Chairman, Chief Executive National Drug Law Enforcement Agency (Ndlea) Headquarters, Lagos & Ors V. Mr. Christian Umeh & Anor (2018)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The suit leading to this appeal originated as an application by Mr. Christian Umeh (now respondent) for the enforcement of his fundamental rights brought pursuant to the Fundamental Rights (Enforcement Procedure) Rules 1979 in which he claimed the following reliefs:-
(i) A declaration that the arrest, detention and seizure of the Applicant’s ECOWAS passport by the 2nd to 4th Respondents at the request of the 1st respondent between the 10th day of April, 2002 and 21 day of May, 2002 of the cell of the 2nd respondent in Ogbor-Hill, Aba is illegal, otiose and misuse of government power since the 2nd to 4th respondents are not debt recovering agency and consequently an infraction on the fundamental rights of the applicant as enshrined in the Constitution of the Federal Republic of Nigeria 1999 and the African Charter on Human and Peoples Rights.
(ii) A declaration that the seizure of the Applicant’s goods valued at 4.2 million by the Respondents since the unlawful and unconstitutional arrest, detention, seizure of his goods, locking up of his store and
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intentional infliction of emotional distress on the Applicant engineered by the Respondent and executed by other Respondents since the 11th day of April, 2002 till date is illegal and an infraction on the fundamental rights of the Applicant as enshrined in the Constitution of the Federal Republic of Nigeria 1999.
(iii) A declaration that the closure and locking up of the Applicant’s store by the Respondents since the 17 day of April, 2002 till date and with the oral injunction placed on the store by the 2nd to 4th Respondents on the instruction of the Respondents is unconstitutional and on infraction on the fundamental rights of the Applicant as enshrined in the Constitution of the Federal Republic of Nigeria 1999.
(iv) A declaration that the threat to kill the applicant by hired assassins before March, 2003 ending made by the 1st Respondent is illegal and barbaric.
(v) An order compelling the Respondents to pay 4.2 million the cost price of the goods carried or converted since the 14th day of April, 2002.
(vi) An order of injunction restraining the Respondents by themselves, their agents, servants privies or anybody acting for or through them from
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detaining, harassing, intimidating, oppressing or kitting the applicant except by means provided by the 1999 Constitution of the Federal Republic of Nigeria.
(vii) An order compelling the respondents jointly and severally to pay the applicant the sum of 3 million (Three Million Naira) being special and general damages for the unlawful and unconstitutional arrest, detention, carting away of his goods and intentional infliction of emotion distress on the applicant engineered by the 1st respondent and executive by other respondents.
At the trial Court, Mr. Chika Anakwe who was 1st respondent, had written a petition to the National Committee on Financial Crimes, which the applicant annexed as Exhibit FA1 to the further affidavit, wherein he stated:-
“….I now wrote a petition to the National Committee on Financial Crimes Milverton Lagos stating in clear terms that Mr. Umeh had obtained money from me through tricks (419). Christian was arrested and detained at NDLEA Office Aba and later released”.
Because he was busy evacuating goods in his shop the goods were removed by the NDLEA officials and packed safely….
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I have no combined business with Christian. He only came to me for help which I helped him. I gave him 2 million initially. After a while I gave him another 800,000.00. Christian said he wanted to use the money to buy tailoring materials and there is a document covering this. On 10th April, about 10p.m. some NDLEA officials went to his house and arrested him as a result of my petition at Milverton Lagos – National Committee on Financial Crimes. He was detained for some days.
All the goods in his shop were removed and pocked somewhere in Aba.
Nothing was sold. Everything is intact…….”
The learned trial Judge in his judgment analysed the affidavit evidence and made the following findings:-
I find it established by evidence before me that the 1st respondent caused the arrest and detention of the applicant for about one month without justifiable cause. Of course, the applicant maintained that he was severely tortured and dehumanized during his detention and he took ill. Further, the respondents carted away the applicant’s goods from his shop when there was no Court order empowering them to do so. I am therefore in agreement with learned counsel to the
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applicant that these were infractions of the fundamental rights of the applicant as enshrined under the Constitution of the Federal Republic of Nigeria. The respondents took the law into their hands and subjected the applicant to undeserved trauma as graphically presented in paragraphs 15, 16, 17, 24 and 27 of the facts relied upon in this application. I accept the submission of applicant’s counsel that failure of the respondents to justify their acts against the applicant, entitles him to award of compensatory and exemplary damages. See: Olisa Agbakoba v. The Director SSS (1994) 6 NWLR (Pt.351) 475: Ekpu v. A.G. Federal (1998) 1 HRLRA 391 and Section 35(6) of the Constitution.
In view of my findings in this suit, I hereby grant reliefs (i), (ii), (iii) (v) and (vi) prayed for by the applicant. For purpose of clarity regarding relief (v), the respondents are ordered jointly and severally to pay the sum of 4.2 million to the applicant for his goods which they unlawfully carried away, except they can return the goods intact ………… I award against the respondents in favour of the applicant, exemplary damages in the
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sum of 800,000.00 (Eight hundred thousand Naira only)” See: pages 81 – 82 of the records.
The respondents, with the exception of the 1st respondent were aggrieved and appealed against the judgment of the trial Court. The 1st respondent at the trial Court was made 2nd respondent in the Notice of Appeal. The appeal was dismissed by the Court of Appeal, Owerri on 28 November, 2014, thus prompting a further appeal to this Court. On 23 October, 2017 a Notice of discontinuance of the appeal against the 2nd respondent was filed and granted on the same date.
Three grounds accompanied the Notice of Appeal filed on 27 February, 2015. The said Notice was amended and the Amended Notice of Appeal which contained four grounds of appeal was filed on 12 June, 2015 but was deemed filed on 23 October, 2017. The appellants formulated the following three issues for determination namely:-
- Granted the explicit words of the form 16 placed before the Court below, the appellants’ appeal can rightly be held to be incompetent (Ground 4 of the amended grounds of appeal)
- The appellants are juristic persons (Ground 1)
- The name of the 1st appellant (the 4th respondent at
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the trial) as appeared on the Court processes is a misnomer (Grounds 2 and 3).
The 1st respondent filed Notice of Preliminary objection contending that J. R. Nduka Esq who filed the amended Notice of Appeal and the appellants’ brief did not affix his seal/stamp on the two processes contrary to Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners 2007. The preliminary objection was argued in the 1st respondents brief. On 26/2/2018 when oral arguments were taken in the appeal the respondent applied to withdraw the preliminary objection. The application was granted and the preliminary objection together with the arguments proffered on it were struck out.
On issue No.1 learned counsel for the appellants argued that when the Registrar of the Federal High Court issued the certificate pursuant to Order 3 Rule 20 Court of Appeal Rules, he did not say the appellants failed to comply with the requirements of Order 3 Rules 10 and 11. He submitted that the use of the phrase have not complied with none of the requirements did not mean the appellants did not comply with the requirements of Order 3 Rule 20 of the Court of Appeal Rules
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and the use of the double negatives going by the golden rule of interpretation is to give the operative words their ordinary grammatical meaning and urged this Court to hold that there is no ambiguity in the certificate issued as the Registrar meant to say that the appellants have complied with the requirements. The following cases were cited in support of the submission U.B.N. Ltd v. Sax (Nig.) Ltd & Ors (1994) 8 NWLR (Pt.361) 150; L.R.C.I. v. Mohammed (2005) 11 NWLR (Pt.935) 1; Abalogu v. S.P.D.C Ltd (2003) 6 SCNJ 262; U.B.N. v. Nwaokolo (1995) 6 NWLR (Pt.400) 127; Al-Rissalah Printing & Publishing Co. Ltd & Ors v. El-Housseini & Ors (2007) LPELR 8543 (CA) and Kwara State Polytechnic, Ilorin v. Saliu (2012) LPELR 9595. Learned counsel further submitted that the issuance of the Notice to Parties of Record by the same Registrar cured any ambiguity that occurred in the certificate issued and since the 1st respondent waived his right to complain, the Court of Appeal could suo muto deem the appeal as being proper before the Court just as it considered the designated of the 1st appellant to be a misnomer who is suable and capable of
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being sued even without a formal application to amend the name.
On the second issue, learned counsel contended that from the National Drug Law Enforcement Agency Act, none of the names stated in the originating process is recognized by the statute and so each and every one of the appellants lacks the capacity to sue or be sued. This is because the law recognizes only two categories of persons who can sue or be sued namely:-
(a) Natural persons; and
(b) Juristic personalities. Reliance was placed on the following cases:-
A-G. Fed. v. A.N.P.P. (2003) 18 NWLR (Pt.851) 182): Alhaji Mailafia Trading and Transport Company Limited v. Veritas Insurance Company Limited (1986) 4 NWLR (Pt.38) 802: Abia State University v. Anyaibe (1996) 3 NWLR (Pt.4390) 649; Carlen v. University of Jos (1994) 1 NWLR (Pt.323) 631. Learned counsel submitted that the Courts have defined a juristic person as to be either a natural person i.e. a human being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation and invested with the capacity to sue and be sued e.g. the
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council of the University and Vice-Chancellor. See:Carlen v. Unijos supra. He submitted that from the ratio in the Carlen’s case, while the office was created by statute, it is the holder of the office that was given the power to sue or be sued but that is not the position in this case. He argued strenuously that the statute did not create any of the offices of –
(i) Chairman, chief executive, National Drug Law Enforcement Agency (NDLEA) Headquarters Lagos;
(ii) Zonal Commander, National Drug Law Enforcement Agency (NDLEA) Port Harcourt
(iii) Area Commander, National Drug Law Enforcement Agency (NDLEA), Aba.
Based on the arguments proffered under issue 2, learned counsel for the appellant while conceding that the law allows for amendment of a misnomer where the amendment sought to be effected seeks to correct the misnomer, however contended that it is not the case in this appeal. Relying on Njoku v. U.A.C. Foods (1999) 12 NWLR (Pt.632) 557 at 564; Nkwocha v. Federal University of Technology (1996) 1 NWLR (Pt.422) 112 where it was held that if a name has been identified as the corporate name of the juristic person, it is that name that such juristic
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person can sue or be sued, the condition for allowing the amendment to be carried out is where the name of the juristic person is incorrectly or incompletely written which is not the case in this appeal. The decision in Njoku v. U.A.C Foods supra that United African company Foods is not a juristic person and it will be wrong as well to substitute it by a juristic person applies to this case since the naming of the appellants is not a misnomer. He maintained that the facts placed before the Court in support of the application are not acts that NDLEA can commit and so NDLEA cannot be held vicariously liable because they are acts of a human being.
Learned counsel urged this Court not to allow the amendment and to strike out the appeal for the legal incompetence of the parties that were sued.
Learned counsel for the 1st respondent submitted that issue 1 in the appellant’s brief is not formulated from any ground of appeal. He said that no issue was formulated from ground 4 as the ground did not attack nor complain about the ratio in the judgment despite the claim by the learned counsel for the appellant that issue 1 was formulated from ground 4. And
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relied on the pronouncement of Onnoghen JSC (as he then was) in Shettima v. Goni (2012) 19 WRN 1 at 22 where he held as follows:-
“It is settled law that grounds of appeal must attack or complain about the ratio in the judgment on appeal while issue (s) is/are formulated from the grounds of appeal so filed and any issue for determination not arising from the grounds of appeal is deemed incompetent and liable to be struck out”.
He also cited two other cases in support of the argument namely,
Management Enterprises Ltd v. Odusanya (1987) 2 NWLR (Pt.55) 179 and Oniah v. Onyia (1989) 1 NWLR (Pt.99) 519. He produced both the ratio in the judgment of the Lower Court on the preliminary objection as contained on page 181 of the records and ground 4 in the amended Notice of Appeal pointing out the contents of the civil form 16 of the Court of Appeal Rules issued by the Registrar of the Federal High Court issued after the issuance of form 16 did not report non-compliance as was erroneously presumed but instead reported complete compliance with Order 3 Rules 10 and 11 of the Court of Appeal Rules. He urged this Court to strike
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the appellants from ground 4 since it was not distilled from the ground.
On the two issues contained in the 1st respondents brief, learned counsel for the 1st respondent dealing with the first issue referred to the arguments advanced by the parties on the preliminary objection and the resolution of the issue by the Court of Appeal and submitted that the Court of Appeal found the appeal to be incompetent and sustained grounds 1 and 2 of the Notice of Appeal but did not dismiss the appeal; rather it decided the merit of the appeal based on incompetent processes and contended that it is the practice that after upholding a preliminary objection to an appeal, this automatically terminates the appeal and leads to the striking out of the appeal. Learned counsel referred to the following cases in support of the argument:-
Ugba v. Suswam (2015) 1 WRN 1 at 49; Okonkwo v. UBA Plc (2011) 51 WRN 1 at 10; Contract Resources (Nig.) Ltd v. UBA Plc (2011) 49 WRN 1 at 10 and NEPA v. ANGO (2001) 17 WRN 142 at 154. He submitted on the authority of Edobor v. Imadegbelo (2012) 18 WRN 178 following Bakare v. Ibrahim (1971) 1 NMLR 50 at 52 which held that
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Order 3 Rules 20 enjoins the Court of Appeal to dismiss the appeal for noncompliance as mandatory. It leaves the Court with no discretion whether to dismiss or not to dismiss. The registrar who issues a certificate of non-compliance cannot extend time for the appellants to comply with the conditions of appeal and transmit the records without leave of the trial Court to the Court of Appeal. Learned counsel further argued that the settled law does not exempt the penultimate court from terminating an appeal after the sustenance of the preliminary objection on ground of incompetence of the records of appeal and brief of argument. He argued that the appellants did not give the respondent notice of issue 1 which was canvassed in the appellants’ brief and urged this Court to hold that issue 1 is incompetent and to strike out the said issue.
Learned counsel pointed out that the Lower Court declared the appeal of the appellants incompetent on two grounds and the appellants only appealed against ground 1 of the sustained preliminary objection, leaving ground 2 intact; so, that ground is still sustaining the preliminary objection which is binding since the effect of not appealing
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against a finding of the Lower Court in any of the grounds of appeal means that the findings remain rightly or wrongly the settlement of that issue as presented and relied on Nwokoro v. Onuma (1990) 5 NWLR (1990) 5 NWLR (Pt.136) 222; Michael v. State (2008) 5 6 (Pt.II) 203 and Standard Nigeria Engineering Co. Ltd v. NBCI (2006) 2-3 SC 74. He said the title of form 16 which states: Certificate as to noncompliance with condition imposed upon a would be appellant.
Order 3 Rule 20 is clear and unambiguous and so must be given their ordinary meaning and there is no basis on embarking on a voyage of discovery. He therefore urged this Court to resolve the issue in favour of the respondent and dismiss the appeal in its entirety.
Arguing issue 2, learned counsel submitted that the Lower Court was right to have held that the name of the offices used by the 1st respondent to sue the appellants was provided for and right in law. He argued that a community reading of Sections 2, 3, 4, 5, 6, 7 and 8 of the National Drug Enforcement Act CAP 30 LFN 2004 which provide for the responsibilities, powers and functions conferred on the
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appellants in this appeal are such that they can be sued directly for civil wrongs committed by or against the agency. His contention is that Section 8(4) of the Act specifically gave the agency power to appoint for each of the units a principal officer who shall be known by such designation as the Agency determine. The Court he argued did not consider any statute having a similar provision in C.O.P. Onodo State v. Obolo (1989) 5 NWLR (Pt.120) 130 and so that case is distinguishable from the present appeal.
The learned counsel for the 1st respondent adequately answered the question regarding an appeal where the registrar issues a certificate of non-compliance on Form 16 pursuant to Order 3 Rule 20(1) Court of Appeal Rules 2002. The said Order 3 Rule 20(1) provides:-
“If the appellant has not complied with any of the requirement of Rules 10 and 11 of this Order, the Registrar of the Court below shall certify such fact to the Court, which shall thereupon order that the appeal be dismissed either with or without costs and shall cause the appellant and the respondent to be notified of the terms of the order.”
Once a certificate of non- compliance has been issued, the
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Court must dismiss the appeal. This Court in Chief John Oyegun v. Chief Francis Arthur Nzeribe (2010) 7 NWLR (Pt.1194) 577 held per Adekeye JSC at p.593 that –
“The provisions of the Rules make it emphatic that prima facie they are meant to be obeyed and followed. In the circumstance of this case, the Rules of Court Order 3 Rule 20(1) directs that an appeal shall be dismissed in the event of non-compliance with the conditions of appeal. The reasons cannot be farfetched as non – compliance renders the appeal incompetent.”
Where the Registrar has issued the certificate of noncompliance, he cannot withdraw it by issuing another certificate showing the appellant has complied with the conditions of appeal. It is left for appellant’s counsel to take the necessary steps to apply for extension of time to comply with conditions of appeal. Alternatively, he may apply under Order 3 Rule 20 (4) for the relisting of the appeal after its dismissal under Order 3 Rule 20(1).
Since the Lower Court agreed with the submission of the learned counsel for the 1st respondent that the Notice of Appeal and the subsequent processes filed in respect of the
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appeal by the appellants are complete nullities, the Court should have struck out the appeal for being incompetent.
The Lower Court ought not to have considered the appeal on the merit since the record of appeal upon which the briefs of argument were based was not properly before the Court. The appeal to this Court is therefore incompetent and it is accordingly struck out. Parties are to bear their respective costs.
SC.280/2015
