue raised or submissions made relative to the Preliminary Objection and the court can automatically uphold such Preliminary Objection. See: Nnamani Vs. Nnaji (1999) 7 NWLR (Pt. 610) 313; Akanbi v. Alatede (2000) 1 NWLR (Pt. 639) 1251; Iro Vs. Echewendu (1996) 8 NWLR (Pt. 468) 629), 636; Agbablaka V. okojie (2004) 15 NWLR (897) 503, 522; Machika V. Imam (2010) LPELR 4448 (CA).
The appellants indeed failed to file a Reply brief and react to those submissions and I think the consequences attendant to such failure should apply to this instant case.
I believe I can still examine those claims raised by the respondents Preliminary Objection, the first of which is that issue No. 1 was neither distilled nor formulated from any given ground of appeal. This failure in effect renders issue No. 1 as incompetent.
Appellants Notice of appeal dated the 10th June, 2015and filed on the 11th June, 2015 has just two (2) grounds of appeal and these are subsumed or incorporated into the Notice of Appeal. See the record of appeal at pages 876-89. There has been no further or additional grounds as at the date briefs of argument were filed and exchanged between counsel on both sides. What this means is that the appellants can only formulate issue for determination from the two (2) grounds filed by them and they chose to formulate Issue No. 2 from the two grounds i.e grounds 1 and 2 as contained in the Notice of Appeal. There is nothing wrong with that. An issue can be raised for determination from one or more grounds of appeal but on no account should more issues than one be distilled or formulated from more than 1 ground of appeal. See Ugo V. Obiekwe (1989) NWLR (Pt. 99) 566 or (1989) 2 SC (Pt. 11) 41; Ikemson Vs. The State (1989) NWLR (Pt. 110) 455.The appellant having therefore chosen to formulate Issue No. 2 from his two (2) grounds of appeal, he has, by so doing, exhausted all the grounds available to him thus leaving Issue No. 1 as not attached to any ground of appeal. Any issue for determination which is not hinged or based on a ground of appeal is irrelevant and therefore incompetent and valueless to the appeal and same should be ignored. See: Latunde V. lajintin (1989) NWLR (Pt. 108) 177; I cannot just ignore Issue No. 1 in the appellants brief of argument, not having been formulated from any ground of appeal, I will in addition strike it out as being incompetent and valueless. I make that order accordingly.
Regarding the second head of the Preliminary Objection, I am in complete agreement with learned counsel for the respondent that Issue No. 2 distilled from grounds 1 and 2 relate to proceedings held at the court below wherein the court by an order, struck out appellants Motion on Notice dated 5th May, 2015. In so as far no appeal was lodged relative to the interlocutory order of the court below, it stands to reason that the ground of appeal purporting to be the complaint against the said proceedings or Ruling of 6th May, 2015 together with Issue No. 2 distilled from the ground are both incompetent.
The appeal to this court by the Notice of appeal dated 10th June, 2015 is against the Judgment delivered at the Federal High Court on the 9th June, 2015 in Suit No. FHC/YL/CS/2/15.It is not an appeal against the Ruling of the Federal High Court delivered on 6th May, 2015 at page 73 of the record. To this extent therefore, the 2nd Head of objection also has considerable merit and I uphold same.
Also related to Issue No. 2 in the appellants brief of argument is the 3rd Head of Preliminary Objection. If Issue No.2 formulated by the appellants in their brief is incompetent as indeed it is, the same cannot be made competent merely on account that the Issue was distilled from a valid ground of appeal. To the contrary, where an Issue (as in this case) is distilled from a competent and incompetent grounds of appeal, the issue so derived is in itself incompetent. So it is with issue No. 2 formulated from grounds 1 and 2 of the grounds of Appeal. See: Anagu v. INEC (2012) All FWLR (Pt. 652) 1689, 1711;Oyebandejo V. Olaniyi (2010) FWLR (Pt. 5) 829, 346. A ground of appeal must derive from the decision appealed against. Any ground of appeal which is not a complaint arising from the decision appealed against, is incompetent just as the issue formulated from it. See: LAC A. vs. A.N. Ltd 92006) 2 NWLR (Pt. 963) 49; Abubakar V. Ala Federation (2002) 17 NWLR (Pt. 796) 338; Gabiri V. Ilori (2002) 14 NWLR (pt. 786) 78; Ogemen Vs. Momodu (1983) 1 SCNLR 188; Ezeogu v. Onwuchukwu (1997) 4 NWLR (Pt. 502) 689; I.F.A. Int. Ltd Vs. LMB Plc. (2005) 9 NWLR (Pt. 9300 274; Adeh Vs. Adoh (2001) 5 NWLR(Pt. 205)1; CBN Vs. Dinneh (2010) LPELR 8983 (CA). In consequence, I also uphold the second and third grounds of the Preliminary Objection hence the appeal is struck out.
SAIDU TANKO HUSAINI
JUSTICE, COURT OF APPEAL
As can be seen from my conclusion above this appeal is one that can be determined and disposed of based on the grounds raised in the Preliminary Objection alone. If however this conclusion is wrong in law, I will now proceed to consider this appeal on the merit based on the lone issue proposed and captured in the respondents brief of argument, that is:-
Whether the appellants were granted fair hearing by the lower court?
From the totality of the arguments canvassed on this point, the appellants or counsel on their behalf seem to suggest that the appellants were not accorded fair hearing in the case leading to the Judgment being delivered at the court below on 9th June, 2015 in favour of the respondents. The appellants anchor their submission on the fact that the trial court denied them the opportunity to put in their defence when the court struck out the application made on their behalf, seeking for extention of time to file a counter-affidavit to the Originating Summons filed, by the respondent. It is argued that while the trial court was quick to strike out this application, it granted the respondent an adjournment as would enable him file his written address to the Originating Summons, a case of double standards and bias, he said. But more significant, it is argued, is the denial of Appellants constitutional right to fair hearing. It is contended and admirably so that while it is that good to observe and obey the rules of court, it is however argued that such observance of the rules should not becloud the court of its the sense of reasoning as to deny the citizens of their right to be heard on issues placed before court. In this instant case, it is argued, that the court below in striking out that application, had denied them the right to be heard and that whatever conclusion was reached by the court in the final analysis, would be a nullity. He relied on several authorities including:(1)IEC, Ekiti State V. NCP (2009) Vol. 13 WRN 108; (2) Aboley Intl Vs. Omo Ghehin (2005) Vol. 46 WRN 103; (3) Ndekuba V. Kolomo (2005) 12 WRN 32; (4) Olumesan V. Ogundepo (1996) 2 NWLR (pt. 433) 628; (5) Hashim V. Minister FCT (2005) Vol. 43 WRN 88.
Learned appellants counsel therefore urged on the court to resolve the two issues earmarked by them for determination in their favour.
Mr. C. K. Atiman learned respondents counsel arguing to the contrary submitted that there was no denial of the appellant the right of hearing, rather the appellant who failed to utilize the opportunity of the adjournment granted by the court below to perfect or regularize their position refused or neglected to do so only to cling belatedly to the excuse that the court below had denied them the right of hearing.
It is not uncommon these days to find litigants and learned counsel alike to invoke aspects of the Constitution of the Federal republic of Nigeria (as amended) dealing with fundamental rights of the citizens, for every mistake, omission or slip on the part of the court so as to have that decision annulled or set aside on account of the failure by the court to observe those fundamental tenents and accord hearing to the party aggrieved.
When confronted with complaints such as this it behoves on the reviewing authority sitting in exercise of its appellate jurisdiction to view critically such complaints and act accordingly as dictated by the facts and the law.
No doubt this appeal, the complaint of which borders on the denial of right to hearing or fair hearing, like every other constitutional provision on fundamental rights enshrined under chapter [iv] of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is a serious allegation. The right to fair hearing is guaranteed under Section 36 (1) of the 1999 constitution and the sense is an indispensible requirement in our search of justice. Court in Ezechukwu v. Onwuka (2006) 2 NWLR (Pt. 963) 151 155 has held that:
Fair hearing within the meaning of Section 33 (1) of the 1979 Constitution and Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria means a trial or investigation conducted according to all rules formulated to ensure that justice is done to the parties. In other words it is an indispensable requirement of Justice that an adjudicating authority to be fair and just must hear both sides by giving them ample opportunity to present their case...
The twin pillars of fair hearing are embodied in the latin maxims nemo judex in causa, that is you shall not be a Judge in your own cause and audi alteram partem, that is hear the other side. The pillar of the rule of natural justice relevant to this appeal is the audi alteram partem rule. This rule connotes that a court or tribunal in the hearing and determination of a suit or dispute between parties must:
(1) Hear both sides, not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
(2) Give equal treatment equal opportunity and equal consideration to all concerned.
(3) Have regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. Court are enjoined to observed compliance in regard to fair hearing in all cases such that a breach of it renders proceedings on the case null void in any event, particularly in matters relating to the principle of audi alteram partem. See Akwa Ibom state College of Education Atahansit Vs. Ekong (2008) LPELR 8446 (CA).
In the case under review the proceedings of the court below leading to the order of court striking out appellants application and said to be a breach of their right to fair hearing, is at pages 72 73 of the record of appeal dated the 6th May, 2015.
After the announcement of counsels appearance on that day, the following dialogue ensued between counsel and the court thus:
Atiman Esq;-This case is for hearing today. But this morning we were served with a Motion on Notice by the defendants seeking for extention of time to file response to the Originating Summons out of time. I have no Objection to hearing the Motion on Notice now.
Yusuf Esq:- Our Motion on Notice is dated 5th may, 2015 filed same date.
Court:- You did not pay the default fees before filing this Motion on Notice as provided by rules of court.
Yusuf Esq:- I have written application to my employers for filing fees and same is under processing.
Court:-The Motion on Notice is incompetent having not paid the filing fees. I cannot hear it. It is struck out
Hon. Justice B. B. Aliyu
So it is the order made at the court below striking out the Motion on notice that is the basis for the complaint of lack of hearing. But from close scrutiny of the proceedings of 6th May, 2015, it can be gathered that the appellants were not foreclosed from bringing the same or similar application as the court below further adjourned proceedings from the 6th May, 2015 to 13th May, 2015, a period long enough for the appellants to take further steps to regularize their own position. Options available to the appellants in this regard are:
(1) To apply to have the Motion struck out on the orders of the court below on 6th May, 2015 relisted.
(2) To apply to set aside the order striking out the Motion on Notice on 6th May, 2015.
(3) To bring in a completely new but similar application.
(4) To appeal against the decision of the court below striking out the said application for extention of time to file a counter-affidavit.
Not one of the steps listed above was taken. Rather the appellants waited to see the case go on and thus procrastinated until the case was heard on the merits and Judgment given. They have themselves to blame having shot themselves at the foot, the claim to lack of hearing or fair hearing cannot in the circumstances avail them or lead to the Judgment delivered at the court below from being annulled or set aside.
The facts leading to this case on appeal being filed at the court below, by way of the originating Summons dated and filed on the 19th February, 2015can now be stated even though briefly.
On the 23rd December, 2014 the Upper Area Court 2 Yola delivered Judgment in a case between one Markus Elisha Mbaya Vs. Christopher Okoye & 1 Or pursuant to which the plaintiff/Judgment creditor applied for execution of that Judgment. After all necessary compliance with pre-auction procedures, auction finally took place on the 31st December, 2014 when the property of the Judgment debtors were sold at the instance of the court. The present respondent was one of the successful bidders but the 2nd appellant seized those items purchased by the Respondent and took the matter before the Commissioner of Police, Adamawa State and thereafter the case was referred to the Assistant Inspector General of Police (Zone 3 Command Yola) where the reason given by the appellants was that they were investigating the Judgment and auction that was conducted by the Upper Area Court II Yola. Apparently not satisfied with the way and manner the case was being handled by the 1st appellant, the respondent approached the Federal High Court, Yola to seek remedy by way of the Originating Summons and after hearing the case, the court in its Judgment delivered on 9th June, 2015 held that there can never be any investigation in whatever guise by the Police of the Judgment of the Upper Area Court II Yola and the auction sale conducted by it. The Federal High Court therefore ordered for the release of the auction goods which the appellant still refused hence the appeal to this court. I think this pronouncement by the court below is laudable and they should be commended for it given the fact that the Judgment brings to the fore the doctrine or the principle of separation of powers between the three arms of Government which the law and the Constitution has enjoined those arms to observe and enforce. Chapter v, vi and vii of the Constitution of the Federal Republic of Nigeria, 1999 makes provision for the establishment of those 3 (three) arms of Government as in the Legislature, the Executive and the Judiciary whose powers respectively, are also spelt out at Sections 4, 5 and 6 of the same constitution. The Police belongs to the Executive arm of Government whose duties as the name suggests, is to execute policies and programmes of Government. But more specifically, the duty of the Nigeria Police as provided for in the Police Act, Cap p. 19 LFN, 2004at Section 4 is that:
The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.
There are other analogous provisions relating to the power of the Police such as the power to make arrest without warrant. See Section 24 of the same Act. Nothing in all those provisions or laws give the Police the power to inquire into the propriety of the decisions of courts or acts arising from the decisions of those courts such as the auction of property attached for sale on the order of the Upper Area Court II Yola. The Police cannot inquire into those activities since it is not within their dormain to inquire into the legitimate business of the courts on the principle of separation of powers and the independence of the Judicial arm of Government. This point was made in Attorney General of Abia State &Ors Vs. Attorney General of the Federation (2003) 4 NWLR (Pt. 809) 124 or (2003) 1 SC (Pt. II)1 where it held that:-
The principle behind the concept of separation of powers is that none of the three arms of Government under the Constitution should encroach into the powers of the other. Each arm, the Executive, Legislature and Judiciary is separate and equal and of coordinate department and no arm can Constitutionally take over the functions clearly assigned to the other. Thus the power and functions Constitutionally entrusted to each arm cannot be encroached upon by the other. The doctrine is to promote in governance by precluding the exercise of arbitrary power by all the arms and thus prevent friction .Per Belgore, JSC (as he then was).
It is for this same reason on the doctrine of separation of powers that the apex court in Olusegun Adebayo Oni Vs. Dr. john Olukayode (2013) LPELR 2067 1 (SC) declined invitation to go outside its traditional role of the interpretation of the laws when it held that:
A provision of the Constitution may seem out of touch with reality at any particular point of time but in such cases, even when proven, the court is not competent to intervene. The court is bound by the doctrine of separation of powers under which the business of law making is in the exclusive dormain of the legislature made up of the upper and lower chambers of the National Assembly.Per Ngwuta, JSC.
See further: Global Trans Ocenia. A. Vs. Free Entr. Nig. Ltd. (2001) 5 NWLR (Pt. 706) 426; Attorney General Bentel State Vs. Attorney General of the Federal (1981) All WR 85 or (1981) 10 SC 1.
The review of the actions or decisions of the court lie in the court system itself by virtue of the exercise of the appellate functions or duties of the Higher or Superior Court. The Judgment entered at the court below cannot for this reason be impeached. It (the Judgment) stands and remain solid as the rock of Gibraltar, hence this appeal necessarily fails on all fronts and same is dismissed. The Judgment delivered at the Federal High Court, Yola on the 9th June, 2015 in Suit No. FHC/YL/CS/2/2015 is affirmed. Cost is assessed in the sum of N100, 000. 00 (One Hundred thousand Naira) Only against the appellants and in favour of the respondents
JUMMAI HANNATU SANKEY, J.C.A.
I had the advantage of reading the draft of the leading Judgment which my lord, Husaini, J.C.A., just delivered now.
I am in agreement with the reasoning and the conclusion that this Appeal is unmeritorious and should be dismissed.
I abide by the consequential orders made in the lead Judgment.
BIOBELE ABRAHAM GEORGEWILL, JCA:
This appeal, which has the potential of deepening further an understanding of the scope and limits of the powers of the Police as an Institution under the Executive Arm of the Government of the Federation set up by the provisions of Section 214 of the Constitution of Nigeria 1999 as amended and empowered by the provisions of the Police Act 2004, particular Section 4 setting out concisely the duties of the Police, raises the salient issue of whether under the laws of the land, the Police Authority can justifiably interfere at the instance of an aggrieved party with the exercise of the judicial powers of the court when the option of appeal or review is open to such a person aggrieved with the judgment of the court?
In this appeal, the Appellants had also pretended, but obviously failed, to raise the sacrosanct issue of the right to fair hearing. It is a truism that the Constitution of Nigerian 1999 as amended, in cognizance of the inalienable right of the citizen notwithstanding his status or standing in life to be heard in the determination of his civil rights and obligations, succinctly provides in Section 36(1) of the Constitution of Nigeria Federal Republic of Nigeria 1999 as amended, as follows:
Section 36(1): In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartially
The right to fair hearing is a fundamental one. It is indeed both constitutional and sacrosanct and therefore cannot in any circumstances be lightly disregarded or discountenanced by every authority or persons, including the courts or tribunal, empowered to determine any issue involving the civil rights and obligations of a citizen of this country. It is indeed one of the major pillars or foundation on which justice is built. In its application, care must be taken to ensure that the citizen is afforded adequate opportunity to be heard before any decision affecting his civil rights and obligations is reached.
It is my view therefore, that to raise an infraction of this very fundamental, inalienable and sacrosanct right to fair hearing against a court of law or a tribunal charged with the duty of deciding the civil rights and obligations of the citizen, it must not be done thoughtlessly or carelessly or lackadaisically without regards to the established facts before the court.
This is because the effect of an established infraction of this right against the proceedings and decision of a court is so devastating that it renders both the entire proceedings and the resultant outcome of the proceedings a nullity notwithstanding the merit or otherwise of the case of the parties before the court. See Agbogu V. Adichie (2003) 2 NWLR (Pt. 805) 509 @ p. 531. See also Agbapounwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40.
In the lead judgment just delivered by my learned brother, SAIDU TANKO HUSAINI JCA, a draft copy of which I have read in advance, all the crucial issues in this appeal have been most admirably considered and impeccably resolved against the Appellants and I am in agreement with the conclusions reached therein, which I hereby adopt as mine.
However, I intend to lend my voice to the lead judgment by putting down some comments of mine on the conduct of the Appellant, which disapproval by the court below in its judgment is now the subject matter of this appeal. In other word, has the Police, the Appellants, any authority in law to interfere by way of investigating the judgment and orders of a court at the instance of a party aggrieved with such judgment and under such guise seize properties duly auctioned by the court in the enforcement of its judgment?
The powers of the Police going by the combined effect of the succcinct provisions of Section 214 of the Constitution of Nigeria 1999 as amended and Section 4 of the Police Act 2004 and all other laws enabling the Police to act, are indeed very enormous but yet not left at large and in my view does not cover intermeddling or interferring with the judicial powers of a court of law.
The obvious and undisputed facts of this appeal show clearly that the Appellants, in exercising powers they do not possess by seizing goods lawfully auctioned on the orders of a court of law pursuant to the execution of its judgment, acted without authority and in inpunity. In law, any action founded on inpunity and thus in disregard of due process of law must be cut down to size and deprecated by the court in matters before it. This was what the court below, in my finding, rightly did loud and clear in entering judgment against the Appellants by cutting the inpunity of the Appellants to size. See Military Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Pt. 18) 621. See also Vaswani Trading Co. V. Savalakh & Co. (1972) 1 All NLR (Pt. 1) 483; Ojukwu V. Military Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806; Daniel V. Ferguson (1891) 2 Ch.D 27; Agbor V. Metropolitan Police Commissioner (1969) 1 WLR 703.
My lords, I feel constrained to observe that the culture of impunity, as displayed by the Appellants, merely because they are Police Authority but, without any lawful authority and at the instance of a party aggrieved with the judgment and orders of a court of law and in total disregard of the due process of law and leading to the seizure of goods lawfully auctioned on the orders of a court of law pursuant to the due enforcement of its judgment, like many other acts of impunity in the land by those in and or out of authority have been tolerated for far too long in this country and has indeed run its full circle and must be stopped and cut to size as rightly did by the court below and I unhesistantly commend the court below for so doing!
It is in the light of the above few comments of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too dismiss this appeal for lacking in any modicum of merit. I shall abide by the consequential orders made in the lead judgment.?
1. A. M. Yusuf Esq, for the Appellants
2. C. K. Atiman Esq, for the Respondent.