Boniface Ezeadukwa V. Peter Maduka & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

TOBI J.C.A.

The 1st respondent as applicant in the lower court filed a motion exparte under the Fundamental Rights (Enforcement Procedure) Rules for leave to enforce his fundamental rights against the appellant, who was the 1st respondent in the Court and the 2nd respondent, Mr. Okonkwo. The motion was granted on 26th April, 1989. On 16th June, 1989, the 1st respondent filed the motion on notice. On 7th July, 1989, the 1st respondent filed a motion on notice dated 5th July, 1989 praying the lower court alia for an “order extending time within which to file the motion on notice in the above suit in respect of the Applicant’s Fundamental Rights, the statutory filing period having expired”. The application was granted on 16th October, 1989 as prayed. The matter was heard. On 2nd December, 1994, judgment was given in favour of the appellant. The court granted the injunction sought, awarded exemplary damages of N15,000.00 and general damages of N10,000.00. The court did not award the claim of N100,000.00 special damages.

Aggrieved by the judgment, the appellant has come to this court. Briefs were filed and duly exchanged. The appellant formulated the following three issues for determination.

“(a) Whether the Lower Court could on the strict interpretation of the provisions of Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 legitimately extend time within which an applicant may bring a substantive application for the remedy sought after the expiration of 14 days of the grant of leave for same?

(b) Whether based on the affidavit evidence together with all the materials placed before the court, the lower Court was justified in arriving at the finding of fact that an infringement of Fundamental Rights of the applicant had been established?

(c) Whether it could be rightly held based on the facts and evidence presented, that infringement had been occasioned by the application herein to entitle 1st respondent to the orders granted against the appellant?”

The 1st respondent also formulated three issues for determination:

“1. Whether the present appeal against the judgment of Hon. Justice i.e. Nzeakor delivered on 2nd December, 1994 can be challenged based on the legitimacy of the order of extension of time granted on 16th October, 1989 and in effect whether one of the grounds of appeal is competent, i.e. Ground one.

2. Whether the lower court was right to have granted the orders sought in the face of the affidavit evidence and counsel’s addresses before the lower court.
3. Whether the consequential orders for injunction, and damages were justified in the circumstances.”

Learned Senior Advocate for the appellant Mr. J.H.C. Okolo submitted that Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules is both a special and mandatory provision requiring a party/applicant who has been granted leave to bring, commence or initiate his application by way of Motion on Notice in protection of his fundamental rights within 14 days after the grant of the leave. Learned Senior Advocate did not see any conflict between section 6(6)(a) of the 1979 Constitution and Order 1 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules as to warrant the activation of the former by the learned trial Judge. Accordingly, counsel did not see much in the argument of the learned trial Judge that since the provisions of section 6(6)(a) of the Constitution have vested the High Court with unlimited jurisdiction, the High Court could therefore enjoy the exercise of powers which may be contrary to the provisions of the Fundamental Rights (Enforcement Procedure) Rules. The learned trial Judge therefore had no powers to extend the mandatory 14days imposed by Order 2 rule 1(2) of the Rules as the words of the statute are very clear, learned Senior Advocate submitted.

On the reliance by the learned trial Judge on the High Court Rules of 1988, learned Senior Advocate contended that the Fundamental Rights Enforcement Procedure) rules are complete and that the requirement of 14 days compliance was intentional having regard to the peculiar nature of the rules and the circumstances they are enacted to operate within. He therefore submitted that the reliance placed on Order 20 rule 3 of the High Court Rules was completely wrong. Learned counsel also submitted that Order 20 rule 3 is inapplicable in circumstances where a written law or common law has prescribed a definite period for an originating process.

Learned Senior Advocate argued that since the learned trial Judge had no jurisdiction to proceed in the way she did, the entire hearing of the substantive ‘Motion on Notice’ and the consequent award of damages was without the requisite jurisdiction and therefore a nullity. He relied on Ogwuche & Ors. v. Mba (1994) 4 NWLR (Pt. 336) 75.

It was the submission of learned Senior Advocate that the provisions of sections 30, 31, 32, 34 and 40 under which the application was brought were neither infringed nor “any likelihood of same being breached” as no such threats were ever alleged in the application. Counsel argued that before any of the provisions can be activated, the primary questions for consideration should be: (a) Do the complaints of infringement fall within the purview of the Fundamental Rights guaranteed by the Constitution? and (b) Has there been established any infringement of those rights?

Learned Senior Advocate itemized or enumerated at page 7 of the brief what he regarded as the complaints of the 1st respondent and submitted that on the express showing of the applicant through the depositions in his affidavit, none of the said conducts or acts alleged, even if proved, can amount to the breach of the section relied on. Relying on Sadiq v. State (1982) 2 NCR 142; Adefunmilayo v. Oduntan (1958) WNLR 31; Gbajor v. Ogunburegui (1961) All NLR 853 and Christie v. Leachinsky (1947) 1 All ER 567 at 581, learned Senior Advocate submitted that there was no arrest of the 1st respondent.

Even if it is true that the 1st respondent was arrested, detained and charged for a non existent offence, it is only when the appellant did any of those acts that the burden will be shifted on him to justify his conducts, learned Senior Advocate argued. He submitted that the reliance by the court on the case of COP Ondo State v. Obolo (1989) 5 NWLR (Pt.120) 130 was completely unjustified, as there was in that case arrest/detention of the applicant against the named respondent.

With regard to the second set of events complained of in the application, learned Senior Advocate submitted that even if mere boasts by a private citizen without more can constitute an infringement of the type contemplated by the Constitution, those allegations were vehemently denied by the appellant in the counter-affidavit. In that setting the duty of the court. was firstly to receive evidence as will put it in a position to resolve the clear conflict in the opposing assertions. To learned counsel no such thing was done. “yet the court was able to coast comfortably to the unsustainable conclusion, to both prefer the version of the applicant on those issues and thereof believe that there were threats from the appellant as alleged by the applicant”. He relied on Asonye v. Registered Trustees CACN (1995) 2 NWLR (Pt.379) 623.

On the specific findings of the learned trial Judge that the appellant breached the constitutional rights of the 1st respondent, learned Senior Advocate submitted that the findings were not borne out from the affidavit before the court. It was the contention of counsel that the case against each respondent in the lower court was meant to and should only affect each personally, especially when in law there is no valid nexus in terms of agency or warranty of authority between the appellant shown to be a private citizen and the 2nd respondent, a Police Officer.

Learned Senior Advocate contended that the learned trial Judge wrongly equated the thrust of the burden of proof in malicious prosecution actions with the issues in this case, a situation which resulted in the decision. To counsel, the case against each person ought to succeed or fail on the basis of the conducts alleged against each, leaving no room whatsoever for any finding of collusion, conspiracy, common intention or concertion between the two. He relied on Barau v. Chaba (1995) 1 NWLR (Pt.371) 359 and Adefumilayo v. Oduntan supra.

Learned Senior Advocate urged the court to allow the appeal.

Learned counsel for the 1st respondent Mr. K.O. Iloh, dealing with Issue No. 1, submitted that since the appellant failed to appeal against the 16th October, 1989 ruling of the lower court extending time within which to file the motion on notice, he cannot challenge the legitimacy of the judgment delivered on 2nd December, 1994. He relied on Aladegbami v. Fosanmade (1988) 3 NWLR (Pt.81) 129 at 155 and UBA Plc v. Onagoruwa (1996) 3 NWLR (Pt.439) 700 and submitted that Ground 1 of the grounds of appeal is incompetent.

On Issue No.2 learned counsel submitted that the learned trial Judge was right in the conclusion that the appellant and the 2nd respondent breached the 1st respondent’s fundamental rights and proceeded to make attendant orders. He relied on the affidavit evidence before the court, including the counter-affidavit. Counsel claimed that the appellant admitted in the counter-affidavit that he played a role in the unjustified arrest but said that he was assisting the policeman who came to arrest for a reason he did not know. To learned counsel, the explanation was not sufficient and that the appellant ought not to have acted as a pointer in relation to an alleged offence he claimed not to know anything about.

Counsel referred the court to specific depositions in the affidavits and submitted that the imputations of the learned trial Judge based on the depositions were rightly made. He relied on Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773; Commissioner of Police Ondo State v. Obolo (1989) 5 NWLR (Pt. 120) 130 at 137 and section 42 of the 1979 Constitution.

On Issue No.3 learned counsel submitted that by the provisions of section 42 of the Constitution the 1st respondent is entitled to redress. He also submitted that an injured party is entitled to redress and monetary compensation in application of this nature. He relied on Candide-Johnson v. Edigin (1990) 1 NWLR (Pt.129) 659 and urged the court to hold that Ground 2 is not established. Learned counsel finally urged the court to dismiss the appeal. There was also a heated argument on Order 2 rule (1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.

Let me first take the submission of learned counsel for the respondent that Ground 1 of the grounds of appeal is incompetent. Ground 1 reads:

“That the learned trial Judge erred in law when she continued to hear the case and determined same despite non-compliance with Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules which said non-compliance affected the competence and jurisdiction to go on with the full trial of the case.”

It seems to me that learned counsel based his submission on the fact that the appellant failed to appeal against the 16th October, 1989 ruling of the lower court. While I agree with him that a trial Judge is competent to make use of its own decisions which has not been set aside by an appellate court, I do not agree that an aggrieved party must invariably appeal against an interlocutory decision of a trial court. An appellant can appeal against a ruling of a trial Judge together with the final decision of the court. As a matter of fact, appellate courts encourage the procedure and discourage parties appealing against interlocutory decision which will not dispose of the entire matter. In the latter situation, so much litigation time is wasted and for no valid reason.

In Chief Bakare v. African Continental Bank Limited (1986) 3 NWLR (Pt.26) 47, Aniagolu, J.S.C. opined at pages 58 and 59, and I quote him in some length:

“Although I have already stated at the beginning of this judgment that the issue involved in this appeal is profound and therefore the bringing of the appeal is justified, yet it is desirable that I take this opportunity to call attention to the habit of some litigants in Lagos especially, of rushing to the Court of Appeal and thence to this court to test and challenge the ruling of the High Court on the smallest issues which arise in the course of the trial of cases. Many a time this entails the suspension of the trial by the judge and an adjournment of the case sine die. Sometimes, many years go by before the conclusion of the appeal proceedings – a fact contributing to the much discussed delay of cases in our courts. One, of course, would not say that in appropriate cases such appeals should not be undertaken, but this must be limited to serious matters. It should not be embarked upon on trifling legal issues which can be taken up generally with the substantive appeal at the conclusion of hearing. Lawyers may enjoy the splitting of hairs on obtuse legal points but that extravagant exercise has the result of weighing heavily on the pockets of litigants and unnecessarily exhausting the energies of the appeal courts.”

A party who fails in a ruling before a trial Judge may decide to take a gamble by waiting for the final decision of the court, hoping that he succeeds at the end. If he does, then the Ruling against him is spent and he need not do anything about it. And this strategy is useful in two ways. First, it saves time and second, it saves money. I cannot fault counsel who advises his client to wait for the final decision of the court to appeal both on the ruling and the judgment, in relevant circumstances. As long as the ruling is on the matter, time will start to run after the final decision and so the party does not suffer any reverse by way of the ‘time’ provisions in the Rules of Court. Such a counsel, in my view, is clearly on the side of prudence and good judgment I do not therefore see anything wrong in waiting for the final decision of the trial court before appealing both on the ruling and on the entire judgment. And what is more, I do not see the incompetence of the ground as submitted by learned counsel. In my humble view, the ground is competent and I so hold.

And that takes me to the 14 days rule provided for in Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The rule reads:

“The motion or summons must be entered for hearing within fourteen days after such leave has been granted.”

The words “such leave” refer to the earlier rules providing for the application for leave to apply for an order to enforce fundamental rights. And they are Order 1 rules 2 and 3 and Order 2 rule 1. Of direct relevance is Order 2 rule 1(1). By the rule, when leave has been granted to apply for the order being asked for the application for such order must be made by notice of motion or by originating summons to the appropriate court. Unless the court or Judge granting leave has otherwise directed, there must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing. By the sub-rule the Court or Judge has a discretionary power in respect of the eight days period. That is the essence of the words, “has otherwise directed”

As it is, Order 2 rule 1(1) does not deal with the hearing of the application. It deals with the making of the application and service. The statutory period between the service of the motion or summons and the day named therein for the hearing must be at least eight clear days. Although the court or Judge has a discretionary power in respect of the eight days, it does not appear to me that the Court or Judge can reduce the days. I say so because the word “there must be at least” would appear to restrict the power of the Court or Judge from reducing the days. However, by the words “otherwise directs”, the Court or Judge has the power to increase the days. In extending the days, the Court or Judge has not the freedom of the air to go that far. While the Court or Judge will be guided by the particular circumstances of the case, it is important to realize the speed element in the hearing of applications for the enforcement of the rights.

Order 2 rule 1(2), which I have reproduced above is very much related to Order 2 rule 1(1), in terms of the time element in both rules, vis-a-vis, the entering of the motion or summons for hearing. By a community interpretation of Rules 1(1) and 1(2), that period is 22 days. This is arrived at by a simple arithmetical calculation of adding the 8 days period in Rule 1(1) to the 14 days period in Rule 1(2).

Assuming that the Court or Judge does not exercise the discretionary power under Rule 1(1), the motion or summons flowing from the rule must be entered for hearing within 22 days; 8 days for Rule 1(1) and 14 days for Rule 1(2). Let me take a hypothetical case to make myself clearer. Assuming that the Court or Judge extends the period in Rule 1(1) by a day, then the motion or summons flowing from the rule must be entered for hearing within 23 days; 9 days for Rule 1(1) and 14 days for Rule 1(2).

Normally, the construction of Order 2 rule 1(1) is not really necessary in this appeal but I have taken it because of the rather serious and long oral argument, most of it tested the patience of the court. As a matter of law, it is Order 2 rule 1(2) that is directly relevant in this appeal.

Let me now take the rule. The one sentence rule is precise and specific. It uses the peremptory expression, “must”. Apart from the fact that the expression means an essential or a necessity; it also means a thing that should not be missed or neglected. Although the expression also includes the mandatory “shall” it goes beyond it in terms of strength and sanctity, when the courts at times interpret the word “shall” to mean “may”. I should pause here to recall what one of my brothers said during the oral argument of the appeal. He said that it is possibly to avoid the occasional interpretation of the word “shall” as “may” that the draftsman decided to use the word “must”. That is a very beautiful one, which I can buy. He is correct. In the context of rule 1(2), the effect of the expression is that failure to enter the motion or summons for hearing within 14 days is a breach of the rule, and I so hold.

The Jos Division of this court had occasion to interpret the rule in Ogwuche & Ors v. Mba & Ors. (1994) 4 NWLR (Pt.336) 75. On 24th July, 1983, the respondents, as applicants in the High Court, filed a motion ex parte for the enforcement of their fundamental rights against the appellants, as respondents in that court. The motion ex parte was argued on 27th July, 1989 and leave was granted to the respondents to enforce their fundamental rights. The learned trial Judge then fixed the return date for the hearing of the motion on notice to 7th September, 1989, a period of more than 40 days after leave was granted pursuant to the argument on the motion ex parte. The learned trial Judge delivered a reserved Ruling on 9th December, 1989.

Allowing the appeal, the Court held inter alia. (a) “must” is a word of absolute obligation and occurs in a section which is concerned with a Fundamental principle of justice. It is not merely directory. It is naturally primafacie imperative and admits of no discretion. (b) The word “must” used in Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 to the effect that the motion or summons must be entered for hearing within 14 days after leave has been granted, is mandatory. Effect must be given to it. Therefore, the court must fix hearing of the motion on notice within 14 days of the grant of leave to enforce the fundamental right.

In the instant appeal, the motion ex parte was granted on 26th April, 1989 to enable the applicant to file motion on notice. That was not done until 16th June, 1989, a period of about fifty-one days. That is certainly a breach of Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The learned trial Judge at the material time, Ekwerekwe, J., in his 16th October, 1989 ruling, however granted the application. He relied not on Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules 1979, but on Order 20 rule 3 of the High Court Rules, 1988. He said at page 39 of the Record:

“The 1979 Rules made by the Chief Justice of Nigeria pursuant to section 42(3) of the 1979 Constitution being silent for noncompliance with Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 there should be extension of time. That being the case, the appropriate High Court Rules, 1979, will apply to remedy the position. I therefore hold the view that extension of time will be granted to the applicant in the circumstances. In the result, the motion on notice is hereby allowed. By Order 20 rule 3 of the High Court Rules, 1988, the applicant is given two days extension of time to file a motion on notice. Having therefore filed the motion on notice in Court and served same on the respondents on payment of the prescribed fees, the motion on notice is deemed as properly filed and served.”

Was the learned trial Judge right in falling back on the High Court Rules in the light of the specific provisions of Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979? I think not. It is the law that where there are two enabling laws, one specific and the other general, the court should invoke the specific provision. This is because the court is entitled to presume that the draftsman intended the specific law to govern the matter. And in that respect, the specific law that governs the matter is Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.

In invoking the High Court Rules, the learned trial Judge relied on the case of Major Ladejobi v. The Attorney-General of the Federation (1982) 3 NCLR 563, where Balogun, J. held that in so far as the Fundamental Rights (Enforcement Procedure) Rules, 1979 are deficient in any manner (being silent or not full enough on any particular point of procedure) the rules of court of the appropriate High Court would apply and be available for enforcement of fundamental rights. The Judge therefore held in that case that the alternative mode of procedure adopted by the applicant, by way of judicial review, was proper in the circumstances.

In my humble view, the case is not applicable in this appeal. Major Ladejobi’s case had to do with filing an action on a completely different procedure of judicial review which is not available under the Fundamental Rights (Enforcement Procedure) Rules, 1979. And the decision of Balogun, J., should be read in that context, and is therefore not available to the respondent in this matter.

There is yet another aspect of the matter. Was the learned trial Judge right in holding that the 1979 Rules are silent on non-compliance with Order 2 rule 1(2)? Legal draftsmen adopt two ways. In some rules of court, they specifically provide for effect of non-compliance with the rules contained therein. Beginning from our home like ‘charity’, I cite Order 7 of the Court of Appeal Rules, 1981 as amended, but now 1990 Rules. That is a clear example of specific provision on noncompliance with the Rules. Even at that, the Order does not cover all instances of non-compliance with all the Rules, in which case, the court must invoke its interpretative jurisdiction. That is one way. The other way is found in the Fundamental Right (Enforcement Procedure) Rules, 1979 where no specific provision, like the Order 7 type, on the effect of non-compliance with the Rules. But that does not mean that the court will embark on an unguarded voyage of discovery in search of greener pastures for the applicant. On the contrary, a Judge must confine himself to the enabling provisions of the Rules and interpret same in the light of the factual position of the matter.

And here, Order 2 rule 1(2) is not as helpless as Ekwerekwe, J. thinks. He ought to have invoked his interpretative jurisdiction in respect of Order 2 rule 1(2). If he had done so in the way I have construed it above, he should have found no need to fall back on the High Court Rules, 1988.

The mere fact that Rules of Court do not specifically provide that noncompliance with them will attract a specific or particular procedural sanction does not necessarily mean that they are silent on non-compliance. It is not so. A trial Judge in the construction he places on the Rules may arrive at such conclusion of effect of non-compliance. Order 2 rule 1(2) is clearly one such rule.

It is clear from the decision of Ogwuche & Ors. v. Mba & Ors supra, that non-compliance with Order 2 rule 1(2) renders the proceedings a nullity. That is very good law and so I agree entirely with the judgment. In the circumstances, Nzeako, J., lacked jurisdiction to hear the matter.

It is also good law that where a court ab initio lacked jurisdiction in a matter, the subsequent proceedings however ably conducted, will be a nullity. The principle of nihilo nihil fit will apply. Accordingly, I hereby declare the proceedings of the court presided over by Nzeako, J., including the judgment of 13th October, 1994 delivered by the learned trial Judge as a nullity.

Assuming that I am wrong, I take the issue of the trial Judge accepting the proof of facts in affidavits which are in conflict without hearing evidence to reconcile them. Learned Senior Advocate quoted what I said in Asonye v. Registered Trustees CAC, supra at page 634:

‘The applicant deposed to bias or likelihood of bias on the part of the trial Judge. Of course the depositions have been denied and contradicted by Mr. M.N. Ogbanufe, Records Officer and Attorney of the respondent. The court has no jurisdiction to reconcile conflicting affidavit suo motu or prefer one version of the deposition to the other without oral evidence, unless on clear issues where the court can take judicial notice. I shall therefore not make any efforts to reconcile the conflicting depositions because there is really no need for that type of exercise.”

In Okotie & Ors. v. Olughor & Ors. (1995) 4 NWLR (Pt.392) 655, Iguh, J.S.C., said at page 670: “Turning now to the issue in controversy, it is a well established principle of law that when a court is faced with affidavits which are irreconcilably in conflict, the court in order to resolve such conflict properly should first hear oral evidence from the deponents and their witnesses, if any. See: Joseph Falobi v. Elizabeth Falobi (1976) 9 and 10 SC 1; Akinsete v. Akindutire (1966) 1 All NLR 147; Eboh & Ors. v. Oki & Ors. (1974) 1 SC 179 at 189; Olu-Ibukun & Anor v. Olu-Ibukun (1974) 2 SC 41 at 48 and Uku & Ors. v. Okumagba & Ors. (1974) 3 SC 35 at 56.”

In Ajewole v. Adetimo & Ors. (1996) 2 NWLR (Pt.431) 391, Mohammed, J.S.C., also said at page 398:

“In support of the application the appellant filed an affidavit and a further affidavit disclosing facts on which the grounds for application were based. The respondents filed a counter-affidavit….. It is plain from the affidavits that the conflict must be resolved. It is trite and a matter of practice that when a court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case should first hear oral evidence from the deponents or such other witnesses as the parties may call so that the oral evidence would enable him test the affidavit evidence and thereby resolve such conflicts arising from the affidavit evidence. See: Government of Ashanti v. Adjuah Korkor & Ors. 4 WACA 83 and Uku v. Okuimagba (1974) 3 SC 35.”

The above is clearly the position of the law and the case law is in great proliferation. See: Okere & Ors. v. Nlem & Ors. (1992) 4 NWLR (Pt.234) 132; Onagoruwa & Anor. v. Alhaja Adeniji (1993) 5 NWLR (Pt.293) 317; Mbadugha v. Nwosu & Anor (1993) 9 NWLR (Pt.315) 110; The Nigerian Union of Journalists & Ors. v. The Military Governor of Lagos State & Ors. (1995) 3 NWLR (Pt.385) 603; Ojimba & Ors. v. Ojimba & Ors. (1996) 4 NWLR (Pt.440) 32.

On 16th June, 1989 the 1st respondent, as applicant, swore to a 37 paragraph affidavit in support of his application. On 7th July, 1989, the appellant as 1st respondent swore to a 20 paragraph counter-affidavit. In paragraph 3 of the counter-affidavit, the 1st respondent in the lower court, now appellant, deposed as follows:

“That paragraphs 1, 2, 3, 6, 7, 10, 11 and 18 of the affidavit are true while the rest of the paragraphs are false.”

This means that of the 37 paragraphs, only 8 paragraphs were admitted by the appellant. He denied 19 paragraphs, including paragraphs 8, 15, 16, 17, 18 and 28 which directly affected the appellant. It should be mentioned that there are specific averments of denial by the appellant of some of the paragraphs of the affidavit in support.

The learned trial Judge, Nzeako, J., did not see the necessity of ordering that oral evidence be led by the parties to reconcile the conflicting affidavit evidence. At page 74 of the Record, the learned trial Judge said:

“The respondent admitted that this meeting took place but gave a different version of the object and events. This I will come back to later in this judgment.”

It is clear from the above that the affidavit evidence of the parties was in conflict on the issue of “the object and events” of the meeting. I expected the learned trial Judge to order oral evidence to clear the conflict. She had no jurisdiction to “come back later” to the issue in the judgment, to reconcile it suo motu.

In sumrnarizing the affidavit evidence, the learned trial Judge said at page 77:

“As to paragraph 8 of the applicant’s affidavit, 1st respondent denied calling him armed robber to the police but admitted going to Adazi-Enu with the police and identifying the applicant to the police man.”

The relevant paragraph of the counter-affidavit is paragraph 7. It reads:

“That the role I played in his arrest was to identify him to the police as directed by the President of the Neni Town Union whom the policemen asked for assistance in identifying the eighteen persons of Neni origin whose names they the police came with from Enugu.

I did not call the applicant a robber.”

Again, I expected the learned trial Judge to order oral evidence on the vital issue of calling or not calling the applicant a robber. That she decided not to do so or probably did not remember to do so, is unfortunate.

The 2nd respondent (the police constable) in the lower court did not file a counter-affidavit. The learned trial Judge reacted at pages 75 and 76:

“The law is that where facts deposed to in an affidavit have not been controverted, they must be taken as true or proved in the case of the 2nd respondent therefore, this court is bound to accept and hereby accepts all the allegations made against him, which are as follows… That it was the 1st respondent who gave the name of the applicant that led to the applicant’s arrest and seizure of his goods,”

There is a problem here and it arises from the last sentence. The sentence is certainly an allegation not against the 2nd respondent, but against the 1st respondent, who is the appellant in this court. Therefore, the learned trial Judge was, with the greatest respect, in grave error in concluding that the court is bound to accept all the allegations made against the 2nd respondent, including the last sentence which is directly against the appellant. And what is more, the learned trial Judge was not competent to so hold without calling oral evidence, particularly in the light of paragraphs 7, 14 and 15 of the counter-affidavit.

There are quite a number of other areas of conflict. I do not want to go into them. The above areas are enough to make the point, and it is that the learned trial Judge was wrong in reconciling the conflicting affidavit evidence suo motu and giving judgment, without calling for oral evidence. In view of the fact that the findings of the learned trial Judge which led to the judgment are crucial to the live issues before the court, the judgment cannot stand. It is a nullity and i so declare. See Ojimha & Ors. v. Ojimha & Ors. (1996) 4 NWLR (Pt.440) 32.

Again, assuming that I am wrong, I proceed to take the live issues of the matter. And that takes me to the conduct of the appellant in the light of the rights held to be infringed by the learned trial Judge. They are right to life, right to the dignity of the applicant’s person, right to personal liberty, right to private and family life and the right to the enjoyment of property. These were the rights claimed by the 1st respondent, which gave rise to the judgment of the learned trial Judge.

I will take them seriatim:

Right to life

Section 30(1) of the 1979 Constitution provides that every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty. This constitutional right ends the moment its owner is killed or murdered because he is no longer alive to enforce the right. Accordingly, the right is not enforceable under the first two limbs of Order 1 rule 2(1), which are similar to the first two sectors of section 42(1) of the 1979 Constitution. The position is analogous to the offence of suicide in relation to the deceased. The difference however is that in the case of section 30 of the Constitution, there is no person to enforce the right but in the case of the suicide, there is no person to punish.

Since the section 30 fundamental right is not enforceable under the first two limbs of Order 1 rule 2(1) which provide for the enforcement of the right that “has been” or “is being” infringed, the right is enforceable only under the third limb. By the third limb, an applicant can enforce the section 30 right if the right is “likely to be infringed” When is a right likely to be infringed? The Court of Appeal (Enugu Division) provided an answer in Chief Uzoukwu & Ors. v. Ezeonu II & Ors. (1991) 6 NWLR (Pt.200) 708. 1 said at page 784:

“In the third limb, there is likelihood that the respondent will contravene the fundamental right or rights of the plaintiff…. by the third limb, a plaintiff or applicant need not wait for the last act of contravention. It might be too late to salvage the already damaged condition. Therefore the third limb gives him the power to move to court to seek for redress immediately he senses some move on the part of the respondent to contravene his fundamental rights. But before a plaintiff or applicant invokes the third limb, he must be sure that there are enough acts on the part of the respondent aimed essentially and unequivocally towards the contravention of his rights. A mere speculative conduct on the part of the respondent without more, cannot ground an action under the third limb.”

I endorse the above statement. In order to succeed in an action under section 30 of the Constitution, and in the context of the third limb of Order 1 rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, an applicant must prove that the respondent threatened to kill him. And here, mere oral threat on the part of the respondent to kill the applicant is not enough to sustain an action. The threat should be backed up with some overt act of an attempt to kill or exhibition of weapons or materials capable of effecting the murder or killing of the applicant. A mere vulgar threat of an oral nature without more cannot sustain a section 30 action.

Was there any such evidence before the learned trial Judge? Averments as to boastings and threats are made in paragraphs 15 to 21 of the 1st respondent’s affidavit as applicant. Let me reproduce them here:

“15. That to my utter surprise and dismay, as soon as I got home to resume my job, the 1st respondent started boasting openly that he will never rest nor spare his money until I am either executed as an armed robber or incarcerated indefinitely.

16. That when I learnt of the 1st respondent’s boastings, I went to his house in the company of my brother Dr. Thomas Maduka (Dean Linguistics Department. University of Port Harcourt) and my mother Mrs. Benedeth Maduka to plead with the 1st respondent to allow me to exist since I did no wrong to him.
17. That when the 1st respondent was confronted about his utterances, he confirmed them and made a firm promise that unless he no longer had money or died, I will surely see how he will perfect his boastings.
18. That this meeting referred to in paragraph 17 took place in the 1st respondent’s village home at Ezi-Nneni on the 28th day of December, 1988 in the presence of two relations of the 1st respondent in addition to the other persons aforesaid.
19. That we pleaded passionately with the 1st respondent to allow me a poor man to exist along with him the affluent but he held to his boastings.
20. That given the above confrontation we had with the 1st respondent, our Towns people advised me that I should now ignore the threats since the 1st respondent would not dare to carry out the threat and I verily believed them to my detriment and ruin.
21. That on the 18th day of March, 1989, the 2nd respondent swooped upon my house and arrested me again.”

I do not see in the above paragraphs and indeed in any other paragraphs of the affidavit evidence justifying the enforcement of the section 30 right to life. It is clear from paragraphs 20 and 21 that the alleged threat in paragraph 20 resulted in an arrest and that arrest was made not by the appellant but by the 2nd respondent.

Right to dignity of the person

This is a section 31 right. By the section, every individual is entitled to respect for the dignity of his person. This means that (a) no person shall be subjected to torture or to inhuman or degrading treatment; (b) no person shall be held in slavery or servitude; and (c) no person shall be required to perform forced labour or compulsory labour. I have carefully gone through the affidavit of the 1st respondent and there is no averment near or close to the section 31 right.

Right to personal liberty

This is a section 32 right. The section provides for specific instances where a person will be deprived of his liberty. Of special importance in this section is the arrest, detention and subsequent release on bail.

In paragraph 8 of the 1st respondent’s affidavit, he deposed:

“That on the 13th day of August, 1988 while I was moulding blocks at Adazi-Enu for one Mr. Joseph Ezekunle, Mr. Boniface Ezeadikwa came to the place with one Police Officer and when I was spotted at work the 1st respondent pointed me out to the policeman saying here is the robber, arrest him.”

That is the only ‘evidence’ from the 1st respondent connecting the appellant with this arrest. At pages 62 and 63 of the Record, the following submission was made by Mr. lfeanyi Ukoh, learned counsel for the appellant at the trial court, who was the 1st respondent there:

“Applicant has not made out a case that can make the court grant his prayer on the following grounds: Both in the affidavit in support of his motion and the further affidavit, applicant never mentioned that the 1st respondent was responsible for his arrest. The only place where it can be inferred that 1st respondent was responsible was in paragraph 8 of the affidavit… …. In none of these affidavits was 1st respondent mentioned … ”

Reacting to the above, the learned trial Judge said at pages 82 and 83 of the Record:

“First, there is no substance in the submission of his counsel that the applicant did not mention that it was the respondent who was responsible for his arrest and detention. One is bound to ask the 1st respondent what then this application is for. He was named therein. Why is he made a party? Why did he depose in his affidavit, facts which deny that he was responsible for the acts complained of and justified himself by saying that he only acted as a pointer etc? The clear inference to be drawn from the foregoing and the averments in paragraphs 8 to 13 of the applicant’s affidavit and his Exhibits ‘F’ and ‘G’ which are the proceedings of the Magistrate’s Court and the High Court, point to no other fact than that the applicant is accusing the 1st respondent of masterminding and procuring his arrest, detention and subsequent trumped up charge.”

The learned trial Judge also said at page 84:

“This court has a duty to determine who was responsible for the arrest, detention and prosecution of the applicant on a non-existent offence of armed robbery. It cannot discharge that duty as well as the duty to find if there was good ground for doing so. unless there is sufficient evidence produced by the party upon whom the onus lies. That is the 1st respondent, identified by the applicant as masterminding or at least having from 1st respondent’s own evidence, a hand in his arrest.”

With respect, the point raised by Mr. Ifeanyi Ukoh is not as simple as the learned trial Judge has put it. In my humble view. the submission is sound and healthy. It is clear from the affidavit of the 1st respondent that the appellant “was responsible for his arrest” and subsequent detention. While I agree entirely with both Mr. Ifeanyi Ukoh and the learned trial Judge that inference could be drawn from paragraph 8 or the affidavit, that is not enough in an area of the law of arrest which clearly states laid down stages to enforce the criminal procedure. See: Christie v Leachinsky (1947) AC 573; Inspector-General of Police v. Oghomo (1957) WRNLR 200; Ikonne v. Commissionnr of Police & Anor (1986) 4 NWLR (Pt.36) 473. In order to succeed in an action, an arrestee must prove to the smallest detail that the arrest was unlawful in the sense that the laid down procedure was not followed by the person effecting the arrest.

A trial Judge cannot draw inference in vacuo or in a vaccum but in relation to facts which justify such inference. And since an inference is an act of deducing or drawing a conclusion from existing premises by way of facts, the facts upon which the inference is deduced or drawn must be in proximity or intimacy with the inference. Where an inference is at large, it cannot perform inferential function of drawing a conclusion from premises.

Let me pause here to recall the submission of learned Senior Advocate, Mr. Okolo that apart from paragraph 8 of the affidavit in support of the application. “there is no assertion anywhere of the actual person who arrested and detained him at various places in the state, at least no direct reference was made to the 1st respondent/appellant herein in that regard.” This submission vindicates the earlier submission Mr. Ukoh made at the trial court which the learned trial Judge appears to have trivialised.

The learned trial Judge used two fairly strong and telling words in the course of evaluating’ the conflicting affidavits suo motu. They are “masterminding” and “procuring”. The words in their docile content are strong and powerful but they are stronger and more powerful when used in the context of the arrest, detention and the charge. To mastermind a matter goes beyond mere influence or instigation of a matter. It is the origination of it; not a mere propeller. To procure means to contrive to obtain or bring about or bring upon someone. The noun variant of procurement also carries the connotation of inducement. And so when these two large, strong and powerful words are used by the learned trial Judge against the appellant in the context of the arrest, detention and charges, without evidence in support, the appellant will certainly feel hurt. And here, I hold that neither paragraphs 8 to 13 of the 1st respondent’s affidavit, nor Exhibits ‘F’ and ‘G’ support the conclusion of the learned trial Judge.

Let me take further the issue of arrest in paragraph 8 of the affidavit of the 1st respondent as applicant and here I will concern myself with the significant words “… here is the robber, arrest him” In his counter-affidavit, the appellant as 1st respondent deposed in paragraphs 7 and 8 thereof:

“7. That the role I played in his arrest was to identify him to the police as directed by the President of the Neni Town Union whom the policeman asked for assistance in identifying the eighteen persons of Neni origin whose name they the police came with from Enugu. I did not call the applicant a robber”

8. That I did not call the applicant a robber while identifying him as he alleged since the policeman who came for his arrest never discussed why they were being sought for.”

There is a clear conflict between paragraph 8 of the affidavit in support and paragraph 7 of the counter-affidavit, amplified by paragraph 8 thereof. Following the law which I have examined above, I expected the learned trial Judge to order oral evidence to resolve the conflict. Instead of doing that, the learned trial Judge held the appellant liable for the arrest.

Unfortunately the Judge did not see the necessity for oral evidence and went on to say at page 83 of the Record:

“Secondly, I believe the applicant made a reasonable case against the 1st respondent. For if one relied on the 1st respondent’s version of the story that he was only acting as a pointer, having been directed by the President of Neni Town Union, the question could be asked why was it, him of all the Neni people who was picked out to go and identify the applicant at Adazu-Ani? It was only him, who knew that the applicant, a former apprentice of his, whom he sacked for fraud since 1975 and who had become a block moulder since 1980, was at his work site at Adazi-Enu, another town at that material time when the police came from Enugu with a list which included applicant’s name…….. The name of the President of Neni Town Union has not been given by the 1st respondent, nor was his evidence produced nor was the police called by him to help him discharge the onus on him. The law is that in an action for false imprisonment or detention in breach of fundamental rights, the onus is on the defendant to prove the legality or constitutionality of the arrest and detention of the plaintiff.”

So much is involved in the above statement. What was the “reasonable case” made by the 1st respondent against the appellant in the light of the conflicting affidavits. Can a Judge, in law, accept only affidavit in support and neglect a counter-affidavit and come to the conclusion that a reasonable case has been made in the affidavit in support? Can that be justice? I think not. The position taken by the learned trial Judge could be likened to a trial Judge giving judgment to a plaintiff based only on the statement of claim without due reference and consideration of the statement of defence. That is not justice. That is clear injustice. It offends all the tenets of audi alteram partem and the principles of fair hearing.

The learned trial Judge pointed out that the name of the President of the Union was not given, and that his evidence was not produced. She also pointed out that the appellant did not call the police “to help him discharge the onus on him.”

The President of the Union and the police could have come before the court to give evidence if the learned trial Judge so ordered. They could not have come to court on their own. And that is the whole essence of the order by the learned trial Judge that in the light of the conflicting affidavit evidence the parties should call oral evidence. And that order, the learned trial Judge, failed to make before deciding the case. By failing to give the parties an opportunity to give oral evidence in amplification or vindication of their affidavits, the court denied them justice, and I so hold. The appellant could not discharge the onus the trial Judge mentioned because she did not give him the opportunity to do so. With the greatest respect, she was clearly in error.

In Ojimba & Ors. v. Ojimba & Ors. supra, the Court of Appeal held that in proceedings conducted on affidavits filed by both parties, where the facts deposed to in the affidavits are irreconciliably in conflict, oral evidence should be called to resolve the conflict. This procedure is mandatory on the court. In such a situation, the law enjoins the court to opt for taking oral evidence even where the parties did not apply to it to take oral evidence to resolve the conflict.

Right to private and family life

This is a section 34 right. It guarantees the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications. I do not see any paragraph of the affidavit of the 1st respondent who was the applicant in the lower court, on the violation of the right by the appellant. It is deposed in paragraph 8 of the affidavit in support of the application by the 1st respondent that the appellant and a police officer came to him where he was moulding blocks. He did not depose that place was his home. That apart, there is no deposition to the effect that the appellant went to his home. I therefore hold that there is no evidence to prove the violation of the right.

Right to Property

The relief sought is “the right to the enjoyment of property.” This appears to be a section 40 right. I say “appears to be” because the section does not specifically provide for right to property, like the sections I have examined in relation to the specific fundamental rights. That aspect is not important. It is merely academic and I will not go into it. For our purpose, I should mention paragraph 22 of the affidavit in support in which the 1st respondent as applicant deposed that the 2nd respondent (the policeman) and his team removed a wall clock and a cooking pot (property of the 1st respondent) from the house on the allegation that he did not produce the receipts for them. Also removed, according to paragraph 22, were the particulars of a motor-cycle. The appellant was never mentioned in the paragraph or in any other paragraph of the affidavit on the issue of property.

The learned trial Judge relied heavily on Balogun v. Amubikanhun (1989) 4 SCNJ 248; (1989) 3 NWLR (Pt.107) 18 when she said at page 8:

“On the authority of Balogun v. Amubikanhun….. I hold that the 1st respondent would be deemed to have prosecuted or caused the prosecution of the applicant. In that case, the Supreme Court held that where a party causes a judicial act to be set in motion for the arrest and subsequent prosecution to the prejudice of the plaintiff, even though the party may not technically be said to be the prosecutor; he will be liable to malicious prosecution.”

The facts are quite distant from those of this appeal. In view of the heavy reliance placed on the case, i will reproduce the facts of that case. The appellant is a legal practitioner. He had a land dispute with the respondent. While the case was still pending in court, the appellant lodged a complaint in the police station that the respondent has employed a woman to kill him and steal his dresses and transistor radio. It was alleged that the woman, who was accused of being a witch, gained entry into the appellant’s house and actually removed a transistor radio and some dresses before she was caught. She confessed to the police that she was sent on a mission by the respondent to kill the appellant. The appellant took the woman to the police station. It was already dark. The appellant got the woman locked up at the police station. Thereafter, he took the police to the house of the respondent and got him arrested, though he claimed later that he only acted as a pointer and offered police a lift in his car to effect the arrest of the respondent. At the police station, the respondent was locked up, the appellant making his presence felt at that place and was scaring away those ready to stand surety for the respondent so that he might be released on police bail. He told one of such persons that the respondent was a murderer and that nobody should risk standing surety for him. The respondent thus slept in the police cell that night and was only released on bail the following day. The respondent and the woman were discharged and acquitted by a Chief Magistrate Court.

It is very clear that the appellant played a serious role in the arrest and detention decision. But that is not the situation in this appeal. There is no evidence that the appellant played similar role or any role at all near that in Balogun v. Amubikahun. And so, the case is inapposite.

In the more recent case of Onyedinma v. Nnite (1997) 3 NWLR (Pt.493) 333, this court held that an action for false imprisonment does not lie only against a party who physically commits the tort. An action lies against a party who is directly or actively instrumental to the commission of the tort. Therefore to succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in selling the law in motion against him. See: also Mandilas and Karaheris Ltd. v. Apena (1969) NMLR 199. Dismissing the appeal. Ubaezonu, J.C.A. made the fine distinction at page 345:

“In this case on appeal, the evidence of the plaintiff and his witnesses and believed by the court is that the appellant said to the two policemen that the respondent was the thief that stole his car and that they should arrest him. The policemen acted under the instruction and direction of the appellant. It would have been a different matter if the appellant had lodged his complaint and left it to the police to investigate and come to their own conclusion. In fact, if the policemen had asked him if he suspected any person and in answer to such a question he mentioned the respondent’s name, he would still not be liable as he is merely expressing an opinion rather than leaving the police to embark on a wild goose chase.”

There are four sentences in the above statement of my learned brother. The fine distinction is the third sentence, strengthened by the fourth. There is even no evidence that the appellant in this matter come within the third sentence. I do not see such evidence in the affidavit in support. The only evidence which should have comes within the fourth sentence is paragraph 8 of the affidavit in support, but not quite. Even if appellant come within the third and fourth sentences of my learned brother, Ubaezonu, J.CA., he would not be liable for false imprisonment. That is the decision in Onyedinma v. Nnite, supra. In that case, the appellant made a report to the police and brought two policemen who arrested the respondent. There was no such evidence in this appeal. Paragraph 8 of the affidavit in support did not go that far. I have taken Onyedinma v. Nnite, supra this far in order to show that this court is not departing from its previous decision. The facts are not consistent but we are consistent.

In Adefunmilayo v. Oduntan (1958) WNLR 31, it was held that liability does not attach to a private citizen who merely names a suspect. In Gbajor v. Ogunburegui (1961) All NLR 853, it was held that the act of indicating to the police a person whom one suspects of having committed an offence, is not itself-sufficient to make one liable for false imprisonment, should the police decide on their initiative to arrest that person.

Let me pause here to deal briefly with the following pronouncement of the learned trial Judge at page 89 of the Record:

“Although, it is true that 1st respondent’s Exh. ‘A’, his written statement to the police, shows that he did not name anyone or the appellant therein as suspect. We are still left with the uncontroverted facts linking the 1st respondent with the 2nd respondent. Evidence is still required to disprove that the respondents did not together set the machinery of arresting the applicant and unlawfully seizing his goods in motion. The failure of 2nd respondent to fill that gap is detrimental not only to him but to the 1st respondent. They have not discharged the onus on them.”

With respect, the learned trial Judge is not correct in coming to the conclusion that the facts linking the 1st and 2nd respondents are uncontroverted. There is so much controversy, some of which I have pointed out above. I need not repeat myself. The impression is given by the learned trial Judge that the two respondents must stand or fall together. Even Siamese twins do not stand or fall together. Why the respondents? I will return to this when I deal with the final orders of the learned trial Judge.

I should recall here the reaction of learned Senior Advocate to the above pronouncement. I do not think I like to paraphrase what he said. Let me quote him at page 12 of the appellant’s brief: “Secondly, it would appear that the Court had led itself to the mistaken view that the 1st and 2nd respondents were in the application being cited for conspiracy to commit crimes against the applicant, which was just not true. The case against each respondent was meant to and should only affect each personally, especially when in law there is no valid nexus in terms of agency or warranty of authority between the appellant shown to be a private citizen and the 2nd respondent, a police officer.”

And this reminds me of the deposition in paragraph 32 of the affidavit in support:

“That with the type of power display by the 2nd respondent who is acting as the 1st respondent’s agent, I no longer feel safe for my life, liberty and property.”

It is most elementary law that there cannot be agency relationship between a private citizen and a police officer in the performance of his police duties under section 4 of the Police Act, Cap. 20, Laws of the Federation of Nigeria, 1990 or any other enabling law to the same effect. The transient relationship between a complainant and a police officer in the course of arresting, investigating and prosecuting a case does not, in law, ripen into an agency relationship. Paragraph 32 is therefore not a correct representation of the law of agency, and I so hold.

I have the feeling that the appellant had to pay dearly for the failure or should I say, refusal of the 2nd respondent to swear to a counter-affidavit. I say this because the learned trial Judge did not see the necessity to distinguish the case of the appellant and that of the 2nd respondent. That clearly underscores the pronouncement that the “failure of 2nd respondent to fill that gap is detrimental not only to him but to the 1st respondent. They have not discharged the onus on them.”

But then the learned trial Judge, with respect, contradicted herself when she gave her final order as to who should pay what amount. Let me read the order in full:

“Respondents, as well as their servants, agents or privies are therefore hereby restrained from further infringing the applicant’s fundamental rights by various acts which include threatening, harassment, arrest, detention, seizure of goods etc.

I will award exemplary damages of N15,000.00 and general damages of N10,000.00 against the 1st respondent alone in respect of the first arrest,’ detention and trumped up charge of armed robbery and general damages of N15,000.00 jointly and severally against the 1st and 2nd respondents in respect of the second arrest and seizure of applicant’s goods.”

So much is wrong with the above order. First, an order of a court must be precise, succinct and to the minutest detail. An order of a court must also be complete. Parties should not be exposed to speculations as to the real content of the order. The abbreviation etc means et cetera. It is a Latin phrase meaning “and the rest” and something in addition. A judge should never make an order wearing a cognomen of “etc”. It is too vague, lacking restraint and therefore not useful in an order of a court. I can say that much in respect of what the learned trial Judge referred to as the “first arrest” and the “second arrest”. She ought to have identified the two arrests by their dates as in the affidavit in support. The first arrest was on 13th August, 1988 and the second arrest was on 18th March, 1989. Second, and this is the area of contradiction. The learned trial Judge did not continue with her pronouncement of the unity of the two respondents in her court. She saw the need to separate the two at the stage of apportioning financial liability. Why? That is not consistent.

Third, by the order the appellant has to pay more. In addition to the two of them sharing N15,000.00 the appellant has to pay N25,000.00. Again, why? What is the legal basis? I do not see any. If at all liability has to be apportioned in the light of the affidavit in support, it has to go more against the 2nd respondent, the police officer. In the first arrest, and going by the evidence of the 1st respondent, all that the appellant did was to identify him to the police as the robber. In the second arrest, the appellant was not present. It was the 2nd respondent who conducted the arrest and took away the kettle, wall clock, cooking pot and particulars of a motor-cycle. That is what paragraph 22 of the affidavit deposed to. I have no way of assessing the veracity of the deposition.

By way of recapitulation, I should say that I have dealt with this matter in the alternative. twice. I held that since the application was not filed in compliance with Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure Rules) 1979 in respect of the 14 days rule, the entire proceedings is a nullity. Assuming that I am wrong, I dealt with the issue of the learned trial Judge’s failure to order oral evidence to resolve the conflicting affidavits. I also held that in the circumstances, the entire proceedings is a nullity. I then dealt with the merits of the appeal, again on the assumption that I am wrong. I have also come to the conclusion that even on the merits, the leamed trial Judge was wrong in holding the appellant liable and making monetary awards against him.

It now remains for me to give the last order and it is that the judgment of the learned trial Judge dated 2nd December, 1994 is hereby set aside. The appeal is accordingly allowed and I do so by awarding N2,000.00 costs in favour of the appellant.

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Other Citations: (1997)LCN/0328(CA)