Aigboje Aig-imoukhuede Vs Dr Patrick Ifeanyi Ubah & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

CHINWE E. IYIZOBA, JSC

This is an appeal against the judgment of Aneke J of the Federal High Court sitting in Lagos delivered on the 18th day of February 2013. The facts that led to the suit as deduced from the Record of appeal substantially abridged are as follows: There was an arrangement PAGE| 2 between the 1st & 2nd Respondents in this appeal but the Applicants in the lower court Dr. Patrick Ifeanyi Ubah and his company Capital Oil and Gas Ltd on the one hand and the 5th Respondent herein but 4th Respondent in the lower court, Cosmas Maduka, a director in Access bank whereby a loan facility was obtained by Cosmas Maduka in the name of his company Coscharis Motors Limited from Access Bank to enable the parties finance the business of importation of petroleum products, Premium Motor Spirit (PMS) into Nigeria for profit sharing under the Petroleum Support Fund Scheme. The subsidy payments by the Federal Government Petroleum Products Pricing and Regulatory Agency (PPPRA) for the PMS deliveries into Nigeria were also domiciled with Access Bank. Cosmos Maduka alleged that out of the 10 LCs opened and paid for by Access Bank from the loan facility, six were executed as agreed. Problems arose with respect to the remaining four. The products were not delivered as agreed. He alleged that it was later discovered that they were fraudulently brought into the country and the proceeds diverted. It was further alleged that the applicants by their actions committed various criminal offences inter alia, diversion of proceeds of sale, spurious subsidy claims and money laundering. Reports were lodged with the Police and the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers (hereinafter referred to as the Presidential Committee). The Police commenced investigation of the reports. It so happened that the appellant herein, Aigboje Aig-Imoukhuede who at the material time was the Managing Director of Access Bank was appointed the Chairman of the Presidential Committee. The contention of the 1st and 2nd Respondents/ applicants at the lower court was that they committed no crime; that the matter was a purely civil matter and that the Appellant herein used his position as the chairman of the Presidential Committee to fight the private cause of his bank and to hound the Applicants. They consequently filed this suit under the Fundamental Rights Enforcement Provisions. The Appellant was the 3rd Respondent at the lower court and was jointly sued with the 3rd – 5th Respondents herein by originating summons filed on 4/1/13 claiming as follows: 1.”A DECLARATION that the persecution and public condemnation of the Applicants, camouflaged by the 1st and 2nd Respondents as an “investigation” of allegations made by the Presidential Committee on verification and Reconciliation of Subsidy Payments to Petroleum Marketers under the control PAGE| 3 and Chairmanship of the 3rd Respondent and allegations made by the 4th Respondent, a co-director with the 3rd Respondent in Access Bank Pic (over ongoing civil contractual disagreements with the Applicants) and who have both expressed a determination, by all means available to them, to damage the Applicants’ reputation and business, is a prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants’ fundamental rights protected by Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)” 2.”A DECLARATION that the declared conclusion of the 2nd Respondent, in his Police Interim Investigation Report dated 2nd November 2012 that “at the conclusion, suspects will be arraigned for a prima facie case of money laundering, stealing and criminal conspiracy to commit felony.” (In the surrounding circumstances of the complaint and the facts revealed in the said Report including the fact that the matter was an entirely civil contractual dispute between the Applicants and the Complainant, the 4th Respondent, a co-director in Access Bank Pic with the 3rd Respondent) is a prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants fundamental right protected by section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) 3.”A DECLARATION that the declared conclusion of the 2nd Respondent, in his Police Interim Investigation Report dated 3rd November 2012 that “at the conclusion of these ongoing actions, a consolidated investigation report will be submitted on a prima facie case of conspiracy to commit felony, money laundering, forgery, stealing, obtaining under false pretences, and economic sabotage against Capital Oil & Gas, Ifeanyi Patrick Ubah and those found to have conspired, colluded, or aided the culprits” in the surrounding circumstances of the complaint and the facts revealed in the said Report, a prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants’ fundamental right protected by section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) 4.”A DECLARATION that the said Police Interim Investigation Reports issued by the PAGE| 4 2nd Respondent to the 1st Respondent, dated respectively 2nd and 3rd November 2012 being incurably tainted by prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants fundamental right protected by section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are invalid, ultra vires, null and void and cannot therefore be used for the purpose of any proceedings against the Applicants” 5.”A DECLARATION that as the complaints made against the Applicants by the Presidential Committee on verification and Reconciliation of Subsidy Payments to Petroleum Marketers under the control and Chairmanship of the 3rd Respondent and by the 4th Respondent (in respect of the purely civil contractual disputes between him and the Applicants) are tainted by malice no law enforcement agency whatsoever is at liberty or can validly act on the complaints” 6.”AN ORDER nullifying and setting aside the said interim Investigation Reports of 2nd and 3rd November 2012 issued by the 2nd Respondent and addressed to the 1st Respondent” 7.”AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd Respondents by themselves, their subordinates, officers, servants, agents and privies from further intimidating, harassing, arresting, detaining the Applicants or instituting or continuing any criminal process or proceedings whatsoever against them on the basis of any complaint from the Presidential Committee on verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers under the control and Chairmanship of the 3rd Respondent and/or by the 4th Respondent. 8.”COMPENSATORY DAMAGES IN THE SUM OF 10 BILLION NAIRA to be paid by the Respondents severally and jointly for the injury suffered by the Applicants as a result of the unlawful acts of the Respondents including the breach of the 1st Applicant’s fundamental right to liberty, pursuant to section 35 of the Constitution of the federal republic of Nigeria, resulting from his detention in the Ikoyi offices of the 2nd Respondent from the 9th to the 19th of October 2012. The 1ST and 2nd Respondents/Applicants had filed a Statement and a 49-paragraph Affidavit in Support of the Originating Motion with a number of Exhibits and a written PAGE| 5 address. The Appellant in his defence filed 3 sets of documents in opposition to the Applicants’ suit, viz: i.Preliminary Objection to service with relevant affidavit and written address; ii.Preliminary Objection against the substantive Suit together with a Written Address both dated and filed on 06 February 2013; and iii.6-paragraph Counter Affidavit together with a Written Address dated and filed on 06 February 2013 in opposition to the substantive Suit. Other Respondents in the suit filed their own preliminary objections with their counter affidavits and written addresses to the substantive suit. On 7/2/13, the lower Court heard all the preliminary objections together with the substantive Suit. It first considered and dismissed all the preliminary objections and then proceeded to consider the substantive suit and at the end gave judgment for the respondents granting the reliefs they claimed but awarded damages in the sum of N10 million. The Appellant herein and the 3rd _ 5th Respondents appealed separately. The Appellant filed two Notices of Appeal – the first is dated and filed on 19/2/13 while the second is dated and filed on 7/3/13. The appellant at the hearing withdrew the first notice of appeal and indicated that his brief is based on the second Notice of Appeal dated 7/3/13. From the grounds of appeal, the appellant formulated five issues for determination as follows: I.Was the Learned Trial Judge right in (a) directing a consolidated hearing of the Appellant’s Service Preliminary Objection and the substantive Suit; and (b) holding that the Appellant was served howsoever with the Applicants’ originating processes? II.Was the Learned Trial Judge right in finding the Appellant liable to the Applicants howsoever in this matter? In other words, in the context of the Applicants’ claims and reliefs, was the Suit maintainable and did it disclose any cause of action howsoever against the Appellant? PAGE| 6 III.Was the Applicants’ Suit, in any event, not premature, in the context of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) considering the fact that (a) charging the Applicants for a criminal offence is a condition precedent to the activation of their right under and pursuant to this Section; and (b) the Applicants have not been charged for any criminal offence at any time material to this Suit and did not claim at all to have been so charged? Was the lower Court right in not addressing, in the Court’s Judgment, this Issue which was raised and fully adumbrated upon both in the Appellant’s Substantive PO Written Address and in his Substantive Suit Written Address? IV.As a corollary to Issue III hereof, upon a complete and careful review of the Applicants’ claims and reliefs as contained in their Originating Motion, was the Learned Trial Judge in any event right and/or justified howsoever in holding that the Applicants’ fundamental rights that are guaranteed under Section 36(5) of the 1999 Constitution were infringed howsoever and in particular, in the terms of their said claims and reliefs? V. Upon a consideration of all the preceding Issues and as it relates specifically to the Appellant, was the Learned Trial Judge justified howsoever in awarding “compensatory damages in the sum of lOMillion Naira to be paid by the Respondents severally and jointly for the injury suffered by the Applicants as a result of the unlawful acts of the Respondents including the breach of the 1st Applicant’s fundamental right to liberty, pursuant to Section 35 of the Constitution of the Federal Republic of Nigeria, resulting from his detention in the Ikoyi offices of the 2nd Respondent from the 9th to the 19th of October 2012”? The 1st and 2nd Respondents in their brief adopted the issues as formulated by the Appellant. The 3rd to 5th Respondents filed no briefs. The appellant filed a Reply brief. I shall deal with the issues seriatim. ISSUE I: Was the Learned Trial Judge Right in (a) directing a consolidated hearing of the Appellant’s Service Preliminary Objection and the substantive Suit; and (b) holding that the Appellant was served howsoever with the Applicants’ originating processes? PAGE| 7 Learned senior counsel for the appellant on this issue had submitted that the Trial Court was without jurisdiction to entertain this Suit as against the Appellant, the originating processes thereof not having been served howsoever on the Appellant. I have read carefully the arguments in the Appellant’s brief, the Respondents’ brief and the Appellant’s reply on points of law. It is not in doubt that service of process is one of the conditions precedent to the assumption of jurisdiction by a trial court. If there was no service or if the service was defective, the court would lack the jurisdiction and competence to entertain the suit and would have to set aside the improper service and order fresh service on the Respondent. In the case of Oloba v. Akerefu (1988) 3 NWLR (Pt. 84) 508. it was held that “the issue of jurisdiction is so radical that it forms the foundation of adjudication. If a court lacks jurisdiction, it also lacks the necessary competence to try the case at all. A defect in competence is fatal, for the proceedings are null and void ab initio, however well conducted and well decided they may otherwise be. A defect in competence is extrinsic to adjudication. The court must first of all be competent, that is have jurisdiction, before it can proceed on any adjudication. Madukolu & Ors v Nkemdilim (1962) 1 All NLR 587 @ 595” These important principles were duly recognized and acknowledged by the learned trial judge when he observed as follows in his judgment: “It is elementary that service of originating process is fundamental to a case as it gives the court the jurisdiction to preside over the matter. A court has no jurisdiction to make an order against a party who has not been served with the originating process in a matter. See Rossek v ACB (1993) 8 NWLR (pt.312) 382. Service of court processes on a party to a proceeding is crucial and fundamental. See Auto Import Export v Adetayo (2000) 18 NWLR (pt.799) 554; SGBN v Adewunmi (2003) 10 NWLR (pt.829) 526; Mbadinuju v Ezuka (1994) 8 NWLR PAGE| 8 (pt.364) 535.” “It is … an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. See Oloba v Akereja (1988) 3 NWLR (pt.84) 508 SC” Contrary to the contention of learned senior counsel for the appellant that the learned trial judge did not follow the above advice and therefore erred in hearing the preliminary objection on service together with the substantive suit, the Fundamental Rights (Enforcement Procedure) Rules 2009 made specific provision allowing the preliminary objection to be heard together with the substantive suit. Order VIII provides thus: 1.”Where the Respondent is challenging the court’s jurisdiction to hear the application, he may apply to the court for an order striking out the suit or setting aside the proceedings. 2.The Respondent’s Notice of Preliminary Objection must be filed along with the counter affidavit to the main application. 3.Where the Respondent elects not to file a counter affidavit to the main application, the Court shall presume that the Respondent has accepted the facts as presented by the Applicant. 4.On the date of hearing, the preliminary objection shall be heard along with the substantive application. 5.The court after hearing the application may make any of the following orders: (a)Striking out the application for want of jurisdiction; or (b)Setting aside the service of the originating application. 6.Where the Court does not decline jurisdiction, the court shall go ahead to give its Ruling on the substantive application”. The learned trial judge consequently followed the procedure laid down in the Law. He heard the applications together, gave his ruling on the preliminary objections before tackling the substantive application. Paragraph 5 (b) highlighted above shows that such consolidated hearing also applies where the objection relates to service of court processes. The next point to consider is whether the learned trial judge was wrong in holding that the appellant was duly served with the originating processes. At pages 568 8669 of the Record of Appeal, the trial judge in his judgment ruled thus: “I have seen the Court’s file and Affidavit of Service sworn to on the 16th day of January 2013, by one West Jonah, a bailiff of this Court, stating that on 9th January 2013 at about 5.17 pm, he served on the 3rd Respondent herein the PAGE| 9 following processes, namely: (i) Court order dated 9/1/13; (ii) Originating Motion on Notice dated 4/1/13; (iii) Statement in Support; (iv) Affidavit in Support; (v) Exhibits; (vi) Written Address; and (vii) Hearing Notice dated 9/1/13 by delivering same personally to the 3rd Respondent herein at Access Bank Headquarters, Plot 999c Danmole Street, Victoria Island, Lagos. “Contrary to the depositions in the affidavit in support of the 3rd Respondent’s Notice of Preliminary Objection, I have not seen anything in the Court’s file which reveals that the Originating Processes in this suit meant for service on the 3rd Respondent was indeed served on Mr Robert Imowo. Instead, the Affidavit of Service reveals that the Originating Processes were served personally on the 3rd Respondent. “An affidavit of service is an affidavit, usually sworn to by the bailiff indicating how and where he served a party. It is to convince the Court that the party, on whom the processes is (sic) to be served, was duly served. Se Anyoha v Chukwu (2008) 4 NWLR (pt.1076) 1. It is trite that Affidavit of Service is prima facie proof of service on a party. Where there is an affidavit of service on a person denying service that person has to swear to an Affidavit to counter the deposition. See Ethiopian Airlines v Onu (2005) 11 NWLR (pt.936) 214. The 3rd Respondent did not personally file any Counter Affidavit to the Affidavit of Service sworn to by the bailiff of this Court. The only Counter affidavit filed was by a third party on account of information given to him by the 3rd Respondent. In Re J L Young Manufacturing Co Ltd (1900) 2 CH.753 at 754, Lord Alverton CJ held that: ‘When an affidavit is based on information obtained from a source, it must be confirmed by someone who speaks from his personal knowledge.’ “Therefore the evidence of the bailiff of this Court who served the processes is more cogent, direct and positive. The effect is that the Affidavit of Service stands unchallenged. I am therefore minded to accept the unchallenged deposition in the Affidavit of Service to the effect that on 9th January 2013, the 3rd PAGE| 10 Respondent herein was personally served with the originating processes in this suit.” Unfortunately, the learned judge’s summation of the facts that gave rise to his ruling did not represent the true position as clearly borne out by the records. From the records, after the bailiff had deposed to an affidavit that he served the appellant personally in his office and the appellant filed his preliminary objection denying personal service, the applicants then filed an exparte motion dated 22/1/13 for substituted service. In the affidavit in support deposed to by one Chinedu Mbata, he averred that the appellant was not served personally. Hear him: 2.”On the 18th of January 2013 at about 2pm, Mr West Jonah a bailiff of this Honourable Court engaged to effect service of the originating processes in this suit informed me and I verily believe him that on the 9th of January 2013 when he went to serve the Originating processes and other processes and documents in this suit on the 3rd Respondent at the address provided for service, the 3rd Respondent was in his office but he was not allowed to enter the office for the purpose of effecting personal service. 3.”Mr West Jonah further informed me and I verily believe him that one Robert Imowo who works in the 3rd Respondents (sic) office received the processes on behalf of the 3 Respondent having informed him that he had the authority of the 3rd Respondent to receive the processes.” It is obvious then that the findings and conclusion of the learned trial judge was perverse in view of the above affidavit of the applicants in the court file now conceding that the 3rd Respondent was not served personally and that indeed service was on Robert Imowo. The view of learned trial Judge that he had not seen anything in the Court’s file which reveals that the Originating Processes in this suit meant for service on the 3rd Respondent was indeed served on Mr Robert Imowo; and that the Affidavit of Service reveals that the Originating Processes were served personally on the 3rd Respondent is untenable. It is surprising that his Lordship would come to this conclusion in view of the fact that his Lordship heard the application for PAGE| 11 substituted service and granted the application after due consideration of the affidavit evidence in support. Learned counsel for the 1st and 2nd Respondents had argued that the application for substituted service dated the 22nd January 2013 and the subsequent order granted by the court thereupon for substituted service on the Appellant had superseded the complaint of the Appellant dated the 15th of January 2013. If the learned trial Judge had taken that line of reasoning, it would have made better sense. On the contrary and regrettably, at that point in time, he closed his mind completely to the conflicting affidavit evidence in support of the motion for substituted service which he had actually granted. He could not therefore pretend not to have been aware of the deposition that the appellant was not served personally. These relevant points were dramatically summarized in the appellant’s brief thus: “That was the same Bailiff West Jonah that swore to the affidavit of personal service that was relied upon by the Learned Trial Judge in holding that the Appellant was personally served with the Applicants’ originating processes! He was the same person that provided the wholly reverse information that constitutes paragraphs 2 and 3 of Mr Mbata’s afore-quoted Affidavit. But that is only one part of the story, the part that relates to Bailiff West Jonah; there is the other part that relates to the lower Court i.e. the fact that the Learned Trial Judge believed Bailiff West Jonah’s information to Mr Mbata on which basis the Court on 22 January 2013 granted the Applicants’ application for substituted service of the originating processes on the Appellant. Indeed, the Court’s Enrolled Order expressly acknowledges that “upon reading the affidavit in support of the Motion Ex parte sworn to by Chinedu Mbata . . . and after hearing Ifeoma Esom (Mrs) or the Applicant move in terms of the Motion papers”, When His Lordship, the Learned Trial Judge therefore stated in the Court’s Judgment that Bailiff West Jonah’s “Affidavit of Service stands unchallenged”, he most definitely was not telling all. Also, when the Court stated in the Judgment that His Lordship had “not seen anything in the Court’s file which reveals that the Originating Processes in this suit meant for service on the 3rd Respondent was indeed served on Mr Robert Imowo”, the Court, very unfortunately, was PAGE| 12 being rather economical with the facts, for, in the Court’s file was Mr Mbata’s Affidavit which quoted Bailiff West Jonah explicitly on the service of the originating processes on Mr Imowo. Still on Mr Imowo, there is one more piece of evidence in the Court’s file that bears out the service of the originating processes on Mr Imowo by Bailiff West Jonah, in corroboration both of his information to Mr Mbata and our Service PO. Attached to Bailiff West Jonah’s Affidavit of Personal Service is the Hearing Notice for the proceedings of 16 January 2013 – one of the documents that His Lordship quite rightly pointed out in the Judgment was served by Bailiff West Jonah -and that Hearing Notice was served on Mr Imowo as the name and signature at the bottom of the Hearing Notice bears out! The date and time of service of that Hearing Notice as written thereon under the hand of Mr Imowo are 09 January 2013 and 5.17 pm respectively -same date and time that Bailiff West Jonah, in his Affidavit to which the Hearing Notice is attached, purported to have personally served the Appellant with the same Hearing Notice and other originating processes! And all of these documents formed part of the Court’s records and file – which explains their being part of the Records of Appeal hereof – and were available to the Learned Trial Judge! In the face of these irreconcilable and unresolvable conflicts and self-contradictions by Bailiff West Jonah, to the Court’s knowledge, there was no basis whatsoever for the Court to rely on the Affidavit of Service sworn to by Bailiff West Jonah and hold that there was personal service of the originating processes on the Appellant. That finding, with the greatest respect, is perverse and is neither defensible nor sustainable. Ironically, His Lordship, in making those perverse findings, relied on this Honourable Court’s decision in Anyoha & 10 others v Chukwu (2008) 4 NWLR (p.1076) 312. In Anyoha v Chukwu (supra), the bailiffs’ affidavits of service were rejected by Your Lordships and amongst the reasons for this rejection, as captured in the lucid lead Judgment of Rhodes-Vivour JCA (as he then was), was the fact that: PAGE| 13 “In the affidavit of service, PW1 said that he served the defendants with statement of claim on 13/3/98 while in oral testimony, he says he served them on 3/3/98.” The contradiction in the bailiff’s evidence in Anyoha v Chukwu (supra) amounts to a trifle and pales into extinction when compared with the monumental, eye-popping contradictions of Bailiff West Jonah in this Appeal which is why Anyoha v Chukwu (supra) should actually have pressed on the lower Court to reject Bailiff West Jonah’s personal service affidavit and hold that there was no personal service of the originating processes on the Appellant. See also Ezemba v Ibeneme & 1 other (2004) 14 NWLR (pt.894) 617 at 654 paragraphs B-E generally on how the Court should treat the contradictory evidence of a witness – reject the entire evidence and not accord the witness with any vestige of credibility.” There is evidence from the records contrary to the holding of the learned trial judge that the appellant was not served personally with the originating process. Fully aware of this, the applicants took the necessary step of applying for substituted service on the appellant. The order was duly granted by the trial Judge in the following terms: “That Leave is hereby granted to the Applicants to serve the Originating Motion on Notice, Statement in support of Application and all other processes and documents in this suit on the 3rd Respondent by substituted means to wit by delivering same to any person not below the rank of a Receptionist at the address provided for service in the Originating Motion on Notice being Access Bank Headquarters, Plot 999C Danmole Street, Victoria Island, Lagos.” In order to add further weight to his earlier holding that there was personal service of the originating processes on the appellant, the learned trial Judge held: “Furthermore, the Applicants on the 22nd day of January, 2013 obtained an Order of this Honourable Court to serve the 3rd Respondent by substituted means by delivering same to any person not below the rank of a Receptionist at the address provided for service. Learned Senior Counsel has contended that service of the said processes on one Allison Lanre, Managing Director’s Security PAGE| 14 has not complied with the mode elected by the Applicants. Without availing this Court with the hierarchy of staff in the 3rd Respondent’s office so as to enable the Court to determine if the said Allison Lanre is lower in the Bank’s hierarchy than the Managing Director’s Receptionist the 3rd Respondent has therefore failed to establish that the service was not in accordance with the order of the Court. Courts are not concerned with sentiments, speculations and/or conjectures but with hard facts. See Agbi v Ogbeh (2006) 11 NWLR (p.990) 65 SC. Okoko v State 1 All NLR 243; On we v State (1975) 9-11 SC 23 referred to.] (P.135 para. E). The effect is that the 3rd Respondent’s Notice of Preliminary Objection of 15th January 2013 failed and it is accordingly hereby dismissed.” In response to the above learned counsel for the appellant in his brief argued thus: “We are in agreement with the lower Court that courts generally ought to be concerned with “hard facts”, one of which, in this instance, is the fact that the substituted service affidavit which the Court relied on for the afore-quoted holding was sworn to by Bailiff West Jonah3, the same West Jonah whose affidavit and other documents and information in the Court’s file and records have hopelessly and irrefutably contradicted themselves in regard to personal service on the Appellant. We most definitely cannot better the Supreme Court in its description of witnesses and persons such as Bailiff David West as per Edozie JSC’s in the Court’s lead judgment in Ezemba v Ibeneme (supra) at page 654 of the Report paragraph E, viz. “No witness who has given on oath to material of inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness.” Surely, Bailiff West Jonah does not qualify as a truthful bailiff or witness howsoever, given the gargantuan and irresolvable contradictions in his affidavit of personal service when matched against the documents attached thereto as PAGE| 15 well as the information he supplied to Mr Mbata for his Affidavit4. He cannot be believed even in regard to the substituted service affidavit howsoever. How did Bailiff West Jonah identify Allison Lanre? The substituted service affidavit does not say. How did he know Allison Lanre to be the “MD’s Security”? Nothing in the affidavit … answers that question. Given the monumental contradictions in the documents emanating from and information attributed to Bailiff West Jonah in this matter, why should the Court believe him at all, whether in regard to the personal or substituted services? There is absolutely no basis for any such belief and, as the Courts have held in innumerable instances, it is not for the Courts to pick and choose which aspects of a witness’ contradictory evidence it must believe: the entire evidence must and ought to be rejected by the Court – see Ezemba v Ibeneme (supra).” The arguments no doubt seem compelling. It seems to me that the trial court in its anxiety to achieve a preconceived outcome fell into the grave error of conflicting and perverse assessment of the affidavit evidence presented before the court. However, the 1st and 2nd Respondents in their brief argued that the appellant is precluded from challenging the substituted service because he did not complain against it in his preliminary objection but merely raised speculations in his Counsel’s submission at the Lower Court and in his Brief of Argument before this Honourable Court. In response, the appellant argued: “But that is all that the Appellant could have done considering the fact that the 1st -2nd Respondents’ substituted service application was argued ex-parte and it was not until the compilation of the Records of Appeal hereof that the Appellant got to know of and see (a) West Jonah’s entirely false personal service affidavit of 16 January 2013; and (b) the lst-2nd Respondents’ substituted service application and, in particular, Chinedu Mbata’s supporting affidavit that contained Bailiff West Jonah’s recantation of the personal service. Not having knowledge of these documents and not being privy thereto, prior to the compilation of the Records of Appeal hereof, the Appellant could not possibly PAGE| 16 have raised, prior to now, issues relating to Bailiff West Jonah’s utter lack of credibility and the fact that his testimonies on both the personal and/or substituted services were absolutely unreliable and unbelievable. All of these notwithstanding, the Appellant, as acknowledged by the lst-2nd Respondents, did challenge the substituted service during Counsel’s oral submissions in support of our Service PO” With all due respect to learned senior counsel for the Appellant, they could have done more. If they had sufficient information to be able to challenge orally the substituted service during the hearing, they should have at that point filed another motion for the setting aside of the order of substituted service. It is surely not enough simply to challenge the substituted service in oral argument in respect of a different motion. What it then means is that in spite of the deficiencies pointed out by the appellant in the affidavits in support of the substituted service, the preliminary objection was concerned with the purported personal service which can be said to have been overtaken by the order of substituted service. In the absence of any motion challenging the substituted service, the arguments written or oral in respect thereof will not suffice. The order of substituted service on the Appellant, not having been properly challenged must be accepted as good service. This issue is resolved against the appellant and in favour of the 1st & 2nd Respondents. ISSUE II: Was the Learned Trial Judge right in finding the Appellant liable to the Applicants howsoever in this matter? In other words, in the context of the Applicants’ claims and reliefs, was the Suit maintainable and did it disclose any cause of action howsoever against the Appellant? Learned Senior Counsel for the appellant on this issue submitted that the Applicants’ Suit before the lower Court disclosed no cause of action against the Appellant and should have been dismissed as against the appellant herein. Counsel submitted that they had addressed the lower Court extensively on this issue as issue 1 in their written Address in the substantive PAGE| 17 application. But the court neither addressed nor resolved the issue in its judgment. Learned counsel submitted relying on Ifeanyi Chukwu (Osondu) Ltd V Soleh Boneh Ltd (20001 5 NWLR fat656) 322 @ 351 F-G: and Adah VNational Youth Service Corps (2004) 13 NWLR (Dt.891) 639 0 649-650 D-E that the lower Court was in grave error in completely ignoring and failing to consider and resolve their said Issue 1. Counsel called on us to invoke Section 15 of the Court of Appeal Act Cap C36 Laws of the Federation of Nigeria 2004 to step into the shoes of the lower Court and resolve the issue as all the required materials for its resolution are before us. He referred to Obi v Independent National Electoral Commission & Others (2007)11 NWLR (Dt.1046) 565 @ 639. Counsel adopted and relied on their submissions before the lower Court on the issue as contained in their Written Address on the substantive application, a copy of which was annexed to their Brief of Argument. Counsel urged us to set aside in its entirety the Judgment of the Lower Court against the Appellant. In reply, learned counsel for the 1st and 2nd Respondents submitted that their Suit against the Appellant, as constituted disclosed a cause of action. Counsel referred to the definition of cause of action in the case of COOKEY V. FUNSHO (2005) 15 NWLR (Pt.947) 18 and submitted that in determining whether or not a cause of action has been disclosed against the Appellant, the relevant documents to look at are the Appellants’ originating processes. Counsel contended that the facts placed before the court as contained in their affidavit in support of the originating motion and also in the grounds for the reliefs sought show that allegations of breach of the fundamental rights of the 1st and 2nd Respondents by the appellant and the 4th and 5th Respondents were copiously set out and that the learned trial judge captured the totality of their case in his summary of the applicants’ case at page 572 of the Record. It was submitted that the lower court had a clear vision that the action disclosed a cause of action against the appellant. I have read carefully the judgment of the lower court at pages 545 – 578 of Vol 11 of the Record of appeal, there is nothing therein to show that this issue was resolved by the learned trial Judge. His Lordship did summarize the case of the applicants thus: “The Applicant, allege that following the appointment of the 3rd PAGE| 18 Respondent, who is the Managing Director/Chief Executive Officer of Access Bank Pic, as the Chairman of the President Committee on Verification and Reconciliation of subsidy payments to Petroleum Product Marketers, the 3rd and 4th payments (sic) saw it as an opportunity for vendetta and to witch hunt the Applicants and therefore conspired to instigate persecution of the Applications using the 1st and 2nd Respondents for subsidy fraud upon spurious charges of complicity in forgery, money laundering, stealing, obtaining under false pretences and economic sabotage. The Applicants claimed that the 4th Respondent, in furtherance of the plan of the 3r and 4 Respondents sent a petition dated 9th of October 2012 to the 2nd Respondent, who is also acting under the influence and control of the 3rd Respondent as the Chairman of the President Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers.” It is not in doubt that the above was just a summary of the case of the Applicants as actually stated by the trial Judge at page 572 – 573 of the Record. Learned counsel in his written address even admitted that it was a summary of the applicants’ case. If indeed the lower court had a clear vision that the action disclosed a cause of action against the appellant as claimed by counsel, his Lordship did not say so in the judgment. Before the lower court, the issue was addressed copiously in the appellant’s written address as issue 1. There was no resolution of the issue. In the case of Brawal Shipping Ltd v. F.I. Onwadike Co Ltd r2000111 NWLR (Pt. 678) 387 0 403 D-H the SC per Uwaifo J.S.C observed: “The Supreme Court demands of lower courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues not pronounced upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. Consequently, this could be avoidable since it may become necessary to send the case back to the lower court for those issues to be resolved. [Oyediran v Amoo (1970) 1 All NLR 313; Ojogbue v Nnubia (1972) 6 SC 227; Atanda v Ajani (1989) 3 NWLR (PL 111) 511; Okonji v Njokanma (1991) 7 NWLR (PL 202) 131; TILiloya v Olupo [1991] 7 NWLR (Pt. 205) 519; PAGE| 19 Kato v. Central Bank of Nigeria (1991) 9 NWLR (PL 214) 126; Yakassai v. Incar Motors Ltd (1975) 5 SC 107; International Textile Industies (Nig.) Ltd v. Aderemi (1999) 8 NWLR (Pt. 614) 268.” The issue here is whether or not the applicants’ case at the lower court disclosed a cause of action. This issue which the court failed to make pronouncement on is obviously crucial to the appellant’s case and has clearly led to a miscarriage of justice. A determination of the issue would have led to a decision whether or not the case against the appellant should be struck out or dismissed. Dawodu v. National Population Commission 6 WRN116 @ 118; Ovunwo & Anor v. Woko & Ors (2011) LPELR-2841 (SC). The importance of this issue makes it expedient that this court either remits the case back to the lower court for it to make a pronouncement on the issue or by itself determines the issue through the invocation of Section 15 of the Court of Appeal Act. In the case of Ezeiawe v. Nwawulu (2010) 4 NWLR (PL 1183) 159 the SC held that for Section 15 of the Court of Appeal Act to apply, the following conditions must exist: (a)That the High Court or trial court had the legal power to adjudicate in the matter before the appellate court entertained it; (b)That the real issue raised by the claim of the appellant at the High Court or trial court must be capable of being distilled from the grounds of appeal; (c)That all necessary materials must be available to the court for consideration; (d)That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and (e)That the injustice or hardship that will follow if the case is remitted to the court below must clearly manifest. See also Obi v. I.N.E.C. (2007) 11 NWLR (Pt. 1046) 565; Amaechi v. I.N.E.C. (2008) 5 NWLR (PL 1080) 227; Inakoiu v. Adeleke (2007) 4 NWLR (PL1025P 423; Aabakoabo v. I.N.E.C. (2008) 18 NWLR (PL 1119) 489. It is my view that the five conditions adumbrated above exist in this appeal. The subject matter of the suit was within the competence and jurisdiction of the lower court. The issue raised at the lower court which was not pronounced on can be distilled from ground 4 of the Notice and Grounds of Appeal at page 25 of the Supplementary Record of Appeal. All necessary materials for the determination of the issue are before us. From the materials in the Record of PAGE| 20 Appeal and the written briefs of the parties, there is need for expeditious disposal of the case in order to meet the ends of justice. It will clearly lead to injustice and unnecessary hardship to remit the case back to the lower court for determination. I shall now proceed to consider the appellant’s written submission on issue 1 at the lower court which he had annexed as part of his written brief in this appeal and which was duly adopted and relied on during the hearing of the appeal. The crux of the matter is whether the facts as disclosed in the applicants’ originating motion and affidavit in support disclose a cause of action against the appellant. The Appellant in his written brief examined each of the Reliefs in the originating motion and came to the conclusion that none was targeted against the appellant in his personal capacity for any action to lie against him. I agree with learned counsel for the Appellant. Most of the reliefs sought apply to the 1st and 2nd Respondents in the lower court – Inspector General of Police and CP. Ogunsakin (3rd and 4th Respondents in this appeal), and the Police Interim Investigation Reports. Reference was made to the Presidential Committee under the control and chairmanship of the 3rd Respondent. There is a world of difference between the appellant in his personal capacity and as chairman of the Presidential Committee. I agree that there is no cause of action against the appellant. Various definitions of ‘cause of action’ were proffered by both the appellant and the 1st & 2nd Respondents. Diplock LJ in Letang v. Cooper (1965) 1 QB 222 @ 242 said “The words have been defined as meaning ‘simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.’ The factual situation here is that, as acknowledged by the 1st and 2nd Respondents in their processes, the appellant was appointed the chairman of a 15-member Presidential Committee on the Verification and Reconciliation of Fuel Subsidy Payment by the President of Nigeria. The Committee completed its assignment and presented its final Report to the President. Everything concerning the Report was the work of the Committee and not that of any individual member of the Committee. In all their processes, the applicants did not point to any specific action taken by the appellant in his personal capacity which infringed their fundamental rights. There is therefore no nexus between any act of the appellant in his personal capacity and the alleged infringement of the applicants’ fundamental rights. There simply was no cause of action against him in his personal capacity. The learned trial Judge failed to make any pronouncement on the issue. His Lordship ought to have dismissed the suit PAGE| 21 as against the appellant herein. This issue is resolved in favour of the appellant and against the 1st & 2nd Respondents. ISSUE III: Was the Applicants’ Suit, in any event, not premature, in the context of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) considering the fact that (a) charging the Applicants for a criminal offence is a condition precedent to the activation of their right under and pursuant to this Section; and (b) the Applicants have not been charged for any criminal offence at any time material to this Suit and did not claim at all to have been so charged? Was the lower Court right in not addressing, in the Court’s Judgment, this Issue which was raised and fully adumbrated upon both in the Appellant’s Substantive PO Written Address and in his Substantive Suit Written Address? Learned counsel for the appellant on this issue submitted that the applicants’ suit was premature in the context of Section 36(5) of the 1999 Constitution which stipulates that: “Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty” Counsel argued that the condition precedent to the applicability of that Section is that a person must be “charged with a criminal office”. He submitted that the Applicants did not claim that they were charged with any criminal offence at any time material to this Suit. Learned senior counsel submitted that this issue was raised as Issue No. 2 in their Substantive Written Address before the lower Court and the court was duly addressed thereon, adopting and incorporating their submissions and arguments on the same issue in their written address in the Substantive Preliminary objection. But the learned trial judge in his judgment made no pronouncement whatever on the issue. Counsel called on the Court to invoke section 15 of the Court of Appeal Act and also determine this unresolved issue, to wit, whether the Applicants’ Suit, in any event, was premature and incompetent, in the context of Section 36(5) of the 1999 Constitution. In reply learned counsel for the 1st & 2nd Respondents submitted that in construing and or interpreting the provisions of Chapter IV of the Constitution, the Courts are enjoined to consider the overall objectives of the Fundamental Rights and Enforcement Procedure Rules PAGE| 22 and to interpret the provisions of Chapter IV of the Constitution including section 36(5) expansively and purposefully with a view to advancing and realizing the rights and freedoms contained therein. Counsel submitted that consideration of the right to be presumed innocent until proved guilty within the context of Section 35(1) (c) which requires reasonable suspicions at the commencement of investigation, shows that an objective standard is required in the investigation of crime and that the discretion, power or duty to investigate cannot be exercised at large but must recognize the fundamental rights of the person being investigated. The right to be presumed innocent until proved guilty therefore applies from the investigation stage when a person is accused of an offence. Counsel submitted that the appropriate interpretation to give to the Phrase “charged with a criminal offence” as used in Section 36(5) is “accused of a criminal offence.” Counsel argued that this is even clearer when the provisions of Section 36(5) is compared to that of Section 36(7) of the same Constitution. Section 36(7) commences with the phrase” when any person is tried for a criminal offence”. Counsel submitted that if the legislator had intended that the phrase “charged with a criminal offence” should be restricted only to trials for criminal offence he had enough awareness to have so clearly specified in the manner done in Section 36(7). Learned counsel further submitted that contrary to the argument of the Appellant that the 1st and 2nd Respondents’ Suit is premature because they have not yet been charged with any crime, Section. 46 (1) of the Constitution states that “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.” Therefore, the 1st and 2nd Respondents need not wait for the “completion of the infringement” i.e. until they are charged to court before they can institute this action for the enforcement of their fundamental right. Counsel urged us to resolve this issue in favour of the 1st and 2nd Respondents by holding that the 1st and 2nd Respondents’ Suit at the Court below was not premature. The 1st and 2nd Respondents have by the averments in their affidavit and argument of their counsel raised novel and interesting dimensions in the law relating to enforcement of the fundamental rights of the citizen viz a viz the interpretation of the Constitution of the Federal Republic of Nigeria, the grundnorm of our laws. Mr. Oluyede, learned counsel for the 1st and 2nd Respondents, in my view, misinterpreted the provisions of the preamble of the Fundamental Rights and Enforcement Procedure Rules 2009 which provides thus: PAGE| 23 “1.The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule. 3. The Overriding objectives of these rules are as follows: (a) The Constitution, especially Chapter IV as well as the African Charter, shall be expansively and purposefully interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them. (c) For the Purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.” The above provisions do not in any way imply that the provisions of Chapter IV of the Constitution should be misconstrued in order to give a protection unintended by the Constitution itself. The provisions of the Constitution, the grundnorm of our laws must be construed independently of any other law applying the usual rules of interpretation of statutes. It is trite as stated by Mr. Usoro SAN in his reply brief, that all other laws must align with and be interpreted in the context of and in conformity with the Constitution. Tobi JSC in Global Excellence Communications Limited v Duke (supra) @ 47- 48H-C clarified the issue thus: “In the interpretation of the Constitution, the court is bound by the provisions of the Constitution. Where the provisions of the Constitution are clear and unambiguous, the court must give a literal interpretation to them without fishing for a likely or possible meaning. This is because by the clear and unambiguous provisions, the makers of the Constitution do not intend any other likely or possible meaning. However, where the provisions are not clear, a court of law can fish for a likely or possible meaning to bring out or arrive at the intention of the maker of the Constitution. Even here, the Court has no jurisdiction to go out on an unguarded voyage of discovery completely outside the intention of the makers of the Constitution. The court is expected to apply a PAGE| 24 compass in a ship to navigate the waters to arrive at the intention of the makers of the Constitution.” The advice given in several Supreme Court cases that a liberal approach be adopted when interpreting the constitution, especially the fundamental rights provisions do not enjoin the courts to create rights where there are non. Mr. Oluyede with respect completely misinterpreted the case of Lafia Local Government v. Governor Nasarawa State & Ors F2012117 NWLR (Pt.1328). Section 36(5) provides that when a person is “charged with a criminal offence he shall be presumed innocent until he is proved guilty.” No mention was made of investigation process. Mr. Usoro SAN is right that the investigation process cannot be imported or smuggled into the interpretation of the section. Such an attempt cannot be rightly upheld by any court of law. The case of Lafia Local Government v. Governor of Nasarawa State (Supra) cannot be interpreted to sanction the unlawful importation of such extraneous matter into the very clear and unambiguous provision of the Constitution. Mr. Usoro SAN analyzed the scenario very incisively in their reply brief. He said: Section 36(5) makes absolutely no mention of investigation processes and this, we submit, cannot be imported or smuggled into the interpretation of that section as attempted by the 1st -2nd Respondents. Section 36(5) applies only to and in circumstances where and when a person “is charged with a criminal offence” when the charge sheet containing the criminal charges against him are read to him in a court of competent jurisdiction and his plea thereof duly taken. That process is well set out not only in Section 36 (6) (a) of the 1999 Constitution but in all criminal procedure legislation that are applicable in various parts of Nigeria In regard to Section 36(7) of the 1999 Constitution, the “trial” of the accused person which is provided for therein only occurs after the person has been charged or arraigned and he pleads “not guilty” in which circumstance the prosecution has the onus of proof. Little wonder that the Supreme Court, in Eghobamien v Federal Mortgage Bank of Nigeria (2002) 17 NWLR (pt.797) 488 at 501 paragraph D, defined a “trial” as “a judicial examination of evidence according to the law of the land, given before the Court after hearing parties and their witnesses”. That is the trial scenario that is provided for in Section 36(7) of the 1999 Constitution. Section 36(7), we respectfully PAGE| 25 therefore, submit, provides for a completely different circumstance and situation from that which Section 36(5) envisages; Section 36(5) provides for and stipulates that when a person is “charged with a criminal offence” he “shall be presumed to be innocent until he is proved guilty” and that proof, we must add, can only be fulfilled or effectuated during the person’s trial sequel to his being charged. Moving on to the imperative of and for holistic interpretations of the Constitution and/or legislation, we are in total agreement with the 1st -2nd Respondents’ submissions thereon. It surely cannot be otherwise and there is a long line of authorities in support of that position. We however wonder why the lst-2nd Respondents did not apply that principle by reading Section 36(5) holistically with the immediately contiguous and directly relevant Section 36(6) of the same Constitution. We are astonished that the lst-2nd Respondents side-stepped and avoided this particularly relevant and next-door Section 36(6) of the 1999 Constitution in their search for the interpretation of Section 36(5). Section 36(6) actually uses the same words that we find in Section 36(5) – i.e. “charged with a criminal offence – in a manner and context that erases any doubt as to when the incident, to wit, the “charging” of the person, occurs. For ease of reference, we reproduce Section 36(6) below: 36(6) “Every person who is charged with a criminal offence shall be entitled to – (a)”be informed promptly in the language he understands and in detail of the nature of the offence; (b)”be given adequate time and facilities for the preparation of his defence; (c)”defend himself in person or by legal practitioners of his own choice; (d)”examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and (e)”have, without payment, the assistance of an interpreter if he cannot PAGE| 26 understand the language used at the trial of the offence.” To paraphrase Fabiyi J in Lafia Local Government v Governor, Nasarawa State (supra), Sections 36(5) and 36(6) of the 1999 Constitution are “related sections of the Constitution” and “ought to be interpreted together so as to produce a harmonious result” particularly in regard to the common phrase, “every person who is charged with a criminal offence”. The interpretation of that phrase in Section 36(5) cannot howsoever be different from its interpretation in Section 36(6) and in Section 36(6), it is indisputable that the phrase refers to the arraignment of a person on criminal charges before a court of competent jurisdiction. All the incidents in sub-paragraphs (a) to (e) of Section 36(6) afore-quoted occur only in the precincts of a court of competent jurisdiction before which a person is arraigned and “charged with a criminal offence”. It is in consideration of these facts that we continue to submit, most respectfully, that the institution of the lst-2nd Respondents’ Suit before the lower court was undoubtedly premature, they having not been arraigned before any court on criminal charges. We need to further address the ist-2nd Respondents’ strange submission that the phrase “every person who is charged with a criminal offence” in Section 36(5) of the 1999 Constitution should be read to mean “every person who is accused of a criminal offence”. That, with great respect, amounts to a misreading of Section 36(5) of the 1999 Constitution or indeed, an importation of extraneous and strange words into the Section. That, we submit, is a forbidden act or conduct in legislative and constitutional interpretation. Aderemi JSC spoke to this point and strongly too in his concurring judgment in Global Excellence Communications Limited & 3 others v Duke (2007) 16 NWLR (pt.1059) 22 at 55-56 paragraphs F-B, viz. “Where the language of the provisions of a statute or Constitution is clear and unambiguous, the court has a standing duty to do no more than to give it its plain evident meaning. See AG of Bendel State vAG of the PAGE| 27 Federation & Ors (1981) 9 SC (Reprint) 1 … It must always be remembered that judges have no business expanding the law or even making same; that is the exclusive function of the lawmakers. It is often said that a Judge, in interpreting the provisions of any law, must get at the intention of the legislators. Yes, that is a true statement; but in demonstrating his judicial interpretative skill, a judge can get to know the intention of the legislators only through the wordings of the provisions of the statute or section of the Constitution being interpreted. Let it be remembered that when in the words used in couching the provision, there is no ambiguity, then no exposition contrary to the expressed words used, is to be made.” It remains to address Section 35(1) (c) of the 1999 Constitution which the lst-2nd Respondents recklessly attempted to import for the interpretation of Section 36(5) – the only relevant provision for the purposes of this Appeal and Issue. To again paraphrase Fabiyi J in Lafia Local Government v Governor, Nasarawa State (supra) only “related sections of the Constitution ought to be interpreted together so as to produce a harmonious result”. We ask, is Section 35(1) (c) “related” to Section 36(5)? Not in the least. Section 35(1) (c) stipulates one of the exceptional circumstances when a person may be deprived of “his personal liberty”, to wit: 35(1) (c) “….for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal office”. Section 36(5) of the 1999 Constitution – the only section in issue at this point – does not howsoever guarantee the “personal liberty” of a person; that is the focus and exclusive purview of Section 35(1) (c). Section 36(5) on the other hand focuses on and stipulates the presumption of innocence of a person where and when he “is charged with a criminal offence”, whether or not he is, at that point, deprived of his personal liberty; it states further that the presumption of PAGE| 28 innocence may be rebutted when the person’s guilt is proved in a trial. Those two Sections – 36(5) and 35(1) (c) – are not related at all and interpreting them together, as proposed by the lst-2nd Respondents, produces a rather disharmonious “result” The submissions of Mr. Usoro SAN above are sound and unimpeachable expositions of the law. The attempt by Mr. Oluyede to stretch the language of section 36 (5) of the Constitution to cover investigations is futile. Further, his attempt to fall back on section 46 (1) of the Constitution claiming they could sue to pre-empt the breach of the fundamental rights of the 1st & 2nd respondents is also futile. Section 36 (5) is explicit and unambiguous in stipulating that it is only when a person “is charged with a criminal offence” that he “shall be presumed innocent until he is proved guilty”. The condition precedent for the activation of that right is the arraignment or charging of the person “with a criminal offence”. The right in Section 36(5) cannot be activated until the person is charged. 1st and 2nd Respondents had not yet been charged to court. The alleged criminal offences were still under investigation when the suit was filed. Section 36(5) does not apply. These points are so recondite and were fully argued by the appellant in the written addresses in support of his Preliminary Objection and the substantive suit. I am of the view that the learned trial Judge erred in not addressing this important issue in his judgment. Pursuant to Section 15 of the Court of Appeal Act and having considered all the relevant arguments as canvassed by the parties, I hold that the 1st & 2nd Respondents suit was premature in the context of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999. Issue 3 is resolved in favour of the appellant. ISSUE IV: As a corollary to Issue III hereof, upon a complete and careful review of the Applicants’ claims and reliefs as contained in their Originating Motion, was the Learned Trial Judge in any event right and/or justified howsoever in holding that the Applicants’ fundamental rights that are guaranteed under Section 36(5) of the 1999 Constitution were infringed howsoever and in particular, in the terms of their said claims and reliefs? The main point under this issue as postulated by the appellant is that Reliefs 1 – 7 claimed by PAGE| 29 the 1st & 2nd Respondents/Applicants in their suit are not fundamental rights claims within the context of Chapter IV of the 1999 Constitution; that on the contrary they constitute on a proper reading, an administrative law action for the judicial review of the Presidential Committee Report and the Police Interim Investigation Reports. The claims, it was argued, were further confounded by the fact that they were hinged on Section 36(5) of the Constitution which only applies when a person has been charged with a criminal offence before a court of law. The other peripheral point here is whether in the determination of the competence of the Applicants’ suit, that is whether the claims or reliefs come within the purview of the Fundamental Rights Enforcement Procedure Rules, the court should review only the applicants’ reliefs or look beyond the reliefs and examine the applicants’ Grounds and Affidavit. The appellant was of the view that only the Reliefs should be considered while the 1st & 2nd Respondents were of the view that the Grounds and Affidavit must also be looked at. Various authorities, both Supreme Court and Court of Appeal were cited by each side in support of their respective points of view. It is appropriate to begin by looking at some of these authorities. In the case of Abdulhamid v. Akar f2Q06713 NWLR (Pt. 996) 127 0 144 E-G. Kutigi JSC (as he then was) held: “Issue (2) relates to the competency of the applicant’s action and whether or not its competency could have been determined by reference solely to the nature of the reliefs or claims only, and without reference to any other thing. It is settled and a fundamental principle that jurisdiction is determined by the Plaintiff’s claim or relief. In other words, it is the claim before the court that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction conferred on the court (see for example Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, Adeyemi v. Opeyori (1976)9-10 SC 31.” The Respondents, on the other hand chose to rely on the Court of Appeal judgment in Effiona v. Ebona (2006) 18 NWLR (Pt 1010) 109 where Omokiri JCA (of blessed memory) held: “At any time when the court is confronted with a claim under fundamental rights procedure, it is imperative that it should examine the reliefs sought, the PAGE| 30 grounds for such relief and the facts relied upon by the applicant. Where the facts relied upon disclose a breach of fundamental rights as the basis of the claim, there is a clear case for the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules.” Learned senior counsel for the appellant admonished the Respondents for torpedoing the stare decisis doctrine by preferring a Court of Appeal judgment to that of the Supreme Court. But the truth as pointed out by learned counsel for the Respondents is that a close examination of the various cases both Supreme court and Court of appeal show that the courts generally consider the facts giving rise to the reliefs claimed in determining whether there is a breach of fundamental rights. The contributions of some of the Justices of the Supreme Court even in the case of Abdulhamid v. Akar (2006113 NWLR (Pt. 996) 127 heavily relied on by the appellant show this tendency. See the contribution of Akintan JSC at 150 F-H and Mukhtar JSC at 153 A. This point to my mind amounts to a storm in a teacup. It is inevitable that in considering whether the relief sought falls within the Fundamental Rights Provisions, the courts are bound to look at the facts in the grounds and the affidavit. I venture to add that it is most unlikely that the facts as shown in the grounds and affidavit will turn a relief which is outside the Provisions to one within the provisions. Sometimes, the determining factor is how the relief is framed or formulated. The point I am trying to make is that in some cases, the facts may disclose a breach of the applicant’s fundamental rights but the reliefs may be couched in such a way as to remove the case from the purview of the Provisions. So at the end of the day what matters really are the reliefs claimed. The appellant here however did concede that even if the court takes the facts in the grounds and the affidavit into consideration, it will be obvious that the case should not have been brought under the Fundamental Rights (Enforcement Procedure) Rules. The main point however is whether the principal reliefs claimed are for the enforcement of the fundamental rights of the applicants. The appellants argued strenuously that the principal complaints of the applicants are against the Presidential Committee Report and the Police Interim Investigation Reports which they wanted the court to nullify and set aside, issues clearly outside Chapter IV of the 1999 Constitution. The Respondents on the order hand argue that the learned trial Judge was right in holding that there was a breach of the fundamental rights of the applicants. The relevant portion of the Judgment of the lower court PAGE| 31 reads: “I have carefully examined reliefs, grounds for such reliefs and the facts relied upon by the Applicants in the instant application. Reliefs 1, 2, 3, 4 and 7 clearly express themselves as reliefs for enforcement of the Applicants’ fundamental rights. Reliefs 5, 6 and 8 are clearly ancillary reliefs the grant of which is predicated by the grant of reliefs 1, 2, 3, 4 and 7. I am also satisfied that the grounds for the reliefs claimed by the Applicants in this suit disclose complaints of alleged breach of fundamental rights of the Applicants. See for example paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 of the grounds for the reliefs sought. Again, the affidavit in support of the Originating Summons which was sworn to by the 1st Applicant disclose allegations of the breach of the Applicants’ fundamental rights. I am therefore satisfied that given the reliefs sought in this suit, the grounds of the reliefs and the facts deposed to in support of this application, the Applicants’ suit is sustainable under Chapter IV of the 1999 Constitution (as amended). The 3rd Respondent’s second preliminary objection therefore fails and is accordingly hereby dismissed.”The learned trial Judge with due respect did not carry out any analysis to identify the actual principal or primary complaint of the applicants. From the above extract of the judgment, his lordship, it appears merely took the words of the applicants for it as stated in their processes that the suit is sustainable under Chapter IV of the 1999 Constitution. For a claim to qualify as falling under fundamental rights, the principal relief sought must be identified and must be for the enforcement of the fundamental right of the applicant. An examination of the reliefs claimed and the averments in the affidavit, contrary to the conclusion of the learned trial judge, shows that the main grouse or primary complaint of the applicants was against the Presidential Committee Report and the Police Interim Investigation Reports. The applicants wanted the Reports nullified and set aside. That is the primary relief claimed and it surely isn’t a fundamental rights matter. The allegation of persecution and public condemnation; damage to the applicants’ reputation and business; prosecutorial misconduct, malicious process, misfeasance in public office are all terms which are strange and unknown under the Fundamental Rights Enforcement Procedure Rules. The procedure the learned trial judge PAGE| 32 should have adopted in determining this issue is fully illustrated by the Supreme Court case of Tukur v. Gonaola State C1989) 4 NWLR (Pt. 117) 517 which the Learned senior counsel for the appellant in his brief espoused thus: in Tukur v Gongola State (supra), a Suit that was instituted by the Appellant before the Federal High Court and which sought the nullification of his deposition as the Emir ofMuri on the grounds: (a)”That the said deposition order violates fundamental rights of the applicant guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, in that the applicant was never given the opportunity of being heard before the said order was made, nor given any notice of misconduct pertaining thereto, let alone particulars thereof. (b)”That the conditions precedent to the exercise of the powers of deposition by the Military Governor under section 6 of the Chiefs (Appointment and Deposition) Law Cap. 20 Vol.1 Laws of Northern Nigeria 1963 applicable to Gongola State, not having been satisfied renders the said order null and void and of no legal effect; and (c) “That the said order having been purportedly made pursuant to section (1) (1) (d) of Decree 17 of 1984 is void ab initio and not applicable to the applicant, since it cannot be said that the applicant is an employee of the Jalingo Local Government Council as envisaged by the said Decree, nor could it be said that he is in the public service of Gongola State within the meaning of the said Decree being a traditional and/or natural ruler.” (Emphasis by the Court at page 559 paragraphs C-F of the Report) It is important to note that the first ground of challenge afore-quoted explicitly raised the question of fair hearing. If we should follow the logic and argument of the Lower Court in its Judgment in this Appeal, that should be the main relief and should determine the competence of that action. That indeed was the strident argument of the Appellant before the Supreme Court; he contended that PAGE| 33 the afore-quoted Ground (a) constituted his main relief and the Federal High Court was consequently seised of jurisdiction to entertain the Suit as a fundamental human rights action. The Appellant further argued, not any different from the lower Court in this Appeal that the Chieftaincy Question in the Suit was ancillary and ought to follow the fundamental human rights question to the Federal High Court. Instructively, those arguments were roundly and wholly rejected by the Supreme Court based on the principles elegantly summed up by Oputa JSC thus as reported at page 565 of the Report paragraphs A -B:”The principal complaint is over the deposition of the appellant. His being heard in the process of that deposition is incidental. It is an accessory and protective right which should not lead its principal into the Federal High Court but rather should follow that principal to the State High Court.” (Emphasis ours)For emphasis, we respectfully draw attention to the criteria that was affirmed by the Supreme Court in that matter for determining the main reliefs in a Suit: i.e. it is imperative to first decipher the plaintiffs principal complaint in the Suit. The principal complaint in Tukur v Gongola (supra), it must also be noted, was tied to the injury that was purportedly suffered by the plaintiff and which donated the cause of action in the first place; it was not determined by the numbering of the reliefs or the labels used by the Appellant in those reliefs. These principles were further enunciated thus by the Supreme Court in the Tukur v Gongola (supra) Judgment as per Oputa JSC as reported at page 564 paragraphs E-H of the Report:”In the case on appeal, the complaint of the appellant is that he was deposed as an Emir without first hearing him. No one doubts that given those facts he cannot sue for the reliefs he is now claiming. His only hurdle is that his deposition as an Emir is a Chieftaincy Question. And PAGE| 34 such questions do not pertain to the revenue of the Federal Government or to taxation, Customs and Excise, banking or foreign exchange – being issues over which the Federal High Court was granted civil jurisdiction by Section 7 of Act No. 13 of 1973. The fons et origo of his complaint in the determination of which he ought to have been accorded a fair hearing is not one over which the Federal High Court has jurisdiction. In this respect, the appellant’s right to a fair hearing is merely an accessory right. The principal right is his right not to be unjustly deposed. His right to a fair hearing before that deposition is an accessory right. The maxim here is accessorium sequitur principale – an accessory thing goes with the thing to which it is accessory. Now if the principal right can only be litigated upon and maintained in the State High Court of unlimited jurisdiction, then the accessory right to fair hearing will follow the principal right to its forum competens – the State High Court.” (Bold italics by the Court) These, we submit, are the settled principles for establishing the main reliefs in any Suit and constitutes the basis for our consistent submission that the Applicants’ principal complaints in this Suit “are against the Presidential Committee’s Report and the Police Interim Investigation Reports” which Reports they sought to impeach by the action before the lower Court and expressly so stated in their Reliefs 5, 6 and 7, amongst others. As we contended in our Substantive PO Written Address:”All of these facts lead inevitably to the sole conclusion which cannot be faulted that this Suit constitutes an administrative action for the review of the Presidential Committee Report and the Police Interim Investigation Reports; the Suit has only been disguised and disingenuously dressed in the garb of a fundamental human rights enforcement procedure action. In similar circumstances, the Supreme Court, as per Tabai JSC’s lead judgment in West African Examination Council v Akinkunmi (2008) 9 PAGE| 35 NWLR (pt.1091) 151 at 169 pronounced thus:’The court’s reasoning was predicated entirely on the assertion in the first relief about there being breach of the respondent’s natural justice and his fundamental rights of fair hearing under the constitution. That approach was, with respect rather superficial. The court was bound to carefully examine the reliefs claimed to see what the claim is all about. A careful examination of the three reliefs shows clearly that although the first relief claims a declaration that the cancellation was a breach of the respondent’s right of fair hearing and therefore unconstitutional, the main claim is the order for restoration of the cancelled result and making same available to the University of Ilorin for his graduation. Thus, the mere assertion of the violation of the respondent’s constitutional rights of fair healing does not necessarily make the action maintainable by recourse to the Fundamental Rights (Enforcement Procedure) Rules. The court has to examine the reliefs closely to ascertain what the plaintiff claims. On a thorough scrutiny of the reliefs claimed, it is my view that the principal and ultimate claim is the restoration of the cancelled result of the respondent for the purpose of its use for his graduation. And on the authority of Tukur v. Government of Taraba State (supra) and others which I have discussed above, this suit ought to have been initiated by a writ of summons where the parties could have filed and exchanged pleadings and evidence adduced and tested on the issue about the propriety or otherwise of the appellant’s cancellation of the respondent’s result.’”The same conclusions were arrived at by the Supreme Court in University of Ilorin v Oluwadare (supra) and Abdulhamid v Akar (supra) and we respectfully urge Your Lordship to be guided by these authorities in the determination of this PAGE| 36 Preliminary Objection. In Abdulhamid v Akar (supra), the Supreme Court, as per the lead judgment of Kutigi JSC (as he then was) held thus, as reported at page 146 of the Report: ‘In the instant case, the claims as found by both the High Court and the Court Appeal were common law claims or reliefs which were wrongly brought under the Fundamental Rights (Enforcement Procedure) Rules instead of by writ of summons. This is a fundamental breach and not a mere technicality which can be waived or ignored. The indicia of jurisdiction as laid down in Madukolu v. Nkemdilim (1962) All N.L.R (Pt. 2) 587 at 589; (1962) 2 SCNLR 341, is that the action is initiated by due process of law, which in this case is by writ of summons. That, is lacking here (see Tukur v. Gongola State (supra); Federal Minister of Internal Affairs v. Shugaba Darman (supra).’”These are again sound expositions of the law which the learned trial court ought to have taken cognisance of even in his lordship’s ruling on the preliminary objection of the appellant. The summary of it all is that the learned trial judge made no effort to identify what the primary complaint of the applicants was irrespective of the language they used in presenting their case. As stated earlier above, the primary complaint of the applicants was against the Presidential Committee Report and the Police Interim Investigation Reports. The applicants wanted the Reports nullified and set aside. These are surely no fundamental rights issues. The mere assertion by the applicants that their fundamental rights were violated does not automatically make the case one maintainable under Chapter IV of the 1999 Constitution. This suit ought not to have been brought under the Fundamental Rights Enforcement Procedure Rules; and certainly not under Section 36(5) of the 1999 Constitution. It is incompetent. Issue IV is resolved in favour of the appellant and against the 1st and 2nd Respondents. ISSUE V: Upon a consideration of all the preceding Issues and as it relates specifically to the Appellant, was the Learned Trial Judge justified howsoever in awarding “compensatory damages in the sum of 10Million Naira to be paid by the Respondents severally and PAGE| 37 jointly for the injury suffered by the Applicants as a result of the unlawful acts of the Respondents including the breach of the 1st Applicant’s fundamental right to liberty, pursuant to Section 35 of the Constitution of the Federal Republic of Nigeria, resulting from his detention in the Ikoyi offices of the 2nd Respondent from the 9th to the 19th of October 2012”? Learned senior counsel for the appellant on this issue submitted that the Lower Court erred in awarding “compensatory damages in the sum of N10,000,000.00 against the Appellant jointly and severally with the 3rd-5th Respondents hereof purportedly “as a result of the unlawful acts of the Respondents including the breach of the Applicant’s fundamental right to liberty, pursuant to Section 35 of the Constitution of the Federal Republic of Nigeria, resulting from his detention in the Ikoyi offices of the 2nd Respondent from the 9th to the 19th of October 2012”. Counsel argued that in no part of the lower Court’s Judgment was any adverse finding made by the Court against the Appellant justifying his being held liable jointly and severally with the 3rd-5th Respondents for the purported compensatory damages of N 10,000,000.00 to the Applicants. This court had held under issue 2 that in all their processes, the applicants did not point to any specific action taken by the appellant in his personal capacity which infringed their fundamental rights; and that there is no nexus between any act of the appellant in his personal capacity and the alleged infringement of the applicants’ fundamental rights. There was no cause of action against him in his personal capacity. The alleged adverse findings of fact made by the lower court against the appellant as claimed in the Respondents’ brief were all directed against the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers chaired by the appellant. The appellant had in his counter affidavits deposed that the decisions and actions of the Committee which was chaired by him cannot be ascribed to him in his personal capacity as he was only the first amongst equals. The averments were unchallenged. Learned counsel for the Appellant is consequently right that the lower court erred in awarding compensatory damages in the sum of N10 million against the appellant jointly and severally with the 3rd – 5th Respondents. This issue is also resolved against the 1st and 2nd Respondents and in favour of the Appellant. Having resolved all the issues in this appeal except service by substitution in favour of PAGE| 38 the appellant, I hold that this appeal has merit. It is hereby allowed. The judgment of Aneke J of the Federal High Court sitting in Lagos in suit No. FHC/L/CS/07/13 delivered on the 18th day of February 2013 is hereby set aside as against the appellant herein. In its place the claims against the appellant are dismissed with cost assessed at N50, 000.00 against the 1st and 2nd Respondents. HON. JUSTICE UZO I. NDUKWE-ANYANWU, JCA: I had the privilege of reading in draft form, the Judgment just delivered by my learned brother, C. f. lyizoba, JCA. I agree with her reasoning and final conclusions. I have nothing to add. I abide by all the consequential orders in the lead Judgment and adopt them as mine. JOSEPH SHAGBAOR IKYEGH, JCA: I had the honour of reading in print the comprehensive lead judgment prepared by my learned brother, Chinwe Eugenia lyizoba, J.C.A., to which I subscribe with these few words, by way of emphasis. Clause 3 (g) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009 (2009 Rules) stipulates that – “Human right suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person the case shall be treated as an emergency.” (My emphasis) In construing the provisions of an enactment, such as the 2009 Rules, a subsidiary legislation, the preamble to the enactment, though not a part of the enactment, can be resorted to as an aid to the construction of the enactment where there is some difficulty in arriving at the meaning of the words used in the enactment. See Osawe and Ors. v. Registrar, Trade Unions (1985) 1 N.W.LR. (pt. 4) 755 at 769. Clause 3 (g) of the preamble to the 2009 Rules emphasises the urgency of human rights litigation by using the closing phrase ’emergency’ therein, which means inter alia a situation which needs immediate action to deal with it. See Oxford Advanced Learner’s Dictionary, 7th Edition, page 477. PAGE| 39 It is in light of the urgency of human rights cases that the 2009 Rules has, by Order VII thereof, rolled together in one package any notice of preliminary objection including that on jurisdiction and/or for the setting aside of an originating application to be heard together with the substantive action and determined thereat. The procedure under Order VIII of the 2009 Rules is to fast-track proceedings for the purpose of saving precious public time (a scarce resource) and costs and tension that emerge from protracted litigation. See by analogy the cases Senate President v. Nzeribe (2004) 8 NWLR (pt. 878) 251 at 274, Amadi v. N.N.P.C. (2000) 10 NWLR (pt. 674) 76 at 100 and Olorunkunle v Adigun (2012, 6 NWLR (pt.1297) 407 at 426 per Okoro, J.C.A., (now J.S.C.) where the wisdom of hearing the objection to jurisdiction together with the substantive action was emphasized. The court below was therefore right to take the notice of preliminary objection with the substantive action. The principal reliefs in the action that affect the appellant do not fall under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999, (1999 Constitution). Accordingly, the court below was wrong to entertain the action as fundamental rights under the 2009 Rules. It should have declined jurisdiction and struck out the action for want of jurisdiction. See Amale v. Sokoto Local Government and Ors. (2012) 5 NWLR (pt. 1292) 181 following Sea Trucks (Nig) Ltd. v. Anigboro (2001) 2 NWLR (pt. 696) 159, Gafar v. Kwara State (2007) 4 NWLR (pt. 1024) 375, University of llorin v. Oluwadare (2006) 14 NWLR (pt. 1000) 751, Governor of Kogi State v. Yakubu (2001) 6 NWLR (pt. 710) 521, W.A.E.C. v. Adeyanju (2008) 9 NWLR (pt. 1092) 270. The phrase “charged” used in section 36 (5) of the 1999 Constitution refers to arraignment of an accused before a court of law or a tribunal having judicial powers to convict and punish the accused, if found guilty at the end of the day. It does not extend to administrative or ministerial investigative bodies such as the bodies complained of on the appeal. A charge is a process by which all the ingredients or elements of an allegation are brought to the notice of the accused. See Okereke v. James ,2012,16 NWLR ,pt. 1326, 339 at 351 where the Supreme Court held in the lead judgment of Rhodes-Vivour, J.S.C.. that the word “charge” appears only in criminal trial. It is for these reasons and the more elaborate reasons contained in the lead consequential orders contained in the lead judgment.

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